[Federal Register Volume 91, Number 41 (Tuesday, March 3, 2026)]
[Proposed Rules]
[Pages 10450-10489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-04187]
[[Page 10449]]
Vol. 91
Tuesday,
No. 41
March 3, 2026
Part II
Nuclear Regulatory Commission
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10 CFR Parts 2, 51, 52, and 54
Streamlining Contested Adjudications in Licensing Proceedings; Proposed
Rule
Federal Register / Vol. 91, No. 41 / Tuesday, March 3, 2026 /
Proposed Rules
[[Page 10450]]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2, 51, 52, and 54
[NRC-2025-1501]
RIN 3150-AL58
Streamlining Contested Adjudications in Licensing Proceedings
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC, agency, or
Commission) is proposing to revise the agency's rules of practice and
procedure to streamline contested adjudications in NRC licensing
proceedings in response to the Accelerating Deployment of Versatile,
Advanced Nuclear for Clean Energy Act of 2024 (ADVANCE Act) and
Executive Order 14300, Ordering the Reform of the Nuclear Regulatory
Commission.
DATES: Submit comments by April 2, 2026. Comments received after this
date will be considered if it is practical to do so, but the Commission
is able to ensure consideration only of comments received before this
date.
ADDRESSES: Submit your comments, identified by Docket ID NRC-2025-1501,
at https://www.regulations.gov. If your material cannot be submitted
using https://www.regulations.gov, call or email the individuals listed
in the FOR FURTHER INFORMATION CONTACT section of this document for
alternate instructions.
Do not include any personally identifiable information (such as
name, address, or other contact information) or confidential business
information that you do not want publicly disclosed. All comments are
public records; they are publicly displayed exactly as received, and
will not be deleted, modified, or redacted. Comments may be submitted
anonymously.
Follow the search instructions on https://www.regulations.gov to
view public comments.
You can read a plain language description of this proposed rule at
https://www.regulations.gov/docket/NRC-2025-1501. 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: Michael Spencer, Office of the General
Counsel, telephone: 301-287-9115; email: [email protected] staff
of the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
SUPPLEMENTARY INFORMATION:
Executive Summary
A. Need for the Regulatory Action
The Accelerating Deployment of Versatile, Advanced Nuclear for
Clean Energy Act of 2024 (ADVANCE Act) was signed into law in July of
2024. The ADVANCE Act establishes requirements to enhance the NRC's
timeliness and efficiency, including a broad requirement for efficiency
through an updated Mission Statement.\1\ One provision specifically
addresses the hearing process, requiring the NRC (for certain combined
license applications) to among other things, complete ``any necessary
public licensing hearings and related processes'' not later than 2
years after docketing the application.
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\1\ ADVANCE Act of 2024, Public Law 118-67, div. B, Sec. Sec.
206, 207, 501, 504, 505, 506 (2024). For example, Section 506
requires the NRC to periodically improve its performance metrics and
milestone schedules for completing safety evaluations ``to provide
the most efficient metrics and schedules reasonably achievable.''
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Subsequently, in May of 2025, the President directed a series of
reforms to improve the agency's efficiency and effectiveness in
Executive Order (E.O.) 14300, ``Ordering the Reform of the Nuclear
Regulatory Commission.'' \2\ As relevant to this proposed rule, Section
5(j) of E.O. 14300 directs the NRC to streamline its public hearing
process. Relatedly, E.O. 14300 Section 5(a) directs the NRC to
establish fixed deadlines for its evaluation and approval of specified
licensing actions and requests, Section 5(d) directs the NRC to
establish an expedited approval pathway for reactor designs tested and
demonstrated by the Department of Defense (also referred to as the
Department of War) \3\ or the Department of Energy (DOE), and Section
5(e) directs the NRC to ``[e]stablish a process for high-volume
licensing of microreactors and modular reactors[.]''
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\2\ Executive Order No. 14300, ``Ordering the Reform of the
Nuclear Regulatory Commission,'' 90 FR 22587 (dated May 23, 2025;
published May 29, 2025).
\3\ The Department of Defense (DOD) was authorized to use the
secondary title, the Department of War (DOW), in September 2025 by
Executive Order. See Executive Order No. 14347, ``Restoring the
United States Department of War,'' 90 FR 43893 (dated September 5,
2025; published September 10, 2025).
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In response to Congressional and Executive action, the NRC has
developed this proposed rule focused on streamlining the agency's rules
of practice and procedure. The proposed changes to the contested
hearing process would reduce burden, increase clarity, and promote
efficiencies in line with the deadlines established in accordance with
the ADVANCE Act and E.O. 14300.
B. Major Provisions
Major provisions of this proposed rule include the following:
Revisions to the contested hearing process that would
enable the NRC to generally complete adjudications within 8 to 14
months or faster for expedited proceedings.
A requirement for evidentiary hearings to begin as soon as
practicable upon admission of contentions
Strict deadlines for the completion of hearings.
A revised process where participants would provide more
information on the merits of proposed contentions in their initial
filings to accelerate decision-making.
A reduction in discovery burden on all parties to reflect
the greater availability of information due to technological
developments.
Revisions to accelerate Commission review of appeals.
Elimination, refinement, or addition of provisions that
would accommodate the schedule directives of the ADVANCE Act and E.O.
14300.
C. Costs and Benefits
This proposed rule is considered to be a deregulatory action and
would reduce burden for both the government and hearing participants by
streamlining contested hearing proceedings. Over the 5-year analysis
period (2026-2030), the proposed revisions to contested hearings are
projected to yield savings for the public, the industry, and
government. The combined net savings would generate cumulative
undiscounted savings of $51.7 million. Using 2024 as the base year, the
net present value (NPV) of these net savings is $46.0 million,
discounted at 3 percent, or $39.6 million, discounted at 7 percent. The
projected annualized cost savings would be $9.8 million discounted at 3
percent, or $9.0 million discounted at 7 percent. These values
represent net savings, as implementation costs are expected to be
minimal.
For more information, please see the regulatory analysis included
later in this notice.
Table of Contents
I. Obtaining Information and Submitting Comments
A. Obtaining Information
B. Submitting Comments
II. Executive Order 14300: Ordering the Reform of the Nuclear
Regulatory Commission
III. Background
[[Page 10451]]
IV. Discussion
V. Specific Requests for Comments
VI. Regulatory Flexibility Certification
VII. Regulatory Analysis
VIII. Backfitting and Issue Finality
X. Plain Writing
X. National Environmental Policy Act
XI. Paperwork Reduction Act
XII. Regulatory Planning and Review
XIII. Availability of Guidance
XIV. Availability of Documents
I. Obtaining Information and Submitting Comments
A. Obtaining Information
Please refer to Docket ID NRC-2025-1501 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:
Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2025-1501.
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 ADAMS Public Search.''
For problems with ADAMS, please contact the NRC's Public Document Room
(PDR) reference staff at 1-800-397-4209, at 301-415-4737, or by email
to [email protected]. For the convenience of the reader,
instructions about obtaining materials referenced in this document are
provided in the ``Availability of Documents'' section.
NRC's PDR: The PDR, where you may examine and order copies
of publicly available documents, is open by appointment. To make an
appointment to visit the PDR, please send an email to
[email protected] or call 1-800-397-4209 or 301-415-4737, between 8
a.m. and 4 p.m. eastern time, 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-2025-1501 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. Executive Order 14300: Ordering the Reform of the Nuclear
Regulatory Commission
On May 23, 2025, President Donald J. Trump signed Executive Order
(E.O.) 14300, ``Ordering the Reform of the Nuclear Regulatory
Commission.'' Section 5, ``Reforming and Modernizing the NRC's
Regulations,'' requires the NRC to undertake a review and wholesale
revision of its regulations and guidance documents as guided by the
policies set forth in section 2 of the E.O. This rulemaking addresses
section 5(j), which requires the NRC to ``Streamline the public
hearings process,'' and also supports meeting the objectives of
sections 5(a), 5(d), and 5(e) of E.O. 14300, as discussed below.
III. Background
Since its inception, the Commission has periodically taken steps to
assess and improve the efficiency of its adjudicatory process, as
discussed in a 2004 rule (69 FR 2182, pages 2182 through 2186; January
14, 2004) (hereinafter ``2004 Adjudications Rule''). Generally, these
reforms have yielded less formal adjudications intended to reduce the
burden of litigation costs for all parties and remove procedural
mechanisms that are not essential to developing an adequate hearing
record. The Commission last finalized a major reformation of its
hearing processes in 2004 in anticipation of a significant volume of
new proceedings to consider applications for new facilities, to renew
operating licenses, to reflect restructuring in the electric utility
industry, and to license waste storage facilities.
The Commission now expects a similar increase in licensing
applications in coming years; and Congress and the President have
directed the NRC to prepare to review and process these applications as
expeditiously as possible. In 2024, Congress passed the ADVANCE Act,
which established requirements to enhance the NRC's timeliness and
efficiency that the NRC's licensing and regulation of the civilian use
of radioactive materials and nuclear energy be conducted in a manner
that is efficient and does not unnecessarily limit--(1) the civilian
use of radioactive materials and deployment of nuclear energy; or (2)
the benefits of civilian use of radioactive materials and nuclear
energy technology to society. Further, section 207(c) of the ADVANCE
Act specifically addresses the hearing process, requiring the NRC (for
certain combined license applications) to (1) complete safety and
environmental reviews not later than 18 months of docketing, (2)
complete ``any necessary public licensing hearings and related
processes'' not later than 2 years after docketing, and (3) make a
final decision on whether to issue the combined license not later than
25 months after docketing.\4\
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\4\ This expedited process applies to applicants for combined
licenses who meet certain requirements regarding, among other
things, the use of previously approved designs on existing
commercial reactor sites (or on substantially similar sites adjacent
thereto), as described in Sec. 207(b).
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Building on the ADVANCE Act, the President signed E.O. 14300
``Ordering the Reform of the Nuclear Regulatory Commission,'' on May
23, 2025 (90 FR 22587; May 29, 2025). Section 3 of E.O. 14300 directs
the NRC to consider the benefits of increased availability of, and
innovation in, nuclear power to the nation's economic and national
security in addition to safety, health, and environmental
considerations, when the NRC carries out its licensing and related
regulatory functions. In furtherance of the President's directive, E.O.
14300 tasks the NRC with streamlining its licensing and public hearing
process. As relevant here, section 5 of E.O. 14300 directs the NRC, to
work with its Department of Government Efficiency (DOGE) Team, the
Office of Management and Budget (OMB), and other executive departments
and agencies as appropriate, to undertake a review and wholesale
revision of its regulations and guidance documents. Section 5
establishes specific tasks this effort must encompass, including
streamlining the public hearings process, as directed by section 5(j).
Relatedly, Section 5(a) of the E.O. directs the NRC to establish
fixed deadlines for its evaluation and approval of specified licensing
actions and other requests from a licensee or potential licensee rather
than nonbinding generic milestone schedule guidelines. These deadlines
include taking no more than 18 months to make a final decision on an
application to construct and operate a new reactor of any type and
taking no more than 1 year
[[Page 10452]]
to make a final decision on an application to continue operating an
existing reactor of any type. Section 5(a) also requires the NRC to
adopt shorter deadlines tailored to particular reactor types or
licensing pathways as appropriate. Because the timeframes in E.O. 14300
are shorter than those in the ADVANCE Act, meeting the timeframes in
E.O. 14300 will generally also ensure compliance with the ADVANCE Act.
In addition, section 5(e) of the E.O. directs the NRC to establish a
process for high-volume licensing of microreactors and modular
reactors, and section 5(d) of the E.O. directs the NRC to establish an
expedited pathway to approve reactor designs that the DOW or the DOE
have tested and that have demonstrated the ability to function safely.
In some cases, completing licensing decisions within the E.O.-
directed timeframes will turn on timely completion of a contested
adjudication. However, the Commission's current hearing procedures in
10 CFR part 2 provide deadlines and milestones that would collectively
exceed the timeframes specified in E.O. 14300 in most cases by a
significant margin. 10 CFR part 2, appendix B, ``Model Milestones.''
And experience has shown that these milestones, which are not binding,
are sometimes substantially exceeded in practice. Therefore, the
Commission proposes to revise its hearing procedures to support faster
adjudications that will enable the agency to meet the licensing
timelines contemplated by the ADVANCE Act and E.O. 14300. Based on past
experience, the NRC believes that the proposed adjudicatory deadlines
would provide reasonable timeframes for parties to meaningfully raise,
and the presiding officer to resolve, disputed issues. These revisions
would continue the overall trend, described previously, of reducing the
formality in NRC adjudications to enhance efficiency.
The NRC's predecessor agency, the Atomic Energy Commission, at one
time believed that the Atomic Energy Act of 1954, as amended (AEA),
required formal adjudicatory hearings in all cases (2004 Adjudications
Rule, 69 FR 2182, page 2183; January 14, 2004). Now the prevailing view
is that, with the exception of hearings on applications for licenses to
construct and operate uranium enrichment facilities, informal hearings
will also satisfy the AEA. (2004 Adjudications Rule, 69 FR 2182, pages
2183 through 2186; January 14, 2004). On balance, these amendments
would generally use simpler, more informal processes and shorter
schedules to complete adjudications within the timeframes contemplated
in the ADVANCE Act and E.O. 14300.
The Commission has chosen to use a Licensing Board as the default
presiding officer for contested licensing proceedings, including
license transfers, because Boards are independent and statutorily
established, possess legal and technical expertise, and are well placed
to efficiently conduct NRC licensing proceedings given their experience
and ability to focus exclusively on adjudicatory matters. Considering
the wide variety of situations a Board could face after a contention is
admitted, the presiding officer would have considerable flexibility to
select the appropriate procedures for resolving disputed issues within
strict timeframes proposed by this rulemaking. For example, these
proposed procedures would continue to rely primarily on written
pleadings and statements to maintain clarity and precision in the
record, although the presiding officer would have the flexibility to
convene oral proceedings when necessary.
These revisions would frontload the hearing process by generally
requiring parties to provide more information on the merits of proposed
contentions when filing their initial pleadings and would then require
evidentiary hearings on any admitted contentions to be held as soon as
practicable thereafter. To support more efficient and timely resolution
of admitted contentions in certain circumstances, the procedures would
still provide for motions to dismiss contentions prior to an
evidentiary hearing.
These proposed procedures would also address new or amended
contentions filed later in the NRC's review process to ensure that the
NRC is still able to complete adjudications in a timely manner. The
Commission proposes three significant revisions to accomplish this
goal.
First, in light of the dynamic nature of our licensing process,
parties frequently file new or amended contentions throughout NRC
adjudications, often in response to amended applications or other new
information. To accommodate these filings within the necessary E.O.
14300 timelines, the proposed revisions would establish deadlines the
presiding officer must use in setting hearing schedules that will
provide sufficient time to (1) fully litigate an initial round of
contentions (including an evidentiary hearing on any admitted
contentions) and (2) fully litigate a second round of contentions
through an evidentiary hearing on those contentions, even if there is
no overlap between the rounds of litigation.
Second, the Commission recognizes that, in rare instances critical
issues could arise sufficiently late in a proceeding to challenge the
E.O. 14300 timelines for a decision on the application. To ensure that
only critical issues have the potential to be admitted late in the
proceeding, these revisions would establish a Standard Record Closure
Date, which would generally be the date the presiding officer would be
expected to enter an initial decision after an evidentiary hearing on
the first round of contentions, assuming that the evidentiary hearing
phase immediately commences upon the admission of the contention.
Contentions filed after the Standard Record Closure Date would need to
additionally meet the agency's standards for reopening the record,
which will ensure those contentions raise critical issues.
Third, to avoid the prospect of parties filing contentions very
late in a proceeding that would potentially delay licensing, these
revisions would establish that new or amended contentions would not be
considered pending before the agency until the presiding officer finds
there is good cause for submitting these contentions after the
prescribed initial filing deadline for contentions (i.e., that they
have been timely submitted based on new, materially different
information). This proposal would, as discussed later in this notice,
eliminate the possibility of parties delaying licensing in certain
proceedings simply by filing a new or amended contention.
As stated previously, the Commission proposes to establish hearing
schedules that would allow for two non-overlapping hearings to be
conducted within the 18-month and 1-year E.O. 14300 timelines; one
hearing for contentions submitted by the initial filing deadline for
contentions and a second hearing held thereafter on a new or amended
contention arising later in the review. The revisions to part 2
primarily accomplish this acceleration by requiring the presiding
officer to commence the evidentiary hearing as soon as practicable
after admitting contentions. In contrast, evidentiary hearings
generally do not begin under the current rules until after the staff
completes its review. This proposal also reflects the Commission's
understanding that the E.O.'s discussion of fixed deadlines for the
NRC's evaluation and approval to support a final decision on the
application refers to the agency's approval of the licensing action or
other request if the NRC's evaluation determines that pertinent
requirements are met. Given this understanding, the changes in this
[[Page 10453]]
proposed rule focus on ensuring that there is a final presiding officer
decision on all contested issues within the E.O. 14300 timelines as
these decisions have immediate effect by default, regardless of the
pendency of appeals. As such, the presiding officer's decision would
allow the licensing decision to be made even in circumstances where the
AEA requires a hearing to be completed before the issuance and
effectiveness of a license. Consequently, in this proposed rule, the
appeals process occurs outside of the scope of the fixed deadlines
outlined in Section 5(a) of Executive Order 14300. Nonetheless, the NRC
proposes to streamline the appeals process to support the overarching
goals of the ADVANCE Act and E.O. 14300. The revisions to part 2 would
accomplish this by making small changes to the filing deadlines for
appeals and establishing standard milestones for issuance of final
Commission decisions on appeals. As a result, in many (if not most)
cases, the appeals process would also be completed within the E.O.-
directed 18-month or 1-year timelines.
Finally, while the Commission expects these revisions would
substantially improve the efficiency of NRC contested licensing
adjudications, they would not constitute a wholesale rewrite of part 2,
and many proceedings such as enforcement proceedings, proceedings on
denials of applications, or proceedings for construction or operation
of a high-level waste geological repository would only be minimally
impacted. Proceedings under 10 CFR 52.103 would also be minimally
impacted by the proposed changes because the procedures for such
hearings are established by case-specific order, and the NRC will
consider modifications to the existing standard procedures for these
proceedings in a separate process. Further, separate from this proposed
rule, the NRC is also considering potential changes to the agency's
mandatory hearing process to further increase efficiency and support
meeting the deadlines in the ADVANCE Act and E.O. 14300. Relatedly,
under a separate proposed rule, the NRC also intends to consider
potential changes to the agency's implementation of the National
Environmental Policy Act (NEPA), which, among other changes, could
impact the scope of issues that may be permissible for adjudication in
contested hearings. The changes proposed in this rule are a series of
targeted amendments intended to ensure timely and efficient contested
adjudication for most NRC licensing actions.
IV. Discussion
To achieve the objectives described previously, the Commission
proposes to amend 10 CFR part 2 in the following areas:
Changes to Definitions in 10 CFR 2.4
The NRC proposes changes to four of the definitions in 10 CFR 2.4.
Proposed revisions to the definitions of ``contested proceeding'' and
``potential party'' are related to matters discussed in more detail
later in this notice. The NRC proposes to modify the definition of
``contested proceeding'' to conform to proposed changes to 10 CFR
2.309(c) regarding motions for leave to file hearing requests,
intervention petitions, and contentions after the deadline established
for such submissions (collectively ``challenges after the deadline''),
in particular to reflect that until the motion for leave to file is
granted upon a showing of good cause, the challenge after the deadline
would not be considered pending before the NRC. Nonetheless, while the
motion is pending before the NRC, it would still be considered within
the scope of the contested proceeding since the purpose of the motion
is to seek permission to file a challenge after the deadline to contest
the application. The NRC also proposes to revise the definition of
``potential party'' by removing references to subpart M of part 2,
which currently governs proceedings on license transfer applications.
Many recent license transfer applications raise technical issues on
decommissioning the Commission did not intend subpart M to address.
Therefore, the NRC proposes to eliminate subpart M and conduct license
transfer proceedings under the more general subpart L.
The NRC proposes to add a new definition of ``highly expedited
proceeding'' to reflect proposed changes elsewhere in part 2 (in Sec.
2.309, Sec. 2.323, and subpart L) that would apply shorter timeframes
to filings and decisions in proceedings that need to be conducted on an
even more expedited basis than the other reviews the NRC would
typically handle. As reflected in the standard schedules on the NRC
website at https://www.nrc.gov/about-nrc/generic-schedules.html, the
NRC currently intends to apply an 18-month or 12-month review schedule
to most types of applications it receives. However, some applications
would have a significantly shorter anticipated review schedule. For
example, measurement uncertainty recapture uprate license amendments
currently have a 6-month review schedule, and amendments adopting a
Technical Specifications Task Force traveler using the Consolidated
Line-Item Improvement Process currently have a 7-month review schedule.
The NRC proposes to include these two types of applications within the
definition of ``highly expedited proceeding'' to reflect the shorter
review schedules and focused natures of these reviews.
The NRC might designate other types of applications as highly
expedited proceedings. For example, in accordance with E.O. 14300
section 5(e), the NRC intends to conduct a rulemaking to establish a
process for high-volume licensing of microreactors and modular
reactors. As part of that rulemaking, the NRC might include certain
applications under E.O. 14300 section 5(e) within the definition of
``highly expedited proceeding.'' Independent of the NRC's efforts
pursuant to E.O. 14300 section 5(e), the NRC might later decide to
include an application or a class of applications within the scope of
``highly expedited proceedings.'' To provide flexibility and otherwise
account for potential changes to NRC review schedules and processes
over time, the proposed definition of ``highly expedited proceeding''
would include any proceeding that the Commission designates as a highly
expedited proceeding; such designations could be done outside a
rulemaking process.
Finally, the NRC also proposes to add a new definition of
``Standard Record Closure Date'' to 10 CFR 2.4 to support proposed
changes elsewhere in this notice regarding standards and schedules for
filing challenges after the deadline later in the proceeding. As
discussed later, the NRC considers it appropriate to apply the
reopening criteria and an expedited evidentiary schedule to such
challenges if the associated contention is admitted for hearing. The
NRC proposes to apply these provisions after the point in the
proceeding in which the NRC could have completed an evidentiary hearing
in the hypothetical situation where a contention filed by the deadline
for contentions in 10 CFR 2.309(b) is both admitted for hearing and
proceeds to an evidentiary hearing immediately after the admission of
the contention, consistent with the NRC's proposed policy of holding
evidentiary hearings as early as practicable. This point of the
proceeding would be termed the Standard Record Closure Date because the
record of the proceeding would be closed with respect to the
introduction of new or amended contentions into the proceeding. Because
the proposed regulations define the time in which (1) contentions,
answers, and replies are to
[[Page 10454]]
be filed, (2) when decisions on contention admissibility are due, and
(3) when initial decisions after an evidentiary hearing are to be
issued, the NRC is able to compute the Standard Record Closure Date for
different types of proceedings, and the NRC proposes to include the
Standard Record Closure Dates for these proceedings in proposed 10 CFR
2.1207 and in Federal Register notices announcing an opportunity to
request a hearing, as discussed later in this notice. The proposed
definition of ``Standard Record Closure Date'' in 10 CFR 2.4 would
define how the date is calculated, consistent with the description in
this paragraph.
Representation by Those Who Are Not Attorneys
The NRC proposes to revise 10 CFR 2.314(b) to eliminate
representation of partnerships, corporations, unincorporated
associations, and other persons by those who are not attorneys.
Currently, Sec. 2.314(b) allows a duly authorized member or officer
(even if not an attorney) to represent a partnership, corporation, or
unincorporated association. The NRC also allows state and local
government bodies to be represented by duly authorized persons who are
not attorneys, as discussed in a 2007 denial of a petition for
rulemaking (72 FR 73676; December 28, 2007). However, as explained in
the following paragraphs, such representation is not required by law
and is not consistent with the timeliness or efficiency objectives of
the ADVANCE Act and E.O. 14300. With the proposed changes, only an
individual would be allowed to appear on his or her own behalf.
Federal agencies are not required by law to allow representation by
non-attorneys in their adjudicatory proceedings. For example, 5 U.S.C.
500 states that a person before an agency may be represented by an
attorney in good standing with a State bar but also provides that this
statutory provision does not (for most agencies, including the NRC)
grant or deny the right of a non-attorney to appear for or represent a
person before an agency. Similarly, the Administrative Procedure Act
(APA) provision on representation, 5 U.S.C. 555(b), states that it does
not grant or deny a person who is not a lawyer the right to appear for
or represent others before an agency or in an agency proceeding.
In addition, participants in NRC proceedings need to diligently
adhere to the NRC's hearing requirements to meet the timeliness and
efficiency goals in the ADVANCE Act and E.O. 14300. Successfully
navigating the NRC's hearing process necessitates substantial legal
knowledge and skill, particularly given the accelerated schedules
proposed in this rule. Although less formal than a federal court trial,
NRC proceedings employ processes common in trials (like standing,
motions, disclosures, evidentiary standards, testimony, proposed
findings of fact and conclusions of law, stay requests, and appeals).
Also, the meaning of many terms in the NRC's hearing regulations are
established by case law. In these ways, the NRC's hearing process
shares features with federal court proceedings, where a non-attorney
individual may appear on his or her own behalf but may not represent
other individuals or entities. It has been recognized that non-attorney
representation might be inappropriate for ``highly technical'' disputes
requiring ``specialized knowledge.'' \5\
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\5\ See page 71 of the 2019 report ``Federal Administrative
Adjudication Outside the Administrative Procedure Act'' prepared by
Michael Asimow for the Administrative Conference of the United
States.
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These concerns are not merely theoretical. Experience has shown
that in many NRC proceedings, non-attorney representatives have
demonstrated a lack of understanding of the NRC's procedural
requirements, made arguments that are not cognizable in the hearing
process, submitted procedurally impermissible filings, and failed to
clearly articulate claims. The time and resources needed to address
such issues are not consistent with timely and efficient adjudicatory
proceedings that are necessary to meet the objectives of the ADVANCE
Act and E.O. 14300. Limiting representation to attorneys should lead to
clearer, more professional, and more procedurally compliant filings
that will help support the NRC's timeliness and efficiency goals.
For these reasons, the NRC proposes to revise Sec. 2.314(b) to
provide that only individuals may appear on their own behalf and that
all other ``persons'' (a term that is broadly defined in 10 CFR 2.4)
may be represented only by an attorney-at-law. As a conforming change,
the NRC proposes to revise the last sentence of 10 CFR 2.314(b) to
eliminate discussion of matters related solely to representation by
those other than attorneys.
Consistent with federal court practice, the NRC's regulations would
continue to allow individuals to appear on their own behalf, even if
they are not attorneys. As discussed in a 2020 decision in the Vogtle
proceeding (CLI-20-6, 91 NRC 225), the Commission has given greater
latitude to hearing requests submitted by non-attorney intervenors
while acknowledging that non-attorney petitioners are still expected to
comply with our procedural rules.
Requirements for Publication of Federal Register Notices Announcing an
Opportunity To Request a Hearing, Petition To Intervene, and/or File
Contentions
The NRC proposes several changes to the regulations in 10 CFR
2.101, 2.104, and 2.105 regarding the publication of Federal Register
notices announcing an opportunity to request a hearing, petition to
intervene, and/or file contentions. First, the NRC proposes to
generally notice these hearing opportunities as early as practicable.
The hearing process may not reasonably be initiated before the NRC
staff accepts the application for review (i.e., dockets the
application), but noticing the hearing opportunity as early as
practicable thereafter would accelerate issue identification and
resolution and could help mitigate any unavoidable delays that may
occur later (e.g., from illness of counsel or a witness). For certain
proceedings, 10 CFR 2.104(a) already requires the staff to issue the
hearing notice ``as soon as practicable after the NRC has docketed the
application.'' With one exception, the NRC proposes changes to 10 CFR
2.104 and 2.105 to expand this requirement to publish notices as soon
as practicable to other Federal Register notices announcing a hearing
opportunity in order to accelerate the initiation of the adjudicatory
process, with a conforming change to 10 CFR 2.101(f)(5). The exception
pertains to notices of proposed action subject to the requirements of
10 CFR 50.91. Notices under 10 CFR 50.91 are for proposed amendments to
specified production and utilization facility licenses, which are
generally published on a monthly basis given their volume. Given the
high volume, it would not be practical to publish individual Federal
Register notices subject to 10 CFR 50.91 for the subject licensing
actions. Also, only a small number of these amendments are challenged
in the hearing process, and the associated licensing actions may be
taken during the pendency of a hearing if the NRC makes a final no
significant hazards consideration determination.
