[Title 10 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2007 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          10


          Parts 1 to 50

                         Revised as of January 1, 2007


          Energy
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2007
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

          U.S. GOVERNMENT OFFICIAL EDITION NOTICE

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[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 10:
          Chapter I--Nuclear Regulatory Commission                   3
  Finding Aids:
      Material Approved for Incorporation by Reference........     883
      Table of CFR Titles and Chapters........................     887
      Alphabetical List of Agencies Appearing in the CFR......     905
      List of CFR Sections Affected...........................     915

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 10 CFR 1.1 refers to 
                       title 10, part 1, section 
                       1.

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

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 2007), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

[[Page vii]]


REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of textual material 
appearing in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
fedreg.info@nara.gov.

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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
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Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-free). E-
mail, gpoaccess@gpo.gov.
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal-
register. The NARA site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

January 1, 2007.

[[Page ix]]



                               THIS TITLE

    Title 10--Energy is composed of four volumes. The parts in these 
volumes are arranged in the following order: parts 1-50, 51-199, 200-499 
and part 500-end. The first and second volumes containing parts 1-199 
are comprised of chapter I--Nuclear Regulatory Commission. The third and 
fourth volumes containing part 200-end are comprised of chapters II, III 
and X--Department of Energy, chapter XIII--Nuclear Waste Technical 
Review Board, and chapter XVII--Defense Nuclear Facilities Safety Board. 
The contents of these volumes represent all current regulations codified 
under this title of the CFR as of January 1, 2007.

    For this volume, Moja N. Mwaniki and Bonnie Fritts were Chief 
Editors. The Code of Federal Regulations publication program is under 
the direction of Frances D. McDonald, assisted by Ann Worley.


[[Page 1]]



                            TITLE 10--ENERGY




                   (This book contains parts 1 to 50)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Nuclear Regulatory Commission....................           1

[[Page 3]]



                CHAPTER I--NUCLEAR REGULATORY COMMISSION




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


  Editorial Note: Nomenclature changes to chapter I appear at 70 FR 
69421, Nov. 16, 2005.
Part                                                                Page
1               Statement of organization and general 
                    information.............................           5
2               Rules of practice for domestic licensing 
                    proceedings and issuance of orders......          17
4               Nondiscrimination in Federally assisted 
                    programs or activities receiving Federal 
                    financial assistance from the Commission         143
5               Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         174
7               Advisory committees.........................         191
8               Interpretations.............................         203
9               Public records..............................         209
10              Criteria and procedures for determining 
                    eligibility for access to restricted 
                    data or national security information or 
                    an employment clearance.................         242
11              Criteria and procedures for determining 
                    eligibility for access to or control 
                    over special nuclear material...........         256
12              Implementation of the Equal Access to 
                    Justice Act in agency proceedings.......         264
13              Program fraud civil remedies................         270
14              Administrative claims under Federal Tort 
                    Claims Act..............................         286
15              Debt collection procedures..................         292
16              Salary offset procedures for collecting 
                    debts owed by Federal employees to the 
                    Federal government......................         307
19              Notices, instructions and reports to 
                    workers: inspection and investigations..         313
20              Standards for protection against radiation..         319
21              Reporting of defects and noncompliance......         425
25              Access authorization for licensee personnel.         432
26              Fitness for duty programs...................         442
30              Rules of general applicability to domestic 
                    licensing of byproduct material.........         466

[[Page 4]]

31              General domestic licenses for byproduct 
                    material................................         505
32              Specific domestic licenses to manufacture or 
                    transfer certain items containing 
                    byproduct material......................         513
33              Specific domestic licenses of broad scope 
                    for byproduct material..................         546
34              Licenses for industrial radiography and 
                    radiation safety requirements for 
                    industrial radiographic operations......         550
35              Medical use of byproduct material...........         568
36              Licenses and radiation safety requirements 
                    for irradiators.........................         614
39              Licenses and radiation safety requirements 
                    for well logging........................         628
40              Domestic licensing of source material.......         640
50              Domestic licensing of production and 
                    utilization facilities..................         693

[[Page 5]]



PART 1_STATEMENT OF ORGANIZATION AND GENERAL INFORMATION--Table of Contents




                         Subpart A_Introduction

Sec.
1.1 Creation and authority.
1.3 Sources of additional information.
1.5 Location of principal offices and Regional Offices.

                         Subpart B_Headquarters

1.11 The Commission.

                            Inspector General

1.12 Office of the Inspector General.

                     Panels, Boards, and Committees

1.13 Advisory Committee on Reactor Safeguards.
1.15 Atomic Safety and Licensing Board Panel.
1.18 Advisory Committee on Nuclear Waste.
1.19 Other committees, boards, and panels.

                            Commission Staff

1.23 Office of the General Counsel.
1.24 Office of Commission Appellate Adjudication.
1.25 Office of the Secretary of the Commission.
1.26 [Reserved]
1.27 Office of Congressional Affairs.
1.28 Office of Public Affairs.
1.29 Office of International Programs.

                         Chief Financial Officer

1.31 Office of the Chief Financial Officer.

                    Executive Director for Operations

1.32 Office of the Executive Director for Operations.

                              Staff Offices

1.33 Office of Enforcement.
1.34 Office of Administration.
1.35 Office of Information Services.
1.36 Office of Investigations.
1.37 Office of Small Business and Civil Rights.
1.38 [Reserved]
1.39 Office of Human Resources.
1.40 [Reserved]
1.41 Office of State and Tribal Programs.

                             Program Offices

1.42 Office of Nuclear Material Safety and Safeguards.
1.43 Office of Nuclear Reactor Regulation.
1.45 Office of Nuclear Regulatory Research.
1.46 Office of Nuclear Security and Incident Response.
1.47 NRC Regional Offices.

                       Subpart C_NRC Seal and Flag

1.51 Description and custody of NRC seal.
1.53 Use of NRC seal or replicas.
1.55 Establishment of official NRC flag.
1.57 Use of NRC flag.
1.59 Report of violations.

    Authority: Sec. 23, 161, 68 Stat. 925, 948, as amended (42 U.S.C. 
2033, 2201); sec. 29, Pub. L. 85-256, 71 Stat. 579, Pub. L. 95-209, 91 
Stat. 1483 (42 U.S.C. 2039); sec. 191, Pub. L. 87-615, 76 Stat. 409 (42 
U.S.C. 2241); secs. 201, 203, 204, 205, 209, 88 Stat. 1242, 1244, 1245, 
1246, 1248, as amended (42 U.S.C. 5841, 5843, 5844, 5845, 5849); 5 
U.S.C. 552, 553; Reorganization Plan No. 1 of 1980, 45 FR 40561, June 
16, 1980.

    Source: 52 FR 31602, Aug. 21, 1987, unless otherwise noted.



                         Subpart A_Introduction



Sec.  1.1  Creation and authority.

    (a) The Nuclear Regulatory Commission was established by the Energy 
Reorganization Act of 1974, as amended, Pub. L. 93-438, 88 Stat. 1233 
(42 U.S.C. 5801 et seq.). This Act abolished the Atomic Energy 
Commission and, by section 201, transferred to the Nuclear Regulatory 
Commission all the licensing and related regulatory functions assigned 
to the Atomic Energy Commission by the Atomic Energy Act of 1954, as 
amended, Pub. L. 83-703, 68 Stat. 919 (42 U.S.C. 2011 et seq.). These 
functions included those of the Atomic Safety and Licensing Board Panel. 
The Energy Reorganization Act became effective January 19, 1975 (E.O. 
11834).
    (b) As used in this part:
    Commission means the five members of the Nuclear Regulatory 
Commission or a quorum thereof sitting as a body, as provided by section 
201 of the Energy Reorganization Act of 1974, as amended.
    NRC means the Nuclear Regulatory Commission, the agency established 
by title II of the Energy Reorganization Act of 1974, as amended, 
comprising the members of the Commission and all offices, employees, and 
representatives authorized to act in any case or matter.

[52 FR 31602, Aug. 21, 1987, as amended at 56 FR 29407, June 27, 1991]

[[Page 6]]



Sec.  1.3  Sources of additional information.

    (a) A statement of the NRC's organization, policies, procedures, 
assignments of responsibility, and delegations of authority is in the 
Nuclear Regulatory Commission Management Directives System and other NRC 
issuances, including local directives issued by Regional Offices. 
Letters and memoranda containing directives, delegations of authority 
and the like are also issued from time to time and may not yet be 
incorporated into the Management Directives System, parts of which are 
revised as necessary. Copies of the Management Directives System and 
other delegations of authority are available for public inspection and 
copying for a fee at the NRC Public Document Room, One White Flint 
North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852-
2738, and at each of NRC's Regional Offices. Information may also be 
obtained from the Office of Public Affairs or from Public Affairs 
Officers at the Regional Offices. In addition, NRC Functional 
Organization Charts, NUREG-0325, contains detailed descriptions of the 
functional responsibilities of NRC's offices. It is revised annually and 
is available for public inspection at the NRC Web site, http://
www.nrc.gov, and/or at the NRC Public Document Room, or for purchase 
from the Superintendent of Documents, US Government Printing Office, 
P.O. Box 37082, Washington, DC 20013-7082; and from the National 
Technical Information Service, Springfield, VA 22161.
    (b) Commission meetings are open to the public, as provided by the 
Government in the Sunshine Act, unless they fall within an exemption to 
the Act's openness requirement and the Commission also has determined 
that the public interest requires that those particular meetings be 
closed. Information concerning Commission meetings may be obtained from 
the Office of the Secretary.
    (c) Information regarding the availability of NRC records under the 
Freedom of Information Act and Privacy Act of 1974 may be obtained from 
the Information and Records Services Division, Office of Information 
Services. NRC's regulations are published in the Federal Register and 
codified in Title 10, Chapter 1, of the Code of Federal Regulations. 
They may be viewed electronically at the NRC Web site, http://
www.nrc.gov/reading-rm/doc-collections/cfr/. Final opinions made in the 
adjudication of cases are published in ``Nuclear Regulatory Commission 
Issuances,'' and are available on a subscription basis from the National 
Technical Information Service, 5285 Port Royal Road, Springfield, VA 
22161.

[52 FR 31602, Aug. 21, 1987, as amended at 53 FR 43419, Oct. 27, 1988; 
53 FR 52993, Dec. 30, 1988; 54 FR 53313, Dec. 28, 1989; 57 FR 1639, Jan. 
15, 1992; 63 FR 15740, Apr. 1, 1998; 64 FR 48947, Sept. 9, 1999; 67 FR 
67097, Nov. 4, 2002; 70 FR 69421, Nov. 16, 2005]



Sec.  1.5  Location of principal offices and Regional Offices.

    (a) The principal NRC offices are located in the Washington, DC, 
area. Facilities for the service of process and papers are maintained in 
the State of Maryland at 11555 Rockville Pike, Rockville, Maryland 
20852-2738. The agency's official mailing address is U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001. The locations of NRC 
offices in the Washington, DC, area are as follows:
    (1) One White Flint North Building, 11555 Rockville Pike, Rockville, 
Maryland 20852-2738.
    (2) Two White Flint North Building, 11545 Rockville Pike, Rockville, 
Maryland 20852-2738.
    (b) The addresses of the NRC Regional Offices are as follows:
    (1) Region 1, USNRC, 475 Allendale Road, King of Prussia, PA 19406-
1415.
    (2) Region II, USNRC, Sam Nunn Atlanta Federal Center, 61 Forsyth 
Street, SW., Suite 23 T85, Atlanta, GA 30303-8931.
    (3) Region III, USNRC, 2443 Warrenville Road, Suite 210, Lisle, IL 
60532-4352.
    (4) Region IV, USNRC, 611 Ryan Plaza Drive, Suite 400, Arlington, TX 
76011-4005.

[67 FR 67097, Nov. 4, 2002; 67 FR 70835, Nov. 27, 2002, as amended at 67 
FR 77652, Dec. 19, 2002; 68 FR 75389, Dec. 31, 2003; 70 FR 69421, Nov. 
16, 2005; 71 FR 15007, Mar. 27, 2006]

[[Page 7]]



                         Subpart B_Headquarters



Sec.  1.11  The Commission.

    (a) The Nuclear Regulatory Commission, composed of five members, one 
of whom is designated by the President as Chairman, is established 
pursuant to section 201 of the Energy Reorganization Act of 1974, as 
amended. The Chairman is the principal executive officer of the 
Commission, and is responsible for the executive and administrative 
functions with respect to appointment and supervision of personnel, 
except as otherwise provided by the Energy Reorganization Act of 1974, 
as amended, and Reorganization Plan No. 1 of 1980 (45 FR 40561); 
distribution of business; use and expenditures of funds (except that the 
function of revising budget estimates and purposes is reserved to the 
Commission); and appointment, subject to approval of the Commission, of 
heads of major administrative units under the Commission. The Chairman 
is the official spokesman, as mandated by the Reorganization Plan No. 1 
of 1980. The Chairman has ultimate authority for all NRC functions 
pertaining to an emergency involving an NRC Licensee. The Chairman's 
actions are governed by the general policies of the Commission.
    (b) The Commission is responsible for licensing and regulating 
nuclear facilities and materials and for conducting research in support 
of the licensing and regulatory process, as mandated by the Atomic 
Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, 
as amended; and the Nuclear Nonproliferation Act of 1978; and in 
accordance with the National Environmental Policy Act of 1969, as 
amended, and other applicable statutes. These responsibilities include 
protecting public health and safety, protecting the environment, 
protecting and safeguarding nuclear materials and nuclear power plants 
in the interest of national security, and assuring conformity with 
antitrust laws. Agency functions are performed through standards setting 
and rulemaking; technical reviews and studies; conduct of public 
hearings; issuance of authorizations, permits, and licenses; inspection, 
investigation, and enforcement; evaluation of operating experience; and 
confirmatory research. The Commission is composed of five members, 
appointed by the President and confirmed by the Senate.
    (c) The following staff units and officials report directly to the 
Commission: Atomic Safety and Licensing Board Panel, Office of the 
General Counsel, Office of the Secretary, Office of Commission Appellate 
Adjudication, Office of International Programs, and other committees and 
boards that are authorized or established specifically by the Act. The 
Advisory Committee on Reactor Safeguards and the Advisory Committee on 
Nuclear Waste also report directly to the Commission.
    (d) The Offices of Congressional Affairs and Public Affairs report 
directly to the Chairman.

[52 FR 31602, Aug. 21, 1987, as amended at 57 FR 1639, Jan. 15, 1992; 59 
FR 63882, Dec. 12, 1994]

                            Inspector General



Sec.  1.12  Office of the Inspector General.

The Office of the Inspector General--
    (a) Develops policies and standards that govern NRC's financial and 
management audit program;
    (b) Plans, directs, and executes the long-range, comprehensive audit 
program;
    (c) Conducts and reports on investigations and inquiries, as 
necessary, to ascertain and verify the facts with regard to the 
integrity of all NRC programs and operations;
    (d) Investigates possible irregularities or alleged misconduct of 
NRC employees and contractors;
    (e) Refers suspected or alleged criminal violations concerning NRC 
employees or contractors to the Department of Justice;
    (f) Reviews existing and proposed legislation and regulations for 
their impact on economy and efficiency in the administration of NRC's 
programs and operations;
    (g) Keeps the Commission and the Congress fully and currently 
informed, by means of semiannual and other reports, about fraud, abuse, 
and other serious deficiencies in NRC's programs and operations; and
    (h) Maintains liaison with audit and inspector general organizations 
and

[[Page 8]]

other law enforcement agencies in regard to all matters relating to the 
promotion of economy and efficiency and the detection of fraud and abuse 
in programs and operations.

[54 FR 53313, Dec. 28, 1989]

                     Panels, Boards, and Committees



Sec.  1.13  Advisory Committee on Reactor Safeguards.

    The Advisory Committee on Reactor Safeguards (ACRS) was established 
by section 29 of the Atomic Energy Act of 1954, as amended. Consisting 
of a maximum of 15 members, it reviews and reports on safety studies and 
applications for construction permits and facility operating licenses; 
advises the Commission with regard to hazards of proposed or existing 
reactor facilities and the adequacy of proposed reactor safety 
standards; upon request of the Department of Energy (DOE), reviews and 
advises with regard to the hazards of DOE nuclear activities and 
facilities; reviews any generic issues or other matters referred to it 
by the Commission for advice. The Committee, on its own initiative, may 
conduct reviews of specific generic matters or nuclear facility safety-
related items. The ACRS conducts studies of reactor safety research and 
submits reports thereon to the U.S. Congress and the NRC as appropriate.



Sec.  1.15  Atomic Safety and Licensing Board Panel.

    The Atomic Safety and Licensing Board Panel, established pursuant to 
section 191 of the Atomic Energy Act of 1954, as amended, conducts 
hearings for the Commission and such other regulatory functions as the 
Commission authorizes. The Panel is comprised of any number of 
Administrative Judges (full-time and part-time), who may be lawyers, 
physicists, engineers, and environmental scientists; and Administrative 
Law Judges, who hear antitrust, civil penalty, and other cases and serve 
as Atomic Safety and Licensing Board Chairmen. The Chief Administrative 
Judge develops and applies procedures governing the activities of 
Boards, Administrative Judges, and Administrative Law Judges and makes 
appropriate recommendations to the Commission concerning the rules 
governing the conduct of hearings. The Panel conducts all licensing and 
other hearings as directed by the Commission primarily through 
individual Atomic Safety and Licensing Boards composed of one or three 
Administrative Judges. Those boards are appointed by either the 
Commission or the Chief Administrative Judge.



Sec.  1.18  Advisory Committee on Nuclear Waste.

    The Advisory Committee on Nuclear Waste (ACNW) provides advice to 
the Commission on all aspects of nuclear waste management, as 
appropriate, within the purview of NRC's regulatory responsibilities. 
The primary emphasis of the ACNW is disposal but will also include other 
aspects of nuclear waste management such as handling, processing, 
transportation, storage, and safeguarding of nuclear wastes including 
spent fuel, nuclear wastes mixed with other hazardous substances, and 
uranium mill tailings. In performing its work, the committee examines 
and reports on specific areas of concern referred to it by the 
Commission or designated representatives of the Commission, and 
undertakes studies and activities on its own initiative as appropriate 
to carry out its responsibilities. The committee interacts with 
representatives of NRC, other Federal agencies, state and local 
governments, Indian Tribes, and private organizations, as appropriate, 
to fulfill its responsibilities.

[54 FR 53314, Dec. 28, 1989]



Sec.  1.19  Other committees, boards, and panels.

    Under section 161a. of the Atomic Energy Act of 1954, as amended, 
the Commission may establish advisory bodies to make recommendations to 
it. Currently, four committees are in existence.
    (a) The Advisory Committee on Medical Uses of Isotopes (ACMUI) was 
established by the Atomic Energy Commission in July 1958. The ACMUI, 
composed of physicians and scientists, considers medical questions 
referred to it by the NRC staff and renders expert opinions regarding 
medical uses of radioisotopes. The ACMUI also advises

[[Page 9]]

the NRC staff, as requested, on matters of policy regarding licensing of 
medical uses of radioisotopes.
    (b) The Advisory Committee for the Decontamination of Three Mile 
Island, Unit 2, was established by the NRC in October 1980. Its purpose 
is to obtain input and views from the residents of the Three Mile Island 
area and afford Pennsylvania government officials an opportunity to 
participate in the Commission's decisional process regarding cleanup for 
Three Mile Island, Unit 2.
    (c) The Nuclear Safety Research Review Committee (NSRRC) was 
established by the NRC in February 1988 for the purpose of reporting to 
the Commission through the Director of the Office of Nuclear Regulatory 
Research on important management matters in the direction of the 
Commission's nuclear safety research program. The committee activities 
cover all aspects of nuclear safety research including, but not limited 
to, accident management, plant aging, human factors and system 
reliability, earth science, waste disposal and seismic and structural 
engineering. In performing its activities, the committee evaluates and 
reports on the conformance of the nuclear safety research program to the 
NRC philosophy of nuclear regulatory research. The committee conducts 
specialized studies when requested by the Commission or Director of the 
Office of Nuclear Regulatory Research. The committee interacts with the 
Office of Research management staff and selected contractors in private 
industry, at national laboratories and universities.
    (d) The Licensing Support Network Advisory Review Panel (LSNARP) was 
established by the Commission on October 3, 1989, pursuant to 10 CFR 
2.1011(e) of the Commission's regulations. The LSNARP provides advice to 
the Commission on the design, development, and operation of the 
Licensing Support Network (LSN) an electronic information management 
system for use in the Commission's high-level radioactive waste (HLW) 
licensing proceeding. Membership consists of those interests that will 
be affected by the use of the LSN, and selected Federal agencies with 
expertise in large-scale electronic information systems. The individual 
representatives of these interests and agencies possess expertise in 
management information science and in managing records of the 
Commission's licensing process for the HLW repository.

[52 FR 31602, Aug. 21, 1987, as amended at 54 FR 53314, Dec. 28, 1989; 
68 FR 75389, Dec. 31, 2003]

                            Commission Staff



Sec.  1.23  Office of the General Counsel.

    The Office of the General Counsel, established pursuant to section 
25 of the Atomic Energy Act of 1954, as amended--
    (a) Directs matters of law and legal policy, providing opinions, 
advice, and assistance to the agency with respect to all of its 
activities;
    (b) Reviews and prepares appropriate draft Commission decisions on 
public petitions seeking direct Commission action and rulemaking 
proceedings involving hearings, monitors cases pending before presiding 
officers and reviews draft Commission decisions on Atomic Safety and 
Licensing Board decisions and rulings;
    (c) Provides interpretation of laws, regulations, and other sources 
of authority;
    (d) Reviews the legal form and content of proposed official actions;
    (e) As requested, provides the agency with legal advice and opinions 
on acquisition matters, including agency procurement contracts; 
placement of work at Department of Energy national laboratories; 
interagency agreements to acquire supplies and services; and grants and 
cooperative agreements. Prepares or concurs in all other interagency 
agreements, delegations of authority, regulations; orders; licenses; and 
other legal documents and prepares legal interpretations thereof;
    (f) Reviews and directs intellectual property (patent) work;
    (g) Represents and protects the interests of the NRC in legal 
matters and in court proceedings, and in relation to other government 
agencies, administrative bodies, committees of Congress, foreign 
governments, and members of the public; and

[[Page 10]]

    (h) Represents the NRC staff as a party in NRC administrative 
hearings.

[52 FR 31602, Aug. 21, 1987, as amended at 56 FR 29407, June 27, 1991; 
65 FR 59272, Oct. 4, 2000]



Sec.  1.24  Office of Commission Appellate Adjudication.

    The Office of Commission Appellate Adjudication--
    (a) Monitors cases pending before presiding officers;
    (b) Provides the Commission with an analysis of any adjudicatory 
matter requiring a Commission decision (e.g., petitions for review, 
certified questions, stay requests) including available options;
    (c) Drafts any necessary decisions pursuant to the Commission's 
guidance after presentation of options; and
    (d) Consults with the Office of the General Counsel in identifying 
the options to be presented to the Commission and in drafting the final 
decision to be presented to the Commission.

[56 FR 29407, June 27, 1991]



Sec.  1.25  Office of the Secretary of the Commission.

    The Office of the Secretary of the Commission--
    (a) Provides general management services to support the Commission 
and to implement Commission decisions; and advises and assists the 
Commission and staff on the planning, scheduling, and conduct of 
Commission business including preparation of internal procedures;
    (b) Prepares the Commission's meeting agenda;
    (c) Manages the Commission Staff Paper and COMSECY systems;
    (d) Receives, processes, and controls Commission mail, 
communications, and correspondence;
    (e) Maintains the Commission's official records and acts as Freedom 
of Information administrative coordinator for Commission records;
    (f) Codifies Commission decisions in memoranda directing staff 
action and monitors compliance;
    (g) Receives, processes, and controls motions and pleadings filed 
with the Commission; issues and serves adjudicatory orders on behalf of 
the Commission; receives and distributes public comments in rulemaking 
proceedings; issues proposed and final rules on behalf of the 
Commission; maintains the official adjudicatory and rulemaking dockets 
of the Commission; and exercises responsibilities delegated to the 
Secretary in 10 CFR 2.303 and 2.346;
    (h) Administers the NRC Historical Program;
    (i) Integrates office automation initiatives into the Commission's 
administrative system;
    (j) Functions as the NRC Federal Advisory Committee Management 
Officer; and
    (k) Provides guidance and direction on the use of the NRC seal and 
flag.

[52 FR 31602, Aug. 21, 1987, as amended at 63 FR 15741, Apr. 1, 1998; 69 
FR 2233, Jan. 14, 2004]



Sec.  1.26  [Reserved]



Sec.  1.27  Office of Congressional Affairs.

    The Office of Congressional Affairs--
    (a) Advises the Chairman, the Commission, and NRC staff on all NRC 
relations with Congress and the views of Congress toward NRC policies, 
plans and activities;
    (b) Maintains liaison with Congressional committees and members of 
Congress on matters of interest to NRC;
    (c) Serves as primary contact point for all NRC communications with 
Congress;
    (d) Coordinates NRC internal activities with Congress;
    (e) Plans, develops, and manages NRC's legislative programs; and
    (f) Monitors legislative proposals, bills, and hearings.

[57 FR 1639, Jan. 15, 1992]



Sec.  1.28  Office of Public Affairs.

    The Office of Public Affairs--
    (a) Develops policies, programs, and procedures for the Chairman's 
approval for informing the public of NRC activities;
    (b) Prepares, clears, and disseminates information to the public and 
the news media concerning NRC policies, programs, and activities;
    (c) Keeps NRC management informed on media coverage of activities of 
interest to the agency;

[[Page 11]]

    (d) Plans, directs, and coordinates the activities of public 
information staffs located at Regional Offices;
    (e) Conducts a cooperative program with schools; and
    (f) Carries out assigned activities in the area of consumer affairs.

[57 FR 1639, Jan. 15, 1992]



Sec.  1.29  Office of International Programs.