Second, the NRC proposes to modify 10 CFR 2.104 and 2.105 to
provide that Federal Register notices announcing a hearing opportunity
must provide additional clarity by stating the Standard Record Closure
Date specified in 10 CFR 2.1207 and the additional filing deadline
information required by 10 CFR 2.309(b)(5). The basis for this
[[Page 10455]]
change is described later in this notice in the context of proposed
changes to 10 CFR 2.309 requirements for hearing requests, intervention
petitions, and contentions.
Good Cause for Extensions of Time
Meeting the licensing deadlines contemplated in the ADVANCE Act and
E.O. 14300 will require strict adherence to the schedules described in
the rule. 10 CFR 2.307 currently provides that the time periods in part
2 may be extended upon a showing of good cause. However, in recent
years the NRC has frequently granted extensions based on ordinary
circumstances, such as the complexity of reactor licensing applications
or parties' litigation obligations in other proceedings, as in a June
29, 2018, Order of the Secretary in the Turkey Point proceeding
(ML18180A185).
To ensure that extension requests do not undermine timely
adjudications, the NRC proposes to further define good cause in Sec.
2.307. Because good cause is necessarily context specific, the
revisions would cover two circumstances. First, as the Commission has
previously explained in a 2012 rule (77 FR 46562; August 3, 2012), good
cause in the context of Sec. 2.307 should constitute ``extraordinary''
events that are not within the parties' control, such as sickness or
weather. Major holidays could similarly be an extraordinary
circumstance. Thus, in normal circumstances the presiding officer
should only grant an extension when a circumstance outside of the
ordinary occurs that is not brought on by the movant's actions or
inactions.
Second, with the ADVANCE Act and Executive Order 14300, efficient
and timely decision-making on license applications is a key focus area
for the agency. Therefore, in circumstances when an extension request
has the demonstrated potential to delay an entire adjudicatory
proceeding past the NRC staff's scheduled date to complete its review,
then the extension request would be required to meet a higher standard.
In those circumstances, the presiding officer would only grant the
extension upon finding unavoidable and extreme circumstances. While
reviewing courts have determined that this is a reasonable extension of
the good cause standard, National Whistleblower Center v. Nuclear
Regulatory Commission, 208 F.3d 256, 262-63 (D.C. Cir. 2000), the NRC
has not regularly applied this standard in recent years. The
application of this standard should ensure that the presiding officer
only extends deadlines that could challenge the overall schedule for an
adjudication in response to rare, unforeseeable, and serious events.
For example, a presiding officer in the McGuire/Catawba proceeding
(LBP-01-31, 54 NRC 242) previously found unavoidable and extreme
circumstances justified extending the time to file hearing requests
when security information was unavailable shortly after the terrorist
attacks of September 11, 2001.
Finally, to ensure that extension requests do not undermine the
NRC's timeliness goals for adjudication, the presiding officer should
only grant the extension request for the minimum amount of time
necessary to accommodate the circumstances giving rise to good cause.
Requirements for Hearing Requests, Intervention Petitions, and
Contentions
The NRC proposes to revise its regulations for hearing requests,
intervention petitions, and contentions to (1) eliminate discretionary
intervention, (2) refine but not raise the contention admissibility
criteria, (3) account for the NRC's proposal for most licensing
proceedings, in which more information on the merits of proposed
contentions would be provided in the litigants' initial filings
(contention submissions, answers, and replies), (4) accelerate filing
and decision deadlines consistent with the ADVANCE Act and E.O. 14300,
and (5) clarify and strengthen the requirements for hearing requests,
intervention petitions, and new or amended contentions filed after the
deadline in 10 CFR 2.309(b) (i.e., ``challenges after the deadline'').
An underlying theme for several of these proposed changes is that
the NRC proposes to take a more tailored approach to timeframes for
initial filings and decisions thereon to account for specific types of
applications rather than the more one-size-fits-all approach in the
current regulations, where the same time is provided for contentions on
shorter or simpler applications as on longer or more complex
applications. The proposed timeframes would provide sufficient time for
parties to meaningfully raise disputed issues in the type of proceeding
at issue and for the presiding officer to determine whether the
standing and contention requirements are met. Using more tailored
hearing timelines is consistent with direction in NEIMA section 102(c),
ADVANCE Act section 504, and E.O. 14300 section 5 regarding specified
timelines for different types of NRC reviews. To do this, the NRC
proposes to establish several basic timeframes for different types of
proceedings so that the NRC's hearing regulations are clear and
manageable and provide greater flexibility, while recognizing that it
would be impractical to establish a multitude of timeframes for every
type of proceeding and constantly modify hearing processes and
regulations to account for the different NRC decision-making schedules
as they are updated over time. In addition, as discussed later, the NRC
proposes to require the presiding officer in each proceeding to
establish a hearing schedule that, to the greatest extent practicable,
will not extend past the NRC staff's scheduled date for completing its
review of the application. This provision could, for example, address
an expedited NRC review under E.O. 14300 section 5(d) of a reactor
design tested and demonstrated by DOE or DOW.
For clarity, the NRC proposes to add a new Sec. 2.309(b)(5) (with
cross-references in Sec. Sec. 2.104 and 2.105) requiring Federal
Register notices announcing an opportunity for hearing to specify the
applicable filing deadlines for hearing requests, intervention
petitions, and contentions (including those filed after the Sec.
2.309(b)(1)-(b)(3) deadlines), and the applicable deadlines for the
associated answers and replies. These notices would also be required to
specify the Standard Record Closure Date for the proceeding, which
would be important information for application of the proposed revision
of the reopening requirements in Sec. 2.326 and certain proposed
scheduling provisions in subpart L, as explained later in this notice.
The NRC proposes to revise 10 CFR 2.309 to eliminate discretionary
intervention because (a) the NRC is not required to grant party status
to those who do not demonstrate standing since the mandated hearing
opportunity in AEA section189a. is for ``any person whose interest may
be affected'' and the NRC has historically required a showing of
standing to demonstrate the requisite interest,\6\ (b) discretionary
intervention has rarely been allowed in practice,\7\
[[Page 10456]]
and (c) spending time and resources assessing discretionary
intervention requests is not conducive to meeting the efficiency and
timeliness goals of the ADVANCE Act and E.O. 14300.
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\6\ The Commission explained this historical approach in a 2020
decision in the Bellefonte proceeding (CLI-20-16, 92 NRC 511).
\7\ The NRC has identified two proceedings in which Licensing
Boards have granted discretionary intervention since the last major
reform of the NRC's hearing process in 2004. In a 2009 decision in
the High-Level Waste Repository proceeding (LBP-09-6, 69 NRC 367),
the Licensing Board found that the Nuclear Energy Institute had met
the discretionary intervention factors but had also established
standing; hence granting discretionary intervention made no
difference in that case. In the Andrew Siemaszko enforcement
proceeding, the Licensing Board's granting of discretionary
intervention was overturned by the Commission on appeal in a 2006
decision (CLI-06-16, 63 NRC 708). Further, in this 2006 decision,
the Commission stated the NRC had not granted a request for
discretionary intervention in the previous dozen years. Thus, the
availability of discretionary intervention has made little practical
difference in the last three decades of NRC adjudicatory practice.
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The NRC also proposes to refine the contention admissibility
criteria in two ways. First, the NRC proposes to augment the
requirement in Sec. 2.309(f)(1)(iv) to demonstrate that a contention
is material by requiring the petitioner to specify the legal
requirement on which the contention is based. Specifying the pertinent
legal requirement is important for demonstrating the materiality of the
contention, and clarity in this regard can avoid needless confusion
about the legal basis for a contention (e.g., safety versus
environmental requirements) and the inefficiencies that accompany
efforts to resolve such confusion. Second, the NRC proposes revising
Sec. 2.309(f)(1)(vi) to require the petitioner to clearly indicate
whether a contention is one of omission or adequacy. Different
requirements apply to contentions of omission versus contentions of
adequacy, and a lack of clarity regarding the nature of the contention
requires additional resources from the NRC staff, applicant, and
presiding officer to cover all the bases.
The NRC also proposes to revise Sec. 2.309 to reflect a proposal
to modify the content and schedule for litigants' initial filings in
proceedings for the grant, renewal, licensee-initiated amendment,
termination, or transfer of licenses or permits (except for a high-
level waste repository proceeding under part 2, subpart J; a proceeding
for granting a license to construct and operate a uranium enrichment
facility; or a proceeding on a denial of an application). Under this
proposal, standing would be assessed separately from contention
admissibility, and more information on the merits of contentions would
be provided in the litigants' initial filings on contentions (i.e.,
proposed contentions, answers, and replies) in order to more
expeditiously resolve contentions and avoid protracted evidentiary
hearings. The following changes would be made to Sec. 2.309 for the
identified licensing proceedings: \8\
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\8\ The following changes would not apply, however, to the three
types of proceedings identified as exceptions earlier in this
paragraph.
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A hearing request would be granted if the requestor shows
standing, and contention admissibility would be assessed separately in
a parallel but less accelerated process. If a petitioner's hearing
request is granted, the presiding officer would then determine whether
the petitioner's proposed contentions are admissible. If a petitioner's
hearing request is denied, the petitioner's proposed contentions would
not be further addressed in the adjudicatory proceeding. Because a
hearing request would be required only to show standing, an expedited
schedule is proposed for hearing requests and associated filings and
decisions. By accelerating filings and decisions on standing, the
participants and presiding officer could save resources litigating
contentions in proceedings where standing has not been demonstrated.\9\
Hearing requests would be due within 30 days of the Federal Register
notice announcing the hearing opportunity, except for license
transfers, where the existing 20-day period would be retained.\10\ In
most proceedings, answers to hearing requests would be due within 10
days of the hearing request, replies would be due within 7 days of the
service of answers, and the presiding officer's decision would be due
within 20 days of the filing of replies. However, no reply would be
permitted in highly expedited proceedings because there is no statutory
right to file a reply to an answer to a hearing request, and the
prohibition on replies to answers in highly expedited proceedings is
consistent with the existing prohibition in Sec. 2.309(i)(2) on
replies to answers in proceedings under 10 CFR 52.103, which are highly
expedited proceedings on whether acceptance criteria in the
inspections, tests, analyses, and acceptance criteria (ITAAC) in
combined licenses are met.
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\9\ However, any resource savings would be limited somewhat
because litigation of contentions would proceed in parallel with
litigation of standing, albeit on a longer schedule. Based on the
proposed schedules, in cases where the presiding officer determines
that standing has not been shown, there may be resource savings
associated with the filings of answers and replies on contentions,
oral argument on contentions (if held), and presiding officer
decisions on contentions.
\10\ A 30-day period would be used for highly expedited
proceedings on license and license amendment applications for
production and utilization facilities under AEA sections 103 and
104b. and on testing facilities under AEA section 104c. because of
the 30-day notice provisions for such facilities in AEA section 189.
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The NRC also proposes to accelerate the consideration of
the merits of proposed contentions. Under the current process, the
initial filings and decision on proposed contentions are focused on
identifying issues where an ``inquiry in depth'' is appropriate,\11\
which would occur during a later, more involved evidentiary hearing
process that has historically taken substantial time and resources to
complete. These initial filings and the associated contention
admissibility decision also involve a great deal of time and effort,
and it could be more efficient to use this phase of the proceeding for
a more in-depth exploration of the contested issues up front, which
should better focus an evidentiary hearing, if one is held. Therefore,
for proceedings involving the grant, renewal, licensee-initiated
amendment, termination, or transfer of licenses or permits (except for
a high-level waste repository proceeding under part 2, subpart J; a
proceeding for granting a license to construct and operate a uranium
enrichment facility; or a proceeding on a denial of an application),
the NRC is proposing that the applicant (and, as applicable, the NRC
staff) would file merits-based views in answers to proposed
contentions, including the submission of supporting evidence, with the
petitioner being able to reply to these views with additional
supporting evidence. If proposed contentions are admitted, subsequent
litigation on them could be conducted more swiftly than under the
current process since more evidentiary material and related argument
would have been submitted, and each party would thereby have a better
understanding of the positions being taken on the contentions, which
would allow their initial testimony and position statements to be more
focused. Regarding specifics, under the new proposed hearing format,
(a) answers to contentions from the applicant must (and answers to
contentions from the NRC staff may) address the merits of the
contentions, including submission of evidence and affidavits, in
addition to addressing the contention admissibility criteria,\12\ (b)
petitioners' replies could address the answers' factual arguments on
the merits with additional evidence,\13\ and (c) litigants would have
[[Page 10457]]
to file documents (except those already in ADAMS) and affidavits
supporting their factual arguments, with an affidavit detailing the
individual's knowledge of the facts alleged or expertise in the
discipline(s) appropriate to the issues raised. Requiring the
submission of supporting evidence and affidavits is fundamental to the
proposal to accelerate the hearing process by building on the
substantial evidentiary submissions in the initial filings. The
contention standards and criteria would not be changed by this
requirement, and the presiding officer would not consider information
pertaining to the merits of the contentions until after issuing a
decision to admit or otherwise narrow the scope of the contentions.\14\
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\11\ Rules of Practice for Domestic Licensing Proceedings--
Procedural Changes in the Hearing Process, 54 FR 33 168, 33 171
(Aug. 11, 1989) (final rule).
\12\ Addressing the merits would be optional for the NRC staff;
the staff would have flexibility to address only contention
admissibility factors, consistent with its existing flexibility on
whether to participate in the proceeding at all. This would provide
the staff flexibility to make strategic resource decisions to
maintain its review schedule. However, in highly expedited
proceedings, the staff would be expected to address the merits of
contentions in their answers to the extent practical to support the
accelerated review and hearing schedule.
\13\ Currently, a reply may not be used to add new documentary
support for contentions, as illustrated by the Commission's 2006
decision in the Palisades proceeding (CLI-06-17, 63 NRC 727). Under
this proposal and consistent with current case law, replies could
not expand or modify the scope of the proposed contention or provide
factual support that could have been provided in the original
contention but was not. As the Commission emphasized in its 2004
decision in the National Enrichment Facility proceeding (CLI-04-25,
60 NRC 223), the contention admissibility and timeliness
requirements demand a level of discipline and preparedness on the
part of petitioners, who must examine the publicly available
material and set forth their claims and the support for their claims
at the outset. The Commission further explained that replies may not
raise new arguments and should be narrowly focused on the legal or
logical arguments in the answers to the hearing request.
\14\ These changes would not be expected to substantially affect
the burden associated with filing proposed contentions because they
are consistent with the existing requirement in Sec. 2.309(f)(1)(v)
to factually support contentions with documentary and expert
support. Also, NRC case law establishes the relevance of expert
qualifications to contention admissibility determinations, e.g., the
Commission's 2010 decision in the Levy County proceeding (CLI-10-2,
71 NRC 27). Further, many relevant documents would already be in
ADAMS, and petitioners already routinely submit supporting
documents, including signed expert declarations that detail the
asserted qualifications of the expert. The NRC anticipates some
additional burden associated with the filing of expert declarations
in answers to contentions and in replies to answers, but in many
cases experts are already supporting the litigants' preparation of
their answers and replies, and accelerating the resolution of
contested issues should bring about a compensating burden reduction
for those contentions that are admitted.
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Under Sec. 2.309(b), contentions would be due within set
time periods after publication of the Federal Register notice
announcing the hearing opportunity depending on the type of
application. As reflected in Table 1, the NRC would retain the standard
60-day filing period for the most complex applications, a 20-day filing
period would be provided for transfer applications (consistent with
current requirements), a 30-day filing period would be provided for
highly expedited proceedings, and a 45-day filing period would be
provided for all other applications. The most complex applications
would be those for (1) a construction permit, an initial operating
license, or an initial combined license under 10 CFR parts 50 or 52 for
a commercial production or utilization facility, where the application
does not reference a design certification or manufacturing license; or
(2) a license to construct and/or operate a uranium recovery or fuel
cycle facility under part 40 or part 70. Applications covered by the
45-day filing period would include 10 CFR part 54 power reactor license
renewals, 10 CFR part 52 combined licenses referencing a design
certification, 10 CFR part 52 early site permits, license amendment
applications, non-power reactor applications, and limited work
authorization applications. These proposed filing periods reflect the
NRC's consideration of the need for timeliness and efficiency pursuant
to the ADVANCE Act and E.O. 14300, as well as the anticipated length
and complexity of the identified applications. This includes accounting
for factors that would reduce the scope and complexity of the
adjudicatory proceeding, such as whether an application for a
production or utilization facility references a prior NRC approval
providing issue finality in the adjudicatory proceeding that
encompasses design issues.\15\
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\15\ Existing NRC regulations establish that certain NRC
approvals finally resolve specified issues in later proceedings
referencing the NRC approval. To the extent an issue is finally
resolved, it may not be revisited in a later proceeding absent a
rule waiver--this effectively limits the scope of that later
proceeding. Design certifications and manufacturing licenses are
existing NRC approvals that provide issue finality in the
adjudicatory proceeding that would encompass design issues. The NRC
notes that a standard design approval does not provide finality in
the adjudicatory proceeding and therefore would not affect the scope
of the adjudication, while an early site permit provides finality in
an adjudicatory proceeding but only on a narrower scope of issues
that does not include the design of the facility.
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The applicant and NRC staff would be required to submit
answers to contentions filed by the Sec. 2.309(b) deadline within 25
days of the contention for most applications (consistent with current
requirements), and within 20 days of the contention for transfer
proceedings and highly expedited proceedings. These proposed due dates
reflect the need for timeliness and efficiency pursuant to the ADVANCE
Act and E.O. 14300, and the expected complexity of the proceedings,
while recognizing that the applicant (and sometimes the NRC staff)
would face the new burden of responding to proposed contentions on the
merits with supporting evidence, including affidavits.
Consistent with current regulations, replies to answers to
contentions submitted by the deadline in Sec. 2.309(b) would be due
within 7 days of the answers.
These proposals would necessitate conforming changes to
other regulations. For example, the NRC proposes to remove the
reference in 10 CFR 54.27 to a 60-day filing period for hearing
requests in power reactor license renewal proceedings because this
proposed rule would impose a shorter filing period in such proceedings
and because time periods for filing hearing requests should be
specified in 10 CFR part 2 and not other parts of the NRC's
regulations. Other conforming changes would be made in 2.309, e.g.,
revisions to Sec. 2.309(a) and Sec. 2.309(h)(1) to reflect that
hearing requests and intervention petitions for the proceedings
identified previously would be required to address only standing while
contention admissibility is assessed separately. The NRC also proposes
to divide Sec. 2.309(a) into subparagraphs for clarity. As part of the
conforming changes to Sec. 2.309(a), the NRC proposes to delete the
sentence addressing proceedings under 10 CFR 52.103 because the changes
in this proposed rule would make that sentence unnecessary. With the
proposed deletion, proceedings under 10 CFR 52.103 would be covered by
proposed Sec. 2.309(a)(2).
The NRC proposes to retain the current filing periods for hearing
requests, intervention petitions, answers, and replies in proceedings
not affected by the proposals to consider standing separate from
contention admissibility and to accelerate the consideration of the
merits of contentions (i.e., proceedings on a license to construct and
operate a uranium enrichment facility, a proceeding under subpart J of
this part, a proceeding under 10 CFR 52.103, or a proceeding on a
denial of an application). Applications for licenses to construct and
operate a uranium enrichment facility are among the most complex types
of applications the NRC receives, and the existing filing deadlines for
these applications are the same as the corresponding deadlines proposed
in this rule for applications of similar complexity. Also, as stated
previously, this proposed rule is not intended to have more than a
minimal impact on the other three listed types of proceedings.
For all proceedings, the NRC would modify Sec. 2.309(j) to impose
accelerated deadlines for decisions by presiding officers on hearing
requests and contentions, ranging from 20 days from
[[Page 10458]]
the filing of replies (e.g., for a decision on a hearing request in
which the presiding officer addresses standing but not contention
admissibility) to 35 days from the filing of replies (for a decision on
hearing requests or contentions on certain major license applications).
Also, consistent with the proposed Sec. 2.307 standard for extensions
of time, the Sec. 2.309 deadlines for presiding officer decisions on
hearing requests, intervention petitions, and contentions (including
for such filings made after the filing deadline in Sec. 2.309(b)) may
be extended only if extraordinary circumstances prevent the presiding
officer from issuing a decision by the deadline. Further, at the
earliest practicable opportunity, the presiding officer would be
required to notify the Commission and the litigants of the delay and
the extraordinary circumstances that necessitate a delay. The potential
need for oral argument, prehearing conferences, or additional briefing
would not by themselves constitute extraordinary circumstances.
Finally, while not addressed in the regulation text itself, the
proposed framework would provide the presiding officers flexibility to
take steps to accelerate the commencement of the evidentiary hearing
phase, such as prioritizing issuance of decisions on admissible
contentions.
The NRC proposes several modifications to 10 CFR 2.309(c) to
clarify and strengthen the requirements for challenges after the
deadline (i.e., hearing requests, intervention petitions, and new or
amended contentions filed after the deadline in Sec. 2.309(b)). First,
the NRC proposes to clarify and revise its regulations to avoid delays
in making licensing decisions in certain proceedings due to the
submission of 11th-hour challenges after the deadline near the end of
the NRC staff's application review. Currently, petitioners must submit
``motions for leave to file'' contentions after the deadline that must
satisfy Sec. 2.309(c). Hearing requests and intervention petitions
after the deadline must also satisfy Sec. 2.309(c), although NRC
regulations do not require a ``motion for leave to file'' such filings.
The NRC proposes to extend the ``motion for leave to file'' concept to
hearing requests and interventions petitions after the deadline, and
clarify that challenges after the deadline would not be considered
pending before the NRC until the motion for leave to file has been
granted upon a showing of good cause under 10 CFR 2.309(c). These
changes would address statutory requirements for a pre-effectiveness
hearing (or pre-effectiveness hearing opportunity) for certain
licensing actions.\16\ For example, AEA section 189a.(1)(A) allows the
NRC to issue operating licenses for certain facilities ``in the
absence'' of a request for hearing from a person whose interest may be
affected; therefore, the pendency of a hearing request before the NRC
could affect the timing of the NRC's licensing decision. However, the
AEA does not require a hearing request submitted after the specified
deadline for hearing requests to be considered automatically pending
before the NRC regardless of when it was filed. Rather, the related AEA
section 189a.(1)(A) requirement specifying a 30-day notice period for
operating licenses indicates that Congress contemplated that hearing
requests be filed within specified periods.\17\ The AEA provides no
absolute right to file challenges after the specified notice period,
nor does it indicate that petitioners may file challenges at any time
they choose and thereby delay NRC action on the application. Under the
proposed change, challenges after the deadline would not be considered
pending before the agency (and therefore would not delay NRC action on
an application subject to a pre-effectiveness hearing requirement)
unless and until the motion for leave to file the challenge after the
deadline has been granted upon a showing under Sec. 2.309(c) of good
cause for filing after the deadline. Thus, as reflected in a proposed
new Sec. 2.309(c)(7) and in revisions to Sec. 2.340(i)(2), (j)(4),
and (k)(2), the mere submission of such challenges after the deadline
would not interfere with timely NRC licensing or regulatory decisions,
even for those applications subject to a pre-effectiveness hearing (or
pre-effectiveness hearing opportunity) requirement. The effectiveness
of the licensing action would be stayed only if the petitioner meets
the standard for granting a stay request.\18\ To reflect the motion for
leave to file terminology, the NRC also proposes conforming changes in
other paragraphs of Sec. 2.309 and in 10 CFR 2.4 (definition of
``contested proceeding'') and 2.323(a).
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\16\ The Commission's 1992 decision in the Shoreham proceeding
(CLI-92-4, 35 NRC 69) explains the statutory basis for the pre-
effectiveness hearing requirements for specified production and
utilization facilities. A partial list of applications for which a
pre-effectiveness hearing (or hearing opportunity) is currently
required is included in current 10 CFR 2.1202(a). In addition, AEA
section 193(b) requires the NRC to complete a ``single adjudicatory
hearing'' before issuing a license to construct and operate a
uranium enrichment facility. A pre-effectiveness hearing is not
required for license transfers, most materials licenses, and reactor
license amendments not involving a significant hazards
consideration.
\17\ The other pre-effectiveness hearing requirements in AEA
section 189a. also involve provisions where the NRC is required to
give specified notice. In addition, AEA section 193(b)(1)-(2)
requires the NRC to conduct a single adjudicatory hearing before the
issuance of a license for such construction and operation, which
does not require that late-filed requests should automatically stay
NRC action.
\18\ Under Commission case law, the person requesting a stay of
a licensing decision must either show irreparable harm that is
imminent, certain, and great, or make an ``overwhelming showing'' of
likelihood of success on the merits that amounts to a ``virtual
certainty.'' See, for example, discussion in the Commission's 2019
decision in the Pilgrim proceeding (CLI-19-11, 90 NRC 258) on pages
264 and 280.
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Second, the NRC proposes changes to the timeline for motions for
leave to file and associated challenges after the deadline. For the
motion and challenge to be considered timely, they would need to be
filed within 30 days of the new, materially different information
giving rise to the challenge after the deadline. Currently, the
regulations do not specify when the filing is considered to be timely,
although 30 days is the time usually prescribed in presiding officer
scheduling orders. This filing period would be accelerated to 20 days
from the new, materially different information in transfer proceedings
and highly expedited proceedings because these proceedings are on a
shorter timeline. Because challenges after the deadline should be
narrowly focused on new, materially different information, less time
would ordinarily be provided for answers to challenges after the
deadline--20 days in most proceedings under the new proposed hearing
format and enrichment proceedings, and 15 days in highly expedited
proceedings and transfer proceedings. In addition, 7 days would be
provided for replies associated with challenges after the deadline.
Finally, presiding officer decisions on challenges after the deadline
would be due within 25 days of the reply, a deadline reflecting the
anticipated narrower scope of challenges after the deadline. These
deadlines for answers, replies, and decisions are reflected in proposed
Sec. 2.309(c)(5) and (6).
Finally, the NRC proposes to modify Sec. 2.309(g) to reflect
changes to Sec. 2.310 that are discussed later in this notice.
The different timelines under Sec. 2.309 for initial filings and
decisions thereon for hearing requests, intervention petitions, and
contentions filed by the deadline in Sec. 2.309(b)(1) and (b)(3) are
reflected in Table 1 (for simplicity, the table uses ``hearing
request'' to refer to both hearing requests and intervention
petitions). As explained previously, for proceedings involving the
grant,
[[Page 10459]]
renewal, licensee-initiated amendment, termination, or transfer of
licenses or permits (except for a high-level waste repository
proceeding under part 2, subpart J; a proceeding for granting a license
to construct and operate a uranium enrichment facility; or a proceeding
on a denial of an application), contentions are considered separately
from the hearing request. Table 2 provides the proposed timelines for
motions for leave to file hearing requests, intervention petitions, and
new or amended contentions filed after the deadline in Sec.
2.309(b)(1) and (b)(3).
Table 1--Proposed Schedule for Initial Filings/Decisions on Hearings Requests and Contentions Filed by 10 CFR 2.309(b)(1), (b)(3) Deadlines
--------------------------------------------------------------------------------------------------------------------------------------------------------
Enrichment (construct-
Action Transfer 2.309(b)(1) Highly expedited and-operate) Most complex Other proceedings
2.309(b)(3)(iii) 2.309(b)(3)(i) 2.309(b)(3)(ii) 2.309(b)(3)(iv)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hearing Request.................... 20 days from Notice... 30 days from Notice... 60 days from Notice.. 30 days from Notice.. 30 days from Notice.
Contentions (if considered 20 days from Notice... 30 days from Notice... N/A.................. 60 days from Notice.. 45 days from Notice.
separately).
Answer to Request.................. 10 days from Request.. 10 days from Request.. 25 days from Request. 10 days from Request. 10 days from Request.
Answer to Contentions.............. 20 days from 20 days from N/A.................. 25 days from 25 days from
Contentions. Contentions. Contentions. Contentions.
Reply to Answer to Request......... 7 days from Answer to N/A................... 7 days from Answer to 7 days from Answer to 7 days from Answer to
Request. Request. Request. Request.
Reply to Answer to Contentions..... 7 days from Answer to 7 days from Answer to N/A.................. 7 days from Answer to 7 days from Answer to
Contentions. Contentions. Contentions. Contentions.
Decision on Request................ 20 days from Reply to 20 days from Answer to 35 days from Reply to 20 days from Reply to 20 days from Reply to
Answer to Request (57 Request (60 days from Answer to Request Answer to Request Answer to Request
days from Notice). Notice). (127 days from (67 days from (67 days from
Notice). Notice). Notice).
Decision on Contentions............ 30 days from Reply to 30 days from Reply to N/A.................. 35 days from Reply to 35 days from Reply to
Answer to Contentions. Answer to Contentions. Answer to Answer to
Contentions. Contentions.
--------------------------------------------------------------------------------------------------------------------
Total.......................... 77 days from Notice... 87 days from Notice... 127 days from Notice. 127 days from Notice. 112 days from Notice.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 2--Proposed Schedule for Filings/Decisions on Motions for Leave To File Hearings Requests and New or
Amended Contentions After 10 CFR 2.309(b)(1), (b)(3) Deadlines
----------------------------------------------------------------------------------------------------------------
Enrichment (construct-
and-operate), most
Highly expedited complex, other
Action Transfer 2.309(b)(1) 2.309(b)(3)(iii) proceedings
2.309(b)(3)(i), (ii),
(iv)
----------------------------------------------------------------------------------------------------------------
Motion for Leave to File Hearing 20 days from New 20 days from New 30 days from New
Request/Contention. Information. Information. Information.
Answer to Motion and Request/ 15 days from Motion/ 15 days from Motion/ 20 days from Motion/
Contention. Request/Contention. Request/Contention. Request/Contention.
Reply to Answer..................... 7 days from Answer..... 7 days from Answer...... 7 days from Answer.
Decision on Motion and Request/ 25 days from Reply to 25 days from Answer to 25 days from Reply to
Contention. Answer to Request. Request. Answer to Request.
---------------------------------------------------------------------------
Total........................... 47 days from Motion/ 47 days from Motion/ 52 days from Motion/
Request/Contention. Request/Contention. Request/Contention.
----------------------------------------------------------------------------------------------------------------
Selection of Hearing Procedures
As part of this rule, the NRC proposes to use a revised subpart L
hearing format to govern the adjudication of admitted contentions in
almost all proceedings for the grant, renewal, licensee-initiated
amendment, termination, or transfer of licenses or permits subject to
10 CFR parts 30, 32 through 36, 39, 40, 50, 52, 54, 55, 61, 70 and 72.
Subpart L is already used for most of these proceedings, but the NRC
proposes increased use of subpart L with the following changes:
The NRC proposes to conduct proceedings on a license to
construct and operate a uranium enrichment facility under subpart L
rather than subpart G because the revised subpart L provides a faster,
more streamlined process than subpart G and is better suited for
licensing proceedings (in fact, most licensing proceedings are already
conducted under subpart L). The NRC previously decided to conduct these
uranium enrichment proceedings under subpart G because AEA section 193
requires such proceedings to be conducted ``on the record'' (i.e., in
accordance with the formal procedures in the APA for ``on the record''
proceedings). The U.S. Court of Appeals for the First Circuit
subsequently concluded in 2004 (391 F.3d 338) that subpart L complies
with these formal APA requirements. The proposed revisions to subpart L
would continue to ensure that these enrichment proceedings would comply
with the formal APA requirements, while being more streamlined and
efficient than the subpart G procedures. The NRC proposes to remove and
reserve 10 CFR 2.310(c) and revise 10 CFR 2.700 to reflect this
change.\19\
---------------------------------------------------------------------------
\19\ The NRC does not propose to revise the provisions in 10 CFR
40.33, 70.23a, and 70.31(e) requiring the mandatory hearing for
licenses to construct and operate uranium enrichment facilities to
be conducted under subpart G of part 2. Changes to the mandatory
hearing provisions are outside the scope of this rulemaking.
---------------------------------------------------------------------------
The NRC proposes to eliminate the provision in 10 CFR
2.310(d) and 2.700 providing that certain proceedings for nuclear power
reactors would be held under subpart G if (as stated in Sec. 2.310(d))
``the presiding officer by order finds that resolution of the
contention or contested matter necessitates resolution of issues of
material fact relating to the occurrence of a past activity, where the
credibility of an eyewitness may reasonably be expected to be at issue,
and/or issues of motive or intent of the party or eyewitness material
to the resolution of the contested matter.'' This possibility has not
been exercised since it was established in the 2004 Adjudications Rule
(69 FR 2182; January 14, 2004), and subpart L provides for cross-
examination, if needed.
The NRC proposes to remove and reserve 10 CFR 2.310(g) and
subpart M,
[[Page 10460]]
which currently governs license transfer proceedings, because the
proposed revisions to subpart L would suitably ensure that transfer
proceedings are conducted promptly. As explained later in this notice,
the streamlined and expedited subpart L procedures would impose strict
deadlines for completing license transfer evidentiary hearings in about
2 to 3 months. Also, subpart M is premised on the Commission serving as
the presiding officer for transfer proceedings, and the NRC proposes to
employ a Licensing Board as the presiding officer for transfer
proceedings, as explained previously. Conforming changes to reflect the
removal of subpart M are proposed in 10 CFR 2.4 (definition of
``potential party'') and in 10 CFR 2.313(a), 2.901, and 2.1103. In
addition, the NRC proposes to revise 10 CFR 2.1103 to clarify the
applicability of subpart K, add a reference to 10 CFR part 52 to
maintain consistency with the hearing format selection requirements in
10 CFR 2.310, and provide, consistent with 10 CFR 2.310(e), that
subpart K would apply upon the request of a party to use subpart K but
that, otherwise, subpart L would be used.
The NRC proposes to revise 10 CFR 2.310(e) and remove and
reserve 10 CFR 2.310(h) to eliminate the option of using subpart N for
licensing proceedings that would by default be conducted under subpart
L (absent those rare circumstances triggering the use of an alternative
subpart). Subpart N was created to provide simplified procedures with
oral hearings for the expeditious resolution of disputes. However, the
NRC has never used subpart N since it was created in the 2004
Adjudications Rule (69 FR 2182; January 14, 2004), and the NRC believes
that the oral hearing procedures for subpart N are generally not well
suited for licensing proceedings, which often involve complex technical
subject matter, where the precision of a primarily written hearing
format is desirable.
The NRC also proposes to make conforming changes to 10 CFR
2.310(a) to reflect these changes. In addition, the NRC proposes to
remove cross-references in 10 CFR part 52 to specified subparts of 10
CFR part 2 as potential sources of hearing procedures for certain
license applications. These cross-references are not consistent with
the proposed changes to 10 CFR 2.310, and hearing formats should be
specified in 10 CFR part 2 and not other parts of the NRC's
regulations. The affected sections are 10 CFR 52.21 and 52.163, and 10
CFR part 52, appendix N, section 8.
Timeline for Motions Submitted in Highly Expedited Proceedings
Consistent with the overall streamlining approach of the proposed
rule, the agency proposes to amend Section 2.323 to reduce the
timelines for submittal of motions and corresponding answers in highly
expedited proceedings. As previously discussed, highly expedited
proceedings are narrower in scope and on a shorter timeline than
standard proceedings covered under part 2. To achieve timelines
commensurate with the substance and urgency of highly expedited
proceedings, Section 2.323(a)(2) would be changed to require that
motions filed in these proceedings must be made no later than seven (7)
days after the occurrence or circumstance from which the motion arises.
Further, Section 2.323(c) would be amended to state that answers to
motions in highly expedited proceedings must be submitted within seven
(7) days after service of the motion. The agency also proposes a simple
restructuring of Section 2.323(c) into three subparagraphs (1)-(3),
introducing additional clarity and improving readability of the
applicable requirements.
Reopening Standards
The NRC intends to complete contested hearings on a schedule that
supports licensing within the timelines contemplated by the ADVANCE Act
and E.O. 14300. Consequently, to ensure that the adjudicatory process
does not delay licensing decisions, the proposed revised adjudicatory
procedures have been constructed so as to generally accommodate an
evidentiary hearing on admitted contentions filed by the Sec. 2.309(b)
deadline for filing contentions and a hearing on admitted contentions
filed after that deadline, even if there is essentially no overlap
between the filing and decision schedules for the two. For example, if
a party files new contentions the day after the presiding officer
issues an initial decision on the Standard Record Closure Date
following an evidentiary hearing on initially filed contentions, the
revised procedures would generally allow the agency to complete a full
evidentiary hearing on those new contentions within the 18-month and 1-
year timelines in E.O. 14300. Thus, the NRC has a high confidence that
application of these revised adjudicatory procedures will enable the
agency to meet the E.O. 14300 timelines in the vast majority of
proceedings.
The NRC acknowledges that in rare cases critical issues may arise
late in a proceeding that might require the adjudication to exceed the
NRC staff review timelines established in accordance with the ADVANCE
Act and E.O. 14300. Therefore, to ensure that only critical issues
would lead to such delays, the NRC proposes to amend 10 CFR 2.326 to
specify that the adjudicatory record will close on the Standard Record
Closure Date for the proceeding. As a result, contentions filed after
the record closes would need to meet the heightened reopening standards
in 10 CFR 2.326, which require the contention to be timely in
accordance with 10 CFR 2.309(c), address a significant issue, and
demonstrate that it would likely materially affect the outcome of the
proceeding.
These proposed revisions to 10 CFR 2.326 would comport with
existing NRC precedent. The Commission has routinely emphasized that
the adjudicatory record for a proceeding closes at the conclusion of an
evidentiary hearing, for example, in a 2012 decision in the Pilgrim
proceeding (CLI-12-3, 75 NRC 132). Also, the Commission has applied the
reopening provisions even earlier in a proceeding (e.g., when a
proceeding terminates once all contentions have been decided), such as
in the Commission's 2012 decision in the North Anna proceeding (CLI-12-
14, 75 NRC 692). Therefore, under existing precedent, the proceeding
would terminate and the reopening provisions apply in a situation when
a presiding officer denies all hearing requests filed by the deadline
in Sec. 2.309(b) and there are no pending contentions in the
proceeding.
It is possible under existing precedent for a chain of periodically
filed new or amended contentions, none of them admissible, to hold open
the record of the proceeding even to the end of the NRC's review of an
application. To avoid this anomalous result and to provide a standard
time for when the record would close for a proceeding, the proposed
revisions to 10 CFR 2.326 would add a new paragraph (e) stating that
the record for the proceeding will automatically close at the Standard
Record Closure Date, a date providing sufficient time to hold an
evidentiary hearing on admitted contentions submitted by the original
deadline. It would provide further, consistent with existing practice,
that if the presiding officer enters an order closing the record
following an evidentiary hearing, then the record would close at that
earlier point. The Commission has also recognized that if some issues
are pending once the record closes, the record may remain open on those
[[Page 10461]]
limited issues; an example is the Commission's decision in the Pilgrim
proceeding (CLI-12-3, 75 NRC 132). Therefore, paragraph (e) would also
clarify that if other contentions either remain pending or are subject
to a motion for leave to file at the time the record closes, the record
will remain open only with respect to the issues raised by those
contentions.
By providing the public with an opportunity to request a hearing
prior to closing the record, this proposal comports with applicable
Federal case law considering challenges to the NRC's reopening
standards. In the D.C. Circuit federal court of appeal's 1984 decision
in Deukmejian v. NRC (751 F.2d 1287), the NRC required an intervenor to
meet the reopening standards to participate in a proceeding on a full
power operating license to challenge an applicant's application to
amend a low power license by extending the license term. The court
determined the two actions were separate proceedings. By requiring the
petitioner to meet the heightened pleading requirements in the
reopening standard, the NRC improperly abridged the petitioner's
hearing rights under section 189a. of the Atomic Energy Act. Thus,
under Deukmejian, the NRC must provide petitioners with at least one
opportunity to participate in an adjudication prior to closing the
record. The proposed revisions to 10 CFR 2.326 would meet this standard
because they would not close the record until well after the
opportunity to request a hearing expires.
Also, because the proposed revisions to 10 CFR 2.326 would
automatically close the record in the specified circumstances, the NRC
proposes to revise Sec. Sec. 2.104, 2.105, and 2.309(b)(5) to require
Federal Register notices announcing opportunities to request hearings
to state the Standard Record Closure Date for the proceeding. In so
doing, this would put the public on notice and provide clarity on when
the record would close.
Finally, in addition to the adjustments described previously to
address the scheduling directives of the ADVANCE Act and E.O. 14300,
the agency proposes to modify the criteria included in 10 CFR
2.326(a)(2) to state that a significant environmental issue can only be
identified in a proceeding where a categorical exclusion does not
apply. In circumstances where a categorical exclusion is used to comply
with the National Environmental Policy Act, by definition, there are no
significant environmental issues associated with the proposed Federal
action. The agency considers this to be a clarity change responsive to
the potential for increased use of categorical exclusions in future
reviews. In accordance with E.O. 14300 Section 5(c), the NRC is
separately considering revisions to its regulations governing
compliance with the National Environmental Policy Act.
Discovery
The NRC proposes several changes to reduce burdens to the parties
from their obligations to make certain disclosures after contentions
are admitted in most licensing proceedings and also proposes to
expedite the production of initial disclosures to support the
accelerated evidentiary hearing timeframes in subpart L.\20\ First, the
NRC staff's hearing file obligations would be entirely eliminated.
Experience shows the hearing file currently required by Sec. 2.1203 is
burdensome and provides little value to the litigation because it
covers the entire application under review instead of focusing on the
admitted contentions. Moreover, the hearing file was established before
the NRC required electronic filing of applications, regularly posted
the entirety of applications and related documents on its website, and
developed robust search functions in public-facing ADAMS. To the extent
members of the public face difficulties in searching ADAMS, NRC Public
Document Room staff are available to assist during business hours.
Thus, the rationale supporting the hearing file obligation has become
outdated. By eliminating the hearing file, the NRC does not intend to
suggest that the agency is reverting to traditional discovery;
therefore the NRC proposes to retain paragraph (d), which specifies
that no additional forms of discovery are authorized.
---------------------------------------------------------------------------
\20\ These proposed changes would not affect the discovery
provisions in proceedings under subpart G or subpart J of part 2.
---------------------------------------------------------------------------
The NRC also proposes eliminating the NRC staff's 10 CFR 2.336(b)
disclosure obligations (except for proceedings on denials of
applications, which is discussed next) because the staff ordinarily
makes the application, correspondence with the applicant, and other
documents related to the review (e.g., guidance) publicly available in
ADAMS. Also, in appropriate circumstances, the Secretary of the
Commission issues orders under 10 CFR 2.307(c) to provide opportunities
for potential parties to seek access to sensitive unclassified
information to support their preparation of contentions. Further, the
staff's disclosures largely replicate the applicant's required
disclosures or otherwise concern internal documents that are typically
not produced to the other parties. Moreover, the staff is a neutral
party without a stake in the application--the applicant, who has a
direct stake in the application, should be responsible for producing
relevant documents.
The NRC proposes to retain the 10 CFR 2.336(b) disclosures
obligation (in modified form) in proceedings on denials of applications
because no other party would replicate the staff's disclosures and the
staff has a different role in a proceeding on the denial of an
application than in other contested licensing proceedings. The NRC
further proposes to modify 10 CFR 2.336(b) to tailor the required
document disclosures to the circumstances associated with a proceeding
on a denial of an application (e.g., the document categories associated
with the application and NRC correspondence with the applicant would be
eliminated because the applicant already would be in possession of this
material). Finally, the NRC proposes conforming changes to Sec.
2.336(a) to reflect applicant disclosures in a proceeding on a denial
of an application.
Second, the NRC proposes further changes to 10 CFR 2.336 to reduce
the burdens of other participants. Parties commonly agree to exclude
from disclosures non-public draft documents that have not been
circulated among the parties; the NRC proposes to codify this practice
in the NRC's regulations in new subparagraphs (a)(4) and (b)(2). In
addition, parties should not be required to update their disclosures
during the evidentiary hearing phase because the most important
relevant documents should have been disclosed by this point, and the
evidentiary hearing is the most resource-intensive phase of the
process. Notably, this would not relieve litigants from their ongoing
general obligation to keep the presiding officer and litigants informed
of relevant new developments in a proceeding, as the Commission
emphasized in its 2006 decision in the USEC proceeding (CLI-06-10, 63
NRC 451).
Finally, the NRC proposes to revise Sec. 2.336 to require the
applicant, petitioner, and (as applicable) staff to produce their
initial disclosures within 20 days of a presiding officer order
admitting contested issues into the proceeding rather than 30 days from
a presiding officer order granting a hearing request or intervention
petition. Twenty days should be sufficient for diligent litigants to
prepare their 10 CFR 2.336 disclosures, and an accelerated initial
disclosures schedule is necessary to support the expedited evidentiary
hearing timeframes that are proposed in
[[Page 10462]]
subpart L. Moreover, twenty days is greater than the general timeline
contemplated for initial disclosures under the Federal Rules of Civil
Procedure.
The 20 days would generally run from the date of an order admitting
contentions to reflect the proposal in this proposed rule for most
licensing proceedings to separate decision-making on hearing requests
from decision-making on proposed contentions. This proposed revision
also accounts for new or amended contentions that might be admitted
after the 10 CFR 2.309(b) initial filing deadline for contentions.
However, in a proceeding on a denial of an application, the 20-day
period would run from the order granting a demand for hearing.
Conforming Changes to Scheduling Regulations
To accommodate the shorter timeframes for completing adjudications
contemplated by this proposed rule, the NRC is proposing a number of
conforming amendments to other sections in part 2, which pertain to
scheduling. Specifically, the NRC proposes to revise paragraph (b) in
10 CFR 2.312, ``Notice of hearing,'' to reflect the Commission's
expectation that considerations informing the selection of a time and
place for a hearing should not override the overall timeframes
established for timely adjudications by this rule or by any proceeding-
specific Commission order. To provide additional flexibilities that may
facilitate meeting those timeframes, the NRC also proposes to revise 10
CFR 2.329, ``Prehearing conference,'' to give the presiding officer or
Commission discretion on whether to hold a prehearing conference.
Next, the NRC proposes a number of edits to 10 CFR 2.332, ``General
case scheduling and management,'' that will conform to the streamlined
procedures and shortened timeframes proposed elsewhere in this rule.
Because the timeframes proposed by this rule would be mandatory, the
NRC proposes to revise paragraph (a) to reflect the presiding officer's
obligation to develop a schedule that would meet the licensing
timeframes proposed by this rule. Likewise, the NRC proposes to amend
paragraph (d) to conform to the Commission's expectations that hearings
under subpart L would ordinarily begin once the presiding officer
admits contentions, not when the staff issues its review documents.
Specifically, the presiding officer would immediately proceed to an
evidentiary hearing after the admission of a contention unless either
(i) the NRC staff or applicant intend to seek dismissal of the admitted
contention or (ii) the NRC staff decides to participate as a party but
is not yet able to take final positions on the matters in controversy.
Section 2.332(d) includes notification requirements to effectuate this
provision. The commencement of the evidentiary hearing phase would be
delayed in cases where the NRC staff or applicant seek to dismiss a
contention because the process for seeking dismissal is quicker and
less resource-intensive than an evidentiary hearing; thus, the
dismissal process may be a more efficient way of resolving a contention
if the presiding officer decides that the standards for dismissing the
contention are satisfied.
The other reason for delaying the commencement of the evidentiary
hearing--when the NRC staff seeks to participate as a party but is not
able to take a final position on the matters in controversy--reflects
the special role the NRC staff has in the licensing process and the
Commission's desire to ensure that the presiding officer is aware of
the NRC staff's considered position on the contested issues in those
cases where the staff chooses to participate as a party. The NRC staff
may not always be in the position (particularly early in its review) to
take a final position on the matters in controversy--in this regard,
the NRC staff is in a different position from the petitioner (who
formulated and supported the proposed contention and should be in a
position to commence the evidentiary hearing upon admission of the
contention) and the applicant (who developed the application and should
have the wherewithal to promptly address challenges to it). In the
interests of prompt adjudication, the proposed Sec. 2.332(d) would
further require the NRC staff, in cases where it decides to participate
as a party but is not yet able to take a final position on the admitted
contention, to prioritize its resources to put itself in a position to
provide testimony on the contention at the earliest practicable time
and notify the presiding officer and the other parties when the staff
is ready to do so.
Section 2.332(d) would be further revised to require the presiding
officer, to the greatest extent practicable, to establish a schedule
that will not extend past the NRC staff's scheduled date for completing
its review of the particular application. This provision has the
purpose of ensuring timely NRC decision-making when it is practicable
to do so and is intended to address both individual NRC reviews that
are on a more expedited review schedule as well as the resolution of
admitted contentions submitted later during an NRC review.
As a conforming change, the NRC proposes to revise 10 CFR 51.104(a)
to remove the prohibition, in proceedings where a final environmental
impact statement (EIS) has been prepared in connection with a proposed
action, on the NRC staff either presenting a position on matters within
the scope of the National Environmental Policy Act or offering the
final EIS into evidence until the final EIS is made available. There is
no statutory basis for this prohibition. Also, delaying the
commencement of evidentiary hearings on environmental contentions until
a final EIS has been completed, which might occur near the end of the
NRC's review period, does not support the timeliness and efficiency
goals of the ADVANCE Act and E.O. 14300. With the removal of this
prohibition, the operative provisions of Sec. 51.104(a) and (b) would
be essentially identical, so the NRC further proposes to consolidate
Sec. 51.104(a) and (b) into Sec. 51.104(a) and remove and reserve
Sec. 51.104(b).
In another conforming change, the NRC proposes to revise 10 CFR
2.332(b) to reflect that only enforcement proceedings, not licensing
proceedings, would be subject to the model milestones in appendix B of
part 2. As discussed later, strict deadlines would be imposed in
licensing proceedings rather than model milestones.
Finally, the NRC proposes to amend 10 CFR 2.334, ``Implementing
hearing schedule for proceeding,'' by clarifying paragraph (a) to
directly state the presiding officer's obligation to take necessary
measures to ensure timely adjudication, by revising paragraph (b) to
incorporate the standard in section 2.307(a) for extending a schedule,
and by revising paragraph (c) to require the presiding officer to
notify the Commission of any delays beyond the timeframes established
by this rule.
Proposed Revisions to Subpart L Hearing Format and Conforming Changes
Elsewhere in Part 2
As explained previously, the NRC proposes to make a number of
significant changes to subpart L to streamline and accelerate the
hearing process for proceedings for the grant, renewal, licensee-
initiated amendment, termination, or transfer of licenses or permits
subject to 10 CFR parts 30, 32 through 36, 39, 40, 50, 52, 54, 55, 61,
70 and 72. The two most significant proposed changes are (1) to
establish strict deadlines for the issuance of initial decisions in
most licensing proceedings and (2) to provide greater flexibility to
the presiding officer to
[[Page 10463]]
decide which components of the subpart L hearing process are needed to
support the presiding officer's decision-making. The NRC also proposes
other changes to streamline proceedings and ensure prompt and accurate
decision-making, as discussed in the following paragraphs.
The NRC proposes to establish strict deadlines for the issuance of
an initial decision to ensure that adjudicatory proceedings are
promptly conducted and support the efficiency goals and mandates of the
ADVANCE Act and E.O. 14300. These deadlines would be tailored to
different types of proceedings to account for the varying complexity of
different license applications as well as the greater need for
expedited decision-making in certain proceedings (e.g., in highly
expedited proceedings). The NRC proposes that these deadlines may only
be extended if unavoidable and extreme circumstances necessitate a
delay.
The NRC proposes to provide presiding officers greater flexibility
in structuring the subpart L evidentiary hearing phase because admitted
contentions could take a wide variety of forms, and the presiding
officer in an individual proceeding is better placed to decide what
information is needed for the admitted contentions before it to support
accurate decision-making and the development of a sound record, while
ensuring that the parties are given a fair and equal opportunity to
make their cases (e.g., if one party may file written testimony and a
position statement, all other parties would have the same opportunity).
The presiding officer would also tailor the hearing schedule to the
particular circumstances of a proceeding while complying with
requirements for decision-making deadlines.
The specific proposed changes to subpart L and conforming changes
elsewhere in this part are detailed in the following subsections. For
clarity and completeness, the NRC will detail here all proposed changes
to subpart L, including those discussed elsewhere in this notice.
A. Changes to Scope Provisions in 10 CFR 2.1200
The NRC proposes to revise 10 CFR 2.1200 to reflect the modified
scope of subpart L, as discussed previously in the context of changes
to 10 CFR 2.310 and 2.700. As stated before, license transfer
proceedings would now be conducted under subpart L, as well as
contested proceedings on the grant of licenses to construct and operate
uranium enrichment facilities. The NRC also proposes to clarify Sec.
2.1200 to reflect the existing provision in Sec. 2.310(b) providing
that enforcement proceedings may be held under subpart L if all parties
agree.
B. Changes to 10 CFR 2.1202 Regarding the NRC Staff's Authority and
Role
The NRC proposes several modifications to the provisions in 10 CFR
2.1202 regarding the NRC staff's authority to take licensing actions
and its role in the adjudicatory proceeding. First, the NRC proposes to
modify provisions on the issuance and effectiveness of licensing
decisions during the pendency of a hearing. Currently, Sec. 2.1202(a)
provides that 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, and that
the NRC staff's action is effective upon issuance except for several
listed licensing actions. The NRC proposes to revise the list of
exceptions in Sec. 2.1202(a) as follows:
Currently, the listed exceptions include all applications
to construct and/or operate a production or utilization facility
(including limited work authorizations and combined licenses). However,
the pre-effectiveness hearing requirements in AEA section 189a. apply
to production and utilization facilities licensed under AEA sections
103 and 104b. (corresponding to facilities under 10 CFR 50.21(b) and
50.22) or testing facilities licensed under AEA section104c.
(corresponding to a facility under 10 CFR 50.21(c) that meets the
definition of ``testing facility'' in 10 CFR 50.2). The AEA's pre-
effectiveness hearing requirements do not apply to production and
utilization facilities licensed under AEA section104a. (i.e., medical
therapy facilities under 10 CFR 50.21(a)) or to production and
utilization facilities licensed under AEA section 104c. that are not
testing facilities (i.e., non-testing facilities under 10 CFR
50.21(c)). The NRC proposes to revise 10 CFR 2.1202(a)(1) to reflect
the scope of the AEA's pre-effectiveness hearing requirements and in
recognition of the lower safety significance of medical therapy
facilities under 10 CFR 50.21(a) and non-testing facilities under 10
CFR 50.21(c).
The NRC proposes to revise 10 CFR 2.1202(a)(3) to remove
the current exception for 10 CFR part 52 manufacturing licenses and put
in its place an exception for licenses to construct and operate uranium
enrichment facilities. In the 2007 rule adding the exception for
manufacturing licenses (72 FR 49352, page 49420; August 28, 2007), the
Commission acknowledged that there is no statutory requirement for
including an exception for manufacturing licenses, but stated,
``Nonetheless, as a matter of discretion, the NRC has decided to treat
manufacturing licenses similar to construction permits in this regard,
although the NRC reserves the right to change its practice in the
future.'' The NRC proposes to remove the exception for manufacturing
licenses because such licenses are not subject to the AEA's pre-
effectiveness hearing requirements, a manufacturing license authorizes
only the manufacture (not operation) of a facility, and vendors may
fabricate major portions of a facility without a manufacturing license
so long as those portions do not constitute a production or utilization
facility. In these circumstances, there is no substantial reason to
delay the issuance and effectiveness of a manufacturing license because
of a pending hearing on the license application. The NRC proposes to
include an exception for applications for licenses to construct and
operate uranium enrichment facilities. Such applications are currently
subject to hearings under subpart G, but the NRC proposes to conduct
hearings on these applications under subpart L. As stated previously,
licenses to construct and operate uranium enrichment facilities are
subject to a statutory pre-effectiveness hearing requirement, so it is
appropriate to include them in the list of exceptions in 10 CFR
2.1202(a).