    The Office of International Programs--
    (a) Advises the Chairman, the Commission, and NRC staff on 
international issues;
    (b) Recommends policies concerning nuclear exports and imports, 
international safeguards, international physical security, 
nonproliferation matters, and international cooperation and assistance 
in nuclear safety and radiation protection;
    (c) Plans, develops, and manages international nuclear safety 
information exchange programs and coordinates international research 
agreements;
    (d) Obtains, evaluates, and uses pertinent information from other 
NRC and U.S. Government offices in processing nuclear export and import 
license applications;
    (e) Establishes and maintains working relationships with individual 
countries and international nuclear organizations, as well as other 
involved U.S. Government agencies; and
    (f) Assures that all international activities carried out by the 
Commission and staff are well coordinated internally and Government-wide 
and are consistent with NRC and U.S. policies.

[57 FR 1639, Jan. 15, 1992]

                         Chief Financial Officer



Sec.  1.31  Office of the Chief Financial Officer.

    The Office of the Chief Financial Officer--
    (a) Oversees all financial management activities relating to NRC's 
programs and operations and provides advice to the Chairman on financial 
management matters;
    (b) Develops and transmits the NRC's budget estimates to the Office 
of Management and Budget (OMB) and Congress;
    (c) Establishes financial management policy including accounting 
principles and standards for the agency and provides policy guidance to 
senior managers on the budget and all other financial management 
activities;
    (d) Provides an agencywide management control program for financial 
and program managers that establishes internal control processes and 
provides for timely corrective actions regarding material weaknesses 
that are disclosed to comply with the Federal Manager's Financial 
Integrity Act of 1982;
    (e) Develops and manages an agencywide planning, budgeting, and 
performance management process;
    (f) Develops and maintains an integrated agency accounting and 
financial management system, including an accounting system, and 
financial reporting and internal controls;
    (g) Directs, manages, and provides policy guidance and oversight of 
agency financial management personnel activities and operations;
    (h) Prepares and transmits an annual financial management report to 
the Chairman and the Director, Office of Management and Budget, 
including an audited financial statement;
    (i) Monitors the financial execution of NRC's budget in relation to 
actual expenditures, controls the use of NRC funds to ensure that they 
are expended in accordance with applicable laws and financial management 
principles, and prepares and submits to the Chairman timely cost and 
performance reports;
    (j) Establishes, maintains, and oversees the implementation of 
license fee polices and regulations; and
    (k) Reviews, on a periodic basis, fees and other charges imposed by 
NRC for services provided and makes recommendations for revising those 
charges, as appropriate.

[63 FR 15741, Apr. 1, 1998]

                    Executive Director for Operations



Sec.  1.32  Office of the Executive Director for Operations.

    (a) The Executive Director for Operations (EDO) reports for all 
matters to

[[Page 12]]

the Chairman, and is subject to the supervision and direction of the 
Chairman as provided in Reorganization Plan No. 1 of 1980.
    (b) The EDO supervises and coordinates policy development and 
operational activities in the following line offices; the Office of 
Nuclear Reactor Regulation, the Office of Nuclear Material Safety and 
Safeguards, the Office of Nuclear Regulatory Research, the Office of 
Nuclear Security and Incident Response, and the NRC Regional Offices; 
and the following staff offices: The Office of Enforcement, the Office 
of Administration, the Office of Information Services, the Office of 
Investigations, the Office of Small Business and Civil Rights, the 
Office of Human Resources, the Office of State and Tribal Programs, and 
other organizational units as shall be assigned by the Commission. The 
EDO is also responsible for implementing the Commission's policy 
directives pertaining to these offices.
    (c) The EDO exercises powers and functions delegated to the EDO 
under the Reorganization Plan No. 1 of 1980, this chapter, or otherwise 
by the Commission or Chairman, as appropriate. The EDO has the authority 
to perform any function that may be performed by an office director 
reporting to the EDO.

[54 FR 53314, Dec. 28, 1989, as amended at 59 FR 63882, Dec. 12, 1994. 
Redesignated and amended at 63 FR 15741, Apr. 1, 1998; 67 FR 3585, Jan. 
25, 2002; 70 FR 69421, Nov. 16, 2005]

                              Staff Offices



Sec.  1.33  Office of Enforcement.

    The Office of Enforcement--
    (a) Develops policies and programs for enforcement of NRC 
requirements;
    (b) Manages major enforcement action;
    (c) Assesses the effectiveness and uniformity of Regional 
enforcement actions; and
    (d) Manages the NRC allegation program.

[70 FR 69422, Nov. 16, 2005]



Sec.  1.34  Office of Administration.

    The Office of Administration--
    (a) Develops and implements agencywide contracting policies and 
procedures;
    (b) Develops policies and procedures and manages the operation and 
maintenance of NRC offices, facilities, and equipment;
    (c) Plans, develops, establishes, and administers policies, 
standards, and procedures for the overall NRC security program; and
    (d) Develops and implements policies and procedures for the review 
and publication of NRC rulemakings, and ensures compliance with the 
Regulatory Flexibility Act and the Congressional Review Act, manages the 
NRC Management Directives Program, and provides translation services.

[63 FR 15741, Apr. 1, 1998, as amended at 70 FR 69422, Nov. 16, 2005]



Sec.  1.35  Office of Information Services.

    The Office of Information Services--
    (a) Plans, directs, and oversees the NRC's information resources, 
including technology infrastructure and delivery of information 
management services, to meet the mission and goals of the agency;
    (b) Provides principal advice to the Chairman to ensure that 
information technology (IT) is acquired and information resources across 
the agency are managed in a manner consistent with Federal information 
resources management (IRM) laws and regulations;
    (c) Assists senior management in recognizing where information 
technology can add value while improving NRC operations and service 
delivery;
    (d) Directs the implementation of a sound and integrated IT 
architecture to achieve NRC's strategic and IRM goals;
    (e) Monitors and evaluates the performance of information technology 
and information management programs based on applicable performance 
measures and assesses the adequacy of IRM skills of the agency;
    (f) Provides guidance and oversight for the selection, control and 
evaluation of information technology investments; and
    (g) Provides oversight and quality assurance for the design and 
operation of the Licensing Support Network (LSN) services and for the 
completeness and integrity of the LSN database, ensures that the LSN 
meets the requirements of 10 CFR part 2, subpart J, concerning

[[Page 13]]

the use of the LSN in the Commission's high-level waste licensing 
proceedings, and provides technical oversight of DOE in the design, 
development, and operation of the LSN.

[70 FR 69422, Nov. 16, 2005]



Sec.  1.36  Office of Investigations.

    The Office of Investigations (OI)--
    (a) Conducts investigations of licensees, applicants, their 
contractors or vendors, including the investigation of all allegations 
of wrongdoing by other than NRC employees and contractors;
    (b) Maintains current awareness of inquiries and inspections by 
other NRC offices to identify the need for formal investigations;
    (c) Makes appropriate referrals to the Department of Justice;
    (d) Maintains liaison with other agencies and organizations to 
ensure the timely exchange of information of mutual interest; and
    (e) Issues subpoenas where necessary or appropriate for the conduct 
of investigations.

[54 FR 53315, Dec. 28, 1989]



Sec.  1.37  Office of Small Business and Civil Rights.

    The Office of Small Business and Civil Rights--
    (a) Develops and implements an effective small and disadvantaged 
business program in accordance with the Small Business Act, as amended, 
and plans and implements NRC policies and programs relating to equal 
employment oppportunity and civil rights matters as required by the 
Equal Employment Opportunity Commission (EEOC) and the Office of 
Personnel Management (OPM);
    (b) Ensures that appropriate consideration is given to Labor Surplus 
Area firms and Women Business Enterprises, and conducts an outreach 
program aimed at contractors desiring to do business with NRC;
    (c) Maintains liaison with other Government agencies and trade 
associations;
    (d) Coordinates efforts with the Director, Division of Contracts, 
and Directors of other affected offices;
    (e) Develops and recommends for approval by the Executive Director 
for Operations, NRC policy providing for equal employment opportunity in 
all aspects of Federal personnel practice;
    (f) Develops, monitors, and evaluates the agency's equal employment 
opportunity efforts and affirmative action programs to ensure compliance 
with NRC policy;
    (g) Serves as the principal contact with local and national public 
and private organizations to facilitate the NRC equal opportunity 
program; and
    (h) Coordinates all efforts pertaining to small and disadvantaged 
business utilization and equal employment opportunity with Office 
Directors and Regional Administrators.

[52 FR 31602, Aug. 21, 1987, as amended at 59 FR 63882, Dec. 12, 1994]



Sec.  1.38  [Reserved]



Sec.  1.39  Office of Human Resources.

    The Office of Human Resources--
    (a) Plans and implements NRC policies, programs, and services to 
provide for the effective organization, utilization, and development of 
the agency's human resources;
    (b) Provides labor relations and personnel policy guidance and 
supporting services to NRC managers and employees;
    (c) Provides training, benefits administration, and counseling 
services for NRC employees;
    (d) Collects, analyzes, and provides data on the characteristics, 
allocation, utilization, and retention of NRC's workforce;
    (e) Provides staffing advice and services to NRC managers and 
employees; and
    (f) Provides executive resources management and organizational and 
managerial development services to the NRC.

[52 FR 31602, Aug. 21, 1987, as amended at 63 FR 15742, Apr. 1, 1998]



Sec.  1.40  [Reserved]



Sec.  1.41  Office of State and Tribal Programs.

    The Office of State and Tribal Programs--
    (a) Plans and directs NRC's program of cooperation and liaison with 
States,

[[Page 14]]

local governments, interstate and Indian Tribe organizations; and 
coordinates liaison with other Federal Agencies;
    (b) Participates in formulation of policies involving NRC/State 
cooperation and liaison;
    (c) Develops and directs administrative and contractual programs for 
coordinating and integrating Federal and State regulatory activities;
    (d) Maintains liaison between NRC and State, interstate, regional, 
Indian Tribe, and quasi-governmental organizations on regulatory 
matters;
    (e) Promotes NRC visibility and performs general liaison with other 
Federal Agencies, and keeps NRC management informed of significant 
developments at other Federal Agencies which affect the NRC;
    (f) Monitors nuclear-related State legislative activities;
    (g) Directs regulatory activities of State Liaison and State 
Agreement Officers located in Regional Offices;
    (h) Participates in policy matters on State Public Utility 
Commissions (PUCs);
    (i) Administers the State Agreements program in a partnership 
arrangement with the States;
    (j) Develops staff policy and procedures and implementation of the 
State Agreements program under the provisions of section 274b of the 
Atomic Energy Act, as amended;
    (k) Provides oversight of program of periodic routine reviews of 
Agreement State programs to determine their adequacy and compatibility 
as required by section 274j of the Act and other periodic reviews that 
may be performed to maintain a current level of knowledge of the status 
of the Agreement State programs;
    (l) Provides training to the States as provided by section 274i of 
the Act and also to NRC staff and staff of the U.S. Navy and U.S. Air 
Force;
    (m) Provides technical assistance to Agreement States;
    (n) Maintains an exchange of information with the States;
    (o) Conducts negotiations with States expressing an interest in 
seeking a section 274b Agreement;
    (p) Supports, consistent with Commission directives, State efforts 
to improve regulatory control for radiation safety over radioactive 
materials not covered by the Act; and
    (q) Serves as the NRC liaison to the Conference of Radiation Control 
Program Directors, Inc. (CRCPD) and coordinates NRC technical support of 
CRCPD committees.

[57 FR 1639, Jan. 15, 1992, as amended at 59 FR 5519, Feb. 7, 1994; 70 
FR 69422, Nov. 16, 2005]

                             Program Offices



Sec.  1.42  Office of Nuclear Material Safety and Safeguards.

    (a) The Office of Nuclear Material Safety and Safeguards is 
responsible for protecting the public health and safety, the common 
defense and security, and the environment by licensing, inspection, and 
environmental impact assessment for all nuclear facilities and 
activities, and for the import and export of special nuclear material.
    (b) The Office responsibilities include--
    (1) Development and promulgation of regulations;
    (2) Development and implementation of NRC policy for the regulation 
of activities involving safety, quality, approval, and inspection of the 
use and handling of nuclear and other radioactive materials, such as 
uranium activities;
    (3) Fuel fabrication and fuel development;
    (4) Medical, industrial, academic, and commercial uses of 
radioactive isotopes;
    (5) Safeguards activities;
    (6) Transportation of nuclear materials, including certification of 
transport containers;
    (7) Out-of-reactor spent fuel storage;
    (8) Safe management and disposal of low-level and high-level 
radioactive wastes;
    (9) Planning and direction of program for financial assurance of 
NMSS licensees; and
    (10) Management of the decommissioning of facilities and sites when 
their licensed functions are over.
    (c) Safeguards responsibilities include--
    (1) Development of overall agency policy;

[[Page 15]]

    (2) Monitoring and assessment of the threat environment, including 
liaison with intelligence agencies, as appropriate; and
    (3) Those licensing and review activities appropriate to deter and 
protect against threats of radiological sabotage and threats of theft or 
diversion of special nuclear material at fuel facilities and during 
transport.
    (d) The Office identifies and takes action to control safety and 
safeguards issues for activities under its responsibility, including 
consulting and coordinating with international, Federal, State, and 
local agencies, as appropriate.

[52 FR 31602, Aug. 21, 1987. Redesignated at 57 FR 1639, Jan. 15, 1992, 
as amended at 63 FR 69544, Dec. 17, 1998]



Sec.  1.43  Office of Nuclear Reactor Regulation.

    The Office of Nuclear Reactor Regulation--
    (a) Develops, promulgates and implements regulations and develops 
and implements policies, programs, and procedures for all aspects of 
licensing, inspection, and safeguarding of--
    (1) Manufacturing, production, and utilization facilities, except 
for those concerning fuel reprocessing plants and isotopic enrichment 
plants;
    (2) Receipt, possession, and ownership of source, byproduct, and 
special nuclear material used or produced at facilities licensed under 
10 CFR part 50;
    (3) Operators of such facilities;
    (4) Emergency preparedness at such facilities; and
    (5) Contractors and suppliers of such facilities.
    (b) Identifies and takes action regarding conditions and licensee 
performance that may adversely affect public health and safety, the 
environment, or the safeguarding of nuclear reactor facilities;
    (c) Assesses and recommends or takes action regarding incidents or 
accidents;
    (d) Provides special assistance as required in matters involving 
reactor facilities exempt from licensing;
    (e) Provides guidance and implementation direction to Regional 
Offices on reactor licensing, inspection, and safeguards programs 
assigned to the Region, and appraises Regional program performance in 
terms of effectiveness and uniformity;
    (f) Performs other functions required for implementation of the 
reactor licensing, inspection, and safeguard programs; and
    (g) Performs review and evaluation related to regulated facilities 
insurance, indemnity, and antitrust matters.

[70 FR 69422, Nov. 16, 2005]



Sec.  1.45  Office of Nuclear Regulatory Research.

    The Office of Nuclear Regulatory Research--
    (a) Plans, recommends, and implements programs of nuclear regulatory 
research, standards development, and resolution of generic safety issues 
for nuclear power plants and other facilities regulated by the NRC;
    (b) Coordinates research activities within and outside the agency 
including appointment of staff to committees and conferences; and
    (c) Coordinates NRC participation in international standards-related 
activities and national volunteer standards efforts, including 
appointment of staff to committees.

[52 FR 31602, Aug. 21, 1987, as amended at 63 FR 69544, Dec. 17, 1998]



Sec.  1.46  Office of Nuclear Security and Incident Response.

    The Office of Nuclear Security and Incident Response--
    (a) Develops overall agency policy and provides management direction 
for evaluation and assessment of technical issues involving security at 
nuclear facilities, and is the agency safeguards and security interface 
with the Department of Homeland Security (DHS), the Department of Energy 
(DOE), other agencies; and the international activities related to the 
security of radioactive material and nuclear facilities;
    (b) Develops, in participation with domestic and international 
agencies, foreign policy guidance and provides international assistance 
in nuclear security and safeguards;
    (c) Develops emergency preparedness policies, regulations, programs, 
and guidelines for both currently licensed

[[Page 16]]

nuclear reactors and potential new nuclear reactors;
    (d) Provides technical expertise regarding emergency preparedness 
issues and interpretations; and
    (e) Develops and directs the NRC program for response to incidents, 
and is the agency emergency preparedness and incident response interface 
with the DHS, the Federal Emergency Management Agency (FEMA) and other 
Federal agencies.

[70 FR 69422, Nov. 16, 2005]



Sec.  1.47  NRC Regional Offices.

    Each Regional Administrator executes established NRC policies and 
assigned programs relating to inspection, enforcement, licensing, State 
agreements, State liaison, and emergency response within Regional 
boundaries set out in Sec.  1.5(b) of this part.



                       Subpart C_NRC Seal and Flag



Sec.  1.51  Description and custody of NRC seal.

    (a) Pursuant to section 201(a) of the Energy Reorganization Act of 
1974, the Nuclear Regulatory Commission, has adopted an official seal. 
Its description is as follows: An American bald eagle (similar to that 
on the Great Seal of the United States of America) of brown and tan with 
claws and beak of yellow, behind a shield of red, white, and blue, 
clutching a cluster of thirteen arrows in its left claw and a green 
olive branch in its right claw, positioned on a field of white, with the 
words ``United States Nuclear Regulatory Commission'' in dark blue 
encircling the eagle. The eagle represents the United States of America 
and its interests.
    (b) The Official Seal of the Nuclear Regulatory Commission is 
illustrated as follows:
[GRAPHIC] [TIFF OMITTED] TC02OC91.055

    (c) The Secretary of the Commission is responsible for custody of 
the impression seals and of replica (plaque) seals.



Sec.  1.53  Use of NRC seal or replicas.

    (a) The use of the seal or replicas is restricted to the following:
    (1) NRC letterhead stationery;
    (2) NRC award certificates and medals;
    (3) Security credentials and employee identification cards;
    (4) NRC documents, including agreements with States, interagency or 
governmental agreements, foreign patent applications, certifications, 
special reports to the President and Congress and, at the discretion of 
the Secretary of the Commission, such other documents as the Secretary 
finds appropriate;
    (5) Plaques--the design of the seal may be incorporated in plaques 
for display at NRC facilities in locations such as auditoriums, 
presentation rooms, lobbies, offices of senior officials, on the fronts 
of buildings, and other places designated by the Secretary;
    (6) The NRC flag (which incorporates the design of the seal);
    (7) Official films prepared by or for the NRC, if deemed appropriate 
by the Director of Governmental and Public Affairs;
    (8) Official NRC publications that represent an achievement or 
mission of NRC as a whole, or that are cosponsored by NRC and other 
Government departments or agencies; and
    (9) Any other uses as the Secretary of the Commission finds 
appropriate.

[[Page 17]]

    (b) Any person who uses the official seal in a manner other than as 
permitted by this section shall be subject to the provisions of 18 
U.S.C. 1017, which provides penalties for the fraudulent or wrongful use 
of an official seal, and to other provisions of law as applicable.



Sec.  1.55  Establishment of official NRC flag.

    The official flag is based on the design of the NRC seal. It is 50 
inches by 66 inches in size with a 38-inch diameter seal incorporated in 
the center of a dark blue field with a gold fringe.



Sec.  1.57  Use of NRC flag.

    (a) The use of the flag is restricted to the following:
    (1) On or in front of NRC installations;
    (2) At NRC ceremonies;
    (3) At conferences involving official NRC participation (including 
permanent display in NRC conference rooms);
    (4) At Governmental or public appearances of NRC executives;
    (5) In private offices of senior officials; or
    (6) As the Secretary of the Commission otherwise authorizes.
    (b) The NRC flag must only be displayed together with the U.S. flag.

When they are both displayed on a speaker's platform, the U.S. flag must 
occupy the position of honor and be placed at the speaker's right as he 
or she faces the audience, and the NRC flag must be placed at the 
speaker's left.



Sec.  1.59  Report of violations.

    In order to ensure adherence to the authorized uses of the NRC seal 
and flag as provided in this subpart, a report of each suspected 
violation of this subpart, or any questionable use of the NRC seal or 
flag, should be submitted to the Secretary of the Commission.



PART 2_RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF 

ORDERS--Table of Contents




Sec.
2.1 Scope.
2.2 Subparts.
2.3 Resolution of conflict.
2.4 Definitions.
2.8 Information collection requirements: OMB approval.

 Subpart A_Procedure for Issuance, Amendment, Transfer, or Renewal of a 
                                 License

2.100 Scope of subpart.
2.101 Filing of application.
2.102 Administrative review of application.
2.103 Action on applications for byproduct, source, special nuclear 
          material, facility and operator licenses.

                  Hearing on Application--How Initiated

2.104 Notice of hearing.
2.105 Notice of proposed action.
2.106 Notice of issuance.
2.107 Withdrawal of application.
2.108 Denial of application for failure to supply information.
2.109 Effect of timely renewal application.
2.110 Filing and administrative action on submittals for design review 
          or early review of site suitability issues.
2.111 Prohibition of sex discrimination.

     Subpart B_Procedure for Imposing Requirements by Order, or for 
 Modification, Suspension, or Revocation of a License, or for Imposing 
                             Civil Penalties

2.200 Scope of subpart.
2.201 Notice of violation.
2.202 Orders.
2.203 Settlement and compromise.
2.204 Demand for information.
2.205 Civil penalties.
2.206 Requests for action under this subpart.

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

2.300 Scope of subpart C.
2.301 Exceptions.
2.302 Filing of documents.
2.303 Docket.
2.304 Formal requirements for documents; acceptance for filing.
2.305 Service of papers, methods, proof.
2.306 Computation of time.
2.307 Extension and reduction of time limits.
2.308 Treatment of requests for hearing or petitions for leave to 
          intervene by the Secretary.
2.309 Hearing requests, petitions to intervene, requirements for 
          standing, and contentions.

[[Page 18]]

2.310 Selection of hearing procedures.
2.311 Interlocutory review of rulings on requests for hearings/petitions 
          to intervene and selection of hearing procedures.
2.312 Notice of hearing.
2.313 Designation of presiding officer, disqualification, 
          unavailability, and substitution.
2.314 Appearance and practice before the Commission in adjudicatory 
          proceedings.
2.315 Participation by a person not a party.
2.316 Consolidation of parties.
2.317 Separate hearings; consolidation of proceedings.
2.318 Commencement and termination of jurisdiction of presiding officer.
2.319 Power of the presiding officer.
2.320 Default.
2.321 Atomic Safety and Licensing Boards.
2.322 Special assistants to the presiding officer.
2.323 Motions.
2.324 Order of procedure.
2.325 Burden of proof.
2.326 Motions to reopen.
2.327 Official recording; transcript.
2.328 Hearings to be public.
2.329 Prehearing conference.
2.330 Stipulations.
2.331 Oral argument before the presiding officer.
2.332 General case scheduling and management.
2.333 Authority of the presiding officer to regulate procedure in a 
          hearing.
2.334 Implementing hearing schedule for proceeding.
2.335 Consideration of Commission rules and regulations in adjudicatory 
          proceedings.
2.336 General discovery.
2.337 Evidence at a hearing.
2.338 Settlement of issues; alternative dispute resolution.
2.339 Expedited decisionmaking procedure.
2.340 Initial decision in contested proceedings on applications for 
          facility operating licenses; immediate effectiveness of 
          initial decision directing issuance or amendment of 
          construction permit or operating license.
2.341 Review of decisions and actions of a presiding officer.
2.342 Stays of decisions.
2.343 Oral argument.
2.344 Final decision.
2.345 Petition for reconsideration.
2.346 Authority of the Secretary.
2.347 Ex parte communications.
2.348 Separation of functions.
2.390 Public inspections, exemptions, requests for withholding.

   Subpart D_Additional Procedures Applicable to Proceedings for the 
  Issuance of Licenses To Construct or Operate Nuclear Power Plants of 
                   Duplicate Design at Multiple Sites

2.400 Scope of subpart.
2.401 Notice of hearing on applications pursuant to appendix N of part 
          52 for construction permits.
2.402 Separate hearings on separate issues; consolidation of 
          proceedings.
2.403 Notice of proposed action on applications for operating licenses 
          pursuant to appendix N of part 52.
2.404 Hearings on applications for operating licenses pursuant to 
          appendix N of part 52.
2.405 Initial decisions in consolidated hearings.
2.406 Finality of decisions on separate issues.
2.407 Applicability of other sections.

   Subpart E_Additional Procedures Applicable to Proceedings for the 
    Issuance of Licenses To Manufacture Nuclear Power Reactors To Be 
Operated at Sites Not Identified in the License Application and Related 
                          Licensing Proceedings

2.500 Scope of subpart.
2.501 Notice of hearing on application pursuant to appendix M of part 52 
          for a license to manufacture nuclear power reactors.
2.502 Notice of hearing on application for a permit to construct a 
          nuclear power reactor manufactured pursuant to a Commission 
          license issued pursuant to appendix M of part 52 of this 
          chapter at the site at which the reactor is to be operated.
2.503 Finality of decision on separate issues.
2.504 Applicability of other sections.

Subpart F_Additional Procedures Applicable to Early Partial Decisions on 
 Site Suitability Issues in Connection With an Application for a Permit 
               To Construct Certain Utilization Facilities

2.600 Scope of subpart.
2.601 Applicability of other sections.
2.602 Filing fees.
2.603 Acceptance and docketing of application for early review of site 
          suitability issues.
2.604 Notice of hearing on application for early review of site 
          suitability issues.
2.605 Additional considerations.
2.606 Partial decisions on site suitability issues.

[[Page 19]]

                Subpart G_Rules for Formal Adjudications

2.700 Scope of subpart G.
2.701 Exceptions.
2.702 Subpoenas.
2.703 Examination by experts.
2.704 Discovery--required disclosures.
2.705 Discovery--additional methods.
2.706 Depositions upon oral examination and written interrogatories; 
          interrogatories to parties.
2.707 Production of documents and things; entry upon land for inspection 
          and other purposes.
2.708 Admissions.
2.709 Discovery against NRC staff.
2.710 Motions for summary disposition.
2.711 Evidence.
2.712 Proposed findings and conclusions.
2.713 Initial decision and its effect.

                          Subpart H_Rulemaking

2.800 Scope of rulemaking.
2.801 Initiation of rulemaking.
2.802 Petition for rulemaking.
2.803 Determination of petition.
2.804 Notice of proposed rulemaking.
2.805 Participation by interested persons.
2.806 Commission action.
2.807 Effective date.
2.808 Authority of the Secretary to rule on procedural matters.
2.809 Participation by the Advisory Committee on Reactor Safeguards.
2.810 NRC size standards.

  Subpart I_Special Procedures Applicable to Adjudicatory Proceedings 
     Involving Restricted Data and/or National Security Information

2.900 Purpose.
2.901 Scope of subpart I.
2.902 Definitions.
2.903 Protection of restricted data and national security information.
2.904 Classification assistance.
2.905 Access to restricted data and national security information for 
          parties; security clearances.
2.906 Obligation of parties to avoid introduction of restricted data or 
          national security information.
2.907 Notice of intent to introduce restricted data or national security 
          information.
2.908 Contents of notice of intent to introduce restricted data or other 
          national security information.
2.909 Rearrangement or suspension of proceedings.
2.910 Unclassified statements required.
2.911 Admissibility of restricted data or other national security 
          information.
2.912 Weight to be attached to classified evidence.
2.913 Review of Restricted Data or other National Security Information 
          received in evidence.

   Subpart J_Procedures Applicable to Proceedings for the Issuance of 
 Licenses for the Receipt of High-Level Radioactive Waste at a Geologic 
                               Repository

2.1000 Scope of subpart J.
2.1001 Definitions.
2.1002 [Reserved]
2.1003 Availability of material.
2.1004 Amendments and additions.
2.1005 Exclusions.
2.1006 Privilege.
2.1007 Access.
2.1008 [Reserved]
2.1009 Procedures.
2.1010 Pre-License Application Presiding Officer.
2.1011 Management of electronic information.
2.1012 Compliance.
2.1013 Use of the electronic docket during the proceeding.
2.1015 Appeals.
2.1017 Computation of time.
2.1018 Discovery.
2.1019 Depositions.
2.1020 Entry upon land for inspection.
2.1021 First prehearing conference.
2.1022 Second prehearing conference.
2.1023 Immediate effectiveness.
2.1025 Authority of the Presiding Officer to dispose of certain issues 
          on the pleadings.
2.1026 Schedule.
2.1027 Sua sponte.

Subpart K_Hybrid Hearing Procedures for Expansion of Spent Nuclear Fuel 
           Storage Capacity at Civilian Nuclear Power Reactors

2.1101 Purpose.
2.1103 Scope of subpart K.
2.1105 Definitions.
2.1107 Notice of proposed action.
2.1109 Requests for oral argument.
2.1113 Oral argument.
2.1115 Designation of issues for adjudicatory hearing.
2.1117 Burden of proof.
2.1119 Applicability of other sections.

       Subpart L_Informal Hearing Procedures for NRC Adjudications

2.1200 Scope of subpart L.
2.1201 Definitions.
2.1202 Authority and role of NRC staff.
2.1203 Hearing file; prohibition on discovery.
2.1204 Motions and requests.
2.1205 Summary disposition.
2.1206 Informal hearings.

[[Page 20]]

2.1207 Process and schedule for submissions and presentations in an oral 
          hearing.
2.1208 Process and schedule for a hearing consisting of written 
          presentations.
2.1209 Findings of fact and conclusions of law.
2.1210 Initial decision and its effect.
2.1211 Immediate effectiveness of initial decision directing issuance or 
          amendment of licenses under part 61 of this chapter.
2.1212 Petitions for Commission review of initial decisions.
2.1213 Application for a stay.

   Subpart M_Procedures for Hearings on License Transfer Applications

2.1300 Scope of subpart M.
2.1301 Public notice of receipt of a license transfer application.
2.1302 Notice of withdrawal of an application.
2.1303 Availability of documents.
2.1304 Hearing procedures.
2.1305 Written comments.
2.1308 Oral hearings.
2.1309 Notice of oral hearing.
2.1310 Notice of hearing consisting of written comments.
2.1311 Conditions in a notice or order.
2.1315 Generic determination regarding license amendments to reflect 
          transfers.
2.1316 Authority and role of NRC staff.
2.1319 Presiding Officer.
2.1320 Responsibility and power of the Presiding Officer in an oral 
          hearing.
2.1321 Participation and schedule for submissions in a hearing 
          consisting of written comments.
2.1322 Participation and schedule for submissions in an oral hearing.
2.1323 Presentation of testimony in an oral hearing.
2.1324 Appearance in an oral hearing.
2.1325 Motions and requests.
2.1327 Application for a stay of the effectiveness of NRC staff action 
          on license transfer.
2.1331 Commission action.

           Subpart N_Expedited Proceedings with Oral Hearings

2.1400 Purpose and scope of subpart N.
2.1401 Definitions.
2.1402 General procedures and limitations; requests for other 
          procedures.
2.1403 Authority and role of the NRC staff.
2.1404 Prehearing conference.
2.1405 Hearing.
2.1406 Initial decision--issuance and effectiveness.
2.1407 Appeal and Commission review of initial decision.

                     Subpart O_Legislative Hearings

2.1500 Purpose and scope.
2.1501 Definitions.
2.1502 Commission decision to hold legislative hearing.
2.1503 Authority of presiding officer.
2.1504 Request to participate in legislative hearing.
2.1505 Role of the NRC staff.
2.1506 Written statements and submission of information.
2.1507 Oral hearing.
2.1508 Recommendation of presiding officer.
2.1509 Ex parte communications and separation of functions.

Appendix A to Part 2 [Reserved]
Appendix B to 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.
Appendix C to Part 2 [Reserved]
Appendix D to Part 2--Schedule for the Proceeding on Consideration of 
          Construction Authorization for a High-Level Waste Geologic 
          Repository.

    Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 
2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 409 (42 
U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 
U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
    Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 68 
Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 
2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. L. 97-425, 96 
Stat. 2213, as amended (42 U.S.C. 10143(f)), sec. 102, Pub. L. 91-190, 
83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 
U.S.C. 5871).
    Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 
102, 103, 104, 183i, 189, 68 Stat. 936, 937, 938, 954, 955, as amended 
(42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Sections 2.105 also 
issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239).
    Sections 2.200-2.206 also issued under secs. 161b, I, o, 182, 186, 
234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201(b), 
(I), (o), 2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Section 
2.205(j) also issued under Pub. L. 101-410, 104 Stat. 90, as amended by 
section 3100(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 
note). Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-190, 
83 Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also 
issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also 
issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 135, 
141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). 
Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 
U.S.C. 2133), and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued 
under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553, and 
sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). 
Subpart K

[[Page 21]]

also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, 
Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154).
    Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). 
Subpart M also issued under sec. 184 (42 U.S.C. 2234) and sec. 189, 68 
Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 
91-560, 84 Stat. 1473 (42 U.S.C. 2135).

    Source: 27 FR 377, Jan. 13, 1962, unless otherwise noted.



Sec.  2.1  Scope.

    This part governs the conduct of all proceedings, other than export 
and import licensing proceedings described in part 110, under the Atomic 
Energy Act of 1954, as amended, and the Energy Reorganization Act of 
1974, for--
    (a) Granting, suspending, revoking, amending, or taking other action 
with respect to any license, construction permit, or application to 
transfer a license;
    (b) Issuing orders and demands for information to persons subject to 
the Commission's jurisdiction, including licensees and persons not 
licensed by the Commission;
    (c) Imposing civil penalties under section 234 of the Act; and
    (d) Public rulemaking.

[56 FR 40684, Aug. 15, 1991]



Sec.  2.2  Subparts.

    Each subpart other than subpart C of this part sets forth special 
rules applicable to the type of proceeding described in the first 
section of that subpart. Subpart C sets forth general rules applicable 
to all types of proceedings except rulemaking, and should be read in 
conjunction with the subpart governing a particular proceeding. Subpart 
I of this part sets forth special procedures to be followed in 
proceedings in order to safeguard and prevent disclosure of Restricted 
Data.

[69 FR 2233, Jan. 14, 2004]



Sec.  2.3  Resolution of conflict.

    (a) In any conflict between a general rule in subpart C of this part 
and a special rule in another subpart or other part of this chapter 
applicable to a particular type of proceeding, the special rule governs.
    (b) Unless otherwise specifically referenced, the procedures in this 
part do not apply to hearings in 10 CFR parts 4, 9, 10, 11, 12, 13, 15, 
16, and subparts H and I of 10 CFR part 110.

[69 FR 2233, Jan. 14, 2004]



Sec.  2.4  Definitions.

    As used in this part,
    ACRS means the Advisory Committee on Reactor Safeguards established 
by the Act.
    Act means the Atomic Energy Act of 1954, as amended (68 Stat. 919).
    Adjudication means the process for the formulation of an order for 
the final disposition of the whole or any part of any proceeding subject 
to this part, other than rule making.
    Administrative Law Judge means an individual appointed pursuant to 
section 11 of the Administrative Procedure Act to conduct proceedings 
subject to this part.
    Commission means the Commission of five members or a quorum thereof 
sitting as a body, as provided by section 201 of the Energy 
Reorganization Act of 1974 (88 Stat. 1242), or any officer to whom has 
been delegated authority pursuant to section 161n of the Act.
    Commission adjudicatory employee means--
    (1) The Commissioners and members of their personal staffs;
    (2) The employees of the Office of Commission Appellate 
Adjudication;
    (3) The members of the Atomic Safety and Licensing Board Panel and 
staff assistants to the Panel;
    (4) A presiding officer appointed under Sec.  2.313, and staff 
assistants to a presiding officer;
    (5) Special assistants (as defined in Sec.  2.322);
    (6) The General Counsel, the Solicitor, the Associate General 
Counsel for Licensing and Regulation, and employees of the Office of the 
General Counsel under the supervision of the Solicitor;
    (7) The Secretary and employees of the Office of the Secretary; and
    (8) Any other Commission officer or employee who is appointed by the 
Commission, the Secretary, or the General Counsel to participate or 
advise in the Commission's consideration of an initial or final decision 
in a proceeding.

[[Page 22]]

Any other Commission officer or employee who, as permitted by Sec.  
2.348, participates or advises in the Commission's consideration of an 
initial or final decision in a proceeding must be appointed as a 
Commission adjudicatory employee under this paragraph and the parties to 
the proceeding must be given written notice of the appointment.
    Contested proceeding means (1) a proceeding in which there is a 
controversy between the staff of the Commission and the applicant for a 
license concerning the issuance of the license or any of the terms or 
conditions thereof or (2) a proceeding in which a petition for leave to 
intervene in opposition to an application for a license has been granted 
or is pending before the Commission.
    Department means the Department of Energy established by the 
Department of Energy Organization Act (Pub. L. 95-91, 91 Stat. 565 42 
U.S.C. 7101 et seq.) to the extent that the Department, or its duly 
authorized representatives, exercises functions formerly vested in the 
U.S. Atomic Energy Commission, its Chairman, members, officers and 
components and transferred to the U.S. Energy Research and Development 
Administration and to the Administrator thereof pursuant to sections 104 
(b), (c) and (d) of the Energy Reorganization Act of 1974 (Pub. L. 93-
438, 88 Stat. 1233 at 1237, 42 U.S.C. 5814) and retransferred to the 
Secretary of Energy pursuant to section 301(a) of the Department of 
Energy Organization Act (Pub. L. 95-91, 91 Stat. 565 at 577-578, 42 
U.S.C. 7151).
    Electric utility means any entity that generates or distributes 
electricity and which recovers the costs of this electricity, either 
directly or indirectly through rates established by the entity itself or 
by a separate regulatory authority. Investor-owned utilities including 
generation or distribution subsidiaries, public utility districts, 
municipalities, rural electric cooperatives, and State and Federal 
agencies, including associations of any of the foregoing, are included 
within the meaning of ``electric utility.''
    Ex parte communication means an oral or written communication not on 
the public record with respect to which reasonable prior notice to all 
parties is not given.
    Facility means a production facility or a utilization facility as 
defined in Sec.  50.2 of this chapter.
    Investigative or litigating function means--
    (1) Personal participation in planning, conducting, or supervising 
an investigation; or
    (2) Personal participation in planning, developing, or presenting, 
or in supervising the planning, development or presentation of 
testimony, argument, or strategy in a proceeding.
    License means a license, including a renewed license, or 
construction permit issued by the Commission.
    Licensee means a person who is authorized to conduct activities 
under a license, including a renewed license, or construction permit 
issued by the Commission.
    NRC personnel means:
    (1) NRC employees;
    (2) For the purpose of Sec. Sec.  2.336, 2.702, 2.709 and 2.1018 
only, persons acting in the capacity of consultants to the Commission, 
regardless of the form of the contractual arrangements under which such 
persons act as consultants to the Commission; and
    (3) Members of advisory boards, committees, and panels of the NRC; 
members of boards designated by the Commission to preside at 
adjudicatory proceedings; and officers or employees of Government 
agencies, including military personnel, assigned to duty at the NRC.
    NRC Public Document Room means the facility at One White Flint 
North, 11555 Rockville Pike (first floor), Rockville, Maryland, where 
certain public records of the NRC that were made available for public 
inspection in paper or microfiche prior to the implementation of the NRC 
Agencywide Documents Access and Management System, commonly referred to 
as ADAMS, will remain available for public inspection. It is also the 
place where NRC makes computer terminals available to access the 
Publicly Available Records System (PARS) component of ADAMS on the NRC 
Web site, http://www.nrc.gov, and where copies of publicly available 
documents can be viewed or ordered for a fee as set forth in Sec.  9.35 
of this chapter.

[[Page 23]]

The facility is staffed with reference librarians to assist the public 
in identifying and locating documents and in using the NRC Web site and 
ADAMS. The NRC Public Document Room is open from 7:45 am to 4:15 pm, 
Monday through Friday, except on Federal holidays. Reference service and 
access to documents may also be requested by telephone (301-415-4737 or 
800-397-4209) between 8:30 am and 4:15 pm, or by e-mail (PDR@nrc.gov), 
facsimile (301-415-3548), or letter (NRC Public Document Room, One White 
Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 
20852-2738).
    NRC records and documents means any book, paper, map, photograph, 
brochure, punch card, magnetic tape, paper tape, sound recording, 
pamphlet, slide, motion picture, or other documentary material 
regardless of form or characteristics, made by, in the possession of, or 
under the control of the NRC pursuant to Federal law or in connection 
with the transaction of public business as evidence of NRC organization, 
functions, policies, decisions, procedures, operations, programs or 
other activities. ``NRC records and documents'' do not include objects 
or articles such as structures, furniture, tangible exhibits or models, 
or vehicles and equipment.
    NRC Web site, http://www.nrc.gov, is the Internet uniform resource 
locator name for the Internet address of the Web site where NRC will 
ordinarily make available its public records for inspection.
    Person means (1) any individual, corporation, partnership, firm, 
association, trust, estate, public or private institution, group, 
government agency other than the Commission or the Department, except 
that the Department shall be considered a person with respect to those 
facilities of the Department specified in section 202 of the Energy 
Reorganization Act of 1974 (88 Stat. 1244), any State or any political 
subdivision of, or any political entity within a State, any foreign 
government or nation or any political subdivision of any such government 
or nation, or other entity; and (2) any legal successor, representative, 
agent, or agency of the foregoing.
    Presiding officer means the Commission, an administrative law judge, 
an administrative judge, an Atomic Safety and Licensing Board, or other 
person designated in accordance with the provisions of this part, 
presiding over the conduct of a hearing conducted under the provisions 
of this part.
    Public Document Room means the place at One White Flint North, 11555 
Rockville Pike (first floor), Rockville, Maryland 20852-2738, at which 
public records of the Commission will ordinarily be made available for 
inspection.
    Secretary means the Secretary to the Commission.
    Except as redefined in this section, words and phrases which are 
defined in the Act and in this chapter have the same meaning when used 
in this part.

[27 FR 377, Jan. 13, 1962]

    Editorial Note: For Federal Register citations affecting Sec.  2.4, 
see the List of Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec.  2.8  Information collection requirements: OMB approval.

    This part contains no information collection requirements and 
therefore is not subject to requirements of the Paperwork Reduction Act 
(44 U.S.C. 3501 et seq.).

[61 FR 43408, Aug. 22, 1996]



 Subpart A_Procedure for Issuance, Amendment, Transfer, or Renewal of a 
                                 License



Sec.  2.100  Scope of subpart.

    This subpart prescribes the procedures for issuance of a license, 
amendment of a license at the request of the licensee, and transfer and 
renewal of a license.

[69 FR 2234, Jan. 14, 2004]



Sec.  2.101  Filing of application.

    (a)(1) An application for a license, a license transfer, or an 
amendment to a license shall be filed with the Director of the Office of 
Nuclear Reactor Regulation or Director of the Office of Nuclear Material 
Safety and Safeguards,

[[Page 24]]

as prescribed by the applicable provisions of this chapter. A 
prospective applicant may confer informally with the NRC staff prior to 
the filing of an application.
    (2) Each application for a license for a facility or for receipt of 
waste radioactive material from other persons for the purpose of 
commercial disposal by the waste disposal licensee will be assigned a 
docket number. However, to allow a determination as to whether an 
application for a construction permit or operating license for a 
production or utilization facility is complete and acceptable for 
docketing, it will be initially treated as a tendered application. A 
copy of the tendered application will be available for public inspection 
at the NRC Web site, http://www.nrc.gov, and/or at the NRC Public 
Document Room. Generally, the determination on acceptability for 
docketing will be made within a period of thirty (30) days. However, in 
selected construction permit applications, the Commission may decide to 
determine acceptability on the basis of the technical adequacy of the 
application as well as its completeness. In these cases, the Commission, 
pursuant to Sec.  2.104(a), will direct that the notice of hearing be 
issued as soon as practicable after the application has been tendered, 
and the determination of acceptability will be made generally within a 
period of sixty (60) days. For docketing and other requirements for 
applications pursuant to part 61 of this chapter, see paragraph (g) of 
this section.
    (3) If the Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate, determines that 
a tendered application for a construction permit or operating license 
for a production or utilization facility, and/or any environmental 
report required pursuant to subpart A of part 51 of this chapter, or 
part thereof as provided in paragraphs (a)(5) or (a-1) of this section 
are complete and acceptable for docketing, a docket number will be 
assigned to the application or part thereof, and the applicant will be 
notified of the determination. With respect to the tendered application 
and/or environmental report or part thereof that is acceptable for 
docketing, the applicant will be requested to:
    (i) Submit to the Director of Nuclear Reactor Regulation or Director 
of Nuclear Material Safety and Safeguards, as appropriate, such 
additional copies as the regulations in part 50 and subpart A of part 51 
require;
    (ii) Serve a copy on the chief executive of the municipality in 
which the facility is to be located or, if the facility is not to be 
located within a municipality, on the chief executive of the county, and 
serve a notice of availability of the application or environmental 
report on the chief executives of the municipalities or counties which 
have been identified in the application or environmental report as the 
location of all or part of the alternative sites, containing the 
following information: Docket number of the application, a brief 
description of the proposed site and facility; the location of the site 
and facility as primarily proposed and alternatively listed; the name, 
address, telephone number, and email address (if available) of the 
applicant's representative who may be contacted for further information; 
notification that a draft environmental impact statement will be issued 
by the Commission and will be made available upon request to the 
Commission; and notification that if a request is received from the 
appropriate chief executive, the applicant will transmit a copy of the 
application and environmental report, and any changes to such documents 
which affect the alternative site location, to the executive who makes 
the request. In complying with the requirements of this paragraph, the 
applicant should not make public distribution of those parts of the 
application subject to Sec.  2.390(d). The applicant shall submit to the 
Director of Nuclear Reactor Regulation an affidavit that service of the 
notice of availability of the application or environmental report has 
been completed along with a list of names and addresses of those 
executives upon whom the notice was served; and
    (iii) Make direct distribution of additional copies to Federal, 
State, and local officials in accordance with the

[[Page 25]]

requirements of this chapter and written instructions furnished to the 
applicant by the Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate. Such written 
instructions will be furnished as soon as practicable after all or any 
part of the application, or environmental report, is tendered. The 
copies submitted to the Director of Nuclear Reactor Regulation or 
Director of Nuclear Material Safety and Safeguards, as appropriate, and 
distributed by the applicant shall be completely assembled documents, 
identified by docket number. Subsequently distributed amendments to 
applications, however, may include revised pages to previous submittals 
and, in such cases, the recipients will be responsible for inserting the 
revised pages.
    (4) The tendered application for a construction permit or operating 
license for a production or utilization facility will be formally 
docketed upon receipt by the Director of Nuclear Reactor Regulation or 
Director of Nuclear Material Safety and Safeguards, as appropriate, of 
the required additional copies. Distribution of the additional copies 
shall be deemed to be complete as of the time the copies are deposited 
in the mail or with a carrier prepaid for delivery to the designated 
addresses. The date of docketing shall be the date when the required 
copies are received by the Director of Nuclear Reactor Regulation or 
Director of Nuclear Material Safety and Safeguards, as appropriate. 
Within ten (10) days after docketing the applicant shall submit to the 
Director of Nuclear Reactor Regulation or Director of Nuclear Material 
Safety and Safeguards, as appropriate, an affidavit that distribution of 
the additional copies to Federal, State, and local officials has been 
completed in accordance with requirements of this chapter and written 
instructions furnished to the applicant by the Director of Nuclear 
Reactor Regulation or Director of Nuclear Material Safety and 
Safeguards, as appropriate. Amendments to the application and 
environmental report shall be filed and distributed and an affidavit 
shall be furnished to the Director of Nuclear Reactor Regulation or 
Director of Nuclear Material Safety and Safeguards, as appropriate, in 
the same manner as for the initial application and environmental report. 
If it is determined that all or any part of the tendered application 
and/or environmental report is incomplete and therefore not acceptable 
for processing, the applicant will be informed of this determination, 
and the respects in which the document is deficient.
    (5) An applicant for a construction permit for a production or 
utilization facility which is subject to Sec.  51.20(b) of this chapter, 
and is of the type specified in Sec.  50.21(b)(2) or (3) or Sec.  50.22 
of this chapter or is a testing facility may submit the information 
required of applicants by part 50 of the chapter in two parts. One part 
shall be accompanied by the information required by Sec.  50.30(f) of 
this chapter, another part shall include any information required by 
Sec.  50.34(a) and, if applicable, Sec.  50.34a of this chapter. One 
part may precede or follow other parts by no longer than six (6) months. 
If it is determined that either of the parts as described above is 
incomplete and not acceptable for processing, the Director of Nuclear 
Reactor Regulation or Director of Nuclear Material Safety and 
Safeguards, as appropriate, will inform the applicant of this 
determination and the respects in which the document is deficient. Such 
a determination of completeness will generally be made within a period 
of thirty (30) days. Whichever part is filed first shall also include 
the fee required by Sec. Sec.  50.30(e) and 170.21 of this chapter and 
the information required by Sec. Sec.  50.33, 50.34(a)(1) and 50.37 of 
this chapter. The Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate, will accept for 
docketing an application for a construction permit for a production or 
utilization facility which is subject to Sec.  51.20(b) of this chapter, 
and is of the type specified in Sec.  50.21(b)(2) or (3) or Sec.  50.22 
of this chapter or is a testing facility where one part of the 
application as described above is complete and conforms to the 
requirements of part 50 of this chapter. The additional parts will be 
docketed upon a determination by the Director of Nuclear Reactor 
Regulation or Director of Nuclear Material Safety and

[[Page 26]]

Safeguards, as appropriate, that it is complete.
    (a-1) Early consideration of site suitability issues. An applicant 
for a construction permit for a utilization facility which is subject to 
Sec.  51.20(b) of this chapter and is of the type specified in Sec.  
50.21(b)(2) or (3) or Sec.  50.22 of this chapter or is a testing 
facility, may request that the Commission conduct an early review and 
hearing and render an early partial decision in accordance with subpart 
F on issues of site suitability within the purview of the applicable 
provisions of parts 50, 51 and 100 of this chapter. In such cases, the 
applicant for the construction permit may submit the information 
required of applicants by the provisions of this chapter in three parts:
    (1) Part one shall include or be accompanied by any information 
required by Sec. Sec.  50.34(a)(1) and 50.30(f) of this chapter which 
relates to the issue(s) of site suitability for which an early review, 
hearing and partial decision are sought, except that information with 
respect to operation of the facility at the projected initial power 
level need not be supplied, and shall include the information required 
by Sec. Sec.  50.33 (a) through (e) and 50.37 of this chapter. The 
information submitted shall also include: (i) Proposed findings on the 
issues of site suitability on which the applicant has requested review 
and a statement of the bases or the reasons for those findings, (ii) a 
range of postulated facility design and operation parameters that is 
sufficient to enable the Commission to perform the requested review of 
site suitability issues under the applicable provisions of parts 50, 51 
and 100, and (iii) information concerning the applicant's site selection 
process and long-range plans for ultimate development of the site 
required by Sec.  2.603(b)(1).
    (2) Part two shall include or be accompanied by the remaining 
information required by Sec. Sec.  50.30(f), 50.33 and 50.34(a)(1) of 
this chapter.
    (3) Part three shall include the remaining information required by 
Sec. Sec.  50.34a and (in the case of a nuclear power reactor) 50.34(a) 
of this chapter.
    (4) The information required for part two or part three shall be 
submitted during the period the partial decision on part one is 
effective. Submittal of the information required for part three may 
precede by no more than six months or follow by no more than six months 
the submittal of the information required for part two.
    (b) After the application has been docketed each applicant for a 
license for receipt of waste radioactive material from other persons for 
the purpose of commercial disposal by the waste disposal licensee except 
applicants under part 61 of this chapter, who must comply with paragraph 
(g) of this section, shall serve a copy of the application and 
environmental report, as appropriate, on the chief executive of the 
municipality in which the activity is to be conducted or, if the 
activity is not to be conducted within a municipality on the chief 
executive of the county, and serve a notice of availability of the 
application or environmental report on the chief executives of the 
municipalities or counties which have been identified in the application 
or environmental report as the location of all or part of the 
alternative sites, containing the following information: Docket number 
of the application; a brief description of the proposed site and 
facility; the location of the site and facility as primarily proposed 
and alternatively listed; the name, address, telephone number, and email 
address (if available) of the applicant's representative who may be 
contacted for further information; notification that a draft 
environmental impact statement will be issued by the Commission and will 
be made available upon request to the Commission; and notification that 
if a request is received from the appropriate chief executive, the 
applicant will transmit a copy of the application and environmental 
report, and any changes to such documents which affect the alternative 
site location, to the executive who makes the request. In complying with 
the requirements of this paragraph the applicant should not make public 
distribution of those parts of the application subject to Sec.  
2.390(d). The applicant shall submit to the Director of Nuclear Material 
Safety and Safeguards an affidavit that service of the notice of 
availability of the application or environmental report has been 
completed