The NRC also proposes to modify 10 CFR 2.1202(b), regarding the
role of the NRC staff in the hearing process, to accelerate the time in
which the NRC staff is required to notify the presiding officer and the
other parties of whether it will participate as a party in the
proceeding. In addition, the NRC proposes to modify this section to
reflect the proposed provisions (discussed previously) regarding the
elimination of the staff's hearing file obligations in 10 CFR 2.1203
and the elimination (in the proceedings addressed by Sec.
2.1202(b)(2)) of the staff's document disclosure obligations under 10
CFR 2.336(b).
C. Changes to 10 CFR 2.1203 Regarding Elimination of Hearing File
As discussed previously, the NRC proposes to eliminate the hearing
file requirements in paragraphs (a) to (c) of 10 CFR 2.1203, while
retaining the prohibition on additional discovery currently in
paragraph (d) of 10 CFR 2.1203.
[[Page 10464]]
D. Changes to 10 CFR 2.1205 Regarding Summary Disposition
The NRC proposes several changes regarding the schedule for summary
disposition motions. First, to avoid unduly burdening parties as they
undertake evidentiary hearing activities, the NRC proposes to modify
Sec. 2.1205(a) so that summary disposition motions are not permitted
later than 30 days before the scheduled date for filing initial written
testimony. Summary disposition may be a useful tool to avoid the
resource expenditures associated with an evidentiary hearing, but after
evidentiary hearing activities are underway, the filing of summary
disposition motions risks distracting parties from their hearing
preparations and burdening them unnecessarily.
Second, consistent with other proposed changes in this proposed
rule, the NRC proposes to reduce the time for filing answers to summary
disposition motions from 20 days to 15 days after service of the
motion. The NRC also proposes to provide a 20-day period from the
filing of answers for a decision on the motion. Fifteen days should be
sufficient for parties to address the pertinent standards for summary
disposition motions, and a 20-day period for decisions is consistent
with the overall hearing schedule and other proposed timeframes for
decisions in this proposed rule.
E. Changes to 10 CFR 2.1206 to 2.1210 Regarding the Hearing Process and
Schedule
Currently, 10 CFR 2.1206 to 2.1210 provide the principal
requirements for the subpart L evidentiary hearing process and
schedule, including prescriptive requirements for which written filings
are permitted and when, and whether an oral hearing must be held. For
the reasons discussed earlier, the NRC proposes to replace these
detailed requirements with simpler, more flexible and informal
provisions for most proceedings. As reflected in proposed Sec.
2.1206(a)(2), a hearing in a proceeding for the grant of a license to
construct and operate a uranium enrichment facility would be required
to comply with the APA's formal procedures for ``on the record''
hearings. As explained in the following paragraphs, Sec. Sec. 2.1206
and 2.1207 would be completely revised, while Sec. Sec. 2.1208 and
2.1209 would be removed and reserved, and minor conforming changes
would be made Sec. 2.1210.
Under proposed Sec. 2.1206(a), the presiding officer would issue a
scheduling order that would include the presiding officer's
determinations on which written filings are permitted, the schedule for
these filings, whether to hold an oral hearing, and the schedule for
issuing an initial decision. Motions for cross-examination under 10 CFR
2.1204 would be permitted (consistent with the current regulations).
Otherwise, the presiding officer would largely have flexibility to
decide which written filings the parties would be permitted to make to
provide the information necessary to support the presiding officer's
decision. These potential written filings, which would be listed in
Sec. 2.1206(b)(1), are (1) initial testimony, position statements, and
supporting exhibits; (2) rebuttal testimony, position statements, and
supporting exhibits; (3) motions in limine and motions to strike; (4)
written briefing and/or written responses to questions from the
presiding officer; (5) proposed questions for the presiding officer to
ask the witnesses; and (6) proposed findings of fact and conclusions of
law. These listed filings are currently available in a subpart L
hearing process, but the presiding officer would have flexibility to
determine which filings to permit in a particular case. Similarly, the
presiding officer would generally have flexibility to determine whether
an oral hearing is needed to support the presiding officer's decision--
currently, an oral hearing is required unless all parties agree to a
hearing based solely on written presentations, but the NRC sees no need
to require that an oral hearing be held as a default matter.
The initial decision is the culmination of the evidentiary hearing
process, and the NRC proposes that the scheduling order include the
schedule for an initial decision, which must comply with the
requirements of 10 CFR 2.332 and (if applicable) 10 CFR 2.1207. As
discussed later in this document, proposed 10 CFR 2.1207 provides
schedule requirements for the issuance of initial decisions in most
licensing proceedings.
Proposed Sec. 2.1206(b)(2) identifies certain additional
flexibilities for the parties and the presiding officer that would
apply depending on which written filings are permitted. Historically,
written testimony in subpart L proceedings has been submitted in
question-and-answer form, but a party would be allowed to submit
testimony in affidavit form if the party prefers. Also, the NRC
proposes that most licensing proceedings would be subject to the Sec.
2.309(k) requirement that litigants include witness evidence in their
initial filings in the form of affidavits--this requirement would allow
these affidavits to be entered into evidence at the evidentiary hearing
if they meet the criteria for admissible evidence in 10 CFR 2.337.
Section 2.1206(b)(2) would also provide that if statements of position
and proposed findings of fact and conclusions of law are both
permitted, parties would be allowed to file statements of position in
the form of proposed findings and conclusions to facilitate the prompt
preparation of proposed findings and conclusions after the hearing.
Finally, Sec. 2.1206(b)(2) would clarify the presiding officer's
authority to allow oral motions in limine or motions to strike in lieu
of (or in addition to) written filings. Proposed Sec. 2.1206(b)(2)
would not provide an exhaustive list of flexibilities, and the
presiding officer would retain all authority provided in the pertinent
provisions of part 2 to regulate the conduct of the proceeding.
Proposed Sec. 2.1206(c) retains requirements in current subpart L
regarding the participants' ability to designate and present their own
witnesses; the presiding officer's discretion to formulate questions
and ask questions as the presiding officer considers appropriate; the
presiding officer's authority to address situations where a witness is
unable to appear in an oral hearing; and existing provisions on the
propounding of questions by the presiding officer and the submission of
proposed questions for the presiding officer to ask the witnesses.
While the presiding officer would ordinarily have great flexibility
to structure the evidentiary hearing, for two types of proceedings--
those on applications to construct and operate a uranium enrichment
facility and on denials of applications--the NRC proposes Sec.
2.1206(d) that would require (consistent with current subpart L) that
(1) a transcribed oral hearing be held unless all parties jointly agree
to dispense with an oral hearing, and (2) each party be permitted to
file written testimony, a position statement, and supporting exhibits;
to submit rebuttal evidence and argument; and to file proposed findings
of fact and conclusions of law. These elements of an evidentiary
hearing would be required for a proceeding concerning the grant of a
license to construct and operate a uranium enrichment facility to
maintain consistency with the requirements for formal ``on the record''
hearings in the APA.\21\ The NRC also proposes to retain these elements
of a
[[Page 10465]]
subpart L hearing for denials of applications because hearings on
denials ordinarily arise from a ``demand for hearing'' under 10 CFR
2.103 or 2.108 that would not typically involve the robust issue
development provided in the initial filings under the 10 CFR 2.309
process.\22\
---------------------------------------------------------------------------
\21\ The NRC recognizes that an oral hearing may not be required
by the APA in all cases. As reflected in 5 U.S.C. 556(d), an agency
may, in ``applications for initial licenses . . ., when a party will
not be prejudiced thereby, adopt procedures for the submission of
all or part of the evidence in written form'' even in a formal APA
hearing.
\22\ The NRC acknowledges that for denials noticed under 10 CFR
2.108(b), any person whose interest may be affected may file an
intervention petition under 10 CFR 2.309, but the NRC does not
anticipate that a hearing on a denial of an application would
ordinarily arise through this mechanism. Instead, a hearing on a
denial of an application would most likely result from a demand for
hearing from the applicant under 10 CFR 2.103 or 2.108--a demand for
hearing is not subject to the requirements of 10 CFR 2.309.
---------------------------------------------------------------------------
The NRC proposes in Sec. 2.1207 to provide scheduling requirements
for issuance of initial decisions in proceedings under subpart L, with
the exception of enforcement proceedings and proceedings on denials of
applications.\23\ For each type of proceeding, the NRC proposes (1) a
deadline for initial decisions for contentions, including (as
applicable) a shorter deadline for initial decisions on contentions
submitted after the Standard Record Closure Date, (2) a specification
of the Standard Record Closure Date for that type of proceeding, and
(3) a requirement that unavoidable and extreme circumstances are
necessary for delays beyond the deadline for initial decision.
Deadlines are stated in terms of calendar days from the admission of
the contention, assuming that the presiding officer immediately
proceeds to an evidentiary hearing in accordance with 10 CFR 2.332(d),
although if this does not occur (e.g., the NRC staff is not yet able to
take a final position on the contested issues) the deadline would run
from an alternative triggering event established in the scheduling
order (e.g., the NRC staff's notification that it is able to take a
final position on the contested issues). Also, Sec. 2.1207 would
require unavoidable and extreme circumstances for extensions beyond the
prescribed initial decision deadlines to ensure that delays in
decision-making occur only when necessary. Relatedly, in accordance
with proposed changes to Sec. 2.334(c) discussed previously, the
presiding officer must provide written notification to the Commission
any time during the course of the proceeding when it appears that the
issuance of the initial decision will be delayed beyond the time
specified in the hearing schedule.
---------------------------------------------------------------------------
\23\ The NRC is not proposing specific schedules for issuance of
initial decisions in subpart L enforcement proceedings and
proceedings on denials of application because circumstances are
likely to vary in these proceedings. In addition, neither the
ADVANCE Act nor E.O. 14300 address schedules for enforcement
proceedings. Also, denials of applications would be subject to the
general requirement in 10 CFR 2.332(c) to establish a schedule to
expedite the proceeding, and the Commission expects that presiding
officers would consider relevant comparable hearing schedules in
Sec. 2.1207 in establishing a hearing process and schedule that
ensure a prompt and fair proceeding that supports accurate decision-
making and development of an adequate record.
---------------------------------------------------------------------------
In establishing proposed deadlines, the NRC considered the
anticipated complexity of the pertinent application, along with
associated NRC review deadlines and goals. More time is being proposed
for complex applications subject to an 18-month deadline for a final
decision on the application, while less time is being proposed for less
complex applications subject to shorter deadlines for a final decision
on the application. In some cases, the NRC has not established a
standard fixed deadline shorter than 18 months for a particular
application, but the NRC would seek to come to a final decision in
substantially less than 18 months, if practical, because the
application review is less complicated (e.g., a commercial reactor
application referencing an issued design certification, which finally
resolves most design issues for both the staff review and the
adjudicatory proceeding).
The NRC has also considered different timelines depending on when
the contention was submitted. For two reasons, the NRC generally
proposes a shorter deadline for initial decisions on contentions
submitted after the Standard Record Closure Date. First, an expedited
schedule is needed for admitted contentions submitted later in a
proceeding to support prompt NRC decision-making consistent with the
direction in the ADVANCE Act and E.O. 14300. As stated previously and
discussed in more detail later in the context of Table 4, the NRC's
general overall goal with these changes has been to establish a process
where two non-overlapping hearings could be held within the 18-month
and 1-year E.O. 14300 deadlines (one hearing on contentions submitted
by the Sec. 2.309(b) deadline--which would conclude on the Standard
Record Closure Date--and the second hearing on a new or amended
contention submitted after the Standard Record Closure Date). Second,
consistent with other proposed changes to part 2 (in particular, those
in 10 CFR 2.332(d)), the NRC would ordinarily proceed to an evidentiary
hearing on contentions submitted earlier in the proceeding as soon as
practicable. Thus, hearings on admitted contentions submitted later in
the proceeding would be expected to narrowly focus on new information
arising later in the review, in contrast to contentions submitted early
in the review that might embrace the entire application. To promote
clarity, Sec. 2.1207 would specify the Standard Record Closure Date
for different types of proceedings, based on the proposed definition of
this term in 10 CFR 2.4, and the Standard Record Closure Date for a
particular proceeding would be specified in the Federal Register notice
announcing the hearing opportunity, in accordance with proposed
revisions to 10 CFR 2.104, 2.105, and 2.309.
Regarding the specific deadlines in 10 CFR 2.1207, the NRC proposes
in Sec. 2.1207(a) the longest deadline (145 days) for a proceeding on
the grant of a license to construct and operate a uranium enrichment
facility. Such proceedings are required to comply with the formal APA
hearing requirements; formal proceedings generally require more time
than informal proceedings. Also, unlike the other proceedings subject
to Sec. 2.1207, the regulations would not provide for evidentiary
submissions in answers to contentions from the applicant and NRC staff
or in the petitioner's replies to those answers--in other words, more
evidentiary material would have to be introduced in the evidentiary
hearing process for enrichment proceedings under Sec. 2.1207(a)
because less would be introduced in the initial filings. While the
presiding officer would have flexibility to establish a hearing
schedule based on the specific circumstances of a proceeding, the
hypothetical schedule that follows in Table 3 shows that 145 days is
sufficient time to conduct an evidentiary hearing that includes initial
and rebuttal testimony and statements of position, an oral hearing, and
post-hearing proposed findings of fact and conclusions of law. A
shorter deadline (110 days) would be provided for hearings on
contentions submitted after the Standard Record Closure Date, for the
reasons given previously and as supported by the hypothetical timeline
in Table 3. These proposed initial decision deadlines, combined with
the associated timetables for initial filings identified in Tables 1
and 2, support the NRC's general 18-month deadline for final decisions
on these enrichment applications with substantial margin, as shown in
Table 4.
[[Page 10466]]
Table 3--Hypothetical Timeline for an Evidentiary Hearing on a
Proceeding for the Grant of a License To Construct and Operate a Uranium
Enrichment Facility
------------------------------------------------------------------------
Hearing timeline for Hearing timeline for
contentions contentions
Filing or action submitted by the submitted after the
standard record standard record
closure date closure date
------------------------------------------------------------------------
Mandatory Disclosures....... 20 days from 20 days from
admission of admission of
contention. contention.
Initial Testimony & Position 45 days from 35 days from
Statements. admission of admission of
contention. contention.
Motions for Cross- 7 days from initial 7 days from initial
Examination. testimony. testimony.
Rebuttal Testimony & 14 days from initial 14 days from initial
Position Statements (& testimony. testimony.
Answers to Cross-
Examination Motions).
Parties File Proposed 7 days from rebuttal 7 days from
Questions and Board Issues rebuttal.
Decision on Cross-
Examination.
Oral Hearing................ 15-25 days from 10-20 days from
rebuttal. rebuttal.
Proposed Transcript 7 days from the 7 days from the
Corrections. close of the oral close of the oral
hearing. hearing.
Proposed Findings and 25 days from close 20 days from close
Conclusions. of oral hearing. of oral hearing.
Board's Initial Decision.... 60 days from close 40 days from close
of oral hearing. of oral hearing.
-------------------------------------------
Total................... 135-145 days if oral 100-110 days if oral
hearing lasts 1 day. hearing lasts 1
day.
------------------------------------------------------------------------
Section 2.1207(b) would prescribe initial decision deadlines for
proceedings on (i) the grant of a construction permit, an initial
operating license, or an initial combined license under 10 CFR parts 50
or 52 for a production or utilization facility of the type described in
10 CFR 50.21(b) or 50.22, where the application does not reference a
design certification or manufacturing license, or (ii) the grant of a
license to construct and/or operate a uranium recovery or fuel cycle
facility under part 40 or part 70 (other than a license to construct
and operate a uranium enrichment facility). The applications addressed
by Sec. 2.1207(b) are the most complex type of applications (similar
in complexity to applications for licenses to construct and operate a
uranium enrichment facility) and are also subject to a general 18-month
review deadline. The proposed initial decision deadlines in Sec.
2.1207(b) would be substantially shorter than the deadlines in Sec.
2.1207(a) because the proceedings identified in Sec. 2.1207(b) would
have more of the evidentiary material introduced in the initial filings
and would otherwise be less formal. Thus, fewer filings and less
process should be needed to support presiding officer decision-making
in proceedings under Sec. 2.1207(b) compared to proceedings under
Sec. 2.1207(a). In addition, proceedings under Sec. 2.1207(b) would
not be subject to the formal APA hearing requirements. Accordingly, for
proceedings under Sec. 2.1207(b), the NRC proposes a 110-day initial
decision deadline for contentions submitted by the Standard Record
Closure Date and a 90-day deadline for contentions submitted
thereafter, which provides substantial margin for completing the
hearing within the 18-month decision deadlines for these applications.
The NRC has not developed a hypothetical timeline for proceedings
subject to the Sec. 2.1207(b) deadlines because the presiding officer
has greater flexibility on how to structure these proceedings, as they
are not subject to the formal APA hearing requirements.
Section 2.1207(c) would prescribe initial decision deadlines for
highly expedited proceedings where the application references both (i)
a categorical exclusion and (ii) an NRC approval providing finality in
the adjudicatory proceeding on design information within the
application (including a design certification or a manufacturing
license). In such cases, the safety and environmental issues would
almost entirely be resolved, and the potential adjudicatory issues
should be narrow in scope. For this reason, and to support the highly
expedited review schedules involved, the NRC proposes a 45-day initial
decision deadline.\24\ For contentions submitted by the deadline in
Sec. 2.309(b), the NRC could complete the evidentiary hearing in about
4 months from the Federal Register notice announcing the hearing
opportunity, which would support the NRC's review schedules for
applications in highly expedited proceedings.
---------------------------------------------------------------------------
\24\ The NRC is not proposing to establish a separate initial
decision schedule for contentions submitted after the Standard
Record Closure Date because the 45-day period is already short.
---------------------------------------------------------------------------
Section 2.1207(d) would establish initial decision deadlines for
operating reactor transfer proceedings and for highly expedited
proceedings other than those covered by Sec. 2.1207(d). Operating
reactor transfer proceedings are treated more like highly expedited
proceedings because (i) transfer proceedings are narrow in scope; (ii)
there is a shorter time period for filing contentions in transfer
proceedings (20 days from the Federal Register notice); (iii) the
existing model milestones in part 2, appendix B, already establish an
expedited hearing schedule for transfer proceedings; and (iv) operating
reactor transfer proceedings are currently subject to a standard 8-
month schedule for an NRC decision on the application. Therefore, the
NRC proposes to account for these distinctives by providing a 60-day
initial decision deadline for operating reactor transfer proceedings.
The NRC proposes to provide the same 60-day timeframes for highly
expedited proceedings under Sec. 2.1207(d) in light of the more
focused nature of these applications, while recognizing that there is
greater scope for potential contentions in these proceedings compared
to highly expedited proceedings under Sec. 2.1207(c).
Finally, while operating reactor transfers would be subject to a
highly expedited schedule under Sec. 2.1207(d), consistent with the
nature of the review and the NRC's 8-month standard schedule for
decision-making, other transfer proceedings (including for reactors
under construction or in decommissioning) would be subject to the
scheduling provisions in Sec. 2.1207(e) because the NRC currently has
a 12-month standard review schedule for these transfer applications.
Also, experience has shown that adjudications for transfers of reactors
in decommissioning are somewhat more complex than operating reactor
transfers, a circumstance that was not contemplated when the model
milestones for license transfer hearings were established.
Section 2.1207(e) would establish initial decision deadlines for
other licensing proceedings. These would include proceedings on power
reactor license renewal applications, 10 CFR part 52 combined license
applications referencing a design certification, 10 CFR part 52 early
site permit applications, license amendment applications, non-power
reactor
[[Page 10467]]
applications, and limited work authorization applications. The proposed
initial decision deadlines reflect the NRC's consideration of the need
for timeliness and efficiency pursuant to the ADVANCE Act and E.O.
14300, as well as the anticipated length and complexity of adjudication
for the identified applications. Deadlines would be modestly shorter
under Sec. 2.1207(e) than under Sec. 2.1207(b), which addresses the
most complex applications with 18-month review schedules. Specifically,
Sec. 2.1207(e) would impose a 100-day initial decision deadline for
contentions submitted by the Standard Record Closure Date and a 90-day
deadline for contentions submitted thereafter. As shown later in Table
4, these deadlines, combined with the timeframes for initial filings,
should generally support NRC decision-making on applications within 12
months of docketing of the application (even when a later hearing is
held on new or amended contentions). Many applications under Sec.
2.1207(e), including power reactor license renewal applications, are
currently subject to a general 12-month deadline for a final decision
on the application. Some of the applications under Sec. 2.1207(e) are
currently subject to a general 18-month deadline for decision, but the
NRC would aim to complete the review of these applications more quickly
than 18 months if practical since they would generally be less complex
and narrower in scope than other applications subject to an 18-month
review deadline (e.g., 10 CFR part 52 combined license applications
referencing a design certification). Also, E.O. 14300, Section 5(a),
states that the E.O. 14300 deadlines are ``maximum time periods,'' and
that ``the NRC shall adopt shorter deadlines tailored to particular
reactor types or licensing pathways as appropriate.'' In addition, to
the extent that new or amended contentions are not at issue because
there are no substantial changes to the application during the review,
these timelines would potentially support NRC decision-making within
about 7 months of the docketing of the application if the NRC staff is
able to finish its review in that period. Finally, as stated
previously, the proposed 10 CFR 2.332(d) would require presiding
officers in their scheduling orders to establish a schedule that, to
the greatest extent practicable, will not extend past the NRC staff's
scheduled date for completing its review of the particular application.
Tables 4 and 5 present information on how the overall hearing
timelines support the NRC's decision-making schedules for different
types of applications. Table 4 addresses applications covered by Sec.
2.1207 other than highly expedited proceedings and Table 5 addresses
highly expedited proceedings. These tables assume that (1) the
presiding officer immediately proceeds to an evidentiary hearing when a
contention is admitted, which the NRC intends to happen where
practicable, and (2) the new or amended contention is submitted one day
after the Standard Record Closure Date (i.e., one day after the initial
decision for the first hearing). These tables show:
For uranium enrichment applications under Sec. 2.1207(a)
and the applications under Sec. 2.1207(b), there is substantial margin
to the 18-month standard decision-making deadlines for these
applications. This margin accounts for potential delays when the
evidentiary hearing phase does not immediately commence after
contention admissibility. Also, while the appeals process is not within
the scope of the E.O. 14300 deadlines in this proposed rule, the
timelines in Table 4 would allow for the appeals process to be
completed within the 18-month deadlines for applications under Sec.
2.1207(a) and (b), even for an appeal taken of an initial decision in
an evidentiary hearing held on a new or amended contention submitted
one day after the Standard Record Closure Date.
For highly expedited proceedings addressed by Sec.
2.1202(c) and (d), the timeframes would support the potential
completion of hearings around 4.5 to 5 months after publication of the
Federal Register notice, which supports decision-making deadlines (or
decision-making goals) for applications covered by highly expedited
proceedings.
For license transfer applications subject to Sec.
2.1202(d), the timeframes would support the NRC's standard 8-month
decision deadline for operating reactor transfer applications.
For other proceedings (addressed by Sec. 2.1202(e)), the
timeframes would support NRC decision-making in about 12 months from
publication of the Federal Register notice, which supports NRC
decision-making for application reviews subject to a 12-month standard
decision deadline, as well as some application reviews subject to an
18-month standard decision deadline that the NRC would attempt to
complete sooner.
---------------------------------------------------------------------------
\25\ The NRC's current decision-making deadlines for the listed
applications are subject to change.
Table 4--Proposed Overall Hearing Timeline for Other Than Highly Expedited Proceedings
--------------------------------------------------------------------------------------------------------------------------------------------------------
Contention
Contention Initial Standard admissibility Initial decision
admissibility decision record decision deadline--days Sum NRC's current
Hearing track decision--days deadline--days closure date (contention after from admission of (days) standard decision-
from FRN from admission (SRCD) SRCD)--days from new/amended making deadline \25\
of contention (days) contention contention
--------------------------------------------------------------------------------------------------------------------------------------------------------
Uranium Enrichment 2.1207(a)....... 127 145 272 52 110 434 18 months.
Most Complex Applications 2.1207(b) 127 110 237 52 90 379 18 months.
Operating Reactor License Transfer 77 60 137 47 60 244 8 months.
2.1207(d).
Other Proceedings 2.1207(e)........ 112 100 212 52 90 354 12 months for many
types of
applications, 18
months for some
applications (but
goal to reach
decision sooner).
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 10468]]
Table 5--Overall Hearing Timeline for Highly Expedited Proceedings
----------------------------------------------------------------------------------------------------------------
Contention Initial decision
admissibility deadline--days Standard record NRC's standard
Hearing track decision--days from admission of closure date decision-making
from FRN contention (RCD) (days) deadline
----------------------------------------------------------------------------------------------------------------
Highly Expedited Proceeding with 87 45 132 6 months for MUR
Design Finality and Categorical Amendments, 7 months
Exclusion 2.1207(c). for TSTF CLIIP
Amendments.
Other Highly Expedited Proceedings 87 60 147 6 months for MUR
2.1207(d). Amendments, 7 months
for TSTF CLIIP
Amendments.
----------------------------------------------------------------------------------------------------------------
--MUR = Measurement Uncertainty Recapture Uprates.
--TSTF CLIIP = NRC-approved Technical Specifications Task Force traveler using the Consolidated Line-Item
Improvement Process.
--Table 5 does not show a separate timeline for hearings on new or amended contentions after the SRCD because
these are not anticipated to be likely for highly expedited proceedings.
With the proposed revisions to Sec. Sec. 2.1206 and 2.1207, the
provisions in current Sec. Sec. 2.1208 and 2.1209 are unnecessary and,
therefore, Sec. Sec. 2.1208 and 2.1209 would be removed and reserved.
Also, minor conforming changes would be made to the initial decision
provisions of Sec. 2.1210--namely, the NRC proposes to modify an
internal cross-reference and to change ``an informal hearing'' to ``a
hearing'' in Sec. 2.1210(a) to account for subpart L covering uranium
enrichment proceedings subject to the APA's formal hearing
requirements.
F. Change to 10 CFR 2.1213 Regarding Time To File a Stay Request
As explained earlier in this notice, the NRC proposes to modify 10
CFR 2.1213(c) to reduce the time period for filing an answer to a
request To stay an NRC staff action from 10 days to 7 days.
G. Addition of New 10 CFR 2.1214 Regarding Transfer Proceedings To
Reflect the Proposed Elimination of Subpart M
The NRC proposes to remove and reserve subpart M of part 2 because,
as explained previously, the NRC proposes to conduct adjudications on
transfer applications under subpart L rather than subpart M. However,
there are certain provisions for transfer proceedings in subpart M that
are distinct to those proceedings and should be retained. Therefore,
the NRC proposes to add a new 10 CFR 2.1214 in subpart L to incorporate
the provisions of current 10 CFR 2.1301, 2.1302, 2.1305, 2.1315, and
2.1316(b), with minor modifications to reflect the subpart L context in
which these provisions would now reside.
H. Elimination of Sections II and III of Appendix B to Part 2
As stated previously, the NRC proposes to include strict deadlines
for issuance of initial decisions for most adjudicatory proceedings
under subpart L, while providing presiding officers with the
flexibility to tailor hearing schedules within these deadlines. The NRC
also proposes to eliminate subpart M. As a conforming change, the NRC
also proposes to eliminate the model milestones for hearings under
subpart L and subpart M that are in Appendix B of part 2. Thus,
Sections II and III of Appendix B would be removed and reserved.