[[Page 27]]

along with a list of names and addresses of those executives upon whom 
the notice was served.
    (c) Upon receipt and acceptance for docketing of the required 
portions of the application dealing with radiological health and safety 
and environmental matters, notice of receipt will be published in the 
Federal Register including an appropriate notice of hearing.
    (d) The Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate, will give notice 
of the docketing of the public health and safety, common defense and 
security, and environmental parts of an application for a license for a 
facility or for receipt of waste radioactive material from other persons 
for the purpose of commercial disposal by the waste disposal licensee, 
except that for applications pursuant to part 61 of this chapter 
paragraph (g) of this section applies, to the Governor or other 
appropriate official of the State in which the facility is to be located 
or the activity is to be conducted and will cause to be published in the 
Federal Register a notice of docketing of the application which states 
the purpose of the application and specifies the location at which the 
proposed activity would be conducted.
    (e)(1) Each application for construction authorization for a HLW 
repository at a geologic repository operations area pursuant to parts 60 
or 63 of this chapter, and each application for a license to receive and 
possess high-level radioactive waste at a geologic repository operations 
area pursuant to parts 60 or 63 of this chapter, and any environmental 
impact statement required in connection therewith pursuant to subpart A 
of part 51 of this chapter shall be processed in accordance with the 
provisions of this paragraph.
    (2) To allow a determination as to whether the application is 
complete and acceptable for docketing, it will be initially treated as a 
tendered document, and a copy will be available for public inspection in 
the Commission's Public Document Room. Twenty copies shall be filed to 
enable this determination to be made.
    (3) If the Director of Nuclear Material Safety and Safeguards 
determines that the tendered document is complete and acceptable for 
docketing, a docket number will be assigned and the applicant will be 
notified of the determination. If it is determined that all or any part 
of the tendered document is incomplete and therefore not acceptable for 
processing, the applicant will be informed of this determination and the 
respects in which the document is deficient.
    (4) [Reserved]
    (5) If a tendered document is acceptable for docketing, the 
applicant will be requested to submit to the Director of Nuclear 
Material Safety and Safeguards such additional copies of the application 
and environmental impact statement as the regulations in part 60 or 63 
and subpart A of part 51 of this chapter require; serve a copy of such 
application and environmental impact statement on the chief executive of 
the municipality in which the geologic repository operations area is to 
be located, or if the geologic repository operations area is not to be 
located within a municipality, on the chief executive of the county (or 
to the Tribal organization, if it is to be located within an Indian 
reservation); and make direct distribution of additional copies to 
Federal, State, Indian Tribe, and local officials in accordance with the 
requirements of this chapter, and written instructions from the Director 
of Nuclear Material Safety and Safeguards. All such copies shall be 
completely assembled documents, identified by docket number. 
Subsequently distributed amendments to the application, however, may 
include revised pages to previous submittals and, in such cases, the 
recipients are responsible for inserting the revised pages.
    (6) The tendered document will be formally docketed upon receipt by 
the Director of Nuclear Material Safety and Safeguards of the required 
additional copies. The date of docketing shall be the date when the 
required copies are received by the Director of Nuclear Material Safety 
and Safeguards. Within ten (10) days after docketing, the applicant 
shall submit to the Director of Nuclear Material Safety and Safeguards a 
written statement that distribution of the additional copies to Federal, 
State, Indian Tribe, and

[[Page 28]]

local officials has been completed in accordance with requirements of 
this chapter and written instructions furnished to the applicant by the 
Director of Nuclear Material Safety and Safeguards. Distribution of the 
additional copies shall be deemed to be complete as of the time the 
copies are deposited in the mail or with a carrier prepaid for delivery 
to the designated addressees.
    (7) Amendments to the application and supplements to the 
environmental impact statement shall be filed and distributed and a 
written statement shall be furnished to the Director of Nuclear Material 
Safety and Safeguards in the same manner as for the initial application 
and environmental impact statement.
    (8) The Director 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 at which the proposed geologic 
repository operations area would be located and will give notice of 
docketing to the governor of that State. The notice of docketing will 
state that the Commission finds that a hearing is required in the public 
interest, prior to issuance of a construction authorization, and will 
recite the matters specified in Sec.  2.104(a) of this part.
    (f) Each application for a license to receive radioactive waste from 
other persons for disposal under part 61 of this chapter and the 
accompanying environmental report shall be processed in accordance with 
the provisions of this paragraph.
    (1) To allow a determination as to whether the application or 
environmental report is complete and acceptable for docketing, it will 
be initially treated as a tendered document, and a copy will be 
available for public inspection in the Commission's Public Document 
Room, One White Flint North, 11555 Rockville Pike (first floor), 
Rockville, Maryland 20852-2738. One original and two copies shall be 
filed to enable this determination to be made.
    (i) Upon receipt of a tendered application, the Commission will 
publish in the Federal Register notice of the filed application and will 
notify the governors, legislatures and other appropriate State, county, 
and municipal officials and tribal governing bodies of the States and 
areas containing or potentially affected by the activities at the 
proposed site and the alternative sites. The Commission will inform 
these officials that the Commission staff will be available for 
consultation pursuant to Sec.  61.71 of this chapter. The Federal 
Register notice will note the opportunity for interested persons to 
submit views and comments on the tendered application for consideration 
by the Commission and applicant. The Commission will also notify the 
U.S. Bureau of Indian Affairs when tribal governing bodies are notified.
    (ii) The Commission will also post a public notice in a newspaper or 
newspapers of general circulation in the affected States and areas 
summarizing information contained in the applicant's tendered 
application and noting the opportunity to submit views and comments.
    (iii) When the Director of Nuclear Material Safety and Safeguards 
determines that the tendered document is complete and acceptable for 
docketing, a docket number will be assigned and the applicant will be 
notified of the determination. If it is determined that all or any part 
of the tendered document is incomplete and therefore not acceptable for 
processing, the applicant will be informed of this determination and the 
aspects in which the document is deficient.
    (2)(i) With respect to any tendered document that is acceptable for 
docketing, the applicant will be requested to:
    (A) Submit to the Director of Nuclear Material Safety and Safeguards 
such additional copies as required by the regulations in part 61 and 
subpart A of part 51 of this chapter;
    (B) Serve a copy on the chief executive of the municipality in which 
the waste is to be disposed of or, if the waste is not to be disposed of 
within a municipality, serve a copy on the chief executive of the county 
in which the waste is to be disposed of;
    (C) Make direct distribution of additional copies to Federal, State, 
Indian Tribe, and local officials in accordance with the requirements of 
this chapter

[[Page 29]]

and written instructions from the Director of Nuclear Material Safety 
and Safeguards; and
    (D) Serve a notice of availability of the application and 
environmental report on the chief executives or governing bodies of the 
municipalities or counties which have been identified in the application 
and environmental report as the location of all or part of the 
alternative sites if copies are not distributed under paragraph 
(g)(2)(i)(C) of this section to the executives or bodies.
    (ii) All distributed copies shall be completely assembled documents 
identified by docket number. However, subsequently distributed 
amendments may include revised pages to previous submittals and, in such 
cases, the recipients will be responsible for inserting the revised 
pages. In complying with the requirements of paragraph (g) of this 
section the applicant may not make public distribution of those parts of 
the application subject to Sec.  2.390(d).
    (3) The tendered document will be formally docketed upon receipt by 
the Director of Nuclear Material Safety and Safeguards of the required 
additional copies. Distribution of the additional copies shall be deemed 
to be complete as of the time the copies are deposited in the mail or 
with a carrier prepaid for delivery to the designated addressees. The 
date of docketing shall be the date when the required copies are 
received by the Director of Nuclear Material Safety and Safeguards. 
Within ten (10) days after docketing, the applicant shall submit to the 
Director of Nuclear Material Safety and Safeguards a written statement 
that distribution of the additional copies to Federal, State, Indian 
Tribe, and local officials has been completed in accordance with 
requirements of this section and written instructions furnished to the 
applicant by the Director of Nuclear Material Safety and Safeguards.
    (4) Amendments to the application and environmental report shall be 
filed and distributed and a written statement shall be furnished to the 
Director of Nuclear Material Safety and Safeguards in the same manner as 
for the initial application and environmental report.
    (5) The Director 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 (g)(3) of this section and, in a 
reasonable period thereafter, publish in the Federal Register a notice 
pursuant to Sec.  2.105 offering opportunity to request a hearing to the 
applicant and other affected persons.

[41 FR 15833, Apr. 15, 1976]

    Editorial Note: For Federal Register citations affecting Sec.  
2.101, see the List of Sections Affected, which appears in the Finding 
Aids section of the printed volume and on GPO Access.



Sec.  2.102  Administrative review of application.

    (a) During review of an application by the staff, an applicant may 
be required to supply additional information. The staff may request any 
one party to the proceeding to confer with the staff informally. In the 
case of a docketed application for a construction permit or an operating 
license for a facility, the staff shall establish a schedule for its 
review of the application, specifying the key intermediate steps from 
the time of docketing until the completion of its review.
    (b) The Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate, will refer the 
docketed application to the ACRS as required by law and in such 
additional cases as he or the Commission may determine to be 
appropriate. The ACRS will render to the Commission one or more reports 
as required by law or as requested by the Commission.
    (c) The Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate, will make each 
report of the ACRS a part of the record of the docketed application, and 
transmit copies to the appropriate State and local officials.

[27 FR 377, Jan. 13, 1962, as amended at 36 FR 13270, July 17, 1971; 37 
FR 15130, July 28, 1972; 47 FR 9986, Mar. 9, 1982; 69 FR 2235, Jan. 14, 
2004; 70 FR 61887, Oct. 27, 2005]

[[Page 30]]



Sec.  2.103  Action on applications for byproduct, source, special nuclear 

material, facility and operator licenses.

    (a) If the Director of Nuclear Reactor Regulation or the Director of 
Nuclear Material Safety and Safeguards, as appropriate, finds that an 
application for a byproduct, source, special nuclear material, facility, 
or operator license complies with the requirements of the Act, the 
Energy Reorganization Act, and this chapter, he will issue a license. If 
the license is for a facility, or for receipt of waste radioactive 
material from other persons for the purpose of commercial disposal by 
the waste disposal licensee, or for a construction authorization for a 
HLW repository at a geologic repository operations area under to parts 
60 or 63 of this chapter, or if it is to receive and possess high-level 
radioactive waste at a geologic repository operations area under parts 
60 or 63 of this chapter, the Director of Nuclear Reactor Regulation or 
the Director of Nuclear Material Safety and Safeguards, as appropriate, 
will inform the State, Tribal and local officials specified in Sec.  
2.104(e) of the issuance of the license. For notice of issuance 
requirements for licenses issued under part 61 of this chapter, see 
Sec.  2.106(d).
    (b) If the Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate, finds that an 
application does not comply with the requirements of the Act and this 
chapter he may issue a notice of proposed denial or a notice of denial 
of the application and inform the applicant in writing of:
    (1) The nature of any deficiencies or the reason for the proposed 
denial or the denial, and
    (2) The right of the applicant to demand a hearing within twenty 
(20) days from the date of the notice or such longer period as may be 
specified in the notice.

[28 FR 10152, Sept. 17, 1963, as amended at 47 FR 57478, Dec. 27, 1982; 
66 FR 55787, Nov. 2, 2001; 69 FR 2235, Jan. 14, 2004]

                  Hearing on Application--How Initiated



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 as required by law at 
least fifteen (15) days, and in the case of an application concerning a 
construction permit for a facility of the type described in Sec.  
50.21(b) or Sec.  50.22 of this chapter or a testing facility, at least 
thirty (30) days, prior to the date set for hearing in the notice. \1\ 
In addition, in the case of an application for a construction permit for 
a facility of the type described in Sec.  50.22 of this chapter, or a 
testing facility, the notice (other than a notice pursuant to paragraph 
(d) of this section) shall be issued as soon as practicable after the 
application has been docketed: Provided, That if the Commission, 
pursuant to Sec.  2.101(a)(2), decides to determine the acceptability of 
the application on the basis of its technical adequacy as well as 
completeness, the notice shall be issued as soon as practicable after 
the application has been tendered. The notice will state:
---------------------------------------------------------------------------

    \1\ If the notice of hearing concerning an application for a 
construction permit for a facility of the type described in Sec.  
50.21(b) or Sec.  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 thirty 
(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 thirty (30) days notice.
---------------------------------------------------------------------------

    (1) The time, place, and nature of the hearing and/or prehearing 
conference, if any;
    (2) The authority under which the hearing is to be held;
    (3) The matters of fact and law to be considered; and
    (4) The time within which answers to the notice shall be filed.
    (b) In the case of an application for a construction permit for a 
facility on

[[Page 31]]

which the Act requires a hearing, the notice of hearing will, except as 
provided in paragraph (d) of this section and unless the Commission 
determines otherwise, state, in implementation of paragraph (a)(3) of 
this section:
    (1) That, if the proceeding is a contested proceeding, the presiding 
officer will consider the following issues: \2\
---------------------------------------------------------------------------

    \2\ Issues (i) to (iv) are the issues pursuant to the Atomic Energy 
Act of 1954, as amended. Issue (v) is the issue pursuant to the National 
Environmental Policy Act of 1969.
---------------------------------------------------------------------------

    (i) Whether in accordance with the provisions of Sec.  50.35(a) of 
this chapter:
    (a) The applicant has described the proposed design of the facility, 
including, but not limited to, the principal architectural and 
engineering criteria for the design, and has identified the major 
features or components incorporated therein for the protection of the 
health and safety of the public;
    (b) Such further technical or design information as may be required 
to complete the safety analysis, and which can reasonably be left for 
later consideration will be supplied in the final safety analysis 
report;
    (c) Safety features or components, if any, which require research 
and development, have been described by the applicant and the applicant 
has identified, and there will be conducted, a research and development 
program reasonably designed to resolve any safety questions associated 
with such features or components; and
    (d) On the basis of the foregoing, there is reasonable assurance 
that (1) such safety questions will be satisfactorily resolved at or 
before the latest date stated in the application for completion of the 
proposed facility; and (2) taking into consideration the site criteria 
contained in part 100 of this chapter, the proposed facility can be 
constructed and operated at the proposed location without undue risk to 
the health and safety of the public;
    (ii) Whether the applicant is technically qualified to design and 
construct the proposed facility;
    (iii) Whether the applicant is financially qualified to design and 
construct the proposed facility;
    (iv) Whether the issuance of a permit for the construction of the 
facility will be inimical to the common defense and security or to the 
health and safety of the public;
    (v) If the application is for a construction permit for a nuclear 
power reactor, a testing facility, a fuel reprocessing plant, or other 
facility whose construction or operation has been determined by the 
Commission to have a significant impact on the environment, whether, in 
accordance with the requirements of subpart A of part 51 of this 
chapter, the construction permit should be issued as proposed.
    (2) That, if the proceeding is not a contested proceeding, the 
presiding officer will determine:
    (i) Without conducting a de novo evaluation of the application, 
whether the application and the record of the proceeding contain 
sufficient information, and the review of the application by the 
Commission's staff has been adequate to support affirmative findings on 
(b)(1) (i) through (iii) specified in this section and a negative 
finding on (b)(1)(iv) specified in this section proposed to be made and 
the issuance of the construction permit proposed by the Director of 
Nuclear Reactor Regulation or Director of Nuclear Material Safety and 
Safeguards, as appropriate, and
    (ii) If the application is for a construction permit for a nuclear 
power reactor, a testing facility, a fuel processing plant, a uranium 
enrichment facility, or other facility whose construction or operation 
has been determined by the Commission to have a significant impact on 
the environment, whether the review conducted by the Commission pursuant 
to the National Environmental Policy Act (NEPA) has been adequate.
    (3) That, regardless of whether the proceeding is contested or 
uncontested, the presiding officer will, in accordance with subpart A of 
part 51 of this chapter.
    (i) Determine whether the requirements of section 102(2) (A), (C) 
and (E) of the National Environmental Policy Act and subpart A of part 
51 of this chapter have been complied with in the proceeding;
    (ii) Independently consider the final balance among conflicting 
factors contained in the record of the proceeding

[[Page 32]]

with a view to determining the appropriate action to be taken; and
    (iii) Determine whether the construction permit should be issued, 
denied, or appropriately conditioned to protect environmental values.
    (c) In the case of an application for an operating license in which 
a hearing will be held, the notice of hearing will, except as provided 
in paragraph (d) of this section and unless the Commission determines 
otherwise, state, in implementation of paragraph (a)(3) of this section, 
that the presiding officer will consider any matters in controversy 
among the parties and may, where he or she determines that a serious 
safety, environmental, or common defense and security matter has not 
been raised by the parties, consider such other matter within the 
purview of:
    (1) Whether there is reasonable assurance that construction of the 
facility will be substantially completed on a timely basis, in 
conformity with the construction permit and the application as amended, 
the provisions of the Act, and the regulations in this chapter;
    (2) Whether the facility will operate in conformity with the 
application as amended, the provisions of the Act, and the regulations 
in this chapter;
    (3) Whether there is reasonable assurance: (i) That the activities 
to be authorized by the operating license can be conducted without 
endangering the health and safety of the public, and (ii) that such 
activities will be conducted in compliance with the regulations in this 
chapter;
    (4) Whether the applicant is technically and financially qualified 
to engage in the activities to be authorized by the operating license in 
accordance with the regulations in this chapter, except that the issue 
of financial qualification shall not be considered by the presiding 
officer in an operating license hearing if the applicant is an electric 
utility seeking a license to operate a utilization facility of the type 
described in Sec.  50.21(b) or Sec.  50.22;
    (5) Whether the applicable provisions of part 140 of this chapter 
have been satisfied;
    (6) Whether issuance of the license will be inimical to the common 
defense and security or to the health and safety of the public; and
    (7) If the application is for an operating license for a nuclear 
power reactor, a testing facility, or a fuel reprocessing plant, or 
other facility whose operation has been determined by the Commission to 
have a significant impact on the environment, whether, in accordance 
with the requirements of subpart A of part 51 of this chapter, the 
operating license should be issued as proposed.\3\
---------------------------------------------------------------------------

    \3\ Issues (1) to (6) are the issues pursuant to the Atomic Energy 
Act of 1954, as amended. Issue (7) is the issue pursuant to the National 
Environmental Policy Act of 1969.
---------------------------------------------------------------------------

    (d) In an application for a construction permit or an operating 
license for a facility on which a hearing is required by the Act or this 
chapter, the notice of hearing will, unless the Commission determines 
otherwise, state:
    (1) A time of the hearing which will be as soon as practicable after 
compliance with section 189a of the Act and this part;
    (2) The presiding officer for the hearing who shall be either an 
administrative law judge or an atomic safety and licensing board 
established by the Commission or by the Chief Administrative Judge of 
the Atomic Safety and Licensing Board Panel; and
    (3) That matters of radiological health and safety and common 
defense and security, and matters raised under the National 
Environmental Policy Act of 1969, will be considered at another hearing 
if otherwise required or ordered to be held, for which a notice will be 
published pursuant to paragraphs (a) and (b) of this section, unless 
otherwise authorized by the Commission.
    (e) The Secretary will give timely notice of the hearing to all 
parties and to other persons, if any, entitled by law to notice. The 
Secretary will transmit a notice of hearing on an application for a 
license for a production or utilization facility, for a license for 
receipt of waste radioactive material from other persons for the purpose 
of commercial disposal by the waste disposal licensee, for a license 
under part 61 of this chapter, for a construction authorization for a 
HLW repository at a geologic repository operations area pursuant to

[[Page 33]]

parts 60 or 63 of this chapter, for a license to receive and possess 
high-level radioactive waste at a geologic repository operations area 
pursuant to parts 60 or 63 of this chapter, and for a license under part 
72 of this chapter to acquire, receive or possess spent fuel for the 
purpose of storage in an independent spent fuel storage installation 
(ISFSI) to the governor or other appropriate official of the State and 
to the chief executive of the municipality in which the facility is to 
be located or the activity is to be conducted or, if the facility is not 
to be located or the activity conducted within a municipality, to the 
chief executive of the county (or to the Tribal organization, if it is 
to be so located or conducted within an Indian reservation). The 
Secretary will transmit a notice of hearing on an application for a 
license under part 72 of this chapter to acquire, receive or possess 
spent fuel, high-level radioactive waste or radioactive material 
associated with high-level radioactive waste for the purpose of storage 
in a monitored retrievable storage installation (MRS) to the same 
persons who received the notice of docketing under Sec.  72.16(e) of 
this chapter.

[27 FR 377, Jan. 13, 1962]

    Editorial Note: For Federal Register citations affecting Sec.  
2.104, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec.  2.105  Notice of proposed action.

    (a) If a hearing is not required by the Act or this chapter, and if 
the Commission has not found that a hearing is in the public interest, 
it will, prior to acting thereon, cause to be published in the Federal 
Register a notice of proposed action with respect to an application for:
    (1) A license for a facility;
    (2) A license for receipt of waste radioactive material from other 
persons for the purpose of commercial disposal by the waste disposal 
licensee. All licenses issued under part 61 of this chapter shall be so 
noticed;
    (3) An amendment of a license specified in paragraph (a) (1) or (2) 
of this section and which involves a significant hazards consideration;
    (4) An amendment to an operating license for a facility licensed 
under Sec.  50.21(b) or Sec.  50.22 of this chapter or for a testing 
facility, as follows:
    (i) If the Commission determines under Sec.  50.58 of this chapter 
that the amendment involves no significant hazards consideration, though 
it will provide notice of opportunity for a hearing pursuant to this 
section, it may make the amendment immediately effective and grant a 
hearing thereafter; or
    (ii) If the Commission determines under Sec. Sec.  50.58 and 50.91 
of this chapter that an emergency situation exists or that exigent 
circumstances exist and that the amendment involves no significant 
hazards consideration, it will provide notice of opportunity for a 
hearing pursuant to Sec.  2.106 (if a hearing is requested, it will be 
held after issuance of the amendment);
    (5) A license to receive and possess high-level radioactive waste at 
a geologic repository operations area pursuant to parts 60 or 63 of this 
chapter, or an amendment thereto, when the license or amendment would 
authorize actions which may significantly affect the health and safety 
of the public;
    (6) An amendment to a construction authorization for a high-level 
radioactive waste at a geologic repository operations area pursuant to 
parts 60 or 63 of this chapter, when such an amendment would authorize 
actions which may significantly affect the health and safety of the 
public;
    (7) A license under part 72 of this chapter to acquire, receive or 
possess spent fuel for the purpose of storage in an independent spent 
fuel storage installation (ISFSI) or to acquire, receive or possess 
spent fuel, high-level radioactive waste or radioactive material 
associated with high-level radioactive waste for the purpose of storage 
in a monitored retrievable storage installation (MRS);
    (8) An amendment to a license specified in paragraph (a)(7) of this 
section when such an amendment presents a genuine issue as to whether 
the health and safety of the public will be significantly affected; or

[[Page 34]]

    (9) Any other license or amendment as to which the Commission 
determines that an opportunity for a public hearing should be afforded;
    (10) In the case of an application for an operating license for a 
facility of a type described in Sec.  50.21(b) or Sec.  50.22 of this 
chapter or a testing facility, a notice of opportunity for hearing shall 
be issued as soon as practicable after the application has been 
docketed; or
    (11) In the case of an application for a license to receive and 
possess high-level radioactive waste at a geologic repository operations 
area, a notice of opportunity for hearing, as required by this 
paragraph, shall be published prior to Commission action authorizing 
receipt of such wastes; this requirement is in addition to the 
procedures set out in Sec. Sec.  2.101(f)(8) and 2.104 of this part, 
which provide for a hearing on the application prior to issuance of a 
construction authorization.
    (b) The notice of proposed action will set forth:
    (1) The nature of the action proposed;
    (2) The manner in which a copy of the safety analysis and of the 
ACRS report, if any, may be obtained or examined.
    (c) If an application for a license is complete enough to permit all 
evaluations, other than completion inspection, necessary for the 
issuance of a construction permit and operating license, the notice of 
proposed issuance of a construction permit may provide that on 
completion of construction and inspection the operating license will be 
issued without further prior notice.
    (d) The notice of proposed action will provide that, within thirty 
(30) days from the date of publication of the notice in the Federal 
Register, or such lesser period authorized by law as the Commission may 
specify:
    (1) The applicant may file a request for a hearing; and
    (2) 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.
    (e)(1) If no request for a hearing or petition for leave to 
intervene is filed within the time prescribed in the notice, the 
Director of Nuclear Reactor Regulation or the Director of Nuclear 
Material Safety and Safeguards, as appropriate, may take the proposed 
action, inform the appropriate State and local officials, and publish in 
the Federal Register a notice of issuance of the license or other 
action.
    (2) If a request for a hearing or a petition for leave to intervene 
is filed within the time prescribed in the notice, the presiding officer 
who shall be an Atomic Safety and Licensing Board established by the 
Commission or by the Chief Administrative Judge of the Atomic Safety and 
Licensing Board Panel, will rule on the request and/or petition, and the 
Secretary or the presiding officer will issue a notice of hearing or an 
appropriate order.

[27 FR 377, Jan. 13, 1962]

    Editorial Note: For Federal Register citations affecting Sec.  
2.105, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec.  2.106  Notice of issuance.

    (a) The Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate, will cause to be 
published in the Federal Register notice of, and will inform the State 
and local officials specified in Sec.  2.104(e) of the issuance of:
    (1) A license or an amendment of a license for which a notice of 
proposed action has been previously published; and
    (2) An amendment of a license for a facility of the type described 
in Sec.  50.21(b) or Sec.  50.22 of this chapter, or a testing facility, 
whether or not a notice of proposed action has been previously 
published.
    (b) The notice of issuance will set forth:
    (1) The nature of the license or amendment;
    (2) The manner in which copies of the safety analysis, if any, may 
be obtained and examined; and
    (3) A finding that the application for the license or amendment 
complies with the requirements of the Act and this chapter.
    (c) The Director of Nuclear Material Safety and Safeguards will also 
cause to be published in the Federal Register notice of, and will inform 
the

[[Page 35]]

State, local, and Tribal officials specified in Sec.  2.104(e) of any 
action with respect to an application for construction authorization for 
a high-level radioactive waste repository at a geologic repository 
operations area, a license to receive and possess high-level radioactive 
waste at a geologic repository operations area pursuant to parts 60 or 
63 of this chapter, or an amendment to such license for which a notice 
of proposed action has been previously published.
    (d) The Director of Nuclear Material Safety and Safeguards will also 
cause to be published in the Federal Register notice of, and will inform 
the State and local officials or tribal governing body specified in 
Sec.  2.104(e) of any licensing action with respect to a license to 
receive radioactive waste from other persons for disposal under part 61 
of this chapter or the amendment of such a license for which a notice of 
proposed action has been previously published.

[37 FR 15131, July 28, 1972, as amended at 38 FR 9586, Apr. 18, 1973; 46 
FR 13978, Feb. 25, 1981; 47 FR 57478, Dec. 27, 1982; 66 FR 55787, Nov. 
2, 2001; 69 FR 2235, Jan. 14, 2004]



Sec.  2.107  Withdrawal of application.

    (a) The Commission may permit an applicant to withdraw an 
application prior to the issuance of a notice of hearing on such terms 
and conditions as it may prescribe, or may, on receiving a request for 
withdrawal of an application, deny the application or dismiss it with 
prejudice. If the application is withdrawn prior to issuance of a notice 
of hearing, the Commission shall dismiss the proceeding. Withdrawal of 
an application after the issuance of a notice of hearing shall be on 
such terms as the presiding officer may prescribe.
    (b) The withdrawal of an application does not authorize the removal 
of any document from the files of the Commission.
    (c) The Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate, will cause to be 
published in the Federal Register a notice of the withdrawal of an 
application if notice of receipt of the application has been previously 
published.

[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10152, Sept. 17, 1963; 69 
FR 2236, Jan. 14, 2004]



Sec.  2.108  Denial of application for failure to supply information.

    (a) The Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate, may deny an 
application if an applicant fails to respond to a request for additional 
information within thirty (30) days from the date of the request, or 
within such other time as may be specified.
    (b) The Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate, will cause to be 
published in the Federal Register a notice of denial when notice of 
receipt of the application has previously been published, but not notice 
of hearing has yet been published. The notice of denial will provide 
that, within thirty (30) days after the date of publication in the 
Federal Register (1) the applicant may demand a hearing, and (2) any 
person whose interest may be affected by the proceeding may file a 
petition for leave to intervene.
    (c) When both a notice of receipt of the application and a notice of 
hearing have been published, the presiding officer, upon a motion made 
by the staff under Sec.  2.323, will rule whether an application should 
be denied by the Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate, under paragraph 
(a) of this section.

[27 FR 377, Jan. 13, 1962, as amended at 39 FR 43195, Dec. 11, 1974; 69 
FR 2236, Jan. 14, 2004]



Sec.  2.109  Effect of timely renewal application.

    (a) Except for the renewal of an operating license for a nuclear 
power plant under 10 CFR 50.21(b) or 50.22, if, at least 30 days prior 
to the expiration of an existing license authorizing any activity of a 
continuing nature, the licensee files an application for a renewal or 
for a new license for the activity so authorized, the existing license 
will not be deemed to have expired until the application has been 
finally determined.

[[Page 36]]

    (b) If the licensee of a nuclear power plant licensed under 10 CFR 
50.21(b) or 50.22 files a sufficient application for renewal of an 
operating license at least 5 years prior to the expiration of the 
existing license, the existing license will not be deemed to have 
expired until the application has been finally determined.

[56 FR 64975, Dec. 13, 1991]



Sec.  2.110  Filing and administrative action on submittals for design review 

or early review of site suitability issues.

    (a)(1) A submittal pursuant to appendix O of part 52 of this chapter 
shall be subject to Sec. Sec.  2.101(a) and 2.390 to the same extent as 
if it were an application for a permit or license.
    (2) Except as specifically provided otherwise by the provisions of 
appendix Q to part 52 of this chapter, a submittal pursuant to appendix 
Q shall be subject to Sec.  2.101(a) (2) through (4) to the same extent 
as if it were an application for a permit or license.
    (b) Upon initiation of review by the staff of a submittal of a type 
described in paragraph (a)(1) of this section, the Director of Nuclear 
Reactor Regulation shall publish in the Federal Register a notice of 
receipt of the submittal, inviting comments from interested persons 
within 60 days of publication or such other time as may be specified, 
for consideration by the staff and ACRS in their review.
    (c) Upon completion of review by the NRC staff and the ACRS of a 
submittal of the type described in paragraph (a)(1) of this section, the 
Director of the Office of Nuclear Reactor Regulation shall publish in 
the Federal Register a determination as to whether or not the design is 
acceptable, subject to conditions as may be appropriate, and shall make 
available at the NRC Web site, http://www.nrc.gov, a report that 
analyzes the design.

[40 FR 2976, Jan. 17, 1975, as amended at 42 FR 22885, May 5, 1977; 54 
FR 15398, Apr. 18, 1989; 64 FR 48948, Sept. 9, 1999; 69 FR 2236, Jan. 
14, 2004]



Sec.  2.111  Prohibition of sex discrimination.

    No person shall on the ground of sex be excluded from participation 
in, be denied a license under, be denied the benefits of, or be 
subjected to discrimination under any program or activity carried on or 
receiving Federal assistance under the Act or the Energy Reorganization 
Act of 1974.

[40 FR 8777, Mar. 3, 1975]



     Subpart B_Procedure for Imposing Requirements by Order, or for 
 Modification, Suspension, or Revocation of a License, or for Imposing 
                             Civil Penalties



Sec.  2.200  Scope of subpart.

    (a) This subpart prescribes the procedures in cases initiated by the 
staff, or upon a request by any person, to impose requirements by order, 
or to modify, suspend, or revoke a license, or to take other action as 
may be proper, against any person subject to the jurisdiction of the 
Commission. However, with regard to the holder of a part 76 certificate 
of compliance or compliance plan, except for civil penalty procedures in 
this subpart, the applicable procedures are set forth in Sec.  76.70 of 
this chapter.
    (b) This subpart also prescribes the procedures in cases initiated 
by the staff to impose civil penalties pursuant to section 234 of the 
Act and section 206 of the Energy Reorganization Act of 1974.

[36 FR 16896, Aug. 26, 1971, as amended at 42 FR 28893, June 6, 1977; 48 
FR 44172, Sept. 28, 1983; 62 FR 6668, Feb. 12, 1997]



Sec.  2.201  Notice of violation.

    (a) In response to an alleged violation of any provision of the Act 
or this chapter or the conditions of a license or an order issued by the 
Commission, the Commission may serve on the licensee or other person 
subject to the jurisdiction of the Commission a written notice of 
violation; a separate notice may be omitted if an order pursuant to 
Sec.  2.202 or demand for information pursuant to Sec.  2.204 is issued 
that otherwise identifies the apparent violation. The notice of 
violation will concisely state the alleged violation and may require 
that the licensee or other person submit, within 20 days of the date of 
the notice or other specified time, a written explanation or statement 
in

[[Page 37]]

reply if the Commission believes that the licensee has not already 
addressed all the issues contained in the notice of violation, 
including:
    (1) Corrective steps which have been taken by the licensee or other 
person and the results achieved;
    (2) Corrective steps which will be taken; and
    (3) The date when full compliance will be achieved.
    (b) The notice may require the licensee or other person subject to 
the jurisdiction of the Commission to admit or deny the violation and to 
state the reasons for the violation, if admitted. It may provide that, 
if an adequate reply is not received within the time specified in the 
notice, the Commission may issue an order or a demand for information as 
to why the license should not be modified, suspended or revoked or why 
such other action as may be proper should not be taken.

[56 FR 40684, Aug. 15, 1991, as amended at 61 FR 43408, Aug. 22, 1996]



Sec.  2.202  Orders.

    (a) The Commission may institute a proceeding to modify, suspend, or 
revoke a license or to take such other action as may be proper by 
serving on the licensee or other person subject to the jurisdiction of 
the Commission an order that will:
    (1) Allege the violations with which the licensee or other person 
subject to the Commission's jurisdiction is charged, or the potentially 
hazardous conditions or other facts deemed to be sufficient ground for 
the proposed action, and specify the action proposed;
    (2) Provide that the licensee or other person must file a written 
answer to the order under oath or affirmation within twenty (20) days of 
its date, or such other time as may be specified in the order;
    (3) Inform the licensee or any other person adversely affected by 
the order of his or her right, within twenty (20) days of the date of 
the order, or such other time as may be specified in the order, to 
demand a hearing on all or part of the order, except in a case where the 
licensee or other person has consented in writing to the order;
    (4) Specify the issues for hearing; and
    (5) State the effective date of the order; if the Commission finds 
that the public health, safety, or interest so requires or that the 
violation or conduct causing the violation is willful, the order may 
provide, for stated reasons, that the proposed action be immediately 
effective pending further order.
    (b) A licensee or other person to whom the Commission has issued an 
order under this section must respond to the order by filing a written 
answer under oath or affirmation. The answer shall specifically admit or 
deny each allegation or charge made in the order, and shall set forth 
the matters of fact and law on which the licensee or other person 
relies, and, if the order is not consented to, the reasons as to why the 
order should not have been issued. Except as provided in paragraph (d) 
of this section, the answer may demand a hearing.
    (c) If the answer demands a hearing, the Commission will issue an 
order designating the time and place of hearing.
    (1) If the answer demands a hearing with respect to an immediately 
effective order, the hearing will be conducted expeditiously, giving due 
consideration to the rights of the parties.
    (2) (i) The licensee or other person to whom the Commission has 
issued an immediately effective order may, in addition to demanding a 
hearing, at the time the answer is filed or sooner, move the presiding 
officer to set aside the immediate effectiveness of the order on the 
ground that the order, including the need for immediate effectiveness, 
is not based on adequate evidence but on mere suspicion, unfounded 
allegations, or error. The motion must state with particularity the 
reasons why the order is not based on adequate evidence and must be 
accompanied by affidavits or other evidence relied on. The NRC staff 
shall respond within (5) days of the receipt of the motion. The motion 
must be decided by the presiding officer expeditiously. During the 
pendency of the motion or at any other time, the presiding officer may 
not stay the immediate effectiveness of the order, either on its own 
motion, or upon motion of the licensee or other person. The presiding 
officer will uphold the immediate effectiveness of

[[Page 38]]

the order if it finds that there is adequate evidence to support 
immediate effectiveness. An order upholding immediate effectiveness will 
constitute the final agency action on immediate effectiveness. An order 
setting aside immediate effectiveness will be referred promptly to the 
Commission itself and will not be effective pending further order of the 
Commission.
    (ii) The presiding officer may, on motion by the staff or any other 
party to the proceeding, where good cause exists, delay the hearing on 
the immediately effective order at any time for such periods as are 
consistent with the due process rights of the licensee and other 
affected parties.
    (d) An answer may consent to the entry of an order in substantially 
the form proposed in the order with respect to all or some of the 
actions proposed in the order. The consent, in the answer or other 
written document, of the licensee or other person to whom the order has 
been issued to the entry of an order shall constitute a waiver by the 
licensee or other person of a hearing, findings of fact and conclusions 
of law, and of all right to seek Commission and judicial review or to 
contest the validity of the order in any forum as to those matters which 
have been consented to or agreed to or on which a hearing has not been 
requested. An order that has been consented to shall have the same force 
and effect as an order made after hearing by a presiding officer or the 
Commission, and shall be effective as provided in the order.
    (e) If the order involves the modification of a part 50 license and 
is a backfit, the requirements of Sec.  50.109 of this chapter shall be 
followed, unless the licensee has consented to the action required.

[56 FR 40684, Aug. 15, 1991, as amended at 57 FR 20198, May 12, 1992]



Sec.  2.203  Settlement and compromise.

    At any time after the issuance of an order designating the time and 
place of hearing in a proceeding to modify, suspend, or revoke a license 
or for other action, the staff and a licensee or other person may enter 
into a stipulation for the settlement of the proceeding or the 
compromise of a civil penalty. The stipulation or compromise shall be 
subject to approval by the designated presiding officer or, if none has 
been designated, by the Chief Administrative Law Judge, according due 
weight to the position of the staff. The presiding officer, or if none 
has been designated, the Chief Administrative Law Judge, may order such 
adjudication of the issues as he may deem to be required in the public 
interest to dispose of the proceeding. If approved, the terms of the 
settlement or compromise shall be embodied in a decision or order 
settling and discontinuing the proceeding.

[36 FR 16896, Aug. 26, 1971]



Sec.  2.204  Demand for information.

    (a) The Commission may issue to a licensee or other person subject 
to the jurisdiction of the Commission a demand for information for the 
purpose of determining whether an order under Sec.  2.202 should be 
issued, or whether other action should be taken, which demand will:
    (1) Allege the violations with which the licensee or other person is 
charged, or the potentially hazardous conditions or other facts deemed 
to be sufficient ground for issuing the demand; and
    (2) Provide that the licensee must, or the other person may, file a 
written answer to the demand for information under oath or affirmation 
within twenty (20) days of its date, or such other time as may be 
specified in the demand for information.
    (b) A licensee to whom the Commission has issued a demand for 
information under this section must respond to the demand by filing a 
written answer under oath or affirmation; any other person to whom the 
Commission has issued a demand for information may, in its discretion, 
respond to the demand by filing a written answer under oath or 
affirmation. The licensee's answer shall specifically admit or deny each 
allegation or charge made in the demand for information, and shall set 
forth the matters of fact and law on which the licensee relies. A person 
other than a licensee may answer as described above, or by setting forth 
its reasons why the demand should not have been issued and, if the 
requested information is not provided, the reasons why it is not 
provided.

[[Page 39]]

    (c) Upon review of the answer filed pursuant to paragraph (a)(2) of 
this section, or if no answer is filed, the Commission may institute a 
proceeding pursuant to 10 CFR 2.202 to take such action as may be 
proper.
    (d) An answer may consent to the entry of an order pursuant to Sec.  
2.202 in substantially the form proposed in the demand for information. 
Such consent shall constitute a waiver as provided in Sec.  2.202(d).

[56 FR 40685, Aug. 15, 1991]



Sec.  2.205  Civil penalties.

    (a) Before instituting any proceeding to impose a civil penalty 
under section 234 of the Act, the Executive Director for Operations or 
the Executive Director's designee, as appropriate, shall serve a written 
notice of violation upon the person charged. This notice may be included 
in a notice issued pursuant to Sec.  2.201 or Sec.  76.70(d) of this 
chapter. The notice of violation shall specify the date or dates, facts, 
and the nature of the alleged act or omission with which the person is 
charged, and shall identify specifically the particular provision or 
provisions of the law, rule, regulation, license, permit, part 76 
certificate of compliance or compliance plan, or cease and desist order 
involved in the alleged violation and must state the amount of each 
proposed penalty. The notice of violation shall also advise the person 
charged that the civil penalty may be paid in the amount specified 
therein, or the proposed imposition of the civil penalty may be 
protested in its entirety or in part, by a written answer, either 
denying the violation or showing extenuating circumstances. The notice 
of violation shall advise the person charged that upon failure to pay a 
civil penalty subsequently determined by the Commission, if any, unless 
compromised, remitted, or mitigated, be collected by civil action, 
pursuant to Section 234c of the Act.
    (b) Within twenty (20) days of the date of a notice of violation or 
other time specified in the notice, the person charged may either pay 
the penalty in the amount proposed or answer the notice of violation. 
The answer to the notice of violation shall state any facts, 
explanations, and arguments, denying the charges of violation, or 
demonstrating any extenuating circumstances, error in the notice of 
violation, or other reason why the penalty should not be imposed and may 
request remission or mitigation of the penalty.
    (c) If the person charged with violation fails to answer within the 
time specified in paragraph (b) of this section, an order may be issued 
imposing the civil penalty in the amount set forth in the notice of 
violation described in paragraph (a) of this section.
    (d) If the person charged with violation files an answer to the 
notice of violation, the Executive Director for Operations or the 
Executive Director's designee, upon consideration of the answer, will 
issue an order dismissing the proceeding or imposing, mitigating, or 
remitting the civil penalty. The person charged may, within twenty (20) 
days of the date of the order or other time specified in the order, 
request a hearing.
    (e) If the person charged with violation requests a hearing, the 
Commission will issue an order designating the time and place of 
hearing.
    (f) If a hearing is held, an order will be issued after the hearing 
by the presiding officer or the Commission dismissing the proceeding or 
imposing, mitigating, or remitting the civil penalty.
    (g) The Executive Director for Operations or the Executive 
Director's designee, as appropriate may compromise any civil penalty, 
subject to the provisions of Sec.  2.203.
    (h) If the civil penalty is not compromised, or is not remitted by 
the Executive Director for Operations or the Executive Director's 
designee, as appropriate, the presiding officer, or the Commission, and 
if payment is not made within ten (10) days following either the service 
of the order described in paragraph (c) or (f) of this section, or the 
expiration of the time for requesting a hearing described in paragraph 
(d) of this section, the Executive Director for Operations or the 
Executive Director's designee, as appropriate, may refer the matter to 
the Attorney General for collection.
    (i) Except when payment is made after compromise or mitigation by 
the Department of Justice or as ordered by

[[Page 40]]

a court of the United States, following reference of the matter to the 
Attorney General for collection, payment of civil penalties imposed 
under Section 234 of the Act are to be made payable to the U.S. Nuclear 
Regulatory Commission, in U.S. funds, by check, draft, money order, 
credit cars, or electronic funds transfer such as Automated Clearing 
House (ACH) using Electronic Data Interchange (EDI). Federal agencies 
may also make payment by the On-Line Payment and Collections System 
(OPAC's). All payments are to be made in accordance with the specific 
payment instructions provided with Notices of Violation that propose 
civil penalties and Orders Imposing Civil Monetary Penalties.
    (j) Amount. A civil monetary penalty imposed under Section 234 of 
the Atomic Energy Act of 1954, as amended, or any other statute within 
the jurisdiction of the Commission that provides for the imposition of a 
civil penalty in an amount equal to the amount set forth in Section 234, 
may not exceed $130,000 for each violation. If any violation is a 
continuing one, each day of such violation shall constitute a separate 
violation for the purpose of computing the applicable civil penalty.

[36 FR 16896, Aug. 26, 1971, as amended at 52 FR 31608, Aug. 21, 1987; 
54 FR 53315, Dec. 28, 1989; 61 FR 53555, Oct. 11, 1996; 62 FR 6668, Feb. 
12, 1997; 63 FR 31850, June 10, 1998; 65 FR 59272, Oct. 4, 2000; 69 FR 
62394, Oct. 26, 2004]



Sec.  2.206  Requests for action under this subpart.

    (a) Any person may file a request to institute a proceeding pursuant 
to Sec.  2.202 to modify, suspend, or revoke a license, or for any other 
action as may be proper. Requests must be addressed to the Executive 
Director for Operations and must be filed either by hand delivery to the 
NRC's Offices at 11555 Rockville Pike, Rockville, Maryland; by mail or 
telegram addressed to the Executive Director for Operations, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001; or by 
electronic submissions, for example, via facsimile, Electronic 
Information Exchange, e-mail, or CD-ROM. Electronic submissions must be 
made in a manner that enables the NRC to receive, read, authenticate, 
distribute, and archive the submission, and process and retrieve it a 
single page at a time. Detailed guidance on making electronic 
submissions can be obtained by visiting the NRC's Web site at http://
www.nrc.gov/site-help/eie.html, by calling (301) 415-6030, by e-mail to 
EIE@nrc.gov; or by writing the Office of Information Services, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001. The request 
must specify the action requested and set forth the facts that 
constitute the basis for the request. The Executive Director for 
Operations will refer the request to the Director of the NRC office with 
responsibility for the subject matter of the request for appropriate 
action in accordance with paragraph (b) of this section.
    (b) Within a reasonable time after a request pursuant to paragraph 
(a) of this section has been received, the Director of the NRC office 
with responsibility for the subject matter of the request shall either 
institute the requested proceeding in accordance with this subpart or 
shall advise the person who made the request in writing that no 
proceeding will be instituted in whole or in part, with respect to the 
request, and the reasons for the decision.
    (c)(1) Director's decisions under this section will be filed with 
the Office of the Secretary. Within twenty-five (25) days after the date 
of the Director's decision under this section that no proceeding will be 
instituted or other action taken in whole or in part, the Commission may 
on its own motion review that decision, in whole or in part, to 
determine if the Director has abused his discretion. This review power 
does not limit in any way either the Commission's supervisory power over 
delegated staff actions or the Commission's power to consult with the 
staff on a formal or informal basis regarding institution of proceedings 
under this section.
    (2) No petition or other request for Commission review of a 
Director's decision under this section will be entertained by the 
Commission.
    (3) The Secretary is authorized to extend the time for Commission 
review

[[Page 41]]

on its own motion of a Director's denial under paragraph (c) of this 
section.

[39 FR 12353, Apr. 5, 1974, as amended at 42 FR 36240, July 14, 1977; 45 
FR 73466, Nov. 5, 1980; 52 FR 31608, Aug. 21, 1987; 53 FR 43419, Oct. 
27, 1988; 64 FR 48948, Sept. 9, 1999; 68 FR 58799, Oct. 10, 2003; 69 FR 
2236, Jan. 14, 2004; 69 FR 41749, July 12, 2004]



Subpart C_Rules of General Applicability: Hearing Requests, Petitions To 

  Intervene, Availability of Documents, Selection of Specific Hearing 

Procedures, Presiding Officer Powers, and General Hearing Management for 
                        NRC Adjudicatory Hearings

    Source: 69 FR 2236, Jan. 14, 2004, unless otherwise noted.



Sec.  2.300  Scope of subpart C.

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



Sec.  2.301  Exceptions.

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



Sec.  2.302  Filing of documents.

    (a) Documents must be filed with the Commission in adjudications 
subject to this part either by:
    (1) First class mail addressed to: Office of the Secretary, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: 
Rulemakings and Adjudications Staff;
    (2) Courier, express mail, and expedited delivery services: Office 
of the Secretary, Sixteenth Floor, One White Flint North, 11555 
Rockville Pike, Rockville, MD 20852, Attention: Rulemakings and 
Adjudications Staff;
    (3) E-mail addressed to the Office of the Secretary, U.S. Nuclear 
Regulatory Commission, HEARINGDOCKET@NRC.GOV;
    (4) By facsimile transmission addressed to the Office of the 
Secretary, U.S. Nuclear Regulatory Commission, Washington, DC, 
Attention: Rulemakings and Adjudications Staff, at (301) 415-1101; 
verification number is (301) 415-1966.
    (b) All documents offered for filing must be accompanied by proof of 
service on all parties to the proceeding or their attorneys of record as 
required by law or by rule or order of the Commission. For purposes of 
service of documents, the staff of the Commission is considered a party.
    (c) Filing by mail, electronic mail, or facsimile is considered 
complete as of the time of deposit in the mail or upon electronic mail 
or facsimile transmission.



Sec.  2.303  Docket.

    The Secretary shall maintain a docket for each proceeding conducted 
under this part, commencing with either the initial notice of hearing, 
notice of proposed action, order, request for hearing or petition for 
leave to intervene, as appropriate. The Secretary shall maintain all 
files and records of proceedings, including transcripts and video 
recordings of testimony, exhibits, and all papers, correspondence, 
decisions and orders filed or issued. All documents, records, and 
exhibits filed in any proceeding must be filed with the Secretary as 
described in Sec. Sec.  2.302 and 2.304.



Sec.  2.304  Formal requirements for documents; acceptance for filing.

    (a) Each document filed in an adjudication subject to this part to 
which a docket number has been assigned must show the docket number and 
title of the proceeding.
    (b) Each document must be bound on the left side and typewritten, 
printed, or otherwise reproduced in permanent form on good unglazed 
paper of standard letterhead size. Each page must begin not less than 
one inch from the top, with side and bottom margins of not less than one 
inch. Text must be double-spaced, except that quotations may be single-
spaced and indented. The requirements of this paragraph do not

[[Page 42]]

apply to original documents or admissible copies offered as exhibits, or 
to specifically prepared exhibits.
    (c) The original of each document must be signed in ink by the party 
or its authorized representative, or by an attorney having authority 
with respect to it. The document must state the capacity of the person 
signing, his or her address, and the date of signature. The signature of 
a person signing in a representative capacity is a representation that 
the document has been subscribed in the capacity specified with full 
authority that he or she has read it and knows the contents that to the 
best of his or her knowledge, information and belief the statements made 
in it are true, and that it is not interposed for delay. If a document 
is not signed, or is signed with intent to defeat the purpose of this 
section, it may be stricken.
    (d) Except as otherwise required by this part or by order, a 
pleading or other document, other than correspondence, must be filed in 
an original and two conformed copies.
    (e) The first document filed by any person in a proceeding must 
designate the name and address of a person on whom service may be made. 
This document must also designate the electronic mail address and 
facsimile number, if any, of the person on whom service may be made.
    (f) A document filed by electronic mail or facsimile transmission 
need not comply with the formal requirements of paragraphs (b), (c), and 
(d) of this section if an original and two (2) copies otherwise 
complying with all of the requirements of this section are mailed within 
two (2) days thereafter to the Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemakings and 
Adjudications Staff.
    (g) Acceptance for filing. Any document that fails to conform to the 
requirements of this section may be refused acceptance for filing and 
may be returned with an indication of the reason for nonacceptance. Any 
document that is not accepted for filing will not be entered on the 
Commission's docket.