Appeals
As discussed previously, in this proposed rule, the appeals process
occurs outside of the scope of the fixed deadlines outlined in Section
5(a) of E.O. 14300 because the appeals process does not itself delay
the issuance or effectiveness of a license. Nonetheless, the NRC is
proposing to pursue broad changes to its contested hearing process,
including revisions associated with appeals, in response to the ADVANCE
Act and the general direction to streamline the public hearings process
in Section 5(j) of E.O. 14300. To streamline the overall process, the
proposed changes to the appeals process primarily implement shortened
timelines. Further, simple structural changes were made in Sec. 2.311
to streamline the requirements and add clarity. These changes involve
consolidation of the requirements in the section into paragraph (a),
Types of appeals covered under this section; paragraph (b), Timing of
appeals and associated filings under this section; paragraph (c), Scope
of appeals under this section; and paragraph (d), Commission decision
timeline under this section. These proposed structural changes
primarily involve consolidating current Sec. 2.311(d) into Sec.
2.311(c) and consolidating current Sec. 2.311(e) into Sec. 2.311(a),
(b), and (c). The following paragraphs discuss the NRC's proposed
streamlining of the appeals process.
Specifically, the agency proposes to amend Sec. 2.341(b)(1) to
reduce the time for filing a petition for review of an agency decision
with the Commission from 25 days to within 20 days after service of a
full or partial initial decision by a presiding officer, and within 20
days after service of any other decision or action by a presiding
officer with respect to which a petition for review is authorized.
Section 2.341(b)(3) would be amended to allow any other party to the
proceeding to file an answer supporting or opposing Commission review
within 20 days after service of a petition for review and reduce the
period of time the petitioning party has to file a 5-page reply brief
from 10 days to 7-days. This modest reduction in filing times is in
keeping with the ADVANCE Act and the direction of E.O. 14300 to
streamline processes. Similarly, a standard milestone for issuance of a
final Commission decision within 60 days of service of the reply brief
submitted under Sec. 2.341(b)(3) is proposed in Sec. 2.341(c)(1).
This is a milestone, not a requirement, and acknowledges the
Commission's authority to determine whether the complexity of the case
may result in a longer timeframe for a final decision.
For interlocutory appeals under proposed 10 CFR 2.311(a)(1)-(4) and
petitions for interlocutory review under 10 CFR 2.341(f)(2), the agency
is proposing to limit the time for filing the appeal or petition from
25 days to 14 days after the presiding officer order or action at
issue, with a 14-day opportunity after service of the appeal or
petition for answers to the petition. The NRC proposes to provide less
time for filings associated with requests for interlocutory appeals and
petitions for interlocutory review than for filings associated with
petitions for review under Sec. 2.341(b) because petitions under Sec.
2.341(b) would likely address more complex issues (e.g., those
associated with an initial decision after an evidentiary hearing).
The agency proposes to modify Section 2.311, addressing
interlocutory appeals on an order selecting hearing procedures, to
require the moving party to file an appeal with the Commission no later
than 7 days after the order--this should be sufficient time to address
the comparatively simple matter of selection of hearing procedures. The
NRC would similarly allot 7 days after
[[Page 10469]]
service of the appeal for any party to file a brief in opposition. The
regulatory language would further clarify that no opportunity for a
reply brief in response to a brief in opposition in would be permitted.
Similar to the proposed new language included for appeals under
Sec. 2.341(b) in this proposed rule, the agency would revise current
Sec. 2.311(d) and add a new Sec. 2.341(f)(3) to establish a standard
milestone for issuance of a final Commission decision on the
interlocutory appeal or petition for interlocutory review within 45
days of service of the answer to the appeal or petition. This non-
binding milestone would acknowledge the Commission's authority to
determine whether the complexity of the case may result in a longer
timeframe for a final decision. Taken together, these changes to the
appeals process would help address the streamlining goals of the
ADVANCE Act and E.O. 14300 while providing sufficient time for
litigants to make their claims and for the Commission to fully consider
the appeal.
As described previously, a hearing request would be required only
to show standing to be granted in most licensing proceedings, and
contention admissibility would be assessed separately. In addition to
the interlocutory appeal opportunity afforded after the approval or
denial of a request for hearing, the agency is proposing changes to 10
CFR 2.311(a) as well as paragraph (c) to provide an opportunity for an
interlocutory appeal after the presiding officer has made an approval
or denial under the contention admissibility requirements of 10 CFR
2.309 for contentions submitted by the applicable deadline in Sec.
2.309(b), in proceedings where contention admissibility is assessed
separately from whether the hearing request satisfies the requirements
for standing. This interlocutory appeal opportunity is consistent with
the overall proposed framework changes in part 2 and will provide for
early resolution of issues by the Commission.
Referred Rulings and Certified Questions
In cases where the presiding officer identifies significant and
novel legal or policy issues, or where prompt decision by the
Commission is necessary to materially advance the orderly disposition
of the proceeding, the presiding officer has the discretion to refer
its ruling to the Commission or certify a question to the Commission
for disposition. To assure efficiency in this process, the agency is
proposing to include language in Sec. 2.323, paragraph (f)(1) that
clarifies where practicable, the presiding officer should first rule on
the matter in question and then seek Commission input in the form of a
referred ruling, rather than certify a question to the Commission
without issuing a ruling. This proposed change aims to minimize delays
in the proceeding during the pendency of the Commission's review.
Section 2.323, paragraph (g) would be adapted to clarify that unless
otherwise ordered, the referral of a ruling to the Commission does not
stay the proceeding or extend the time for performance of any act.
Reconsideration
To shorten the process for motions for reconsideration in keeping
with the streamlining and burden reduction efforts of the ADVANCE Act
and E.O. 14300, the agency proposes to change the period to file a
motion in Section 2.323, paragraph (e) from 10 days to 7 days; the
period for responses would also be reduced from 10 days to 7 days. This
change would be accompanied by a conforming change to Sec. 2.323,
paragraph (a)(2), that clarifies motions for reconsideration would not
be subject to the general 10-day timeline for motions. Further changes
would also be carried forward in Section 2.345, paragraph (a)(1) to
reflect a 7-day deadline for filing a petition for reconsideration and
a 7-day answer period. Similarly, changes to Sec. 2.341(d) would
reduce the filing timeline for petitions for reconsideration before the
Commission to 7 days, with a 7-day answer period.
The agency anticipates these changes would provide clarity for the
parties and serve overall efficiency efforts. Also, 7-day filing
periods should be sufficient because reconsideration is only warranted
when the existing regulatory standard of compelling circumstances
applies, such as in cases of a clear, material error that could not be
reasonably anticipated.
Stays of Decisions and Application for a Stay
Consistent with the streamlining efforts throughout part 2, the NRC
is proposing a change to the Sec. 2.342 timeline in paragraph (a) for
an application for a stay of the effectiveness of the decision or
action pending filing of and a decision on a petition for review; the
NRC proposes to change the filing deadline from 10 days after service
of a decision or action of a presiding officer to 7 days. This change
would be paired with a revision to paragraph (d) to clarify that the
period for any party to file an answer supporting or opposing the
granting of a stay is 7 days after service of an application for a
stay.
Under existing Sec. 2.1213, any application for a stay of the
effectiveness of the NRC staff's action on a matter involved in a
hearing must be filed with the presiding officer within 7 days of the
issuance of the notice of the NRC staff's action under Sec. 2.1202(a).
While the agency is not proposing to change this timeline, the agency
is proposing to reduce the corresponding timeline in Sec. 2.1213(c)
for any party and/or the NRC staff to file an answer supporting or
opposing the granting of a stay from 10 days to 7 days after service of
an application for a stay of the NRC staff's action.
These modest reductions should not significantly impact the burden
on the parties to address the limited requirements and capped length of
stay applications and associated answers. Further, these timeline
changes are consistent with proposed changes for similar filings while
advancing the directives of the ADVANCE Act and E.O. 14300.
Delivery of Hard Copy Documents
Under existing Sec. 2.302, litigants must generally utilize the
NRC's electronic filing system unless they (1) obtain an exemption from
that requirement by demonstrating good cause to use a nonelectronic
means of transmission for electronic documents on optical storage media
of for paper documents, or else (2) file without an exemption a
document containing electronic portions that may not be transmitted via
the E-Filing system for reasons of security or electronic format. In
recent years these circumstances have been rare; and the NRC
anticipates they will arise even less frequently going forward. When an
alternative to electronic transmission is used, however, Sec. 2.306
automatically extends the timeframes in part 2 to account for the
additional time it will take for nonelectronic transmission of the
document. Collectively, these extensions could considerably delay a
proceeding. Therefore, the NRC proposes to amend Sec. 2.306(b) to
direct the presiding officer to establish whether, and how long, the
timeframes in part 2 should be extended in cases when nonelectronic
transmission is allowed. Prior to this presiding officer order, the NRC
proposes to retain the existing extensions of time in Sec. 2.306. In
considering the need to extend the timeframes to account for
nonelectronic service of documents, the presiding officer should ensure
that the extensions
[[Page 10470]]
will not cumulatively challenge timely completion of the adjudication.
V. Specific Requests for Comments
The NRC is seeking advice and recommendations from the public on
the proposed rule. The NRC is particularly interested in comments and
supporting rationale from the public on the following:
Overall Framework
The NRC considered several alternative approaches for reforming its
contested hearing process during the process for developing this
proposed rule and is interested in the public's views on whether the
proposed framework should be changed to reflect any of the following
approaches. The NRC has the following questions on the overall
framework employed in this proposed rule. When responding, please
explain the basis for your response.
(1) Should the NRC more broadly employ the oral argument process in
existing subpart K of part 2 as an intermediate phase between the
admission of the contention and the evidentiary hearing? \27\
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\27\ Under the existing subpart K oral argument process, the
parties must provide a detailed written summary of their arguments
and supporting facts and data regarding admitted contentions, after
which the presiding officer conducts oral argument and decides
whether an evidentiary hearing is necessary. An evidentiary hearing
would be held only if (1) there are specific facts in genuine and
substantial dispute, (2) the decision of the Commission is likely to
depend on the resolution of that dispute, and (3) an adjudicatory
hearing is likely to resolve the dispute. See 10 CFR 2.1113, 2.1115.
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(2) Alternatively, should the NRC replace its current contention-
based process with a notice-and-comment process in which petitioners
would be required to show standing, could submit comments on the
proposed licensing action, and would receive a decision on their
comments without having to meet the contention admissibility criteria?
(3) Should the hearing process applicable to licenses to construct
uranium enrichment facilities apply to other proceedings, and if so,
which ones?
(4) How should the agency incorporate expedited processes for
reactor designs that achieve Nth-of-a-kind deployment that support
high-volume license reviews?
(5) Does the public anticipate any unintended consequences from the
proposed changes to the rule? If so, what are the potential
unanticipated consequences, and how should they be addressed?
(6) How can the agency ensure hearing participants' resources are
not unnecessarily strained by implementation of the rule?
(7) Should the regulations provide the presiding officer greater
flexibility to determine deadlines while adhering to the overall
timelines for hearing decisions described in this proposed rule? If so,
how?
Accelerating the Consideration of the Merits of Proposed Contentions
For most licensing proceedings, the NRC proposes to modify its
regulations to accelerate the submission and consideration of the
merits of proposed contentions in the litigants' initial filings (i.e.,
proposed contentions, answers, and reply). Under this proposal, the
applicant must (and the NRC staff may) address the merits of the
proposed contentions, including submission of evidence and affidavits,
in their answers to contentions, while the petitioner's reply could
respond to these arguments on the merits with additional evidence. This
proposal has the purpose of accelerating evidentiary hearings through
the earlier submission of additional evidentiary material and related
argument, and each party could better focus their initial testimony and
position statements on admitted contentions since they would have a
better understanding of the positions being taken on the admitted
contentions. The primary benefit of the NRC's proposal is to shorten
the evidentiary hearing schedule for admitted contentions.
However, the NRC recognizes that this proposal comes at a cost. For
example, applicants (and to some degree the NRC staff) would expend
more resources developing answers to proposed contentions even though
experience indicates that the majority of contentions are not admitted.
Likewise, petitioners would incur additional burden replying to merits
arguments and evidence in those answers. In addition, since the NRC
does not propose to raise the contention standard, the submission of
this additional information would not play a role in the presiding
officer's decision on whether to admit a contention or otherwise narrow
the scope of admitted issues for an evidentiary hearing. The NRC
requests comment on the following. When responding, please explain the
basis for your response.
(1) Should the proposal to accelerate the submission and
consideration of the merits of proposed contentions in the litigants'
initial filings be adopted?
(2) Should the proposal to accelerate the consideration of the
merits of proposed contentions in the litigants' initial filings be
adopted only for a limited set of proceedings where a significantly
more expedited evidentiary hearing is of greater value, such as highly
expedited proceedings and operating reactor license transfer
proceedings?
(3) Should the NRC modify the details of the proposal or consider
alternatives to it?
Specific Hearing Provisions
In addition to the previous questions about the overall framework
underlying the changes in the proposed rule, the Commission requests
further engagement on the following specific hearing provisions in the
proposed rule. When responding, please explain the basis for your
response.
(1) Do you agree with the agency's proposal to eliminate the NRC
staff's obligation to produce a hearing file and eliminate the staff's
obligation in most proceedings to provide mandatory disclosures under
10 CFR 2.336?
(2) Do you have any input to provide on the agency's proposed
changes to the reopening provisions?
(3) Are there other ways the NRC should refine, but not raise, the
contention admissibility requirements?
(4) Do you agree with the agency's proposal to eliminate
discretionary intervention under 10 CFR 2.309(e)?
(5) Do you agree with the agency's proposal to bifurcate
consideration of standing and contention admissibility? Is there a risk
that bifurcating these considerations could result in additional delays
and appeals?
(6) Do you agree with the agency's proposals to revise 10 CFR 2.314
to require representation by an attorney in NRC proceedings unless a
person represents themself in an individual capacity? In instances
where a person does represent themself in an individual capacity,
should the agency continue to afford non-attorneys greater latitude
than attorneys?
Discovery
In the proposed rule, the NRC proposes to eliminate the staff's
obligations to provide a hearing file and eliminate the staff's
obligation to provide mandatory disclosures in most proceedings,
including because that information is generally already available and
readily accessible on the NRC's website and because there is a separate
process for obtaining access to sensitive unclassified information
within the possession of the NRC when such access is justified. The NRC
is seeking comments on whether to also eliminate the mandatory
disclosure obligations for other parties to NRC proceedings, such as
the applicant and
[[Page 10471]]
petitioners, on the basis that the already available information and
the additional opportunity to seek sensitive unclassified information
in the possession of the NRC provides sufficient information to the
parties to support adjudication of admitted contentions in licensing
proceedings. Please provide reasons for your response.
Applicability of Rule Changes
In accordance with E.O. 14300, the NRC plans to issue a final rule
within 18 months of the issuance of the Executive Order. There will
likely be ongoing adjudicatory proceedings when the final rule is
issued. The NRC is seeking comments on the effect the final rule might
have on ongoing proceedings. When responding, please explain the basis
for your response.
(1) Should the final rule be applied to ongoing proceedings and, if
so, how?
(2) Should a similar approach be used for this rule as was used in
the last substantial change to the NRC's hearing regulations in 2012
(77 FR 46562; August 3, 2012), In that rule, the NRC stated:
The new and amended requirements in the final rule will not be
retroactively applied to presiding officer determinations and
decisions issued prior to the effective date of the final rule . .
., nor will these requirements be retroactively imposed on
participants, such that a participant 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, the former rule provisions would be used.
However, the 2012 part 2 rule went on to state that the new
requirements would ``govern all obligations and disputes that arise
after the effective date of the final rule. For example, if a Board
issues a scheduling order before the effective date of the final rule
that incorporates Sec. 2.336(d), which currently requires parties to
update their disclosures every 14 days, that obligation would change to
every month on a day specified by the Board (unless the parties agree
otherwise) once the effective date of the rule is reached.''
(3) Should the accelerated evidentiary hearing schedules and
provisions be applied to contentions in ongoing proceedings for which
the evidentiary hearing phase has not commenced?
(4) Should provisions for initial filings and decisions on
contentions be applied to proposed contentions in ongoing proceedings
that are submitted after the effective date of the rule?
(5) Should changes to the discovery provisions be applied to the
next hearing file and mandatory disclosure updates in ongoing
proceedings?
(6) Should the proposal to eliminate non-attorney representation of
other persons not apply to ongoing adjudicatory proceedings (i.e.,
apply only to adjudicatory proceedings for which the Federal Register
notice announcing the opportunity to request a hearing is published
after the effective date of the rule) or should this proposal apply to
ongoing proceedings in a limited fashion (i.e., only to persons who
have not yet filed a hearing request or intervention petition in the
proceeding)?
VI. Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act, as amended, 5
U.S.C. 605(b), the NRC certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
This rule applies in the context of 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). Some
materials licensees are small businesses. Based upon the historically
low number of requests for hearings involving materials licensees, it
is not expected that this rule will have any significant economic
impact on a substantial number of small businesses.
VII. Regulatory Analysis
The NRC has prepared a draft regulatory analysis on this proposed
regulation. The analysis examines the costs and benefits of the
alternatives considered by the NRC. The NRC requests public comment on
the draft regulatory analysis. The regulatory analysis is detailed in
the following paragraphs of this document. Comments on the draft
analysis may be submitted to the NRC as indicated under the ADDRESSES
caption of this document.
To comply with Section 5(j) of E.O. 14300, the NRC is proposing to
amend its regulations under 10 CFR part 2 to streamline its contested
hearing process. This economic analysis is prepared in accordance with
E.O. 12866, ``Regulatory Planning and Review,'' \28\ and E.O. 14215,
``Ensuring Accountability for All Agencies.'' \29\ E.O. 14215 requires
independent agencies, such as, the NRC, to comply with E.O. 12866 and
submit significant actions for Office of Information and Regulatory
Affairs (OIRA) review.
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\28\ See 58 FR 51735 (Oct. 4, 1993).
\29\ See 90 FR 10447 (Feb. 24, 2025).
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This analysis uses current contested hearing procedures for
licensing proceedings under 10 CFR part 2 as the baseline and evaluates
the changes proposed in this rule as the regulatory alternative and
estimates the proposed rule's costs and cost savings for the first 5
years of implementation of the rule.\30\ The proposed rule addresses
many different types of applications, from applications to construct
and/or operate reactors, to applications to construct and/or operate
significant materials facilities, to applications for license renewals,
amendments, and transfers, as well as applications associated with the
proposed restart of reactors in decommissioning. Past experience
suggests that, depending on the type of application, there is a greater
or lesser probability that a hearing request will be filed or that a
hearing request, if granted, will proceed to an evidentiary hearing.
For example, previous 10 CFR part 52 early site permit and combined
license applications for large reactors were nearly always the subject
of a hearing request, while reactor license amendment applications are
rarely challenged. Power reactor license renewal applications are often
contested. Regarding the likelihood that an evidentiary hearing will be
held, of the eight combined license applications for large reactors
that were granted, an evidentiary hearing was held on four of these
applications. There is a lower rate of holding evidentiary hearings for
early site permit and reactor license renewal applications, but
contested uranium recovery applications have led to a number of
evidentiary hearings in the past 10 years. Past experience is to some
degree informative, but any effort to extrapolate from this experience
will be subject to substantial uncertainty. In addition, there is
uncertainty in predicting how many applications of
[[Page 10472]]
various types will be submitted or how many will be challenged.
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\30\ The NRC staff relied on past or current costs to estimate
the future costs of implementation of this proposed rule. For steps
for which the staff has no data, the staff estimated the level of
effort based on similar steps in the process or provided a
qualitative assessment. In addition, the 5-year time horizon was
chosen because it allows for a reasonably reliable prediction of the
number of proceedings, which is one of the bases of this analysis.
Furthermore, the estimates are based on average labor burdens and
wage rates; actual outcomes may vary across applicants, NRC staff,
and petitioners.
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Recognizing this uncertainty, the NRC has attempted to develop
numerical estimates for this regulatory analysis. The NRC expects an
increase in the number of applications that are the subject of a
hearing request because of an expected increase in the number of new
reactor applications, up to nine applications per year for the next 5
years based on pre-application engagements. In addition, 18 power
reactor license renewal applications are expected between 2026-
2030.\31\ Based on this information, the NRC has developed a rough
estimate that 15 license proceedings per year will be the subject of a
hearing request over the next 5 years. Based on data from the last 20
years, hearing requests have been granted in 60 percent of the
proceedings in which they have been filed, so the NRC estimates that
hearing requests will be granted in 9 of these 15 proceedings. Based,
in part, on the number of new reactor applications expected and the
relative frequency of evidentiary hearings for such applications, the
NRC estimates that about 33 percent of the proceedings will lead to an
evidentiary hearing (5 evidentiary hearings on average per 15
proceedings with hearing requests).
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\31\ Notices of intent to submit license renewal applications
are listed on the NRC's website at https://www.nrc.gov/reactors/operating/licensing/renewal/subsequent-license-renewal.html and
https://www.nrc.gov/reactors/operating/licensing/renewal/applications.html.
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Resource Projections for Next Five Years Based on Current Requirements
Combining the previous estimated probabilities for the granting of
hearing requests and holding of evidentiary hearings, with the
available, albeit limited, internal data on resources expended on NRC
hearings, the NRC anticipates that, on average, the NRC staff
participating as a party in a contested proceeding would expend 4,150
hours per proceeding on average under the current requirements--this
average accounts for proceedings where hearing requests are denied,
those that proceed to an evidentiary hearing, and those where hearing
requests are granted but do not proceed to an evidentiary hearing
because the admitted contentions are resolved prior to hearing.
The NRC does not possess data on applicant resource expenditures in
contested hearings, but the NRC expects an applicant's resources (in
terms of hours) to generally be similar to the NRC staff's under the
current rule because the applicant and NRC staff use similar personnel
to accomplish similar tasks (answering hearing requests, developing 10
CFR 2.336 document disclosures, writing testimony, etc.). However, an
applicant is not subject to a hearing file requirement like the staff
is. Therefore, the NRC projects that applicant resources under current
requirements are 3,925 hours per proceeding in which a hearing request
is filed, a bit less than the NRC staff.
The NRC also does not possess data on petitioner resource
expenditures in contested hearings. Petitioners vary widely in terms of
their level of resources and how many contested issues they raise, but
the NRC roughly estimates that, on average, a petitioner would expend
about half the applicant's resources (1,950 hours) in a proceeding in
which a hearing request is filed.
The NRC would also expend resources for presiding officers to
conduct adjudicatory proceedings, where the presiding officer would be
a three-member Licensing Board with support staff. In addition, the
Office of Commission Appellate Adjudication (OCAA) would draft opinions
for Commission consideration that address appeals of presiding officer
decisions. In the absence of informative internal data, the NRC
estimates (with substantial uncertainty) that there would be 4,700
hours of total NRC adjudicatory decision-making staff resources
expended per proceeding in which a hearing request is submitted. This
estimate is based on timeframes for adjudicatory decision-making under
the current rules and the following additional assumptions:
As stated above, the NRC assumes that evidentiary hearings
are held in 33 percent of the proceedings in which a hearing request is
filed.
There would likely be one or more rounds of new or amended
contentions submitted after a hearing request is filed.
Presiding officer decisions on an initial hearing request
and presiding officer decisions after an evidentiary hearing would
likely be appealed, and there may be other petitions for review
submitted during a proceeding.
Given the higher volume of applications expected in the
next 5 years, there would likely be overlap in Licensing Board member
service for different proceedings given the longer timeframes in the
current process (i.e., over these longer timeframes, a member of one
Licensing Board in active litigation would likely serve on multiple
other Licensing Boards in active litigation).
Resource Projections for Next Five Years Based on the Proposed Rule
The proposed rule would make a number of changes that would affect
the resources of litigants:
For the initial filings (hearing requests/contentions,
answers, and replies), the proposed rule would accelerate the schedule
for filings and decisions thereon, which could save a modest amount of
resources. However, participants might compensate for this to some
degree by concentrating their resources during the shorter filing and
decision periods. Otherwise, the proposed rule would require litigants
to provide more information on the merits of proposed contentions in
their initial filings, which would increase resource burdens somewhat
at the initial filing stage.\32\ However, accelerating the resolution
of contested issues by including more information on the merits in
initial filings should bring about a compensating burden reduction for
those contentions that are admitted. In addition, accelerating
decisions on standing would, in circumstances where standing is not
demonstrated, save some litigant resources associated with the filing
of contentions (e.g., save resources from oral argument on contention
admissibility and, in some cases, save resources from the filing of
answers and replies concerning contentions) and particularly save
presiding officer resources regarding decisions on proposed
contentions.
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\32\ As explained earlier in this notice, the proposed changes
would not be expected to substantially affect the burden associated
with filing proposed contentions because they are consistent with
the existing requirement in Sec. 2.309(f)(1)(v) to factually
support contentions with documentary and expert support, as well as
case law on the relevance of expert qualifications to contention
admissibility determinations. Also, many relevant documents would
already be in ADAMS, and petitioners already routinely submit
supporting documents, including signed expert declarations that
detail the asserted qualifications of the expert. The NRC
anticipates some additional burden associated with the filing of
expert declarations in answers to contentions and in replies to
answers, but in many cases experts are already supporting the
litigants' preparation of their answers and replies, which would
mitigate the additional burden somewhat.
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The proposed rule should save substantial resources during
the intermediate phase, between admission of contentions and the
evidentiary hearing. Currently, evidentiary hearings are not held until
the staff completes its review--this has led to lengthy intermediate
periods where parties periodically update their document disclosures
(and for the staff, the hearing file) and engage in other litigation
activities. Under the proposed rule, the NRC staff would not have to
[[Page 10473]]
produce documents disclosures or a hearing file, and the much shorter
intermediate period would limit the disclosure burdens of the other
parties, as well as limit burdens from other litigation activities
during the intermediate period.
The proposed rule would also save substantial resources
during the evidentiary hearing phase. The current subpart L model
milestones envision an evidentiary hearing phase of about 9 months from
a triggering event to an initial decision, and in practice the
evidentiary hearing phase has on average taken substantially longer
than this. Under the proposed rule, the evidentiary hearing phase would
generally be limited to between 2 to 5 months, with 3 to 3.5 months
being the set period for most proceedings. Also, the schedule could
only be extended if unavoidable and extreme circumstances necessitate a
delay. A much shorter evidentiary hearing phase will inherently limit
the number of filings and other litigation activities and otherwise
limit the resources that can be expended. Nonetheless, these resource
savings would only accrue if an evidentiary hearing is held.
The proposed rule would also eliminate representation of
partnerships, corporations, unincorporated associations, and other
persons by those who are not attorneys. This provision would help
ensure that the NRC meets the accelerated schedules in the proposed
rule, which should save resources as explained in the previous
paragraphs. Otherwise, the NRC expects that petitioners who would
employ non-attorney representatives under the current rule would shift
their resources to employ attorneys as representatives. This matter is
discussed in more detail later in this notice in the context of
monetized projections of resources.
Considering these factors together, the NRC estimates that the NRC
staff's resource burdens would drop from 4,150 hours to 3,050 hours per
proceeding in which a hearing request is filed. Applicants would be
expected to see a modest drop in resource burden from 3,925 hours per
contested proceeding to 3,300 hours. The NRC staff would see a larger
resource savings than the applicant because of the proposed elimination
of the staff's document disclosure and hearing file obligations and
because the staff would have a choice in most proceedings on whether,
and to what extent, to address the merits and file supporting evidence
in its answers to proposed contentions, but the applicant would be
obligated to address the merits and file supporting evidence in most
proceedings. Finally, the NRC estimates a modest drop in petitioner
resource expenditures from 1,950 hours per contested proceeding to
about 1,650 hours (about half of the applicant's resource
expenditures).
For NRC adjudicatory decision-making staff, the NRC estimates that
the resource burdens in proceedings where a hearing request is filed
would drop from 4,700 hours per proceeding to 3,450 hours per
proceeding. This estimated resource savings accounts for the following
factors:
Significantly reduced periods for decision-making would
limit the resources that would be employed. For example, currently,
there is about a 3.5-month period, on average, between submission of a
contention and a ruling thereon. However, under the new proposed rules,
this period would be reduced to about 1.5 to 2.5 months. In addition,
as stated above, evidentiary hearings take 9 months or longer under
current regulations, while most evidentiary hearings under the new
proposed rule would take about 3 to 3.5 months total.