Sec.  2.305  Service of papers, methods, proof.

    (a) Service of papers by the Commission. Except for subpoenas, the 
Commission will serve all orders, decisions, notices, and other papers 
issued by it upon all parties.
    (b) Who may be served. Any paper required to be served upon a party 
must be served upon that person or upon the representative designated by 
the party or by law to receive service of papers. When a party has 
appeared by attorney, service must be made upon the attorney of record.
    (c) How service may be made. Service may be made by personal 
delivery or courier, by express mail or expedited delivery service, by 
first class, certified or registered mail, by e-mail or facsimile 
transmission, or as otherwise authorized by law. If service is made by 
e-mail or facsimile transmission, the original signed copy must be 
transmitted to the Secretary by personal delivery, courier, express mail 
or expedited delivery service, or first class, certified, or registered 
mail. In addition, if service is by e-mail, a paper copy must also be 
served by any other service method permitted under this paragraph. Where 
there are numerous parties to a proceeding, the Commission may make 
special provision regarding the service of papers. The presiding officer 
shall require service by the most expeditious means that is available to 
all parties in the proceeding, including express mail or expedited 
delivery service, and/or electronic or facsimile transmission, unless 
the presiding officer finds that this requirement would impose undue 
burden or expense on some or all of the parties.
    (d) Service on the Secretary. (1) All pleadings must be served on 
the Secretary of the Commission in the same or equivalent manner, i.e., 
personal delivery or courier, express mail or expedited delivery 
service, facsimile or electronic transmission, that they are served upon 
the adjudicatory tribunals and the parties to the proceedings, so that 
the Secretary will receive the pleading at approximately the same time 
that it is received by the tribunal to which the pleading is directed.

[[Page 43]]

    (2) When pleadings are personally delivered to tribunals while they 
are conducting proceedings outside the Washington, DC area, service on 
the Secretary may be accomplished by courier, express mail or expedited 
delivery service, or by electronic or facsimile transmission.
    (3) Service of pre-filed testimony and demonstrative evidence (e.g., 
maps and other physical exhibits) on the Secretary may be made by first 
class mail in all cases, unless the presiding officer directs otherwise.
    (4) The addresses for the Secretary are:
    (i) First class mail: Office of the Secretary, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings 
and Adjudications Staff.
    (ii) Courier, express mail, and expedited delivery services: Office 
of the Secretary, Sixteenth Floor, One White Flint North, 11555 
Rockville Pike, Rockville, MD 20852, Attention: Rulemakings and 
Adjudications Staff.
    (iii) E-mail addressed to the Secretary, U.S. Nuclear Regulatory 
Commission, HEARINGDOCKET@NRC.GOV; and
    (iv) Facsimile transmission addressed to the Office of the 
Secretary, U.S. Nuclear Regulatory Commission, Washington, DC, 
Attention: Rulemakings and Adjudications Staff, at (301) 415-1101; 
verification number is (301) 415-1966.
    (e) When service is complete. Service upon a party is complete:
    (1) By personal delivery, on handing the paper to the individual, or 
leaving it at his office with that person's clerk or other person in 
charge or, if there is no one in charge, leaving it in a conspicuous 
place in the office, or if the office is closed or the person to be 
served has no office, leaving it at his usual place of residence with 
some person of suitable age and discretion then residing there;
    (2) By mail, on deposit in the United States mail, properly stamped 
and addressed;
    (3) By electronic mail, on transmission thereof, and service of a 
copy by another method of service permitted in paragraph (c) of this 
section;
    (4) By facsimile transmission, on transmission thereof and receipt 
of electronic confirmation that one or more of the addressees for a 
party has successfully received the transmission. If the sender receives 
an electronic message that the facsimile transmission to an addressee 
was not deliverable or is otherwise informed that a transmission was 
unreadable, transmission to that person is not considered complete. In 
such an event, the sender shall reserve the document in accordance with 
paragraph (e)(1) through (e)(4) of this section; or
    (5) When service cannot be effected in a manner provided by 
paragraphs (e)(1) to (4) inclusive of this section, in any other manner 
authorized by law.
    (f) Service on the NRC staff. (1) Service shall be made upon the NRC 
staff of all papers and documents required to be filed with parties and 
the presiding officer in all proceedings, including those proceedings 
where the NRC staff informs the presiding officer of its determination 
not to participate as a party.
    (2) If the NRC staff decides not to participate as a party in a 
proceeding, it shall, in its notification to the presiding officer and 
parties of its determination not to participate, designate a person and 
address for service of papers and documents.



Sec.  2.306  Computation of time.

    In computing any period of time, the day of the act, event, or 
default after which the designated period of time begins to run is not 
included. The last day of the period so computed is included unless it 
is a Saturday, Sunday, or legal holiday at the place where the action or 
event is to occur, in which event the period runs until the end of the 
next day which is neither a Saturday, Sunday, nor holiday. Whenever a 
party has the right or is required to do some act within a prescribed 
period after the service of a notice or other paper upon him or her and 
the notice or paper is served upon by first class mail, five (5) days 
are added to the prescribed period. Two (2) days are added to the 
prescribed period when a document is served by express mail or expedited 
delivery service. No time is added when the notice or paper is served in

[[Page 44]]

person, by courier, electronic mail or facsimile transmission. The 
period allotted for the recipient's response commences upon confirmation 
of receipt under Sec.  2.305(e)(3) or (4), except that if a document is 
served in person, by courier, electronic transmission, or facsimile, and 
is received by a party after 5 p.m., in the recipient's time zone on the 
date of transmission, the recipient's response date is extended by one 
(1) business day.



Sec.  2.307  Extension and reduction of time limits.

    (a) Except as otherwise provided by law, the time fixed or the 
period of time prescribed for an act that is required or allowed to be 
done at or within a specified time, may be extended or shortened either 
by the Commission or the presiding officer for good cause, or by 
stipulation approved by the Commission or the presiding officer.
    (b) If this part does not prescribe a time limit for an action to be 
taken in the proceeding, the Commission or the presiding officer may set 
a time limit for the action.



Sec.  2.308  Treatment of requests for hearing or petitions for leave to 

intervene by the Secretary.

    Upon receipt of a request for hearing or a petition to intervene, 
the Secretary will forward the request or petition and/or proffered 
contentions and any answers and replies either to the Commission for a 
ruling on the request/petition and/or proffered contentions or to the 
Chief Administrative Judge of the Atomic Safety and Licensing Board 
Panel for the designation of a presiding officer under Sec.  2.313(a) to 
rule on the matter.



Sec.  2.309  Hearing requests, petitions to intervene, requirements for 

standing, and contentions.

    (a) General requirements. Any person whose interest may be affected 
by a proceeding and who desires to participate as a party must file a 
written request for hearing or petition for leave to intervene and a 
specification of the contentions which the person seeks to have 
litigated in the hearing. Except as provided in paragraph (e) of this 
section, the Commission, presiding officer or the Atomic Safety and 
Licensing Board designated to rule on the request for hearing and/or 
petition for leave to intervene will grant the request/petition if it 
determines that the requestor/petitioner has standing under the 
provisions of paragraph (d) of this section and has proposed at least 
one admissible contention that meets the requirements of paragraph (f) 
of this section. In ruling on the request for hearing/petition to 
intervene submitted by petitioners seeking to intervene in the 
proceeding on the HLW repository, the Commission, the presiding officer 
or the Atomic Safety and Licensing Board shall also consider any failure 
of the petitioner to participate as a potential party in the pre-license 
application phase under subpart J of this part in addition to the 
factors in paragraph (d) of this section. If a request for hearing or 
petition to intervene is filed in response to any notice of hearing or 
opportunity for hearing, the applicant/licensee shall be deemed to be a 
party.
    (b) Timing. Unless otherwise provided by the Commission, the request 
and/or petition and the list of contentions must be filed as follows:
    (1) In proceedings for the direct or indirect transfer of control of 
an NRC license when the transfer requires prior approval of the NRC 
under the Commission's regulations, governing statute, or pursuant to a 
license condition, twenty (20) days from the date of publication of the 
notice in the Federal Register.
    (2) In proceedings for the initial authorization to construct a 
high-level radioactive waste geologic repository, and the initial 
licensee to receive and process high level radioactive waste at a 
geological repository operations area, thirty (30) days from the date of 
publication of the notice in the Federal Register.
    (3) In proceedings for which a Federal Register notice of agency 
action is published (other than a proceeding covered by paragraphs 
(b)(1) or (b)(2) of this section), not later than:
    (i) The time specified in any notice of hearing or notice of 
proposed action or as provided by the presiding officer or the Atomic 
Safety and Licensing Board designated to rule on the request and/

[[Page 45]]

or petition, which may not, with the exception of a notice provided 
under Sec.  2.102(d)(3), be less than 60 days from the date of 
publication of the notice in the Federal Register;
    (ii) The time provided in Sec.  2.102(d)(3); or
    (iii) If no period is specified, sixty (60) days from the date of 
publication of the notice.
    (4) In proceedings for which a Federal Register notice of agency 
action is not published, not later than the latest of:
    (i) Sixty (60) days after publication of notice on the NRC Web site 
at http://www.nrc.gov/public-involve/major-actions.html, or
    (ii) Sixty (60) days after the requestor receives actual notice of a 
pending application, but not more than sixty (60) days after agency 
action on the application.
    (5) For orders issued under Sec.  2.202 the time period provided 
therein.
    (c) Nontimely filings. (1) Nontimely requests and/or petitions and 
contentions will not be entertained absent a determination by the 
Commission, the presiding officer or the Atomic Safety and Licensing 
Board designated to rule on the request and/or petition and contentions 
that the request and/or petition should be granted and/or the 
contentions should be admitted based upon a balancing of the following 
factors to the extent that they apply to the particular nontimely 
filing:
    (i) Good cause, if any, for the failure to file on time;
    (ii) The nature of the requestor's/petitioner's right under the Act 
to be made a party to the proceeding;
    (iii) The nature and extent of the requestor's/petitioner's 
property, financial or other interest in the proceeding;
    (iv) The possible effect of any order that may be entered in the 
proceeding on the requestor's/petitioner's interest;
    (v) The availability of other means whereby the requestor's/
petitioner's interest will be protected;
    (vi) The extent to which the requestor's/petitioner's interests will 
be represented by existing parties;
    (vii) The extent to which the requestor's/petitioner's participation 
will broaden the issues or delay the proceeding; and
    (viii) The extent to which the requestor's/petitioner's 
participation may reasonably be expected to assist in developing a sound 
record.
    (2) The requestor/petitioner shall address the factors in paragraphs 
(c)(1)(i) through (c)(1)(viii) of this section in its nontimely filing.
    (d) Standing. (1) General requirements. A request for hearing or 
petition for leave to intervene must state:
    (i) The name, address and telephone number of the requestor or 
petitioner;
    (ii) The nature of the requestor's/petitioner's right under the Act 
to be made a party to the proceeding;
    (iii) The nature and extent of the requestor's/petitioner's 
property, financial or other interest in the proceeding; and
    (iv) The possible effect of any decision or order that may be issued 
in the proceeding on the requestor's/petitioner's interest.
    (2) State, local governmental body, and affected, Federally-
recognized Indian Tribe. (i) A State, local governmental body (county, 
municipality or other subdivision), and any affected Federally-
recognized Indian Tribe that desires to participate as a party in the 
proceeding shall submit a request for hearing/petition to intervene. The 
request/petition must meet the requirements of this section (including 
the contention requirements in paragraph (f) of this section), except 
that a State, local governmental body or affected Federally-recognized 
Indian Tribe that wishes to be a party in a proceeding for a facility 
located within its boundaries need not address the standing requirements 
under this paragraph. The State, local governmental body, and affected 
Federally-recognized Indian Tribe shall, in its request/petition, each 
designate a single representative for the hearing.
    (ii) The Commission, the presiding officer or the Atomic Safety and 
Licensing Board designated to rule on requests for hearings or petitions 
for leave to intervene will admit as a party to a proceeding a single 
designated representative of the State, a single designated 
representative for each local governmental body (county, municipality or 
other subdivision), and a single designated representative for each

[[Page 46]]

affected Federally-recognized Indian Tribe. In determining the request/
petition of a State, local governmental body, and any affected 
Federally-recognized Indian Tribe that wishes to be a party in a 
proceeding for a facility located within its boundaries, the Commission, 
the presiding officer or the Atomic Safety and Licensing Board 
designated to rule on requests for hearings or petitions for leave to 
intervene shall not require a further demonstration of standing.
    (iii) In any proceeding on an application for a construction 
authorization for a high-level radioactive waste repository at a 
geologic repository operations area under parts 60 or 63 of this 
chapter, or an application for a license to receive and possess high-
level radioactive waste at a geologic repository operations area under 
parts 60 or 63 of this chapter, the Commission shall permit intervention 
by the State and local governmental body (county, municipality or other 
subdivision) in which such an area is located and by any affected 
Federally-recognized Indian Tribe as defined in parts 60 or 63 of this 
chapter if the requirements of paragraph (f) of this section are 
satisfied with respect to at least one contention. All other petitions 
for intervention in any such proceeding must be reviewed under the 
provisions of paragraphs (a) through (f) of this section.
    (3) The Commission, the presiding officer, or the Atomic Safety and 
Licensing Board designated to rule on requests for hearing and/or 
petitions for leave to intervene will determine whether the petitioner 
has an interest affected by the proceeding considering the factors 
enumerated in Sec.  2.309(d)(1)-(2), among other things. In enforcement 
proceedings, the licensee or other person against whom the action is 
taken shall have standing.
    (e) Discretionary Intervention. The presiding officer may consider a 
request for discretionary intervention when at least one requestor/
petitioner has established standing and at least one admissible 
contention has been admitted so that a hearing will be held. A 
requestor/petitioner may request that his or her petition be granted as 
a matter of discretion in the event that the petitioner is determined to 
lack standing to intervene as a matter of right under paragraph (d)(1) 
of this section. Accordingly, in addition to addressing the factors in 
paragraph (d)(1) of this section, a petitioner who wishes to seek 
intervention as a matter of discretion in the event it is determined 
that standing as a matter of right is not demonstrated shall address the 
following factors in his/her initial petition, which the Commission, the 
presiding officer or the Atomic Safety and Licensing Board will consider 
and balance:
    (1) Factors weighing in favor of allowing intervention--
    (i) The extent to which the requestor's/petitioner's participation 
may reasonably be expected to assist in developing a sound record;
    (ii) The nature and extent of the requestor's/petitioner's property, 
financial or other interests in the proceeding; and
    (iii) The possible effect of any decision or order that may be 
issued in the proceeding on the requestor's/petitioner's interest;
    (2) Factors weighing against allowing intervention--
    (i) The availability of other means whereby the requestor's/
petitioner's interest will be protected;
    (ii) The extent to which the requestor's/petitioner's interest will 
be represented by existing parties; and
    (iii) The extent to which the requestor's/petitioner's participation 
will inappropriately broaden the issues or delay the proceeding.
    (f) Contentions. (1) A request for hearing or petition for leave to 
intervene must set forth with particularity the contentions sought to be 
raised. For each contention, the request or petition must:
    (i) Provide a specific statement of the issue of law or fact to be 
raised or controverted;
    (ii) Provide a brief explanation of the basis for the contention;
    (iii) Demonstrate that the issue raised in the contention is within 
the scope of the proceeding;
    (iv) Demonstrate that the issue raised in the contention is material 
to the findings the NRC must make to support the action that is involved 
in the proceeding;

[[Page 47]]

    (v) Provide a concise statement of the alleged facts or expert 
opinions which support the requestor's/petitioner's position on the 
issue and on which the petitioner intends to rely at hearing, together 
with references to the specific sources and documents on which the 
requestor/petitioner intends to rely to support its position on the 
issue; and
    (vi) Provide sufficient information to show that a genuine dispute 
exists with the applicant/licensee on a material issue of law or fact. 
This information must include references to specific portions of the 
application (including the applicant's environmental report and safety 
report) that the petitioner disputes and the supporting reasons for each 
dispute, or, if the petitioner believes that the application fails to 
contain information on a relevant matter as required by law, the 
identification of each failure and the supporting reasons for the 
petitioner's belief.
    (2) Contentions must be based on documents or other information 
available at the time the petition is to be filed, such as the 
application, supporting safety analysis report, environmental report or 
other supporting document filed by an applicant or licensee, or 
otherwise available to a petitioner. On issues arising under the 
National Environmental Policy Act, the petitioner shall file contentions 
based on the applicant's environmental report. The petitioner may amend 
those contentions or file new contentions if there are data or 
conclusions in the NRC draft or final environmental impact statement, 
environmental assessment, or any supplements relating thereto, that 
differ significantly from the data or conclusions in the applicant's 
documents. Otherwise, contentions may be amended or new contentions 
filed after the initial filing only with leave of the presiding officer 
upon a showing that--
    (i) The information upon which the amended or new contention is 
based was not previously available;
    (ii) The information upon which the amended or new contention is 
based is materially different than information previously available; and
    (iii) The amended or new contention has been submitted in a timely 
fashion based on the availability of the subsequent information.
    (3) If two or more requestors/petitioners seek to co-sponsor a 
contention, the requestors/petitioners shall jointly designate a 
representative who shall have the authority to act for the requestors/
petitioners with respect to that contention. If a requestor/petitioner 
seeks to adopt the contention of another sponsoring requestor/
petitioner, the requestor/petitioner who seeks to adopt the contention 
must either agree that the sponsoring requestor/petitioner shall act as 
the representative with respect to that contention, or jointly designate 
with the sponsoring requestor/petitioner a representative who shall have 
the authority to act for the requestors/petitioners with respect to that 
contention.
    (g) Selection of hearing procedures. A request for hearing and/or 
petition for leave to intervene may also address the selection of 
hearing procedures, taking into account the provisions of Sec.  2.310. 
If a request/petition relies upon Sec.  2.310(d), the request/petition 
must demonstrate, by reference to the contention and the bases provided 
and the specific procedures in subpart G of this part, that resolution 
of the contention necessitates resolution of material issues of fact 
which may be best determined through the use of the identified 
procedures.
    (h) Answers to requests for hearing and petitions to intervene. 
Unless otherwise specified by the Commission, the presiding officer, or 
the Atomic Safety and Licensing Board designated to rule on requests for 
hearings or petitions for leave to intervene--
    (1) The applicant/licensee, the NRC staff, and any other party to a 
proceeding may file an answer to a request for a hearing, a petition to 
intervene and/or proffered contentions within twenty-five (25) days 
after service of the request for hearing, petition and/or contentions. 
Answers should address, at a minimum, the factors set forth in 
paragraphs (a) through (g) of this section insofar as these sections 
apply to the filing that is the subject of the answer.
    (2) The requestor/petitioner may file a reply to any answer withing 
seven (7) days after service of that answer.

[[Page 48]]

    (3) No other written answers or replies will be entertained.
    (i) Decision on request/petition. The presiding officer shall, 
within forty-five (45) days after the filing of answers and replies 
under paragraph (h) of this section, issue a decision on each request 
for hearing/petition to intervene, absent an extension from the 
Commission.



Sec.  2.310  Selection of hearing procedures.

    Upon a determination that a request for hearing/petition to 
intervene should be granted and a hearing held, the Commission, the 
presiding officer, or the Atomic Safety and Licensing Board designated 
to rule on the request/petition will determine and identify the specific 
hearing procedures to be used for the proceeding as follows--
    (a) Except as determined through the application of paragraphs (b) 
through (h) of this section, proceedings for the grant, renewal, 
licensee-initiated amendment, or termination of licenses or permits 
subject to parts 30, 32 through 36, 39, 40, 50, 52, 54, 55, 61, 70 and 
72 of this chapter may be conducted under the procedures of subpart L of 
this part.
    (b) Proceedings on enforcement matters must be conducted under the 
procedures of subpart G of this part, unless all parties agree and 
jointly request that the proceedings be conducted under the procedures 
of subpart L or subpart N of this part, as appropriate.
    (c) Proceedings on the licensing of the construction and operation 
of a uranium enrichment facility must be conducted under the procedures 
of subpart G of this part.
    (d) In proceedings for the grant, renewal, licensee-initiated 
amendment, or termination of licenses or permits for nuclear power 
reactors, where the presiding officer by order finds that resolution of 
the contention or contested matter necessitates resolution of issues of 
material fact relating to the occurrence of a past activity, where the 
credibility of an eyewitness may reasonably be expected to be at issue, 
and/or issues of motive or intent of the party or eyewitness material to 
the resolution of the contested matter, the hearing for resolution of 
that contention or contested matter will be conducted under subpart G of 
this part.
    (e) Proceedings on applications for a license or license amendment 
to expand the spent nuclear fuel storage capacity at the site of a 
civilian nuclear power plant must be conducted under the procedures of 
subpart L of this part, unless a party requests that the proceeding be 
conducted under the procedures of subpart K of this part, or if all 
parties agree and jointly request that the proceeding be conducted under 
the procedures of subpart N of this part.
    (f) Proceedings on an application for initial construction 
authorization for a high-level radioactive waste repository at a 
geologic repository operations area noticed pursuant to Sec. Sec.  
2.101(f)(8) or 2.105(a)(5), and proceedings on an initial application 
for a license to receive and possess high-level radioactive waste at a 
geologic repository operations area must be conducted under the 
procedures of subparts G and J of this part. Subsequent amendments to a 
construction authorization for a high-level radioactive geologic 
repository, and amendments to a license to receive and possess high 
level radioactive waste at a high level waste geologic repository may be 
conducted under the procedures of subpart L of this part, unless all 
parties agree and jointly request that the proceeding be conducted under 
the procedures of subpart N of this part.
    (g) Proceedings on an application for the direct or indirect 
transfer of control of an NRC license which transfer requires prior 
approval of the NRC under the Commission's regulations, governing 
statutes or pursuant to a license condition shall be conducted under the 
procedures of subpart M of this part, unless the Commission determines 
otherwise in a case-specific order.
    (h) Except as determined through the application of paragraphs (b) 
through (g) of this section, proceedings for the grant, renewal, 
licensee-initiated amendment, or termination of licenses or permits 
subject to parts 30, 32 through 36, 39, 40, 50, 52, 54, 55, 61, 70 and 
72 of this chapter, and proceedings

[[Page 49]]

on an application for the direct or indirect transfer of control of an 
NRC license may be conducted under the procedures of subpart N of this 
part if--
    (1) The hearing itself is expected to take no more than two (2) days 
to complete; or
    (2) All parties to the proceeding agree that it should be conducted 
under the procedures of subpart N of this part.
    (i) In design certification rulemaking proceedings under part 52 of 
this chapter, any informal hearing held under Sec.  52.51 of this 
chapter must be conducted under the procedures of subpart O of this 
part.
    (j) In proceedings where the Commission grants a petition filed 
under Sec.  2.335(b), the Commission may, in its discretion, conduct a 
hearing under the procedures of subpart O of this part to assist the 
Commission in developing a record on the matters raised in the petition.



Sec.  2.311  Interlocutory review of rulings on requests for hearing/petitions 

to intervene and selection of hearing procedures.

    (a) An order of the presiding officer or of the Atomic Safety and 
Licensing Board on a request for hearing or a petition to intervene may 
be appealed to the Commission, only in accordance with the provisions of 
this section, within ten (10) days after the service of the order. The 
appeal must be initiated by the filing of a notice of appeal and 
accompanying supporting brief. Any party who opposes the appeal may file 
a brief in opposition to the appeal within ten (10) days after service 
of the appeal. The supporting brief and any answer must conform to the 
requirements of Sec.  2.341(c)(2). No other appeals from rulings on 
requests for hearings are allowed.
    (b) An order denying a petition to intervene and/or request for 
hearing is appealable by the requestor/petitioner on the question as to 
whether the request and/or petition should have been granted.
    (c) An order granting a petition to intervene and/or request for 
hearing is appealable by a party other than the requestor/petitioner on 
the question as to whether the request/petition should have been wholly 
denied.
    (d) An order selecting a hearing procedure may be appealed by any 
party on the question as to whether the selection of the particular 
hearing procedures was in clear contravention of the criteria set forth 
in Sec.  2.310. The appeal must be filed with the Commission no later 
than ten (10) days after issuance of the order selecting a hearing 
procedure.



Sec.  2.312  Notice of hearing.

    (a) In a proceeding in which the terms of a notice of hearing are 
not otherwise prescribed by this part, the order or notice of hearing 
will state:
    (1) The nature of the hearing and its time and place, or a statement 
that the time and place will be fixed by subsequent order;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law asserted or to be considered; and
    (4) A statement describing the specific hearing procedures or 
subpart that will be used for the hearing.
    (b) The time and place of hearing will be fixed with due regard for 
the convenience of the parties or their representatives, the nature of 
the proceeding and the public interest.



Sec.  2.313  Designation of presiding officer, disqualification, 

unavailability, and substitution.

    (a) Designation of presiding officer. The Commission may provide in 
the notice of hearing that one or more members of the Commission, an 
administrative law judge, an administrative judge, an Atomic Safety and 
Licensing Board, or a named officer who has been delegated final 
authority in the matter, shall be the presiding officer. The Commission 
alone shall designate the presiding officer in a hearing conducted under 
subpart O. If the Commission does not designate the presiding officer 
for a hearing under subparts G, J, K, L, M, or N of this part, then the 
Chief Administrative Judge shall issue an order designating:
    (1) An Atomic Safety and Licensing Board appointed under Section 191 
of the Atomic Energy Act of 1954, as amended, or an administrative law 
judge appointed pursuant to 5 U.S.C.

[[Page 50]]

3105, for a hearing conducted under subparts G, J, K, L, or N of this 
part; or
    (2) An Atomic Safety and Licensing Board, an administrative law 
judge, or an administrative judge for a hearing conducted under subpart 
M of this part.
    (b) Disqualification. (1) If a designated presiding officer or a 
designated member of an Atomic Safety and Licensing Board believes that 
he or she is disqualified to preside or to participate as a board member 
in the hearing, he or she shall withdraw by notice on the record and 
shall notify the Commission or the Chief Administrative Judge, as 
appropriate, of the withdrawal.
    (2) If a party believes that a presiding officer or a designated 
member of an Atomic Safety and Licensing Board should be disqualified, 
the party may move that the presiding officer or the Licensing Board 
member disqualify himself or herself. The motion must be supported by 
affidavits setting forth the alleged grounds for disqualification. If 
the presiding officer does not grant the motion or the Licensing Board 
member does not disqualify himself, the motion must be referred to the 
Commission. The Commission will determine the sufficiency of the grounds 
alleged.
    (c) Unavailability. If a presiding officer or a designated member of 
an Atomic Safety and Licensing Board becomes unavailable during the 
course of a hearing, the Commission or the Chief Administrative Judge, 
as appropriate, will designate another presiding officer or Atomic 
Safety and Licensing Board member. If he or she becomes unavailable 
after the hearing has been concluded, then:
    (1) The Commission may designate another presiding officer;
    (2) The Chief Administrative Judge or the Commission, as 
appropriate, may designate another Atomic Safety and Licensing Board 
member to participate in the decision;
    (3) The Commission may direct that the record be certified to it for 
decision.
    (d) Substitution. If a presiding officer or a designated member of 
an Atomic Safety and Licensing Board is substituted for the one 
originally designated, any motion predicated upon the substitution must 
be made within five (5) days after the substitution.



Sec.  2.314  Appearance and practice before the Commission in adjudicatory 

proceedings.

    (a) Standards of practice. In the exercise of their functions under 
this subpart, the Commission, the Atomic Safety and Licensing Boards, 
Administrative Law Judges, and Administrative Judges function in a 
quasi-judicial capacity. Accordingly, parties and their representatives 
in proceedings subject to this subpart are expected to conduct 
themselves with honor, dignity, and decorum as they should before a 
court of law.
    (b) Representation. A person may appear in an adjudication on his or 
her own behalf or by an attorney-at-law. A partnership, corporation, or 
unincorporated association may be represented by a duly authorized 
member or officer, or by an attorney-at-law. A party may be represented 
by an attorney-at-law if the attorney is in good standing and has been 
admitted to practice before any Court of the United States, the District 
of Columbia, or the highest court of any State, territory, or possession 
of the United States. Any person appearing in a representative capacity 
shall file with the Commission a written notice of appearance. The 
notice must state his or her name, address, telephone number, and 
facsimile number and email address, if any; the name and address of the 
person or entity on whose behalf he or she appears; and, in the case of 
an attorney-at-law, the basis of his or her eligibility as a 
representative or, in the case of another representative, the basis of 
his or her authority to act on behalf of the party.
    (c) Reprimand, censure or suspension from the proceeding. (1) A 
presiding officer, or the Commission may, if necessary for the orderly 
conduct of a proceeding, reprimand, censure or suspend from 
participation in the particular proceeding pending before it any party 
or representative of a party who refuses to comply with its directions, 
or who is disorderly, disruptive, or engages in contemptuous conduct.
    (2) A reprimand, censure, or a suspension that is ordered to run for 
one day

[[Page 51]]

or less must state the grounds for the action in the record of the 
proceeding, and must advise the person disciplined of the right to 
appeal under paragraph (c)(3) of this section. A suspension that is 
ordered for a longer period must be in writing, state the grounds on 
which it is based, and advise the person suspended of the right to 
appeal and to request a stay under paragraphs (c)(3) and (c)(4) of this 
section. The suspension may be stayed for a reasonable time in order for 
an affected party to obtain other representation if this would be 
necessary to prevent injustice.
    (3) Anyone disciplined under this section may file an appeal with 
the Commission within ten (10) days after issuance of the order. The 
appeal must be in writing and state concisely, with supporting argument, 
why the appellant believes the order was erroneous, either as a matter 
of fact or law. The Commission shall consider each appeal on the merits, 
including appeals in cases in which the suspension period has already 
run. If necessary for a full and fair consideration of the facts, the 
Commission may conduct further evidentiary hearings, or may refer the 
matter to another presiding officer for development of a record. In the 
latter event, unless the Commission provides specific directions to the 
presiding officer, that officer shall determine the procedure to be 
followed and who shall present evidence, subject to applicable 
provisions of law. The hearing must begin as soon as possible. In the 
case of an attorney, if no appeal is taken of a suspension, or, if the 
suspension is upheld at the conclusion of the appeal, the presiding 
officer, or the Commission, as appropriate, shall notify the State 
bar(s) to which the attorney is admitted. The notification must include 
copies of the order of suspension, and, if an appeal was taken, briefs 
of the parties, and the decision of the Commission.
    (4) A suspension exceeding one (1) day is not effective for seventy-
two (72) hours from the date the suspension order is issued. Within this 
time, a suspended individual may request a stay of the sanction from the 
appropriate reviewing tribunal pending appeal. No responses to the stay 
request from other parties will be entertained. If a timely stay request 
is filed, the suspension must be stayed until the reviewing tribunal 
rules on the motion. The stay request must be in writing and contain the 
information specified in Sec.  2.342(b). The Commission shall rule on 
the stay request within ten (10) days after the filing of the motion. 
The Commission shall consider the factors specified in Sec.  2.342(e)(1) 
and (e)(2) in determining whether to grant or deny a stay application.



Sec.  2.315  Participation by a person not a party.

    (a) A person who is not a party (including persons who are 
affiliated with or represented by a party) may, in the discretion of the 
presiding officer, be permitted to make a limited appearance by making 
an oral or written statement of his or her position on the issues at any 
session of the hearing or any prehearing conference within the limits 
and on the conditions fixed by the presiding officer. However, that 
person may not otherwise participate in the proceeding. Such statements 
of position shall not be considered evidence in the proceeding.
    (b) The Secretary will give notice of a hearing to any person who 
requests it before the issuance of the notice of hearing, and will 
furnish a copy of the notice of hearing to any person who requests it 
thereafter. If a communication bears more than one signature, the 
Commission will give the notice to the person first signing unless the 
communication clearly indicates otherwise.
    (c) The presiding officer will afford an interested State, local 
governmental body (county, municipality or other subdivision), and 
affected, Federally-recognized Indian Tribe, which has not been admitted 
as a party under Sec.  2.309, a reasonable opportunity to participate in 
a hearing. Each State, local governmental body, and affected Federally-
recognized Indian Tribe shall, in its request to participate in a 
hearing, each designate a single representative for the hearing. The 
representative shall be permitted to introduce evidence, interrogate 
witnesses where cross-examination by the parties is permitted, advise 
the Commission

[[Page 52]]

without requiring the representative to take a position with respect to 
the issue, file proposed findings in those proceedings where findings 
are permitted, and petition for review by the Commission under Sec.  
2.341 with respect to the admitted contentions. The representative shall 
identify those contentions on which it will participate in advance of 
any hearing held.
    (d) If a matter is taken up by the Commission under Sec.  2.341 or 
sua sponte, a person who is not a party may, in the discretion of the 
Commission, be permitted to file a brief ``amicus curiae.'' Such a 
person shall submit the amicus brief together with a motion for leave to 
do so which identifies the interest of the person and states the reasons 
why a brief is desirable. Unless the Commission provides otherwise, the 
brief must be filed within the time allowed to the party whose position 
the brief will support. A motion of a person who is not a party to 
participate in oral argument before the Commission will be granted at 
the discretion of the Commission.



Sec.  2.316  Consolidation of parties.

    On motion or on its or his own initiative, the Commission or the 
presiding officer may order any parties in a proceeding who have 
substantially the same interest that may be affected by the proceeding 
and who raise substantially the same questions, to consolidate their 
presentation of evidence, cross-examination, briefs, proposed findings 
of fact, and conclusions of law and argument. However, it may not order 
any consolidation that would prejudice the rights of any party. A 
consolidation under this section may be for all purposes of the 
proceeding, all of the issues of the proceeding, or with respect to any 
one or more issues thereof.



Sec.  2.317  Separate hearings; consolidation of proceedings.

    (a) Separate hearings. On motion by the parties or upon request of 
the presiding officer for good cause shown, or on its own initiative, 
the Commission may establish separate hearings in a proceeding if it is 
found that the action will be conducive to the proper dispatch of its 
business and to the ends of justice and will be conducted in accordance 
with the other provisions of this subpart.
    (b) Consolidation of proceedings. On motion and for good cause shown 
or on its own initiative, the Commission or the presiding officers of 
each affected proceeding may consolidate for hearing or for other 
purposes two or more proceedings, or may hold joint hearings with 
interested States and/or other Federal agencies on matters of concurrent 
jurisdiction, if it is found that the action will be conducive to the 
proper dispatch of its business and to the ends of justice and will be 
conducted in accordance with the other provisions of this subpart.



Sec.  2.318  Commencement and termination of jurisdiction of presiding 

officer.

    (a) Unless the Commission orders otherwise, the jurisdiction of the 
presiding officer designated to conduct a hearing over the proceeding, 
including motions and procedural matters, commences when the proceeding 
commences. If a presiding officer has not been designated, the Chief 
Administrative Judge has jurisdiction or, if he or she is unavailable, 
another administrative judge or administrative law judge has 
jurisdiction. A proceeding commences when a notice of hearing or a 
notice of proposed action under Sec.  2.105 is issued. When a notice of 
hearing provides that the presiding officer is to be an administrative 
judge or an administrative law judge, the Chief Administrative Judge 
will designate by order the administrative judge or administrative law 
judge, as appropriate, who is to preside. The presiding officer's 
jurisdiction in each proceeding terminates when the period within which 
the Commission may direct that the record be certified to it for final 
decision expires, when the Commission renders a final decision, or when 
the presiding officer withdraws from the case upon considering himself 
or herself disqualified, whichever is earliest.
    (b) The Director of Nuclear Reactor Regulation or the Director of 
Nuclear Material Safety and Safeguards, as appropriate, may issue an 
order and take any otherwise proper administrative action with respect 
to a licensee who is a party to a pending proceeding. Any

[[Page 53]]

order related to the subject matter of the pending proceeding may be 
modified by the presiding officer as appropriate for the purpose of the 
proceeding.



Sec.  2.319  Power of the presiding officer.

    A presiding officer has the duty to conduct a fair and impartial 
hearing according to law, to take appropriate action to control the 
prehearing and hearing process, to avoid delay and to maintain order. 
The presiding officer has all the powers necessary to those ends, 
including the powers to:
    (a) Administer oaths and affirmations;
    (b) Issue subpoenas authorized by law, including subpoenas requested 
by a participant for the attendance and testimony of witnesses or the 
production of evidence upon the requestor's showing of general relevance 
and reasonable scope of the evidence sought;
    (c) Consolidate parties and proceedings in accordance with 
Sec. Sec.  2.316 and 2.317 and/or direct that common interests be 
represented by a single spokesperson;
    (d) Rule on offers of proof and receive evidence. In proceedings 
under this part, strict rules of evidence do not apply to written 
submissions. However, the presiding officer may, on motion or on the 
presiding officer's own initiative, strike any portion of a written 
presentation or a response to a written question that is irrelevant, 
immaterial, unreliable, duplicative or cumulative.
    (e) Restrict irrelevant, immaterial, unreliable, duplicative or 
cumulative evidence and/or arguments;
    (f) Order depositions to be taken as appropriate;
    (g) Regulate the course of the hearing and the conduct of 
participants;
    (h) Dispose of procedural requests or similar matters;
    (i) Examine witnesses;
    (j) Hold conferences before or during the hearing for settlement, 
simplification of contentions, or any other proper purpose;
    (k) Set reasonable schedules for the conduct of the proceeding and 
take actions reasonably calculated to maintain overall schedules;
    (l) Certify questions to the Commission for its determination, 
either in the presiding officer's discretion, or on motion of a party or 
on direction of the Commission;
    (m) Reopen a proceeding for the receipt of further evidence at any 
time before the initial decision;
    (n) Appoint special assistants from the Atomic Safety and Licensing 
Board Panel under Sec.  2.322;
    (o) Issue initial decisions as provided in this part;
    (p) Dispose of motions by written order or by oral ruling during the 
course of a hearing or prehearing conference. The presiding officer 
should ensure that parties not present for the oral ruling are notified 
promptly of the ruling;
    (q) Issue orders necessary to carry out the presiding officer's 
duties and responsibilities under this part; and
    (r) Take any other action consistent with the Act, this chapter, and 
5 U.S.C. 551-558.



Sec.  2.320  Default.

    If a party fails to file an answer or pleading within the time 
prescribed in this part or as specified in the notice of hearing or 
pleading, to appear at a hearing or prehearing conference, to comply 
with any prehearing order entered by the presiding officer, or to comply 
with any discovery order entered by the presiding officer, the 
Commission or the presiding officer may make any orders in regard to the 
failure that are just, including, among others, the following:
    (a) Without further notice, find the facts as to the matters 
regarding which the order was made in accordance with the claim of the 
party obtaining the order, and enter the order as appropriate; or
    (b) Proceed without further notice to take proof on the issues 
specified.



Sec.  2.321  Atomic Safety and Licensing Boards.

    (a) The Commission or the Chief Administrative Judge may establish 
one or more Atomic Safety and Licensing Boards, each comprised of three 
members, one of whom will be qualified in the conduct of administrative 
proceedings and two of whom have such technical or other qualifications 
as the

[[Page 54]]

Commission or the Chief Administrative Judge determines to be 
appropriate to the issues to be decided. The members of an Atomic Safety 
and Licensing Board shall be designated from the Atomic Safety and 
Licensing Board Panel established by the Commission. In proceedings for 
granting, suspending, revoking, or amending licenses or authorizations 
as the Commission may designate, the Atomic Safety and Licensing Board 
shall perform the adjudicatory functions that the Commission determines 
are appropriate.
    (b) The Commission or the Chief Administrative Judge may designate 
an alternate qualified in the conduct of administrative proceedings, or 
an alternate having technical or other qualifications, or both, for an 
Atomic Safety and Licensing Board established under paragraph (a) of 
this section. If a member of a board becomes unavailable, the Commission 
or the Chief Administrative Judge may constitute the alternate qualified 
in the conduct of administrative proceedings, or the alternate having 
technical or other qualifications, as appropriate, as a member of the 
board by notifying the alternate who will, as of the date of the 
notification, serve as a member of the board. If an alternate is 
unavailable or no alternates have been designated, and a member of a 
board becomes unavailable, the Commission or Chief Administrative Judge 
may appoint a member of the Atomic Safety and Licensing Board Panel who 
is qualified in the conduct of administrative proceedings or a member 
having technical or other qualifications, as appropriate, as a member of 
the Atomic Safety and Licensing Board by notifying the appointee who 
will, as of the date of the notification, serve as a member of the 
board.
    (c) An Atomic Safety and Licensing Board has the duties and may 
exercise the powers of a presiding officer as granted by Sec.  2.319 and 
otherwise in this part. Any time when a board is in existence but is not 
actually in session, any powers which could be exercised by a presiding 
officer or by the Chief Administrative Judge may be exercised with 
respect to the proceeding by the chairman of the board having 
jurisdiction over it. Two members of an Atomic Safety and Licensing 
Board constitute a quorum if one of those members is the member 
qualified in the conduct of administrative proceedings.



Sec.  2.322  Special assistants to the presiding officer.

    (a) In consultation with the Chief Administrative Judge, the 
presiding officer may, at his or her discretion, appoint personnel from 
the Atomic Safety and Licensing Board Panel established by the 
Commission to assist the presiding officer in taking evidence and 
preparing a suitable record for review. The appointment may occur at any 
appropriate time during the proceeding but must, at the time of the 
appointment, be subject to the notice and disqualification provisions as 
described in Sec.  2.313. The special assistants may function as:
    (1) Technical interrogators in their individual fields of expertise. 
The interrogators shall study the written testimony and sit with the 
presiding officer to hear the presentation and, where permitted in the 
proceeding, the cross-examination by the parties of all witnesses on the 
issues of the interrogators' expertise. The interrogators shall take a 
leading role in examining the witnesses to ensure that the record is as 
complete as possible;
    (2) Upon consent of all the parties, special masters to hear 
evidentiary presentations by the parties on specific technical matters, 
and, upon completion of the presentation of evidence, to prepare a 
report that would become part of the record. Special masters may rule on 
evidentiary issues brought before them, in accordance with Sec.  2.333. 
Appeals from special masters' rulings may be taken to the presiding 
officer in accordance with procedures established in the presiding 
officer's order appointing the special master. Special masters' reports 
are advisory only; the presiding officer retains final authority with 
respect to the issues heard by the special master;
    (3) Alternate Atomic Safety and Licensing Board members to sit with 
the presiding officer, to participate in the evidentiary sessions on the 
issue for which the alternate members were designated by examining 
witnesses, and to

[[Page 55]]

advise the presiding officer of their conclusions through an on-the-
record report. This report is advisory only; the presiding officer 
retains final authority on the issue for which the alternate member was 
designated; or
    (4) Discovery master to rule on the matters specified in Sec.  
2.1018(a)(2).
    (b) The presiding officer may, as a matter of discretion, informally 
seek the assistance of members of the Atomic Safety and Licensing Board 
Panel to brief the presiding officer on the general technical background 
of subjects involving complex issues that the presiding officer might 
otherwise have difficulty in quickly grasping. These briefings take 
place before the hearing on the subject involved and supplement the 
reading and study undertaken by the presiding officer. They are not 
subject to the procedures described in Sec.  2.313.



Sec.  2.323  Motions.

    (a) Presentation and disposition. All motions must be addressed to 
the Commission or other designated presiding officer. A motion must be 
made no later than ten (10) days after the occurrence or circumstance 
from which the motion arises. All written motions must be filed with the 
Secretary and served on all parties to the proceeding.
    (b) Form and content. Unless made orally on-the-record during a 
hearing, or the presiding officer directs otherwise, or under the 
provisions of subpart N of this part, a motion must be in writing, state 
with particularity the grounds and the relief sought, be accompanied by 
any affidavits or other evidence relied on, and, as appropriate, a 
proposed form of order. A motion must be rejected if it does not include 
a certification by the attorney or representative of the moving party 
that the movant has made a sincere effort to contact other parties in 
the proceeding and resolve the issue(s) raised in the motion, and that 
the movant's efforts to resolve the issue(s) have been unsuccessful.
    (c) Answers to motions. Within ten (10) days after service of a 
written motion, or other period as determined by the Secretary, the 
Assistant Secretary, or the presiding officer, a party may file an 
answer in support of or in opposition to the motion, accompanied by 
affidavits or other evidence. The moving party has no right to reply, 
except as permitted by the Secretary, the Assistant Secretary, or the 
presiding officer. Permission may be granted only in compelling 
circumstances, such as where the moving party demonstrates that it could 
not reasonably have anticipated the arguments to which it seeks leave to 
reply.
    (d) Accuracy in filing. All parties are obligated, in their filings 
before the presiding officer and the Commission, to ensure that their 
arguments and assertions are supported by appropriate and accurate 
references to legal authority and factual basis, including, as 
appropriate, citations to the record. Failure to do so may result in 
appropriate sanctions, including striking a matter from the record or, 
in extreme circumstances, dismissal of the party.
    (e) Motions for reconsideration. Motions for reconsideration may not 
be filed except upon leave of the presiding officer or the Commission, 
upon a showing of compelling circumstances, such as the existence of a 
clear and material error in a decision, which could not have reasonably 
been anticipated, that renders the decision invalid. A motion must be 
filed within ten (10) days of the action for which reconsideration is 
requested. The motion and any responses to the motion are limited to ten 
(10) pages.
    (f) Referral and certifications to the Commission. (1) If, in the 
judgment of the presiding officer, prompt decision is necessary to 
prevent detriment to the public interest or unusual delay or expense, or 
if the presiding officer determines that the decision or ruling involves 
a novel issue that merits Commission review at the earliest opportunity, 
the presiding officer may refer the ruling promptly to the Commission. 
The presiding officer must notify the parties of the referral either by 
announcement on-the-record or by written notice if the hearing is not in 
session.
    (2) A party may petition the presiding officer to certify an issue 
to the Commission for early review. The presiding officer shall apply 
the alternative standards of Sec.  2.341(f) in ruling on the petition 
for certification. No

[[Page 56]]

motion for reconsideration of the presiding officer's ruling on a 
petition for certification will be entertained.
    (g) Effect of filing a motion, petition, or certification of 
question to the Commission. Unless otherwise ordered, neither the filing 
of a motion, the filing of a petition for certification, nor the 
certification of a question to the Commission stays the proceeding or 
extends the time for the performance of any act.
    (h) Motions to compel discovery. Parties may file answers to motions 
to compel discovery in accordance with paragraph (c) of this section. 
The presiding officer, in his or her discretion, may order that the 
answer be given orally during a telephone conference or other prehearing 
conference, rather than in writing. If responses are given over the 
telephone, the presiding officer shall issue a written order on the 
motion summarizing the views presented by the parties. This does not 
preclude the presiding officer from issuing a prior oral ruling on the 
matter effective at the time of the ruling, if the terms of the ruling 
are incorporated in the subsequent written order.



Sec.  2.324  Order of procedure.

    The presiding officer or the Commission will designate the order of 
procedure at a hearing. The proponent of an order will ordinarily open 
and close.



Sec.  2.325  Burden of proof.

    Unless the presiding officer otherwise orders, the applicant or the 
proponent of an order has the burden of proof.



Sec.  2.326  Motions to reopen.

    (a) A motion to reopen a closed record to consider additional 
evidence will not be granted unless the following criteria are 
satisfied:
    (1) The motion must be timely. However, an exceptionally grave issue 
may be considered in the discretion of the presiding officer even if 
untimely presented;
    (2) The motion must address a significant safety or environmental 
issue; and
    (3) The motion must demonstrate that a materially different result 
would be or would have been likely had the newly proffered evidence been 
considered initially.
    (b) The motion must be accompanied by affidavits that set forth the 
factual and/or technical bases for the movant's claim that the criteria 
of paragraph (a) of this section have been satisfied. Affidavits must be 
given by competent individuals with knowledge of the facts alleged, or 
by experts in the disciplines appropriate to the issues raised. Evidence 
contained in affidavits must meet the admissibility standards of this 
subpart. Each of the criteria must be separately addressed, with a 
specific explanation of why it has been met. When multiple allegations 
are involved, the movant must identify with particularity each issue it 
seeks to litigate and specify the factual and/or technical bases which 
it believes support the claim that this issue meets the criteria in 
paragraph (a) of this section.
    (c) A motion predicated in whole or in part on the allegations of a 
confidential informant must identify to the presiding officer the source 
of the allegations and must request the issuance of an appropriate 
protective order.
    (d) A motion to reopen which relates to a contention not previously 
in controversy among the parties must also satisfy the requirements for 
nontimely contentions in Sec.  2.309(c).



Sec.  2.327  Official recording; transcript.

    (a) Recording hearings. A hearing will be recorded stenographically 
or by other means under the supervision of the presiding officer. If the 
hearing is recorded on videotape or some other video medium, before an 
official transcript is prepared under paragraph (b) of this section, 
that video recording will be considered to constitute the record of 
events at the hearing.
    (b) Official transcript. For each hearing, a transcript will be 
prepared from the recording made in accordance with paragraph (a) of 
this section that will be the sole official transcript of the hearing. 
The transcript will be prepared by an official reporter who may be 
designated by the Commission or may be a regular employee of the 
Commission. Except as limited by section 181 of the Act or order of the 
Commission, the transcript will be available

[[Page 57]]

for inspection in the agency's public records system.
    (c) Availability of copies. Copies of transcripts prepared in 
accordance with paragraph (b) of this section are available to the 
parties and to the public from the official reporter on payment of the 
charges fixed therefor. If a hearing is recorded on videotape or other 
video medium, copies of the recording of each daily session of the 
hearing may be made available to the parties and to the public from the 
presiding officer upon payment of a charge specified by the Chief 
Administrative Judge.
    (d) Transcript corrections. Corrections of the official transcript 
may be made only in the manner provided by this paragraph. Corrections 
ordered or approved by the presiding officer must be included in the 
record as an appendix. When so incorporated, the Secretary shall make 
the necessary physical corrections in the official transcript so that it 
will incorporate the changes ordered. In making corrections, pages may 
not be substituted but, to the extent practicable, corrections must be 
made by running a line through the matter to be changed without 
obliteration and writing the matter as changed immediately above. If the 
correction consists of an insertion, it must be added by rider or 
interlineation as near as possible to the text which is intended to 
precede and follow it.



Sec.  2.328  Hearings to be public.

    Except as may be requested under section 181 of the Act, all 
hearings will be public unless otherwise ordered by the Commission.



Sec.  2.329  Prehearing conference.