However, savings from the reduced time periods would be
limited by the following factors: (1) adjudicatory decision-making
staff might compensate for shorter periods to some degree by
concentrating their resources during the shorter decision periods, (2)
there would less likely be overlap in time spent by Licensing Board
members on multiple proceedings in active litigation at the same time
because the litigation period for each proceeding would be shorter,
leading to less overlap in active litigation, and (3) evidentiary
hearings are expected in only 33 percent of proceedings in which a
hearing request is submitted, thereby diluting the average savings from
a shorter evidentiary hearing period in the per-proceeding average.
On the other hand, accelerating decision-making on
standing would likely lead to resources savings in those proceedings
for which standing is not demonstrated because there would be no need
for the presiding officer to spend resources on the consideration of
proposed contentions.
It is difficult to make accurate predictions regarding these
factors, so the estimate of resource savings under the proposed
requirements is subject to uncertainty.
Monetized Projections for Next Five Years Based on Current and Proposed
Requirements
Building on the time-resources analysis discussed above, the NRC
monetizes the time spent by the government staff, applicants, and
petitioners on proceedings by applying fully loaded hourly wage rates.
For the government staff, the NRC uses its own internal
labor rate of $158 per hour.\33\
---------------------------------------------------------------------------
\33\ The NRC incremental labor rate of $158 differs from those
developed under the NRC's license fee recovery program (10 CFR part
170, ``Fees for facilities, materials, import and export licenses,
and other regulatory services under the Atomic Energy Act of 1954,
as amended''). NRC labor rates for fee recovery purposes are
appropriately designed for full-cost recovery of the services
rendered and as such include non-incremental costs (e.g., overhead,
administrative, and logistical support costs).
---------------------------------------------------------------------------
For the applicants, who typically include utilities or
corporate entities seeking licenses or related proceedings, the NRC
bases the hourly rates on two data sources. For outside legal services,
the NRC used the Fitzpatrick Matrix, which serves as a proxy for market
rates for attorneys and paralegals doing complex federal litigation in
the Washington, DC, area.\34\ Since hearing proceedings would involve
the use of outside legal counsel, the Fitzpatrick Matrix is used to
estimate the hourly cost of attorney and paralegal time. For 2024, the
hourly rates for attorneys of varying experience levels ranged from
$500 to $834, with a simple average of $734. The matrix also lists a
single hourly rate for paralegals of $236. For non-legal labor
categories, the NRC used wage data from the Bureau of Labor Statistics
(BLS).\35\ The estimated BLS mean hourly wage for relevant positions in
2024 are $70.95 for health and safety engineers, $67.32 for compliance
officers, $66.12 for nuclear engineers, $65.10 for engineers, all
others, and $41.45 for legal support workers. The NRC applied a
multiplier of 2.4 to this BLS wage data to arrive at a fully loaded
rate (e.g., $170.28 per hour for health and safety engineers); \36\ no
such adjustment was made to the Fitzpatrick Matrix rates as these
already reflect market-based rates. For the purposes of this analysis,
the NRC assumes a staffing distribution for applicants of 50 percent
for lawyers, 20 percent for nuclear
[[Page 10474]]
engineers, 15 percent for paralegals, 5 percent for health and safety
engineers, 5 percent for engineers, all others, and 5 percent for
compliance staff. Applying these percentages to the Fitzpatrick Matrix
data and the adjusted BLS data yields a blended applicant rate of about
$459 per hour.
---------------------------------------------------------------------------
\34\ U.S. Attorney's Office for the District of Columbia (USAO-
DC), Civil Division, The Fitzpatrick Matrix, available at https://www.justice.gov/usao-dc/media/1395096/dl?inline. Beginning in 2022,
USAO-DC replaced its previous USAO/Laffey Matrix with the
Fitzpatrick Matrix. Federal agencies, including the Department of
Justice, Federal Trade Commission, and Securities and Exchange
Commission, have used the Laffey Matrix, and subsequently the
Fitzpatrick Matrix, to estimate attorney fee rates or legal service
costs in regulatory analyses or information collection activities.
\35\ U.S. Bureau of Labor Statistics, Occupational Employment
and Wage Statistics, National Industry-Specific Occupational
Employment and Wage Statistics, May 2024.
\36\ The fully loaded wage rates include fringe and indirect
management costs.
---------------------------------------------------------------------------
For petitioners, which also include public-interest
organizations and community groups, their wage rates are also derived
from the two data sources mentioned previously, with a staffing
distribution under the current regulations of 25 percent for lawyers,
20 percent for nuclear engineers, 20 percent for engineers, all others,
20 percent for legal support staff, 10 percent for health and safety
engineers, and 5 percent for paralegals. This estimated staffing
distribution accounts for the fact that some petitioners under current
regulations employ non-attorneys as representatives (typically,
officers of the petitioning non-governmental organization (NGO)) while
other petitioners do employ attorneys, although these may be assisted
by officers of petitioning NGOs. NGO officers supporting litigation
activities are represented by the legal support staff portion of the
staffing distribution. Applying fully loaded hours rates to the BLS
wage data only, this yields a blended petitioner rate of about $296 per
hour under the current regulations. The NRC projects that the proposal
to require attorneys to represent others (individuals or entities) will
result in a modest shift in the overall staffing distribution toward
more attorney and paralegal support and correspondingly less
engineering support, with the effect limited to those petitioners who
do not currently employ attorneys as representatives. Recognizing that
affected petitioners will likely attempt to minimize costs from
attorney resources, the NRC estimates a staffing distribution under the
proposed rule provisions of 30 percent for lawyers, 15 percent for
nuclear engineers, 15 percent for engineers, all others, 20 percent for
legal support staff, 10 percent for health and safety engineers, and 10
percent for paralegals. Applying fully loaded hours rates to the BLS
wage data only, this yields a blended petitioner rate of about $328 per
hour under the proposed rule.
Using these wage rates, the time spent on proceedings is monetized
by multiplying the hours per proceeding by the applicable wage rate and
then by 15 proceedings annually. If the current regulations were to
remain in place, the applicants would spend about $27.0 million (3,925
x $459 x 15) on proceedings per year, the NRC adjudicatory staff would
spend about $11.1 million annually (4,700 hours x $158 x 15
proceedings), the NRC technical staff and attorneys would spend about
$9.8 million annually (4,150 hours x $158 x 15), and petitioners would
spend about $8.7 million annually (1,950 x $296 x 15). The combined
spending on anticipated proceedings is about $56.7 million annually,
undiscounted, if this rule is not implemented.
With this proposed rule, the applicants would spend about $22.7
million annually on proceedings (3,300 x $459 x 15), the NRC
adjudicatory staff about $8.2 million annually (3,450 hours x $158 x 15
proceedings), the NRC technical staff and attorneys about $7.2 million
annually (3,050 hours x $158 x 15), and petitioners about $8.1 million
annually (1,650 x $328 x 15). The applicants, government, and
petitioners would spend about $46.2 million annually, undiscounted, if
this rule is implemented.
Cost Savings and Regulatory Accounting Presented in 2024 Base Year
Dollars
Over the 5-year analysis period (2026-2030), the proposed revisions
to proceedings are projected to yield net savings for the public, the
industry, and government. The combined net savings would generate
cumulative undiscounted savings of $51.7 million (savings minus costs).
Using 2024 as the base year, the net present value (NPV) of these net
savings is $46.0 million, discounted at 3 percent, or $39.6 million,
discounted at 7 percent. The projected annualized cost savings would be
$9.8 million discounted at 3 percent, or $9.0 million discounted at 7
percent. Because the proposed rule would streamline existing hearing
procedures, the cost of implementing this rule for the hearing
participants is expected to be minimal and is not included in this
analysis. However, the NRC would incur rulemaking costs for developing
the final rule. This would include reviewing and addressing public
comments on the proposed rule and writing the Federal Register notice
for the final rule. The NRC estimates a total of 2,000 hours for
developing the final rule, with the associated undiscounted cost being
$320,000, or $300,000 (3 percent NPV) and $280,000 (7 percent NPV).
Table 6--Total Five-Year Cost and Savings: Government, Applicants, and Petitioners
[2024 Dollars]
----------------------------------------------------------------------------------------------------------------
In millions ($)
Attribute -----------------------------------------------
Undiscounted 3% NPV 7% NPV
----------------------------------------------------------------------------------------------------------------
Applicants' Savings from Rule................................... 21.5 19.1 16.5
NRC Adjudicatory Staff's Savings from Rule...................... 14.8 13.2 11.4
NRC Technical Staff and Attorneys' Savings from Rule............ 13.0 11.6 10.0
NRC Costs to Prepare Final Rule Costs........................... (0.3) (0.3) (0.3)
Petitioners' Savings from Rule.................................. 2.7 2.4 2.1
-----------------------------------------------
Net Savings................................................. 51.7 46.0 39.6
Annualized Savings.......................................... .............. 9.8 9.0
----------------------------------------------------------------------------------------------------------------
The applicants, accounting for the largest share of cost savings,
would save about $21.5 million over 5 years, undiscounted, with an NPV
of $19.1 million discounted at 3 percent, or $16.5 million discounted
at 7 percent.
[[Page 10475]]
Table 7--Total Five-Year Cost Savings: Applicants
[2024 Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost of Cost of
Number of proceedings proceedings Cost savings Cost savings Cost savings
Year proceedings with existing with proposed due to the 3% NPV ($ 7% NPV ($
regulations rule proposed rule millions) millions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Undiscounted, in millions ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2026.................................................... 15 27.0 22.7 4.3 4.1 3.8
2027.................................................... 15 27.0 22.7 4.3 3.9 3.5
2028.................................................... 15 27.0 22.7 4.3 3.8 3.3
2029.................................................... 15 27.0 22.7 4.3 3.7 3.1
2030.................................................... 15 27.0 22.7 4.3 3.6 2.9
-----------------------------------------------------------------------------------------------
Total............................................... 75 135.1 113.6 21.5 19.1 16.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Additionally the NRC adjudicatory staff would realize savings of
about $14.8 million over 5 years, undiscounted, with an NPV of $13.2
million discounted at 3 percent, or $11.4 million discounted at 7
percent.
Table 8--Total Five-Year Cost Savings: NRC Adjudicatory Staff
[2024 Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost of Cost of
Number of proceedings proceedings Cost savings Cost savings Cost savings
Year proceedings with existing with proposed due to the 3% NPV ($ 7% NPV ($
regulations rule proposed rule millions) millions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Undiscounted, in millions ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2026.................................................... 15 11.1 8.2 3.0 2.8 2.6
2027.................................................... 15 11.1 8.2 3.0 2.7 2.4
2028.................................................... 15 11.1 8.2 3.0 2.6 2.3
2029.................................................... 15 11.1 8.2 3.0 2.6 2.1
2030.................................................... 15 11.1 8.2 3.0 2.5 2.0
-----------------------------------------------------------------------------------------------
Total............................................... 75 55.7 40.9 14.8 13.2 11.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
During the same period, the NRC technical staff and attorneys would
save about $13.0 million over 5 years, undiscounted, with an NPV of
$11.6 million discounted at 3 percent, or $10.0 million discounted at 7
percent.
Table 9--Total Five-Year Cost Savings: NRC Technical Staff and Attorneys
[2024 Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost of Cost of
Number of proceedings proceedings Cost savings Cost savings Cost savings
Year proceedings with existing with proposed due to the 3% NPV ($ 7% NPV ($
regulations rule proposed rule millions) millions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Undiscounted, in millions ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2026.................................................... 15 9.8 7.2 2.6 2.5 2.3
2027.................................................... 15 9.8 7.2 2.6 2.4 2.1
2028.................................................... 15 9.8 7.2 2.6 2.3 2.0
2029.................................................... 15 9.8 7.2 2.6 2.2 1.9
2030.................................................... 15 9.8 7.2 2.6 2.2 1.7
-----------------------------------------------------------------------------------------------
Total............................................... 75 49.2 36.1 13.0 11.6 10.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
The petitioners' savings total about $2.7 million, undiscounted,
with an NPV of $2.4 million discounted at 3 percent, or $2.1 million
discounted at 7 percent.
[[Page 10476]]
Table 10--Total Five-Year Cost Savings: Petitioners
[2024 Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost of Cost of
Number of proceedings proceedings Cost savings Cost savings Cost savings
Year proceedings with existing with proposed due to the 3% NPV ($ 7% NPV ($
regulations rule proposed rule millions) millions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Undiscounted, in millions ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2026.................................................... 15.0 8.7 8.1 0.5 0.5 0.5
2027.................................................... 15.0 8.7 8.1 0.5 0.5 0.4
2028.................................................... 15.0 8.7 8.1 0.5 0.5 0.4
2029.................................................... 15.0 8.7 8.1 0.5 0.5 0.4
2030.................................................... 15.0 8.7 8.1 0.5 0.5 0.4
-----------------------------------------------------------------------------------------------
Total............................................... 75.0 43.3 40.6 2.7 2.4 2.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Overall, this proposed rule is considered to be a deregulatory
action and would reduce burden for both the agency and hearing
participants by streamlining the hearing process. These deregulatory
actions would translate into net savings with an NPV of $39.6 million
over the five-year analysis horizon, or $9.0 million annually in 2024
dollars at a 7 percent discount rate. In addition to the quantified
resource savings discussed previously, the NRC notes that the proposed
milestones for Commission appellate review would lead to a potential
qualitative benefit to adjudicatory participants through a more
efficient appeals process.
In addition to this analysis, OIRA requires agencies to report
results as a perpetual stream (perpetuity) once a rule is implemented.
The perpetual stream has annualized savings of about $9.0 million.
Because this analysis is conducted at the proposed rule stage, these
figures reflect potential entries into the OIRA Regulatory Accounting
Module once the rule is implemented, provided they remain unchanged at
the final rule stage.
VIII. Backfitting and Issue Finality
The NRC has determined that the backfit rule and issue finality
provisions do not apply to this rule because the amendments do not
involve any provisions that would impose backfits as defined in 10 CFR
Chapter I and are not inconsistent with any applicable issue finality
provision in 10 CFR part 52. Therefore, a backfit analysis or issue
finality assessment is not required for this rule.
IX. 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
31885).
X. National Environmental Policy Act
This 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
This proposed 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. Existing collections of information were
approved by the Office of Management and Budget, approval numbers 3150-
0021, 3150-0151, and 3150-0155.
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.
XII. Regulatory Planning and Review Executive Order (E.O.) 12866
The Office of Information and Regulatory Affairs (OIRA) has
determined that this proposed rule is not a significant regulatory
action under E.O. 12866. More can be found in section VII, of this
document, ``Regulatory Analysis.''
Review Under E.O.s 14154, 14192, 14215, and 14300
The NRC has examined this proposed rule and has determined that it
is consistent with the policies and directives outlined in E.O. 14154,
``Unleashing American Energy,'' E.O. 14192, ``Unleashing Prosperity
Through Deregulation,'' E.O. 14215 ``Ensuring Accountability for All
Agencies,'' and E.O. 14300, ``Ordering the Reform of the Nuclear
Regulatory Commission.'' This proposed rule is considered an E.O. 14192
deregulatory action. We estimate that this rule generates $9.0 million
in annualized costs savings at a 7% discount rate, discounted relative
to year 2024, over a perpetual time horizon. Details on the estimated
costs of this proposed rule can be found in section VII, of this
document, ``Regulatory Analysis.''
Review Under E.O. 14270
Executive Order 14270, ``Zero-Based Regulatory Budgeting to Unleash
American Energy,'' requires the NRC to insert a conditional sunset date
into all new or amended NRC regulations provided the regulations are
(1) promulgated under the Atomic Energy Act of 1954, as amended (AEA),
the Energy Reorganization Act of 1974, as amended (ERA), and the
Nuclear Waste Policy Act of 1982, as amended (NWPA); (2) not
statutorily required; and (3) not part of the NRC's permitting regime.
The NRC determined that the regulatory changes proposed in this rule
are for hearing processes that are required by statute and are part of
the NRC's regulatory permitting scheme authorized by the AEA, ERA, or
NWPA. Therefore, the NRC views this rulemaking to be outside the scope
of Executive Order 14270 and did not insert conditional sunset dates
for the regulatory changes in this proposed rule.
XIII. Availability of Guidance
The NRC will not be issuing guidance for this rulemaking because
the rulemaking would specify requirements for adjudications, and how
these requirements apply would be highly dependent on the specific
claims made by litigants and the specific
[[Page 10477]]
circumstances associated with these claims.
XIV. Availability of Documents
The documents identified in the following table are available to
interested persons through one or more of the following methods, as
indicated.
------------------------------------------------------------------------
ADAMS Accession No./Web
link/Federal Register
Document Citation/Legal
publication
------------------------------------------------------------------------
Executive Order 12866, ``Regulatory Planning 58 FR 51735.
and Review,'' October 4, 1993.
Executive Order 14215, ``Ensuring 90 FR 10447.
Accountability for All Agencies,'' February
24, 2025.
Executive Order 14154, ``Unleashing American 90 FR 8353.
Energy,'' January 29, 2025.
Executive Order 14192, ``Unleashing 90 FR 9065.
Prosperity Through Deregulation,'' February
6, 2025.
Executive Order 14270, ``Zero-Based 90 FR 15643.
Regulatory Budgeting to Unleash American
Energy,'' April 15, 2025.
Executive Order 14300, ``Ordering the Reform 90 FR 22587.
of the Nuclear Regulatory Commission,'' May
29, 2025.
Final Rule--Rules of Practice for Domestic 54 FR 33168.
Licensing Proceedings--Procedural Changes in
the Hearing Process, August 11, 1989.
Final Rule--Changes to Adjudicatory Process, 69 FR 2182.
January 14, 2004.
Final Rule--Amendments to Adjudicatory 77 FR 46562.
Process Rules and Related Requirements,
August 3, 2012.
Final Rule--Licenses, Certifications, and 72 FR 49352.
Approvals for Nuclear Power Plants, August
28, 2007.
Lincoln County, Nevada; Denial of Petition 72 FR 73676.
for Rulemaking, December 28, 2007.
Memorandum and Order (CLI-92-4), Long Island 35 NRC 69 (ML16357A727).
Lighting Company (Shoreham Nuclear Power
Station, Unit 1), February 26, 1992.
Memorandum and Order (LBP-01-31), Duke Energy 54 NRC 242 (ML030420224).
Corporation (McGuire Nuclear Station, Units
1 and 2; Catawba Nuclear Station, Units 1
and 2), October 31, 2001.
Memorandum and Order (CLI-04-25) Louisiana 60 NRC 223 (ML060740237).
Energy Services, L.P. (National Enrichment
Facility), August 18, 2004.
Memorandum and Order (CLI-06-10), USEC Inc. 63 NRC 451 (ML081510741).
(American Centrifuge Plant), April 3, 2006.
Memorandum and Order (CLI-06-16), Andrew 63 NRC 708 (ML081510741).
Siemaszko, June 2, 2006.
Memorandum and Order (CLI-06-17) Nuclear 63 NRC 727 (ML081510741).
Management Company (Palisades Nuclear
Plant), June 23, 2006.
Memorandum and Order (LBP-09-6), U.S. 69 NRC 367 (ML12202B178).
Department of Energy (High-Level Waste
Repository), May 11, 2009.
Memorandum and Order (CLI-10-2), Progress 71 NRC 27 (ML13056A621).
Energy Florida, Inc. (Levy County Nuclear
Power Plant, Units 1 and 2), January 7, 2010.
Memorandum and Order (CLI-12-3), Entergy 75 NRC 132 (ML14192B367).
Nuclear Generation Company and Entergy
Nuclear Operations, Inc. (Pilgrim Nuclear
Power Station), February 22, 2012.
Memorandum and Order (CLI-12-14), Virginia 75 NRC 692 (ML14192B367).
Electric and Power Company (North Anna Power
Station, Unit 3), June 7, 2012.
Memorandum and Order (CLI-19-11), Entergy 90 NRC 258 (ML20241A307).
Nuclear Operations, Inc. (Pilgrim Nuclear
Power Station), December 17, 2019.
Memorandum and Order (CLI-20-6), Southern 91 NRC 225 (ML21168A338).
Nuclear Operating Company, Inc. (Vogtle
Electric Generating Plant, Unit 3), June 15,
2020.
Memorandum and Order (CLI-20-16), Nuclear 92 NRC 511 (ML21280A391).
Development, LLC (Bellefonte Nuclear Plant,
Units 1 and 2), December 17, 2020.
Order of the Secretary, Florida Power & Light ML18180A185.
Co. (Turkey Point Nuclear Generating Units 3
and 4), Nos. 50-250-SLR/50-251-SLR, June 29,
2018.
Deukmejian v. NRC, D.C. Cir., December 31, 751 F.2d 1287.
1984.
National Whistleblower Center v. Nuclear 208 F.3d 256.
Regulatory Commission, D.C. Cir., April 11,
2000.
Citizens Awareness Network, Inc. v. U.S., 1st 391 F.3d 338.
Cir., December 10, 2004.
Federal Administrative Adjudication Outside https://www.acus.gov/
the Administrative Procedure Act, Michael sites/default/files/
Asimow, 2019. documents/
Federal%20Administrative
%20Adj%20Outside%20the%2
0APA%20-%20Final.pdf.
------------------------------------------------------------------------
The NRC may post materials related to this document, including
public comments, on the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2025-1501. In addition, the
Federal rulemaking website allows members of the public to receive
alerts when changes or additions occur in a docket folder. To
subscribe: (1) navigate to the docket folder (NRC-2025-1501); (2) click
the ``Subscribe'' link; and (3) enter an email address and click on the
``Subscribe'' link.
List of Subjects
10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Confidential business information,
Environmental protection, Freedom of information, 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.
10 CFR Part 51
Administrative practice and procedure, Environmental impact
statements, Hazardous waste, Nuclear energy, Nuclear materials, Nuclear
power plants and reactors, Reporting and recordkeeping requirements.
10 CFR Part 52
Administrative practice and procedure, Antitrust, Combined license,
Early site permit, Emergency planning, Fees, Incorporation by
reference, Inspection, Issue finality, Limited work authorization,
Manufacturing license,
[[Page 10478]]
Nuclear power plants and reactors, Probabilistic risk assessment,
Prototype, Reactor siting criteria, Redress of site, Penalties,
Reporting and recordkeeping requirements, Standard design, Standard
design certification.
10 CFR Part 54
Administrative practice and procedure, Age-related degradation,
Backfitting, Classified information, Criminal penalties, Environmental
protection, Nuclear power plants and reactors, Penalties, Radiation
protection, 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 and 553, the NRC is proposing
to amend 10 CFR parts 2, 51, 52, and 54:
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 Sec. 31001(s), Pub. L. 104-134, 110 Stat. 1321-373
(28 U.S.C. 2461 note).
0
2. In Sec. 2.4, revise the definitions of ``Contested proceeding'' and
``Potential party'' and add new definitions for ``Highly expedited
proceeding'' and ``Standard Record Closure Date'' to read as follows:
Sec. 2.4 Definitions.
* * * * *
Contested proceeding means--
* * * * *
(3) A proceeding in which a hearing request, petition for leave to
intervene, or contention in opposition to an application for a license
or permit (a) has been granted or is pending before the Commission, or
(b) is not pending before the Commission but is the subject of a motion
for leave to file the hearing request, petition for leave to intervene,
or contention after the prescribed filing deadline established in Sec.
2.309(b) of this part.
* * * * *
Highly expedited proceeding means a proceeding for (a) a licensee-
initiated amendment for a measurement uncertainty recapture uprate; (b)
a licensee-initiated amendment relying on an NRC-approved Technical
Specifications Task Force traveler using the Consolidated Line-Item
Improvement Process; or (c) any other proceeding that the Commission
designates as a highly expedited proceeding.
* * * * *
Potential party means any person who has requested, or who may
intend to request, a hearing or petition to intervene in a hearing
under 10 CFR part 2, other than hearings conducted under Subpart J of
10 CFR part 2.
* * * * *
Standard Record Closure Date means the standard date for closure of
the record in a proceeding. The Standard Record Closure Date for a
proceeding is the date on which an initial decision would be scheduled
to issue in accordance with this part in the hypothetical situation
where a contention is (a) filed by the deadline in Sec. 2.309(b) of
this part; (b) admitted by the presiding officer in accordance with a
due date for decision specified in this part (with the contention,
answer, and reply being filed by the deadlines specified in this part);
and (c) adjudicated at an evidentiary hearing phase that immediately
proceeds upon the admission of the contention. The calculated Standard
Record Closure Dates for different types of proceedings are in Sec.
2.1207.
* * * * *
0
3. In Sec. 2.101, revise paragraph (f)(5) to read as follows:
Sec. 2.101 Filing of application.
* * * * *
(f) * * *
(5) The Director, Office of Nuclear Material Safety and Safeguards,
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, as soon as practicable after docketing the
application, 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.
0
4. In Sec. 2.104, revise paragraphs (a) and (b)(4) to read as follows:
Sec. 2.104 Notice of hearing.
(a) In the case of an application on which a hearing is required by
the Act or this chapter, or in which the Commission finds that a
hearing is required in the public interest, the Secretary will issue a
notice of hearing to be published in the Federal Register. The notice
must be published at least 15 days, and in the case of an application
concerning a limited work authorization, construction permit, early
site permit, or combined license for a facility of the type described
in Sec. Sec. 50.21(b) or 50.22 of this chapter or a testing facility,
at least 30 days, before the date set for hearing in the notice.\1\ In
addition, in the case of a notice of hearing announcing an opportunity
to request a hearing, petition to intervene, and/or file contentions,
the notice must be published in the Federal Register as soon as
practicable after the NRC has docketed the application. If the
Commission decides, under Sec. 2.101(a)(2), to determine the
acceptability of the application based on its technical adequacy as
well as completeness, the notice must be issued as soon as practicable
after the application has been tendered.
---------------------------------------------------------------------------
\1\ If the notice of hearing concerning an application for a
limited work authorization, construction permit, early site permit,
or combined license for a facility of the type described in
Sec. Sec. 50.21(b) or 50.22 of this chapter or a testing facility
does not specify the time and place of initial hearing, a subsequent
notice will be published in the Federal Register which will provide
at least 30 days notice of the time and place of that hearing. After
this notice is given, the presiding officer may reschedule the
commencement of the initial hearing for a later date or reconvene a
recessed hearing without again providing at least 30 days notice.
---------------------------------------------------------------------------
(b) * * *
(4) The date by which requests for hearing, petitions to intervene,
and contentions must be filed; the Standard Record Closure Date for the
proceeding specified in Sec. 2.1207; and the additional filing
deadline information required by Sec. 2.309(b)(5);
* * * * *
0
5. In Sec. 2.105, revise the introductory text of paragraph (b) and
revise paragraph (d) to read as follows:
Sec. 2.105 Notice of proposed action.
* * * * *
(b) Except for notices subject to the requirements of Sec. 50.91,
if a notice of proposed action is published in the Federal Register,
that notice must be published in the Federal Register as soon as
practicable after the NRC has docketed the application. A notice of
proposed action published in the Federal Register (including one
subject to the requirements of Sec. 50.91) will set forth:
* * * * *
(d) The notice of proposed action will provide that, within the
time period
[[Page 10479]]
provided under Sec. 2.309(b), the applicant may file a request for a
hearing; and any person whose interest may be affected by the
proceeding may file a request for a hearing or a petition for leave to
intervene if a hearing has already been requested. In addition, the
notice must state the Standard Record Closure Date for the proceeding
specified in Sec. 2.1207 and state the additional filing deadline
information required by Sec. 2.309(b)(5).
* * * * *
0
6. In Sec. 2.306 revise the introductory text of paragraph (b) to read
as follows:
Sec. 2.306 Computation of time.
* * * * *
(b) If the presiding officer grants a request for an exemption from
the electronic transmission requirements under Sec. 2.302(h) or
anticipates that information subject to Sec. 2.302(g)(2) will not be
transmitted electronically, the presiding officer must issue an order
specifying whether additional time should be added to prescribed
periods for taking action to account for physical delivery of a notice
or other document and if so, how much time should be added. In
considering the need for additional time to account for physical
delivery, the presiding officer should ensure that the added time will
not cumulatively challenge timely completion of the adjudication. Prior
to the presiding officer issuing such an order, whenever a participant
has the right or is required to do some act within a prescribed period
after service of a notice or other document upon him or her, no
additional time is added to the prescribed period except in the
following circumstances:
* * * * *
0
7. In Sec. 2.307, revise paragraph (a) to read as follows:
Sec. 2.307 Extension and reduction of time limits; delegated
authority to order use of procedures for access by potential parties to
certain sensitive unclassified information.
(a) Except as otherwise provided by law, the time fixed or the
period of time prescribed for an act that is required or allowed to be
done at or within a specified time, may be extended or shortened either
by the Commission or the presiding officer for good cause, or by
stipulation approved by the Commission or the presiding officer. For
purposes of this section, to demonstrate good cause a person must show
extraordinary circumstances beyond their control; however, if the
proposed extension of time has the demonstrated potential to cause the
proceeding to extend beyond the staff's scheduled date for completing
its review of the particular application as documented in a written
communication to the applicant, then a person must show unavoidable and
extreme circumstances to demonstrate good cause.
* * * * *
0
8. In Sec. 2.309:
0
a. Revise paragraph (a);
0
b. Revise paragraph (b)(3), and add paragraph (b)(5);
0
c. Revise introductory text of paragraph (c) and paragraphs (c)(1) and
(2), and add paragraphs (c)(5), (c)(6), and (c)(7);
0
d. Remove and reserve paragraph (e);
0
e. Revise the introductory text of paragraph (f)(1), and paragraphs
(f)(1)(iv), (f)(1)(vi), and (f)(2);
0
f. Revise paragraph (g);
0
g. Remove the word ``containing'' and add in its place the word ``and''
in the first sentence of paragraph (h)(1);
0
h. Revise paragraph (i);
0
i. Revise paragraph (j)(1), and add paragraph (j)(3); and
0
j. Add paragraph (k).
The additions and revisions read as follows:
Sec. 2.309 Hearing requests, petitions to intervene, requirements
for standing, and contentions.
(a) General requirements. Any person whose interest may be affected
by a proceeding and who desires to participate as a party must file a
written request for hearing and a specification of the contentions
which the person seeks to have litigated in the hearing.
(1) For proceedings for the grant, renewal, licensee-initiated
amendment, termination, or transfer of licenses or permits (other than
a proceeding under subpart J of this part; a proceeding for granting a
license to construct and operate a uranium enrichment facility; or a
proceeding on a denial of an application), the Commission, presiding
officer, or the Atomic Safety and Licensing Board designated to rule on
the request for hearing and/or petition for leave to intervene, will
grant the request/petition if it determines that the requestor/
petitioner has standing under the provisions of paragraph (d) of this
section. If the request/petition is granted, the Commission, presiding
officer, or the Atomic Safety and Licensing Board designated to rule on
the request/petition will then determine whether the requestor/
petitioner has proposed at least one admissible contention that meets
the requirements of paragraph (f) of this section.
(2) For all other proceedings, the Commission, presiding officer,
or the Atomic Safety and Licensing Board designated to rule on the
request for hearing and/or petition for leave to intervene, will grant
the request/petition if it determines that the requestor/petitioner has
standing under the provisions of paragraph (d) of this section and has
proposed at least one admissible contention that meets the requirements
of paragraph (f) of this section.
(3) In ruling on the request for hearing/petition to intervene
submitted by petitioners seeking to intervene in the proceeding on the
HLW repository, the Commission, the presiding officer, or the Atomic
Safety and Licensing Board shall also consider any failure of the
petitioner to participate as a potential party in the pre-license
application phase under subpart J of this part in addition to the
factors in paragraph (d) of this section.
(4) If a request for hearing or petition to intervene is filed in
response to any notice of hearing or opportunity for hearing, the
applicant/licensee shall be deemed to be a party.
(b) * * *
(3) In proceedings for which a Federal Register notice of agency
action is published (other than a proceeding covered by paragraphs
(b)(1) or (b)(2) of this section):
(i) The request or petition and the contentions must be filed
within sixty (60) days from the date of publication of the notice in
the Federal Register in a proceeding for the grant of a license to
construct and operate a uranium enrichment facility or a proceeding
under Sec. 52.103 of this chapter;
(ii) The request or petition must be filed within thirty (30) days,
and the contentions must be filed within sixty (60) days, from the date
of publication of the notice in the Federal Register in a proceeding
for:
(A) The grant of a construction permit, an initial operating
license, or an initial combined license under 10 CFR parts 50 or 52 for
a production or utilization facility of the type described in
Sec. Sec. 50.21(b) or 50.22, where the application does not reference
a design certification or manufacturing license;
(B) The grant of a license to construct and/or operate a uranium
recovery or fuel cycle facility under part 40 or part 70 (other than a
license to construct and operate a uranium enrichment facility);
(iii) The request or petition and the contentions must be filed
within thirty (30) days from the date of publication of notice in the
Federal Register in a highly expedited proceeding or a proceeding on a
denial of an application;
(iv) The request or petition must be filed within thirty (30) days,
and the contentions must be filed within forty-five (45) days, from the
date of
[[Page 10480]]
publication of the notice in the Federal Register, in a proceeding not
identified in paragraphs (b)(3)(i), (b)(3)(ii), or (b)(3)(iii) of this
section.
* * * * *
(5) The Federal Register notices referenced in paragraphs (b)(1)
through (b)(3) of this section must state the Standard Record Closure
Date for the proceeding specified in Sec. 2.1207, along with the
applicable filing deadlines for hearing requests, intervention
petitions, and contentions (including those filed after the Sec.
2.309(b)(1) through (b)(3) deadlines), and the applicable deadlines for
the associated answers and replies.
(c) Filings after the deadline; submission of motion for leave to
file hearing request, intervention petition, or new or amended
contentions--
(1) Submission of motion for leave to file and determination by
presiding officer. To submit a hearing request, intervention petition,
or new or amended contention after the deadline in paragraph (b) of
this section, a participant must submit a motion for leave to file the
request, petition, or contention after the deadline, and the request,
petition, or contention must accompany the motion for leave to file.
Hearing requests, intervention petitions, and new or amended
contentions filed after the deadline in paragraph (b) of this section
will not be entertained and will not be considered pending before the
Commission unless the associated motion for leave to file is granted
upon a determination by the presiding officer that a participant has
demonstrated good cause by showing that:
(i) The information upon which the hearing request, intervention
petition, or contention is based was not previously available;
(ii) The information upon which the hearing request, intervention
petition, or contention is based is materially different from
information previously available; and
(iii) The motion for leave to file and associated hearing request,
intervention petition, or contention have been submitted within thirty
(30) days of the availability of the subsequent information, except
that the filing period is twenty (20) days from the availability of the
subsequent information for license transfer or highly expedited
proceedings.
(2) Applicability of Sec. Sec. 2.307 and 2.323.
(i) Section 2.307 applies to requests to change a filing deadline
(requested before or after that deadline has passed) based on reasons
not related to the substance of the filing.
(ii) Section 2.323 does not apply to motions for leave to file
hearing requests, intervention petitions, or new or amended contentions
filed after the deadline in paragraph (b) of this section.
* * * * *
(5)(i) The applicant/licensee, the NRC staff, and other parties to
a proceeding may file an answer to a motion for leave to file and
associated hearing request, intervention petition, or contention within
20 days of service of the motion and associated request, petition, or
contention, except that the filing period is 15 days for license
transfer or highly expedited proceedings. 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.
(ii) Except in a proceeding under Sec. 52.103 of this chapter, the
participant who filed the motion for leave to file and associated
request, petition, or contention may file a reply to any answer. The
reply must be filed within 7 days after service of that answer.
(6) The presiding officer's decision on a motion for leave to file
and associated request, petition, or contention must be issued within
25 days after service of the reply (or within 25 days after the
deadline for a reply, if no reply is filed). This deadline may be
extended only in accordance with the requirements of paragraph (j)(3)
of this section.
(7) The pendency of a motion for leave to file submitted under this
paragraph does not affect the NRC's authority to take licensing or
regulatory actions.
* * * * *
(e) [Reserved]
(f) * * *
(1) Contentions must be set forth with particularity. Each
contention must:
* * * * *
(iv) Demonstrate that the issue raised in the contention is
material to the findings the NRC must make to support the action that
is involved in the proceeding, including specifying the legal
requirement on which the contention is based;
* * * * *
(vi) In a proceeding other than one under Sec. 52.103 of this
chapter, provide sufficient information to show that a genuine dispute
exists with the applicant/licensee on a material issue of law or fact.
This information must include references to specific portions of the
application (including the applicant's environmental report and safety
report) that the petitioner disputes and the supporting reasons for
each dispute, or, if the petitioner believes that the application fails
to contain information on a relevant matter as required by law, the
identification of each failure and the supporting reasons for the
petitioner's belief. This information also must clearly indicate
whether the petitioner is disputing the adequacy of the information in
the application, is asserting that the application fails to contain
information on a relevant matter as required by law, or both; and
* * * * *
(2) Contentions must be based on documents or other information
available at the time the petition is to be filed, such as the
application, supporting safety analysis report, environmental report or
other supporting document filed by an applicant or licensee, or
otherwise available to a petitioner. On issues arising under the
National Environmental Policy Act, participants shall file contentions
based on the applicant's environmental report. Participants may file
new or amended environmental contentions after the deadline in
paragraph (b) of this section (e.g., based on a draft or final NRC
environmental impact statement, environmental assessment, or any
supplements to these documents) if the associated motion for leave to
file complies with the requirements in paragraph (c) of this section.
* * * * *
(g) Selection of hearing procedures. A request for hearing,
petition for leave to intervene, and/or proposed contentions may,
except in a proceeding under Sec. 52.103 of this chapter, also address
the selection of hearing procedures, taking into account the provisions
of Sec. 2.310.
* * * * *
(i) Answers to hearing requests, intervention petitions, and
contentions filed by the deadline in paragraph (b) of this section;
replies to answers. For a hearing request, intervention petition, or
proposed contention filed by the deadline in paragraph (b) of this
section--
(1) The applicant/licensee, the NRC staff, and other parties to a
proceeding may file an answer to the request, petition, or proposed
contention. 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. Answers must be
filed within the following timeframes:
(i) In a proceeding on a license to construct and operate a uranium
enrichment facility, a proceeding under subpart J of this part, a
proceeding under Sec. 52.103 of this chapter, or a proceeding on a
denial of an
[[Page 10481]]
application, the answer must be filed within 25 days after service of
the request or petition.
(ii) In all other proceedings:
(A) The answer to a hearing request or an intervention petition
must be filed within 10 days after service of the request or petition;
and
(B) The answer to a proposed contention must be filed within 25
days after service of the contention, except that the filing period is
20 days for license transfer or highly expedited proceedings.
(2) The participant who filed the hearing request, intervention
petition, or proposed contention may file a reply to an answer, except
that there is no opportunity to file a reply in a proceeding under
Sec. 52.103 of this chapter or to file a reply to an answer to a
hearing request or intervention petition in a highly expedited
proceeding. The reply must be filed within 7 days after service of that
answer.
* * * * *
(j) Decision on request/petition/contention filed by the deadline
in paragraph (b) of this section.
(1) Except in a proceeding under Sec. 52.103 of this chapter or a
proceeding under subpart J of this part, the presiding officer shall
issue a decision on a hearing request, intervention petition, or
proposed contention filed by the deadline in paragraph (b) of this
section, within the following timeframes:
(i) In a proceeding on a license to construct and operate a uranium
enrichment facility or a proceeding on a denial of an application, the
decision must be issued within 35 days after service of the reply to
the answers to the request or petition (or within 35 days after the
deadline for a reply, if no reply is filed).
(ii) In a highly expedited proceeding:
(A) The decision on a hearing request or an intervention petition
must be issued within 20 days after service of the answers to the
request or petition (or within 20 days after the deadline for answers,
if no answer is filed); and
(B) The decision on a proposed contention must be issued within 30
days after service of the reply to the answers to the contention (or
within 30 days after the deadline for a reply, if no reply is filed).
(iii) In all other proceedings:
(A) The decision on a hearing request or an intervention petition
must be issued within 20 days after service of the reply to the answers
to the request or petition (or within 20 days after the deadline for a
reply, if no reply is filed); and
(B) The decision on a proposed contention must be issued within 35
days after service of the reply to the answers to the contention (or
within 35 days after the deadline for a reply, if no reply is filed),
except that this period is 30 days for license transfer proceedings.
* * * * *
(3) The decision deadlines in paragraph (j)(1) of this section may
be extended only if extraordinary circumstances prevent the presiding
officer from issuing a decision by the deadline. At the earliest
practicable opportunity, the presiding officer must notify the
Commission and the litigants of the delay and the extraordinary
circumstances that necessitate the delay.
(k) Additional requirements for certain proceedings. The following
requirements apply to all proceedings other than a proceeding on a
license to construct and operate a uranium enrichment facility, a
proceeding under subpart J of this part, a proceeding under Sec.
52.103 of this chapter, or a proceeding on a denial of an application:
(1) The petitioner must with its contentions file all referenced
documents and/or affidavits supporting the factual assertions in the
contention. Any affidavits must describe the individual's knowledge of
the facts alleged or expertise in the discipline(s) appropriate to the
issues raised.
(2) The applicant in its answer to proposed contentions must, and
the NRC staff may, address the merits of the proposed contentions in
addition to addressing the contention admissibility criteria.\1\
Replies to these answers may address factual arguments in the answers
with additional evidence, except that replies may not expand or modify
the scope of the proposed contention or provide factual support that
could have been provided in the original contention but was not. In
addressing the merits of proposed contentions, answers and replies must
be accompanied by all referenced documents and/or affidavits supporting
the factual assertions in the answer or reply that address the merits
of the proposed contention. Any affidavits must describe the
individual's knowledge of the facts alleged or expertise in the
discipline(s) appropriate to the issues raised.
---------------------------------------------------------------------------
\1\ In a highly expedited proceeding, however, the staff is
expected to address the merits of proposed contentions in their
answer to the extent practical to support the accelerated review and
hearing schedule.
---------------------------------------------------------------------------
(3) For documents available in ADAMS, the participant may provide
the ADAMS Accession number for the document in lieu of filing the
document.
(4) For a copyright document, the participants must submit only
relevant portions of the document that would constitute fair use.
0
9. In Sec. 2.310, remove and reserve paragraphs (c), (d), (g), and (h)
and revise paragraphs (a) and (e) to read as follows:
Sec. 2.310 Selection of hearing procedures.
* * * * *
(a) Except as determined through the application of paragraphs (b)
through (f) of this section, proceedings for the grant, renewal,
licensee-initiated amendment, termination, or transfer of licenses or
permits subject to 10 CFR parts 30, 32 through 36, 39, 40, 50, 52, 54,
55, 61, 70 and 72 must be conducted under the procedures of subpart L
of this part.
* * * * *
(c) [Reserved]
(d) [Reserved]
(e) Proceedings on applications for a license or license amendment
to expand the spent nuclear fuel storage capacity at the site of a
civilian nuclear power plant must be conducted under the procedures of
subpart L of this part, unless a party requests that the proceeding be
conducted under the procedures of subpart K of this part.
* * * * *
(g) [Reserved]
(h) [Reserved]
* * * * *
0
10. Revise Sec. 2.311 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.
(a) Types of appeals covered under this section. An order of the
presiding officer, or if a presiding officer has not been designated,
of the Chief Administrative Judge, or if he or she is unavailable, of
another administrative judge, or of an administrative law judge with
jurisdiction under Sec. 2.318(a), may be appealed to the Commission
with respect to:
(1) A request for hearing;
(2) A petition to intervene;
(3) A request for admission of contentions submitted by the
applicable deadline in Sec. 2.309(b) in a proceeding subject to Sec.
2.309(j)(1)(ii)-(iii), for which a petitioner has been granted a
hearing request or intervention petition;
(4) A request for access to sensitive unclassified non-safeguards
information (SUNSI), including, but not limited to, proprietary,
confidential commercial, and security-related information, and
Safeguards Information (SGI). An appeal
[[Page 10482]]
to the Commission may also be taken from an order of an officer
designated to rule on information access issues; or
(5) An order selecting a hearing procedure.
(b) Timing of appeals and associated filings under this section.
(1) Appeals under paragraphs (a)(1)-(4) of this section must be
made as specified by the provisions of this section, within 14 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 14 days after service of the appeal. The supporting brief
and any answer must conform to the requirements of Sec. 2.341(c)(3).
No reply briefs will be permitted. No other appeals from rulings on
requests for hearing are allowed.
(2) Appeals under paragraph (a)(5) of this section must be filed
with the Commission no later than seven (7) days after issuance of the
order selecting a hearing procedure. Any party who opposes the appeal
may file a brief in opposition to the appeal within seven (7) days
after service of the appeal. No reply briefs will be permitted.
(c) Scope of appeals under this section.
(1) An order described in paragraphs (a)(1)-(4) of this section is
appealable:
(i) By the requestor/petitioner on the question as to whether the
request or petition should have been granted or (in a proceeding
subject to Sec. 2.309(j)(1)(ii)-(iii)) a contention should have been
admitted.
(ii) By a party other than the requestor/petitioner on the question
as to whether the request for hearing or petition to intervene should
have been wholly denied, or (in a proceeding subject to Sec.
2.309(j)(1)(ii)-(iii)), whether the admitted contentions should have
been wholly denied; or
(iii) By a party other than the requestor/petitioner on the
question as to whether the request for access to the information
described in paragraph (a)(4) of this section should have been denied
in whole or in part. However, such a question with respect to SGI may
only be appealed by the NRC staff, and such a question with respect to
SUNSI may be appealed only by the NRC staff or by a party whose
interest independent of the proceeding would be harmed by the release
of the information.
(2) An order described in paragraph (a)(5) of this section may be
appealed by any party on the question as to whether the selection of
the particular hearing procedures was in clear contravention of the
criteria set forth in Sec. 2.310.
(d) Commission decision timeline under this section. The Commission
will endeavor to issue a final decision on an appeal under this section
within 45 days of service of the answer to the appeal unless, in the
judgment of the Commission, the complexity of the case necessitates
additional time for a decision.
0
11. In Sec. 2.312, revise paragraph (b) to read as follows:
Sec. 2.312 Notice of hearing.
* * * * *
(b) The time and place of hearing will be fixed in accordance with
the scheduling requirements of this part and any proceeding-specific
Commission orders. Within these limits, the presiding officer will give
due regard for the convenience of the parties or their representatives,
the nature of the proceeding, and the public interest.
* * * * *
0
12. In Sec. 2.313, revise paragraph (a) to read as follows:
Sec. 2.313 Designation of presiding officer, disqualification,
unavailability, and substitution.
(a) Designation of presiding officer. The Commission may provide in
the notice of hearing that one or more members of the Commission, an
administrative law judge, an administrative judge, an Atomic Safety and
Licensing Board, or a named officer who has been delegated final
authority in the matter, shall be the presiding officer. The Commission
alone shall designate the presiding officer in a hearing conducted
under subpart O of this part. If the Commission does not designate the
presiding officer for a hearing under subparts G, J, K, L, or N of this
part, then the Chief Administrative Judge shall issue an order
designating 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.
* * * * *
0
13. In Sec. 2.314, revise paragraph (b) to read as follows:
Sec. 2.314 Appearance and practice before the Commission in
adjudicatory proceedings.
* * * * *
(b) Representation. An individual may appear in an adjudication on
his or her own behalf or by an attorney-at-law. All other persons may
be represented only by an attorney-at-law. A party may be represented
by an attorney-at-law if the attorney is in good standing and has been
admitted to practice before any Court of the United States, the
District of Columbia, or the highest court of any State, territory, or
possession of the United States. Any person appearing in a
representative capacity shall file with the Commission a written notice
of appearance. The notice must state his or her name, address,
telephone number, and facsimile number and email address, if any; the
name and address of the person or entity on whose behalf he or she
appears; and the basis of his or her eligibility as a representative.
* * * * *
0
14. In Sec. 2.323, revise paragraphs (a), (c), (e), (f)(1), and (g) to
read as follows:
Sec. 2.323 Motions.
(a) Scope and general requirements--(1) Applicability to Sec.
2.309(c). Section 2.309 motions for leave to file hearing requests,
intervention petitions, or new or amended contentions after the
deadline in Sec. 2.309(b) (including motions to reopen the record that
relate to such filings after the deadline) are not subject to the
requirements of this section. For the purposes of this section, the
term ``all motions'' includes any motion except Sec. 2.309 motions for
leave to file hearing requests, intervention petitions, or new or
amended contentions after the deadline in Sec. 2.309(b) (and motions
to reopen the record that relate to such filings after the deadline).
(2) Presentation and disposition. All motions must be addressed to
the Commission or other designated presiding officer. All motions,
other than motions submitted in highly expedited proceedings, motions
for summary disposition, or motions for reconsideration, must be made
no later than ten (10) days after the occurrence or circumstance from
which the motion arises. Motions submitted in highly expedited
proceedings must be made no later than seven (7) 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.
(1) For all written motions, other than motions submitted in highly
expedited proceedings, motions for summary disposition, or motions for
reconsideration, a party may file an answer in support of or in
opposition to the motion within ten (10) days after service of the
motion, or other period as determined by the Secretary, the
[[Page 10483]]
Assistant Secretary, or the presiding officer. Answers to motions in
highly expedited proceedings must be submitted within seven (7) days
after service of the motion.
(2) An answer to a motion submitted under paragraph (c) of this
section may be accompanied by affidavits or other evidence.
(3) 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.
* * * * *
(e) Motions for reconsideration. Motions for reconsideration may
not be filed except upon leave of the presiding officer or the
Commission, upon a showing of compelling circumstances, such as the
existence of a clear and material error in a decision, which could not
have reasonably been anticipated, that renders the decision invalid. A
motion must be filed within seven (7) days of the action for which
reconsideration is requested, and responses to the motion must be
submitted within seven (7) days after service of the motion. The motion
and any responses to the motion are limited to ten (10) pages.
(f) Referral and certifications to the Commission. (1) If, in the
judgment of the presiding officer, 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. This standard also applies to
questions certified to the Commission. To minimize delays in the
proceeding, to the extent practicable a presiding officer should refer
a ruling to the Commission rather than certify a question. The
presiding officer shall notify the parties of the referral or
certification either by announcement on-the-record or by written notice
if the hearing is not in session.
* * * * *
(g) Effect of filing a motion, filing a petition, referring of a
ruling or certifying of a question to the Commission. Unless otherwise
ordered, neither the filing of a motion, the filing of a petition for
certification, nor the referral of a ruling or certification of a
question to the Commission stays the proceeding or extends the time for
the performance of any act.
* * * * *
0
15. In Sec. 2.326, revise paragraph (a)(2) and add paragraph (e) to
read as follows:
2.326 Motions to reopen.
(a) * * *
(2) The motion must address a significant safety issue or, in a
proceeding where a categorical exclusion does not apply, a significant
environmental issue; and
* * * * *
(e) For a proceeding subject to Sec. 2.1207, the record for an
adjudicatory proceeding will close on the Standard Record Closure Date
for the proceeding. If before the Standard Record Closure Date, the
presiding officer enters an order closing the record following an
evidentiary hearing, the record for the adjudicatory proceeding will
close on the date specified in the order. On the date the record closes
for an adjudicatory proceeding, if there are any contentions that
either remain pending or are subject to a motion for leave to file
under Sec. 2.309(c), the record will remain open only with respect to
the issues raised by those contentions.
0
16. In Sec. 2.329, revise paragraph (a) to read as follows:
Sec. 2.329 Prehearing conference.
(a) Option to conduct a prehearing conference. The Commission or
the presiding officer may direct the parties or their counsel to appear
at a specified time and place for a conference or conferences before an
evidentiary hearing.
* * * * *
0
17. In Sec. 2.332, revise paragraphs (a), (b), and (d) to read as
follows:
Sec. 2.332 General case scheduling and management.
(a) Scheduling order. As soon as practicable (and no later than 10
days) after admitting a contention, the presiding officer shall, after
consulting with the parties, enter a scheduling order that establishes
time limits for concluding discovery, the schedule for any written or
oral components of the evidentiary hearing, and the date when the
presiding officer expects to issue an initial decision. For proceedings
under subpart L of this part, the scheduling order must comply with the
scheduling requirements in subpart L and in paragraph (d) of this
section.
(b) Model milestones. For enforcement proceedings, in developing
the scheduling order under paragraph (a) of this section, the presiding
officer shall utilize the applicable model milestones in appendix B to
this part as a starting point. The presiding officer shall make
appropriate modifications based upon all relevant information,
including but not limited to, the number of contentions admitted, the
complexity of the issues presented, relevant considerations which a
party may bring to the attention of the presiding officer, and the
NRC's interest in providing a fair and expeditious resolution of the
issues sought to be adjudicated by the parties in the proceeding.
* * * * *
(d) When to proceed to evidentiary hearing; effect of NRC staff's
schedule on scheduling order. For proceedings subject to the
requirements of Sec. 2.1207(a)-(e):
(1) Within seven days of the admission of a contention:
(i) The NRC staff will notify the presiding officer and the other
parties whether the staff will participate as a party on the contention
and, if so, whether the staff is able to take final positions on the
matters in controversy; and
(ii) The NRC staff and the applicant will notify the presiding
officer and the other parties whether the staff or applicant intend to
seek dismissal of a contention. The 7-day notification regarding
dismissal of a contention must address, as applicable, the NRC staff or
applicant's intent to seek dismissal, but the motion to dismiss may be
submitted later.
(2) The presiding officer must immediately proceed with the
evidentiary hearing phase of the proceeding on an admitted contention
unless either:
(i) The NRC staff decides to participate as a party but is not yet
able to take final positions on the matters in controversy; or
(ii) The NRC staff or applicant intend to seek dismissal of the
admitted contention.
(3) If the NRC staff decides to participate as a party on an
admitted contention but is not yet able to take final positions on the
matters in controversy, the NRC staff must prioritize its resources to
put itself in a position to provide testimony on the contention at the
earliest practicable time and notify the presiding officer and the
other parties when the staff is ready to do so. To the greatest extent
practicable, the presiding officer should establish a schedule that
will not extend past the NRC staff's scheduled date for completing its
review of the particular application as documented in a written
communication to the applicant.
0
18. Revise Sec. 2.334 to read as follows:
[[Page 10484]]
Sec. 2.334 Implementing hearing schedule for proceeding.
(a) The presiding officer must take all appropriate actions to
maintain the hearing schedule established in accordance with Sec.
2.332 and other applicable regulations in this part.
(b) A hearing schedule deadline may only be extended upon a finding
that the criteria for extending a time limit in Sec. 2.307(a) are met.
An applicable deadline in subpart L to this part for completing the
evidentiary hearing (i.e., the deadline for issuance of an initial
decision) may only be extended upon a finding that unavoidable and
extreme circumstances necessitate the delay.
(c) The presiding officer must provide written notification to the
Commission any time during the course of the proceeding when it appears
that the issuance of the initial decision will be delayed beyond the
time specified in the hearing schedule established under Sec.
2.332(a). The notification must include an explanation of the reasons
for the projected delay and a description of the actions, if any, that
the presiding officer proposes to take to avoid or mitigate the delay.
0
19. In Sec. 2.336, revise the introductory text of paragraph (a), add
paragraphs (a)(4) and (5), and revise paragraph (b) and the last
sentence in paragraph (d). The additions and revisions read as follows:
Sec. 2.336 General Discovery
(a) Except for proceedings conducted under subparts G and J of this
part or as otherwise ordered by the Commission, the presiding officer
or the Atomic Safety and Licensing Board assigned to the proceeding,
all parties, other than the NRC staff, to any proceeding subject to
this part shall, within twenty (20) days of the issuance of the order
admitting a contention (or the order granting a demand for hearing upon
a denial of an application) and without further order or request from
any party, disclose and provide:
* * * * *
(4) The disclosure obligations in paragraph (a) of this section do
not include drafts of documents unless the draft has been circulated
among the parties or publicly disclosed.
(5) In complying with the requirements of paragraph (a) of this
section in a proceeding on a denial of an application, references to
``contentions'' and ``admitted contentions'' must be taken to mean the
contested issues outlined in the order granting the demand for hearing.
(b)(1) In a proceeding on a denial of an application, the NRC staff
must, within 20 days of the issuance of the order granting a demand for
hearing 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):
(i) All documents (including documents that provide support for, or
opposition to, the application) that both support the NRC staff's
review of the application that is the subject of the proceeding and are
relevant to the contested issues outlined in the order granting the
demand for hearing;
(ii) Any NRC staff documents that both represent the NRC staff's
determination on the application that is the subject of the proceeding
and are relevant to the contested issues outlined in the order granting
the demand for hearing; and
(iii) 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.
(2) The disclosure obligations in this paragraph do not include
drafts of documents unless the draft has been circulated among the
parties or publicly disclosed.
* * * * *
(d) * * * The duty to update disclosures relevant to an admitted
contention ends when the presiding officer issues a decision resolving
the contention or thirty days prior to the start of an evidentiary
hearing, whichever occurs first; however, termination of the duty to
update disclosure does not relieve parties of their continuing
obligation to keep the presiding officer and litigants informed of
relevant new developments in a proceeding.
* * * * *
0
20. In Sec. 2.340, revise paragraphs (i)(2), (j)(4), and (k)(2) to
read as follows:
Sec. 2.340 Initial decision in certain contested proceedings;
immediate effectiveness of initial decisions; issuance of
authorizations, permits, and licenses.
* * * * *
(i) * * *
(2) Notwithstanding the pendency of a motion for leave to file
under Sec. 2.309(c), 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) * * *
(4) Notwithstanding the pendency of a motion for leave to file
under Sec. 2.309(c), 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) * * *
(2) Notwithstanding the pendency of a motion for leave to file
under Sec. 2.309(c), 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.
0
21. In Sec. 2.341, revise paragraphs (b)(1) and (3), (c)(1), and (d),
revise the introductory text of paragraph (f)(2), and add paragraph
(f)(3) to read as follows:
Sec. 2.341 Review of decisions and actions of a presiding officer.
* * * * *
(b)(1) Within 20 days after service of a full or partial initial
decision by a presiding officer, and within 20 days after service of
any other decision or action by a presiding officer with respect to
which a petition for review is authorized by this part, a party may
file a petition for review with the Commission on the grounds specified
in paragraph (b)(4) of this section. Unless otherwise authorized by
law, a party to an NRC proceeding must file a petition for Commission
review before seeking judicial review of an agency action.
* * * * *
(3) Any other party to the proceeding may, within 20 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 seven (7) days of service of any answer. This reply
brief may not be longer than 5 pages.
* * * * *
(c)(1) The Commission will endeavor to issue a final decision on a
petition for review submitted under paragraph (b) of this section
within 60 days of service of the reply to the answer to the petition
unless, in the judgment of the Commission, the complexity of the case
necessitates additional time for a decision. 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.
* * * * *
(d) Petitions for reconsideration of Commission decisions granting
or denying review in whole or in part will not be entertained. A
petition for
[[Page 10485]]
reconsideration of a Commission decision after review may be filed
within seven (7) days, but is not necessary for exhaustion of
administrative remedies. However, if a petition for reconsideration is
filed, the Commission decision is not final until the petition is
decided. Any petition for reconsideration will be evaluated against the
standard in Sec. 2.323(e). Answers to a petition for reconsideration
may be filed by an interested party within seven (7) days of service of
the petition, and no reply to an answer is permitted.
* * * * *
(f) * * *
(2) The Commission may, in its discretion, grant interlocutory
review at the request of a party despite the absence of a referral or
certification by the presiding officer. A party may file a petition for
interlocutory review within fourteen (14) days of the presiding officer
decision or action for which review is requested, and any other party
to the proceeding may, within fourteen (14) days after service of the
petition for interlocutory review, file an answer supporting or
opposing Commission review. No reply to an answer is permitted. The
petition and answer must be in the form prescribed in paragraph (b) of
this section and must be treated in accordance with the general
provisions of this section. The petition for interlocutory review will
be granted only if the party demonstrates that the issue for which the
party seeks interlocutory review:
* * * * *
(3) The Commission will endeavor to issue a final decision on a
petition submitted under paragraph (f)(2) of this section within 45
days of service of an answer to the petition unless, in the judgment of
the Commission, the complexity of the case necessitates additional time
for a decision.
0
22. In Sec. 2.342, revise paragraphs (a) and (d) to read as follows:
Sec. 2.342 Stays of decisions.
(a) Within seven (7) days after service of a decision or action of
a presiding officer, any party to the proceeding may file an
application for a stay of the effectiveness of the decision or action
pending filing of and a decision on a petition for review. This
application may be filed with the Commission or the presiding officer,
but not both at the same time.
* * * * *
(d) Within seven (7) days after service of an application for a
stay under this section, any party may file an answer supporting or
opposing the granting of a stay. This answer may not be longer than ten
(10) pages, exclusive of affidavits, and should concisely address the
matters in paragraph (b) of this section to the extent appropriate.
Further replies to answers will not be entertained. Filing of and
service of an answer on the other parties must be by the same method,
e.g., electronic or facsimile transmission, mail, as the method for
filing the application for the stay.
* * * * *
0
23. In Sec. 2.345, revise paragraphs (a)(1) and (b) to read as
follows:
Sec. 2.345 Petition for reconsideration.
(a)(1) Any petition for reconsideration of a final decision must be
filed by a party within seven (7) days after the date of the decision.
* * * * *
(b) A petition for reconsideration must demonstrate a compelling
circumstance, such as the existence of a clear and material error in a
decision, which could not have been reasonably anticipated, which
renders the decision invalid. The petition must state the relief
sought. Within seven (7) days after a petition for reconsideration has
been served, any other party may file an answer in opposition to or in
support of the petition.
* * * * *
0
24. Revise Sec. 2.700 to read as follows:
Sec. 2.700 Scope of subpart G.
The provisions of this subpart apply to and supplement the
provisions set forth in subpart C of this part with respect to
enforcement proceedings initiated under subpart B of this part unless
otherwise agreed to by the parties, proceedings for initial
applications for construction authorization for high-level radioactive
waste repository noticed under Sec. Sec. 2.101(f)(8) or 2.105(a)(5),
proceedings for initial applications for a license to receive and
possess high-level radioactive waste at a geologic repository
operations area, and any other proceeding as ordered by the Commission.
If there is any conflict between the provisions of this subpart and
those set forth in subpart C of this part, the provisions of this
subpart control.
0
25. Revise Sec. 2.901 to read as follows:
Sec. 2.901 Scope of subpart I.
This subpart applies, as applicable, to all proceedings under
subparts G, J, K, L, and N of this part.
0
26. Revise Sec. 2.1103 to read as follows:
Sec. 2.1103 Scope of subpart K.
(a) Except as otherwise provided by paragraph (b) of this section,
the provisions of this subpart, together with subpart C and applicable
provisions of subparts G and L of this part, govern adjudicatory
proceedings on the following applications filed after January 7, 1983,
if a party requests that the proceeding be conducted under this
subpart:
(1) An application for a license or license amendment under parts
50 or 52 of this chapter, to expand the spent fuel storage capacity at
the site of a civilian nuclear power plant, through the use of high
density fuel storage racks, fuel rod compaction, the transshipment of
spent nuclear fuel to another civilian nuclear power reactor within the
same utility system, the construction of additional spent nuclear fuel
pool capacity or dry storage capacity, or by other means; or
(2) An application for a license under part 72 of this chapter to
store spent nuclear fuel in an independent spent fuel storage
installation located at the site of a civilian nuclear power reactor.
(b) This subpart shall not apply to the first application for a
license or license amendment to expand the spent fuel storage capacity
at a particular site through the use of a new technology not previously
approved by the Commission for use at any other nuclear power plant.
This subpart shall not apply to proceedings on applications for
transfer of a license issued under part 72 of this chapter.
0
27. Revise Sec. 2.1200 as follows:
Sec. 2.1200 Scope of this subpart.
The provisions of this subpart, together with subpart C of this
part, govern all adjudicatory proceedings conducted for the grant,
renewal, licensee-initiated amendment, termination, or transfer of
licenses or permits subject to parts 30, 32 through 36, 39, 40, 50, 52,
54, 55, 61, 70, and 72 of this chapter (except as otherwise provided in
accordance with Sec. 2.310), and adjudicatory proceedings on
enforcement actions conducted under this subpart in accordance with
Sec. 2.310.
0
28. In Sec. 2.1202, revise paragraphs (a)(1), (a)(3), and (b)(2) to
read as follows:
Sec. 2.1202 Authority and role of NRC staff.
(a) * * *
(1) An application to construct and/or operate a production or
utilization facility of the type described in Sec. Sec. 50.21(b) or
50.22 of this chapter or a testing facility as defined in Sec. 50.2 of
this chapter (including an application for a limited work authorization
under Sec. 50.10 of this chapter, or an application
[[Page 10486]]
for a combined license under subpart C of 10 CFR part 52);
* * * * *
(3) An application for a license to construct and operate a uranium
enrichment facility;
* * * * *
(b) * * *
(2) Within seven (7) days of the issuance of the order granting
requests for hearing/petitions to intervene or admitting contentions,
the NRC staff shall notify the presiding officer and the parties
whether it desires to participate as a party, and identify the
contentions on which it wishes to participate as a party. If the NRC
staff desires to be a party thereafter, the NRC staff shall notify the
presiding officer and the parties and identify the contentions on which
it wishes to participate as a party.
* * * * *
0
29. Revise Sec. 2.1203 to read as follows:
Sec. 2.1203 Prohibition on discovery.
Except as otherwise permitted by subpart C of this part, a party
may not seek discovery from any other party or the NRC or its
personnel, whether by document production, deposition, interrogatories
or otherwise.
0
30. Revise Sec. 2.1205 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 30 days before the
scheduled date for the filing of initial written testimony. 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. Motions for summary disposition
must be served on the parties and the Secretary at the same time that
they are submitted to the presiding officer.
(b) Any other party may serve an answer supporting or opposing the
motion within fifteen (15) days after service of the motion.
(c) The presiding officer shall issue a determination on each
motion for summary disposition no later than twenty (20) days after the
filing of answers. In ruling on motions for summary disposition, the
presiding officer shall apply the standards for summary disposition set
forth in subpart G of this part.
0
31. Revise Sec. 2.1206 to read as follows:
Sec. 2.1206 Process and Schedule for Hearing.
(a)(1) Upon consideration of the contested matters raised in the
admitted contention(s) and after consulting with the parties, the
presiding officer must issue a scheduling order in accordance with
Sec. 2.332 that determines which written filings in paragraph (b)(1)
of this section the parties will be permitted to make and the schedule
for these filings, the schedule for motions for cross-examination,
whether and when to hold an oral hearing, and the schedule for issuing
an initial decision. The schedule for issuing an initial decision must
comply with the requirements of Sec. 2.332 and (as applicable) Sec.
2.1207. If the presiding officer initially determines to hold an oral
hearing but later determines an oral hearing is unnecessary, the
presiding officer may amend the scheduling order to remove the oral
hearing and should inform the parties at the earliest practical
opportunity.
(2) Hearings in a proceeding for the grant of a license to
construct and operate a uranium enrichment facility must comply with
the procedures in the Administrative Procedure Act for ``on the
record'' hearings.
(b)(1) The presiding officer will determine which of the following
written filings may be submitted by the parties and the schedule for
these filings:
(i) Initial testimony, position statements, and supporting
exhibits;
(ii) Rebuttal testimony, position statements, and supporting
exhibits;
(iii) Motions in limine and motions to strike;
(iv) Written briefing and/or written responses to questions from
the presiding officer;
(v) Proposed questions for the presiding officer to ask the
witnesses; and (vi) Proposed findings of fact and conclusions of law.
(2) Written testimony may be submitted in affidavit or question-
and-answer form. If statements of position and proposed findings of
fact and conclusions of law are both permitted, then the statements of
position may be filed in the form of proposed findings of fact and
conclusions of law. Proposed questions need not be filed with any other
party. The presiding officer may allow oral motions in limine or
motions to strike in lieu of (or in addition to) written filings.
(c)(1) Participants may designate and present their own witnesses
to the presiding officer. Testimony for the NRC staff will be presented
only by persons designated by the Executive Director for Operations or
his or her designee for that purpose.
(2) The presiding officer may formulate and ask oral or written
questions to the participants that the presiding officer considers
appropriate to develop an adequate record.
(3) The presiding officer may accept written testimony from a
person unable to appear at an oral hearing, and may request that person
to respond in writing to questions.
(4) Unless cross-examination is permitted in accordance with Sec.
2.1204, only the presiding officer will be permitted to pose questions
to witnesses. If the presiding officer permits the parties to submit
proposed questions under paragraph (b) of this section, the proposed
questions may be propounded at the discretion of the presiding officer.
All questions must be kept by the presiding officer in confidence until
they are either propounded by the presiding officer, or until issuance
of the initial decision on the issue being litigated. The presiding
officer shall then provide all proposed questions to the Commission's
Secretary for inclusion in the official record of the proceeding.
(d) In a proceeding for the grant of a license to construct and
operate a uranium enrichment facility and in a proceeding on a denial
of an application:
(1) A transcribed oral hearing must be held unless all parties
jointly agree to dispense with an oral hearing; and
(2) Each party must be permitted:
(i) To file written testimony, a position statement, and supporting
exhibits;
(ii) To submit rebuttal evidence and argument; and
(iii) To file proposed findings of fact and conclusions of law.
0
32. Revise Sec. 2.1207 to read as follows:
Sec. 2.1207 Schedule for Issuance of Initial Decision.
With the exception of enforcement proceedings and proceedings on
denials of applications, the initial decision must be issued within the
applicable timeframe prescribed by paragraphs (a) through (e) of this
section.
(a) In a proceeding for the grant of a license to construct and
operate a uranium enrichment facility, the initial decision must be
issued within the following timeframes, except to the extent that
unavoidable and extreme circumstances necessitate a delay.
(1) For hearing requests, intervention petitions, and contentions
submitted by the Standard Record Closure Date, the initial decision
must be issued within 145 days of:
[[Page 10487]]
(i) The admission of the contention if the presiding officer
immediately proceeds to the evidentiary hearing phase in accordance
with Sec. 2.332(d); or
(ii) Otherwise, the triggering event for the evidentiary hearing as
determined in the presiding officer's scheduling order issued in
accordance with Sec. 2.332.
(2) For hearing requests, intervention petitions, and contentions
submitted after the Standard Record Closure Date, the initial decision
must be issued within 110 days of:
(i) The admission of the contention if the presiding officer
immediately proceeds to the evidentiary hearing phase in accordance
with Sec. 2.332(d); or
(ii) Otherwise, the triggering event for the evidentiary hearing as
determined in the presiding officer's scheduling order issued in
accordance with Sec. 2.332.
(3) The Standard Record Closure Date in a proceeding under
paragraph (a) of this section is 272 days after the Federal Register
notice announcing the opportunity to request a hearing.
(b) In a proceeding for the grant of a construction permit, an
initial operating license, or an initial combined license under 10 CFR
parts 50 or 52 for a production or utilization facility of the type
described in Sec. Sec. 50.21(b) or 50.22 of this chapter (where the
application does not reference a design certification or manufacturing
license), or the grant of a license to construct and/or operate a
uranium recovery or fuel cycle facility under parts 40 or 70 of this
chapter (other than a license to construct and operate a uranium
enrichment facility), the initial decision must be issued within the
following timeframes, except to the extent that unavoidable and extreme
circumstances necessitate a delay.
(1) For contentions submitted by the Standard Record Closure Date,
the initial decision must be issued within 110 days of:
(i) The admission of the contention if the presiding officer
immediately proceeds to the evidentiary hearing phase in accordance
with Sec. 2.332(d); or
(ii) Otherwise, the triggering event for the evidentiary hearing as
determined in the presiding officer's scheduling order issued in
accordance with Sec. 2.332.
(2) For contentions submitted after the Standard Record Closure
Date, the initial decision must be issued within 90 days of:
(i) The admission of the contention if the presiding officer
immediately proceeds to the evidentiary hearing phase in accordance
with Sec. 2.332(d); or
(ii) Otherwise, the triggering event for the evidentiary hearing as
determined in the presiding officer's scheduling order issued in
accordance with Sec. 2.332.
(3) The Standard Record Closure Date in a proceeding under
paragraph (b) of this section is 237 days after the Federal Register
notice announcing the opportunity to request a hearing.
(c) In a highly expedited proceeding where the application
references both a categorical exclusion and an NRC approval providing
finality in the adjudicatory proceeding on design information within
the application (including a design certification or a manufacturing
license), the initial decision must be issued within the following
timeframes, except to the extent that unavoidable and extreme
circumstances necessitate a delay.
(1) The initial decision must be issued within 45 days of:
(i) The admission of the contention if the presiding officer
immediately proceeds to the evidentiary hearing phase in accordance
with Sec. 2.332(d); or
(ii) Otherwise, the triggering event for the evidentiary hearing as
determined in the presiding officer's scheduling order issued in
accordance with Sec. 2.332.
(2) The Standard Record Closure Date in a proceeding under
paragraph (c) of this section is 132 days after the Federal Register
notice announcing the opportunity to request a hearing.
(d) In a highly expedited proceeding other than one under paragraph
(c) of this section or in a proceeding for the direct or indirect
transfer of control of an NRC license authorizing reactor operation
when the transfer requires prior approval of the NRC under the
Commission's regulations, governing statute, or pursuant to a license
condition, the initial decision must be issued within the following
timeframes, except to the extent that unavoidable and extreme
circumstances necessitate a delay.
(1) The initial decision must be issued within 60 days of:
(i) The admission of the contention if the presiding officer
immediately proceeds to the evidentiary hearing phase in accordance
with Sec. 2.332(d); or
(ii) Otherwise, the triggering event for the evidentiary hearing as
determined in the presiding officer's scheduling order issued in
accordance with Sec. 2.332.
(2) The Standard Record Closure Date in a highly expedited
proceeding under paragraph (d) of this section is 147 days after the
Federal Register notice announcing the opportunity to request a
hearing. The Standard Record Closure Date in a transfer proceeding
under paragraph (d) of this section is 137 days after the Federal
Register notice announcing the opportunity to request a hearing.
(e) In a proceeding other than one described in paragraphs (a)
through (d) of this section, the initial decision must be issued within
the following timeframes, except to the extent that unavoidable and
extreme circumstances necessitate a delay.
(1) For contentions submitted by the Standard Record Closure Date,
the initial decision must be issued within 100 days of:
(i) The admission of the contention if the presiding officer
immediately proceeds to the evidentiary hearing phase in accordance
with Sec. 2.332(d); or
(ii) Otherwise, the triggering event for the evidentiary hearing as
determined in the presiding officer's scheduling order issued in
accordance with Sec. 2.332.
(2) For contentions submitted after the Standard Record Closure
Date, the initial decision must be issued within 90 days of:
(i) The admission of the contention if the presiding officer
immediately proceeds to the evidentiary hearing phase in accordance
with Sec. 2.332(d); or
(ii) Otherwise, the triggering event for the evidentiary hearing as
determined in the presiding officer's scheduling order issued in
accordance with Sec. 2.332.
(3) The Standard Record Closure Date in a proceeding under
paragraph (e) of this section is 212 days after the Federal Register
notice announcing the opportunity to request a hearing.
Sec. 2.1208-2.1209 [Reserved]
0
33. Remove and reserve Sec. Sec. 2.1208 and 2.1209.
Sec. 2.1210 [Amended]
0
34. In Sec. 2.1210, in the introductory text of paragraph (a) remove
the phrase ``an informal hearing'' and add in its place the phrase ``a
hearing''; in the introductory text of paragraph (c) remove the
reference ``Sec. Sec. 2.1207 or 2.1208.'' and add in its place the
reference ``Sec. 2.1206.''.
0
35. In Sec. 2.1213, revise paragraph (c) to read as follows:
Sec. 2.1213 Application for a stay.
* * * * *
(c) Within seven (7) days after service of an application for a
stay of the NRC staff's action under this section, any party and/or the
NRC staff may file an answer supporting or opposing the granting of a
stay. Answers may not be longer than ten (10) pages, exclusive of
affidavits, and must concisely address the matters in paragraph (b) of
this section as appropriate. Further replies to answers will not be
entertained.
* * * * *
0
36. Add Sec. 2.1214 to read as follows:
[[Page 10488]]
Sec. 2.1214 Additional procedures for license transfer applications.
(a) Notice of receipt and withdrawal of application.
(1) The Commission will notice the receipt of each application for
direct or indirect transfer of a specific NRC license by placing a copy
of the application at the NRC website, https://www.nrc.gov.
(2) The Commission will also publish in the Federal Register a
notice of receipt of an application for approval of a license transfer
involving 10 CFR parts 50 or 52 licenses, major fuel cycle facility
licenses issued under part 70, or part 72 licenses. This notice
constitutes the notice required by Sec. 2.105 with respect to all
matters related to the application requiring NRC approval.
(3) Periodic lists of applications received may be obtained upon
request addressed to the NRC Public Document Room, US Nuclear
Regulatory Commission, Washington, DC 20555-0001.
(4) The Commission will notice the withdrawal of an application by
publishing the notice of withdrawal in the same manner as the notice of
receipt of the application was published under paragraphs (a)(1) and
(2) of this section.
(b) Written comments.
(1) As an alternative to requests for hearings and petitions to
intervene, persons may submit written comments regarding license
transfer applications. The Commission will consider and, if
appropriate, respond to these comments, but these comments do not
otherwise constitute part of the decisional record.
(2) These comments should be submitted within 30 days after public
notice of receipt of the application and addressed to the Secretary,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
Attention: Rulemakings and Adjudications Staff.
(3) The Commission will provide the applicant with a copy of the
comments. Any response the applicant chooses to make to the comments
must be submitted within 10 days of service of the comments on the
applicant. Such responses do not constitute part of the decisional
record.
(c) Generic determination regarding license amendments to reflect
transfers.
(1) Unless otherwise determined by the Commission with regard to a
specific application, the Commission has determined that any amendment
to the license of a utilization facility or the license of an
Independent Spent Fuel Storage Installation which does no more than
conform the license to reflect the transfer action, involves
respectively, ``no significant hazards consideration,'' or ``no genuine
issue as to whether the health and safety of the public will be
significantly affected.''
(2) Where administrative license amendments are necessary to
reflect an approved transfer, such amendments will be included in the
order that approves the transfer. Any challenge to the administrative
license amendment is limited to the question of whether the license
amendment accurately reflects the approved transfer.
(d) Role of NRC staff. Except as otherwise directed in accordance
with Sec. 2.1202(b)(1), the NRC staff is not required to be a party to
proceedings under this subpart but will offer into evidence its safety
evaluation report associated with the transfer application and provide
one or more sponsoring witnesses.
Subpart M [Reserved]
0
37. Remove and reserve subpart M.
0
38. In appendix B to part 2, remove and reserve sections II and III.
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
* * * * *
Sections II-III [Reserved]
* * * * *
PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC
LICENSING AND RELATED REGULATORY FUNCTIONS
0
39. The authority citation for part 51 continues to read as follows:
Authority: Atomic Energy Act of 1954, secs. 161, 193 (42 U.S.C.
2201, 2243); Energy Reorganization Act of 1974, secs. 201, 202 (42
U.S.C. 5841, 5842); National Environmental Policy Act of 1969 (42
U.S.C. 4332, 4334, 4335); Nuclear Waste Policy Act of 1982, secs.
144(f), 121, 135, 141, 148 (42 U.S.C. 10134(f), 10141, 10155, 10161,
10168); 44 U.S.C. 3504 note.
Sections 51.20, 51.30, 51.60, 51.80, and 51.97 also issued under
Nuclear Waste Policy Act secs. 135, 141, 148 (42 U.S.C. 10155,
10161, 10168).
Section 51.22 also issued under Atomic Energy Act sec. 274 (42
U.S.C. 2021) and under Nuclear Waste Policy Act sec. 121 (42 U.S.C.
10141).
Sections 51.43, 51.67, and 51.109 also issued under Nuclear
Waste Policy Act sec. 114(f) (42 U.S.C. 10134(f)).
0
40. In Sec. 51.104, remove and reserve paragraph (b) and revise the
heading of the section and paragraph (a) to read as follows:
Sec. 51.104 NRC proceeding using public hearings.
(a) In any proceeding in which a hearing is held, any party to the
proceeding may take a position and offer evidence on the aspects of the
proposed action within the scope of NEPA and this subpart in accordance
with the provisions of part 2 of this chapter applicable to that
proceeding or in accordance with the terms of the notice of hearing. In
the proceeding, the presiding officer will decide any such matters in
controversy among the parties.
(b) [Reserved]
* * * * *
PART 52--LICENSES, CERTIFICATIONS, AND APPROVALS FOR NUCLEAR POWER
PLANTS
0
41. The authority citation for part 52 continues to read as follows:
Authority: Atomic Energy Act of 1954, secs. 103, 104, 147, 149,
161, 181, 182, 183, 185, 186, 189, 223, 234 (42 U.S.C. 2133, 2134,
2167, 2169, 2201, 2231, 2232, 2233, 2235, 2236, 2239, 2273, 2282);
Energy Reorganization Act of 1974, secs. 201, 202, 206, 211 (42
U.S.C. 5841, 5842, 5846, 5851); 44 U.S.C. 3504 note.
0
42. Revise the last sentence of Sec. 52.21 to read as follows:
Sec. 52.21 Administrative review of applications; hearings.
* * * All hearings conducted on applications for early site permits
filed under this part are governed by the procedures contained in 10
CFR part 2, as applicable.
0
43. Revise the last sentence of Sec. 52.163 to read as follows:
Sec. 52.16 3 Administrative review of applications; hearings.
* * * All hearings on manufacturing licenses are governed by the
hearing procedures contained in 10 CFR part 2.
0
44. Revise section 8 of appendix N to part 52 to read as follows:
Appendix N to Part 52--Standardization of Nuclear Power Plant Designs:
Combined Licenses To Construct and Operate Nuclear Power Reactors of
Identical Design at Multiple Sites
* * * * *
8. The Commission shall designate a presiding officer to conduct
the proceeding with respect to the health and safety, common defense
and security, and environmental matters relating to the common design.
The hearing will be governed by the applicable provisions of part 2 of
this chapter relating to applications for combined licenses. The
presiding officer
[[Page 10489]]
shall issue a partial initial decision on the common design.
PART 54--REQUIREMENTS FOR RENEWAL OF OPERATING LICENSES FOR NUCLEAR
POWER PLANTS
0
45. The authority citation for part 54 continues to read as follows:
Authority: Atomic Energy Act of 1954, secs. 102, 103, 104, 161,
181, 182, 183, 186, 189, 223, 234 (42 U.S.C. 2132, 2133, 2134, 2136,
2137, 2201, 2231, 2232, 2233, 2236, 2239, 2273, 2282); Energy
Reorganization Act of 1974, secs. 201, 202, 206 (42 U.S.C. 5841,
5842, 5846); 44 U.S.C. 3504 note.
Section 54.17 also issued under E.O. 12829, 58 FR 3479, 3 CFR,
1993 Comp., p. 570; E.O. 13526, 75 FR 707, 3 CFR, 2009 Comp., p.
298; E.O. 12968, 60 FR 40245, 3 CFR, 1995 Comp., p. 391.
0
46. Revise Sec. 54.27 to read as follows:
Sec. 54.27 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 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: February 27, 2026.
For the Nuclear Regulatory Commission.
Carrie Safford,
Secretary of the Commission.
[FR Doc. 2026-04187 Filed 3-2-26; 8:45 am]
BILLING CODE 7590-01-P