    (a) Necessity for prehearing conference; timing. The Commission or 
the presiding officer may, and in the case of a proceeding on an 
application for a construction permit or an operating license for a 
facility of a type described in Sec. Sec.  50.21(b) or 50.22 of this 
chapter or a testing facility, shall direct the parties or their counsel 
to appear at a specified time and place for a conference or conferences 
before trial. A prehearing conference in a proceeding involving a 
construction permit or operating license for a facility of a type 
described in Sec. Sec.  50.21(b) or 50.22 of this chapter must be held 
within sixty (60) days after discovery has been completed or any other 
time specified by the Commission or the presiding officer.
    (b) Objectives. The following subjects may be discussed, as directed 
by the Commission or the presiding officer, at the prehearing 
conference:
    (1) Expediting the disposition of the proceeding;
    (2) Establishing early and continuing control so that the proceeding 
will not be protracted because of lack of management;
    (3) Discouraging wasteful prehearing activities;
    (4) Improving the quality of the hearing through more thorough 
preparation, and;
    (5) Facilitating the settlement of the proceeding or any portions of 
it.
    (c) Other matters for consideration. As appropriate for the 
particular proceeding, a prehearing conference may be held to consider 
such matters as:
    (1) Simplification, clarification, and specification of the issues;
    (2) The necessity or desirability of amending the pleadings;
    (3) Obtaining stipulations and admissions of fact and the contents 
and authenticity of documents to avoid unnecessary proof, and advance 
rulings from the presiding officer on the admissibility of evidence;
    (4) The appropriateness and timing of summary disposition motions 
under subparts G and L of this part, including appropriate limitations 
on the page length of motions and responses thereto;
    (5) The control and scheduling of discovery, including orders 
affecting disclosures and discovery under the discovery provisions in 
subpart G of this part.
    (6) Identification of witnesses and documents, and the limitation of 
the number of expert witnesses, and other steps to expedite the 
presentation of evidence, including the establishment of reasonable 
limits on the time allowed for presenting direct and, where permitted, 
cross-examination evidence;
    (7) The disposition of pending motions;

[[Page 58]]

    (8) Settlement and the use of special procedures to assist in 
resolving any issues in the proceeding;
    (9) The need to adopt special procedures for managing potentially 
difficult or protracted proceedings that may involve particularly 
complex issues, including the establishment of separate hearings with 
respect to any particular issue in the proceeding;
    (10) The setting of a hearing schedule, including any appropriate 
limitations on the scope and time permitted for cross-examination where 
cross-examination is permitted; and
    (11) Other matters that the Commission or presiding officer 
determines may aid in the just and orderly disposition of the 
proceeding.
    (d) Reports. Prehearing conferences may be reported stenographically 
or by other means.
    (e) Prehearing conference order. The presiding officer shall enter 
an order that recites the action taken at the conference, the amendments 
allowed to the pleadings and agreements by the parties, and the issues 
or matters in controversy to be determined in the proceeding. Any 
objections to the order must be filed by a party within five (5) days 
after service of the order. Parties may not file replies to the 
objections unless the presiding officer so directs. The filing of 
objections does not stay the decision unless the presiding officer so 
orders. The presiding officer may revise the order in the light of the 
objections presented and, as permitted by Sec.  2.319(l), may certify 
for determination to the Commission any matter raised in the objections 
the presiding officer finds appropriate. The order controls the 
subsequent course of the proceeding unless modified for good cause.



Sec.  2.330  Stipulations.

    Apart from any stipulations made during or as a result of a 
prehearing conference, the parties may stipulate in writing at any stage 
of the proceeding or orally during the hearing, any relevant fact or the 
contents or authenticity of any document. These stipulations may be 
received in evidence. The parties may also stipulate as to the procedure 
to be followed in the proceeding. These stipulations may, on motion of 
all parties, be recognized by the presiding officer to govern the 
conduct of the proceeding.



Sec.  2.331  Oral argument before the presiding officer.

    When, in the opinion of the presiding officer, time permits and the 
nature of the proceeding and the public interest warrant, the presiding 
officer may allow, and fix a time for, the presentation of oral 
argument. The presiding officer will impose appropriate limits of time 
on the argument. The transcript of the argument is part of the record.



Sec.  2.332  General case scheduling and management.

    (a) Scheduling order. The presiding officer shall, as soon as 
practicable after consulting with the parties by a scheduling 
conference, telephone, mail, or other suitable means, enter a scheduling 
order that establishes limits for the time to file motions, conclude 
discovery, commence the oral phase of the hearing (if applicable), and 
take other actions in the proceeding. The scheduling order may also 
include:
    (1) Modifications of the times for disclosures under Sec. Sec.  
2.336 and 2.704 and of the extent of discovery to be permitted;
    (2) The date or dates for prehearing conferences; and
    (3) Any other matters appropriate in the circumstances of the 
proceeding.
    (b) Model milestones. 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, the NRC staff's schedule for completion of its safety 
and environmental evaluations (paragraph (e) of this section), 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.

[[Page 59]]

    (c) Objectives of scheduling order. The scheduling order must have 
as its objectives proper case management purposes such as:
    (1) Expediting the disposition of the proceeding;
    (2) Establishing early and continuing control so that the proceeding 
will not be protracted because of lack of management;
    (3) Discouraging wasteful prehearing activities;
    (4) Improving the quality of the hearing through more thorough 
preparation; and
    (5) Facilitating the settlement of the proceeding or any portions 
thereof, including the use of Alternative Dispute Resolution, when and 
if the presiding officer, upon consultation with the parties, determines 
that these types of efforts should be pursued.
    (d) Effect of NRC staff's schedule on scheduling order. In 
establishing a schedule, the presiding officer shall take into 
consideration the NRC staff's projected schedule for completion of its 
safety and environmental evaluations to ensure that the hearing schedule 
does not adversely impact the staff's ability to complete its reviews in 
a timely manner. Hearings on safety issues may be commenced before 
publication of the NRC staff's safety evaluation upon a finding by the 
presiding officer that commencing the hearings at that time would 
expedite the proceeding. Where an environmental impact statement (EIS) 
is involved, hearings on environmental issues addressed in the EIS may 
not commence before the issuance of the final EIS. In addition, 
discovery against the NRC staff on safety or environmental issues, 
respectively, should be suspended until the staff has issued the SER or 
EIS, unless the presiding officer finds that the commencement of 
discovery against the NRC staff (as otherwise permitted by the 
provisions of this part) before the publication of the pertinent 
document will not adversely affect completion of the document and will 
expedite the hearing.

[69 FR 2236, Jan. 14, 2004, as amended at 70 FR 20461, Apr. 20, 2005]



Sec.  2.333  Authority of the presiding officer to regulate procedure in a 

hearing.

    To prevent unnecessary delays or an unnecessarily large record, the 
presiding officer:
    (a) May limit the number of witnesses whose testimony may be 
cumulative;
    (b) May strike argumentative, repetitious, cumulative, unreliable, 
immaterial, or irrelevant evidence;
    (c) Shall require each party or participant who requests permission 
to conduct cross-examination to file a cross-examination plan for each 
witness or panel of witnesses the party or participant proposes to 
cross-examine;
    (d) Must ensure that each party or participant permitted to conduct 
cross-examination conducts its cross-examination in conformance with the 
party's or participant's cross-examination plan filed with the presiding 
officer;
    (e) May take necessary and proper measures to prevent argumentative, 
repetitious, or cumulative cross-examination; and
    (f) May impose such time limitations on arguments as the presiding 
officer determines appropriate, having regard for the volume of the 
evidence and the importance and complexity of the issues involved.



Sec.  2.334  Implementing hearing schedule for proceeding.

    (a) Unless the Commission directs otherwise in a particular 
proceeding, the presiding officer assigned to the proceeding shall, 
based on information and projections provided by the parties and the NRC 
staff, take appropriate action to maintain the hearing schedule 
established by the presiding officer in accordance with 10 CFR 2.332(a) 
of this part for the completion of the evidentiary record and, as 
appropriate, the issuance of its initial decision.
    (b) Modification of hearing schedule. A hearing schedule may not be 
modified except upon a finding of good cause by the presiding officer or 
the Commission. In making such a good cause determination, the presiding 
officer or the Commission should take into account the following 
factors, among other things:

[[Page 60]]

    (1) Whether the requesting party has exercised due diligence to 
adhere to the schedule;
    (2) Whether the requested change is the result of unavoidable 
circumstances; and
    (3) Whether the other parties have agreed to the change and the 
overall effect of the change on the schedule of the case.
    (c) The presiding officer shall provide written notification to the 
Commission any time during the course of the proceeding when it appears 
that there will be a delay of more than forty-five (45) days in meeting 
any of the dates for major activities in the hearing schedule 
established by the presiding officer under 10 CFR 2.332(a), or that the 
completion of the record or the issuance of the initial decision will be 
delayed more than sixty (60) days beyond the time specified in the 
hearing schedule established under 10 CFR 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 or the 
Board proposes to take to avoid or mitigate the delay.

[70 FR 20461, Apr. 20, 2005]



Sec.  2.335  Consideration of Commission rules and regulations in adjudicatory 

proceedings.

    (a) Except as provided in paragraphs (b), (c), and (d) of this 
section, no rule or regulation of the Commission, or any provision 
thereof, concerning the licensing of production and utilization 
facilities, source material, special nuclear material, or byproduct 
material, is subject to attack by way of discovery, proof, argument, or 
other means in any adjudicatory proceeding subject to this part.
    (b) A party to an adjudicatory proceeding subject to this part may 
petition that the application of a specified Commission rule or 
regulation or any provision thereof, of the type described in paragraph 
(a) of this section, be waived or an exception made for the particular 
proceeding. The sole ground for petition of waiver or exception is that 
special circumstances with respect to the subject matter of the 
particular proceeding are such that the application of the rule or 
regulation (or a provision of it) would not serve the purposes for which 
the rule or regulation was adopted. The petition must be accompanied by 
an affidavit that identifies the specific aspect or aspects of the 
subject matter of the proceeding as to which the application of the rule 
or regulation (or provision of it) would not serve the purposes for 
which the rule or regulation was adopted. The affidavit must state with 
particularity the special circumstances alleged to justify the waiver or 
exception requested. Any other party may file a response by counter 
affidavit or otherwise.
    (c) If, on the basis of the petition, affidavit and any response 
permitted under paragraph (b) of this section, the presiding officer 
determines that the petitioning party has not made a prima facie showing 
that the application of the specific Commission rule or regulation (or 
provision thereof) to a particular aspect or aspects of the subject 
matter of the proceeding would not serve the purposes for which the rule 
or regulation was adopted and that application of the rule or regulation 
should be waived or an exception granted, no evidence may be received on 
that matter and no discovery, cross-examination or argument directed to 
the matter will be permitted, and the presiding officer may not further 
consider the matter.
    (d) If, on the basis of the petition, affidavit and any response 
provided for in paragraph (b) of this section, the presiding officer 
determines that the prima facie showing required by paragraph (b) of 
this section has been made, the presiding officer shall, before ruling 
on the petition, certify the matter directly to the Commission (the 
matter will be certified to the Commission notwithstanding other 
provisions on certification in this part) for a determination in the 
matter of whether the application of the Commission rule or regulation 
or provision thereof to a particular aspect or aspects of the subject 
matter of the proceeding, in the context of this section, should be 
waived or an exception made. The Commission may, among other things, on 
the basis of the petition, affidavits, and any response, determine 
whether the application of the specified rule or regulation

[[Page 61]]

(or provision thereof) should be waived or an exception be made. The 
Commission may direct further proceedings as it considers appropriate to 
aid its determination.
    (e) Whether or not the procedure in paragraph (b) of this section is 
available, a party to an initial or renewal licensing proceeding may 
file a petition for rulemaking under Sec.  2.802.



Sec.  2.336  General discovery.

    (a) Except for proceedings conducted under subparts G and J of this 
part or as otherwise ordered by the Commission, the presiding officer or 
the Atomic Safety and Licensing Board assigned to the proceeding, all 
parties, other than the NRC staff, to any proceeding subject to this 
part shall, within thirty (30) days of the issuance of the order 
granting a request for hearing or petition to intervene and without 
further order or request from any party, disclose and provide:
    (1) The name and, if known, the address and telephone number of any 
person, including any expert, upon whose opinion the party bases its 
claims and contentions and may rely upon as a witness, and a copy of the 
analysis or other authority upon which that person bases his or her 
opinion;
    (2)(i) A copy, or a description by category and location, of all 
documents and data compilations in the possession, custody, or control 
of the party that are relevant to the contentions, provided that if only 
a description is provided of a document or data compilation, a party 
shall have the right to request copies of that document and/or data 
compilation, and
    (ii) A copy (for which there is no claim of privilege or protected 
status), or a description by category and location, of all tangible 
things (e.g., books, publications and treatises) in the possession, 
custody or control of the party that are relevant to the contention.
    (iii) When any document, data compilation, or other tangible thing 
that must be disclosed is publicly available from another source, such 
as at the NRC Web site, http: //www.nrc.gov, and/or the NRC Public 
Document Room, a sufficient disclosure would be the location, the title 
and a page reference to the relevant document, data compilation, or 
tangible thing.
    (3) A list of documents otherwise required to be disclosed for which 
a claim of privilege or protected status is being made, together with 
sufficient information for assessing the claim of privilege or protected 
status of the documents.
    (b) Except for proceedings conducted under subpart J of this part or 
as otherwise ordered by the Commission, the presiding officer, or the 
Atomic Safety and Licensing Board assigned to the proceeding, the NRC 
staff shall, within thirty (30) days of the issuance of the order 
granting a request for hearing or petition to intervene and without 
further order or request from any party, disclose and/or provide, to the 
extent available (but excluding those documents for which there is a 
claim of privilege or protected status):
    (1) The application and/or applicant/licensee requests associated 
with the application or proposed action that is the subject of the 
proceeding;
    (2) NRC correspondence with the applicant or licensee associated 
with the application or proposed action that is the subject of the 
proceeding;
    (3) All documents (including documents that provide support for, or 
opposition to, the application or proposed action) supporting the NRC 
staff's review of the application or proposed action that is the subject 
of the proceeding;
    (4) Any NRC staff documents (except those documents for which there 
is a claim of privilege or protected status) representing the NRC 
staff's determination on the application or proposal that is the subject 
of the proceeding; and
    (5) A list of all otherwise-discoverable documents for which a claim 
of privilege or protected status is being made, together with sufficient 
information for assessing the claim of privilege or protected status of 
the documents.
    (c) Each party and the NRC staff shall make its initial disclosures 
under paragraphs (a) and (b) of this section, based on the information 
and documentation then reasonably available to it. A party, including 
the NRC staff, is not excused from making the required

[[Page 62]]

disclosures because it has not fully completed its investigation of the 
case, it challenges the sufficiency of another entity's disclosures, or 
that another entity has not yet made its disclosures. All disclosures 
under this section must be accompanied by a certification (by sworn 
affidavit) that all relevant materials required by this section have 
been disclosed, and that the disclosures are accurate and complete as of 
the date of the certification.
    (d) The duty of disclosure under this section is continuing, and any 
information or documents that are subsequently developed or obtained 
must be disclosed within fourteen (14) days.
    (e)(1)The presiding officer may impose sanctions, including 
dismissal of specific contentions, dismissal of the adjudication, denial 
or dismissal of the application or proposed action, or the use of the 
discovery provisions in subpart G of this part against the offending 
party, for the offending party's continuing unexcused failure to make 
the disclosures required by this section.
    (2) The presiding officer may impose sanctions on a party that fails 
to provide any document or witness name required to be disclosed under 
this section, unless the party demonstrates good cause for its failure 
to make the disclosure required by this section. A sanction that may be 
imposed by the presiding officer is prohibiting the admission into 
evidence of documents or testimony of the witness proffered by the 
offending party in support of its case.
    (f) The disclosures required by this section constitute the sole 
discovery permitted for NRC proceedings under this part unless there is 
further provision for discovery under the specific subpart under which 
the hearing will be conducted or unless the Commission provides 
otherwise in a specific proceeding.



Sec.  2.337  Evidence at a hearing.

    (a) Admissibility. Only relevant, material, and reliable evidence 
which is not unduly repetitious will be admitted. Immaterial or 
irrelevant parts of an admissible document will be segregated and 
excluded so far as is practicable.
    (b) Objections. An objection to evidence must briefly state the 
grounds of objection. The transcript must include the objection, the 
grounds, and the ruling. Exception to an adverse ruling is preserved 
without notation on-the-record.
    (c) Offer of proof. An offer of proof, made in connection with an 
objection to a ruling of the presiding officer excluding or rejecting 
proffered oral testimony, must consist of a statement of the substance 
of the proffered evidence. If the excluded evidence is in written form, 
a copy must be marked for identification. Rejected exhibits, adequately 
marked for identification, must be retained in the record.
    (d) Exhibits. A written exhibit will not be received in evidence 
unless the original and two copies are offered and a copy is furnished 
to each party, or the parties have been previously furnished with copies 
or the presiding officer directs otherwise. The presiding officer may 
permit a party to replace with a true copy an original document admitted 
in evidence.
    (e) Official record. An official record of a government agency or 
entry in an official record may be evidenced by an official publication 
or by a copy attested by the officer having legal custody of the record 
and accompanied by a certificate of his custody.
    (f) Official notice. (1) The Commission or the presiding officer may 
take official notice of any fact of which a court of the United States 
may take judicial notice or of any technical or scientific fact within 
the knowledge of the Commission as an expert body. Each fact officially 
noticed under this paragraph must be specified in the record with 
sufficient particularity to advise the parties of the matters which have 
been noticed or brought to the attention of the parties before final 
decision and each party adversely affected by the decision shall be 
given opportunity to controvert the fact.
    (2) If a decision is stated to rest in whole or in part on official 
notice of a fact which the parties have not had a prior opportunity to 
controvert, a party may controvert the fact by filing an appeal from an 
initial decision or a petition for reconsideration of a final decision. 
The appeal must clearly and

[[Page 63]]

concisely set forth the information relied upon to controvert the fact.
    (g) Proceedings involving applications--(1) Facility construction 
permits. In a proceeding involving an application for construction 
permit for a production or utilization facility, the NRC staff shall 
offer into evidence any report submitted by the ACRS in the proceeding 
in compliance with section 182(b) of the Act, any safety evaluation 
prepared by the NRC staff, and any environmental impact statement 
prepared in the proceeding under subpart A of part 51 of this chapter by 
the Director of Nuclear Reactor Regulation or Director of Nuclear 
Material Safety and Safeguards, as appropriate, or his or her designee.
    (2) Other applications where the NRC staff is a party. In a 
proceeding involving an application for other than a construction permit 
for a production or utilization facility, the NRC staff shall offer into 
evidence:
    (i) Any report submitted by the ACRS in the proceeding in compliance 
with section 182(b) of the Act;
    (ii) At the discretion of the NRC staff, a safety evaluation 
prepared by the NRC staff and/or NRC staff testimony and evidence on the 
contention/controverted matter prepared in advance of the completion of 
the safety evaluation;
    (iii) Any NRC staff statement of position on the contention/
controverted matter provided to the presiding officer under Sec. Sec.  
2.1202(a); and
    (iv) Any environmental impact statement or environmental assessment 
prepared in the proceeding under subpart A of part 51 of this chapter by 
the Director of Nuclear Reactor Regulation or Director of Nuclear 
Material Safety and Safeguards, as appropriate, or his or her designee 
if there is any, but only if there are contentions/controverted matters 
with respect to the adequacy of the environmental impact statement or 
environmental assessment.
    (3) Other applications where the NRC staff is not a party. In a 
proceeding involving an application for other than a construction permit 
for a production or utilization facility, the NRC staff shall offer into 
evidence, and (with the exception of an ACRS report) provide one or more 
sponsoring witnesses, for:
    (i) Any report submitted by the ACRS in the proceeding in compliance 
with section 182(b) of the Act;
    (ii) At the discretion of the NRC staff, a safety evaluation 
prepared by the NRC staff and/or NRC staff testimony and evidence on the 
contention/controverted matter prepared in advance of the completion of 
the safety evaluation;
    (iii) Any NRC staff statement of position on the contention/
controverted matter under Sec.  2.1202(a); and
    (iv) Any environmental impact statement or environmental assessment 
prepared in the proceeding under subpart A of part 51 of this chapter by 
the Director of Nuclear Reactor Regulation or Director of Nuclear 
Material Safety and Safeguards, as appropriate, or his or her designee 
if there is any, but only if there are contentions/controverted matters 
with respect to the adequacy of the environmental impact statement or 
environmental assessment.



Sec.  2.338  Settlement of issues; alternative dispute resolution.

    The fair and reasonable settlement and resolution of issues proposed 
for litigation in proceedings subject to this part is encouraged. 
Parties are encouraged to employ various methods of alternate dispute 
resolution to address the issues without the need for litigation in 
proceedings subject to this part.
    (a) Availability. The parties shall have the opportunity to submit a 
proposed settlement of some or all issues to the Commission or presiding 
officer, as appropriate, or submit a request for alternative dispute 
resolution under paragraph (b) of this section.
    (b) Settlement judge; alternative dispute resolution. (1) The 
presiding officer, upon joint motion of the parties, may request the 
Chief Administrative Judge to appoint a Settlement Judge to conduct 
settlement negotiations or remit the proceeding to alternative dispute 
resolution as the Commission may provide or to which the parties may 
agree. The order appointing the Settlement Judge may confine the scope 
of settlement negotiations to specified issues. The order must direct 
the Settlement Judge to report to the Chief Administrative Judge at 
specified time periods.

[[Page 64]]

    (2) If a Settlement Judge is appointed, the Settlement Judge shall:
    (i) Convene and preside over conferences and settlement negotiations 
between the parties and assess the practicalities of a potential 
settlement;
    (ii) Report to the Chief Administrative Judge describing the status 
of the settlement negotiations and recommending the termination or 
continuation of the settlement negotiations; and
    (iii) Not discuss the merits of the case with the Chief 
Administrative Judge or any other person, or appear as a witness in the 
case.
    (3) Settlement negotiations conducted by the Settlement Judge 
terminate upon the order of the Chief Administrative Judge issued after 
consultation with the Settlement Judge.
    (4) No decision concerning the appointment of a Settlement Judge or 
the termination of the settlement negotiation is subject to review by, 
appeal to, or rehearing by the presiding officer or the Commission.
    (c) Availability of parties' attorneys or representatives. The 
presiding officer (or Settlement Judge) may require that the attorney or 
other representative who is expected to try the case for each party be 
present and that the parties, or agents having full settlement 
authority, also be present or available by telephone.
    (d) Admissibility in subsequent hearing. No evidence, statements, or 
conduct in settlement negotiations under this section will be admissible 
in any subsequent hearing, except by stipulation of the parties. 
Documents disclosed may not be used in litigation unless obtained 
through appropriate discovery or subpoena.
    (e) Imposition of additional requirements. The presiding officer (or 
Settlement Judge) may impose on the parties and persons having an 
interest in the outcome of the adjudication additional requirements as 
the presiding officer (or Settlement Judge) finds necessary for the fair 
and efficient resolution of the case.
    (f) Effects of ongoing settlement negotiations. The conduct of 
settlement negotiations does not divest the presiding officer of 
jurisdiction and does not automatically stay the proceeding. A hearing 
must not be unduly delayed because of the conduct of settlement 
negotiations.
    (g) Form. A settlement must be in the form of a proposed settlement 
agreement, a consent order, and a motion for its entry that includes the 
reasons why it should be accepted. It must be signed by the consenting 
parties or their authorized representatives.
    (h) Content of settlement agreement. The proposed settlement 
agreement must contain the following:
    (1) An admission of all jurisdictional facts;
    (2) An express waiver of further procedural steps before the 
presiding officer, of any right to challenge or contest the validity of 
the order entered into in accordance with the agreement, and of all 
rights to seek judicial review or otherwise to contest the validity of 
the consent order;
    (3) A statement that the order has the same force and effect as an 
order made after full hearing; and
    (4) A statement that matters identified in the agreement, required 
to be adjudicated have been resolved by the proposed settlement 
agreement and consent order.
    (i) Approval of settlement agreement. Following issuance of a notice 
of hearing, a settlement must be approved by the presiding officer or 
the Commission as appropriate in order to be binding in the proceeding. 
The presiding officer or Commission may order the adjudication of the 
issues that the presiding officer or Commission finds is required in the 
public interest to dispose of the proceeding. In an enforcement 
proceeding under subpart B of this part, the presiding officer shall 
accord due weight to the position of the NRC staff when reviewing the 
settlement. If approved, the terms of the settlement or compromise must 
be embodied in a decision or order. Settlements approved by a presiding 
officer are subject to the Commission's review in accordance with Sec.  
2.341.



Sec.  2.339  Expedited decisionmaking procedure.

    (a) The presiding officer may determine a proceeding by an order 
after the

[[Page 65]]

conclusion of a hearing without issuing an initial decision, when:
    (1) All parties stipulate that the initial decision may be omitted 
and waive their rights to file a petition for review, to request oral 
argument, and to seek judicial review;
    (2) No unresolved substantial issue of fact, law, or discretion 
remains, and the record clearly warrants granting the relief requested; 
and
    (3) The presiding officer finds that dispensing with the issuance of 
the initial decision is in the public interest.
    (b) An order entered under paragraph (a) of this section is subject 
to review by the Commission on its own motion within forty (40) days 
after its date.
    (c) An initial decision may be made effective immediately, subject 
to review by the Commission on its own motion within thirty (30) days 
after its date, except as otherwise provided in this chapter, when:
    (1) All parties stipulate that the initial decision may be made 
effective immediately and waive their rights to file a petition for 
review, to request oral argument, and to seek judicial review;
    (2) No unresolved substantial issue of fact, law, or discretion 
remains and the record clearly warrants granting the relief requested; 
and
    (3) The presiding officer finds that it is in the public interest to 
make the initial decision effective immediately.
    (d) The provisions of this section do not apply to an initial 
decision directing the issuance or amendment of a construction permit or 
construction authorization, or the issuance of an operating license or 
provisional operating authorization.



Sec.  2.340  Initial decision in contested proceedings on applications for 

facility operating licenses; immediate effectiveness of initial decision 

directing issuance or amendment of construction permit or operating 

license.

    (a) Production or utilization facility operating license. In any 
initial decision in a contested proceeding on an application for an 
operating license for a production or utilization facility, the 
presiding officer shall make findings of fact and conclusions of law on 
the matters put into controversy by the parties to the proceeding and on 
matters which have been determined to be the issues in the proceeding by 
the Commission or the presiding officer. Matters not put into 
controversy by the parties will be examined and decided by the presiding 
officer only where he or she determines that a serious safety, 
environmental, or common defense and security matter exists, and the 
Commission approves such examination and decision upon referral of the 
question by the presiding officer. Depending on the resolution of those 
matters, the Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate, after making the 
requisite findings, will issue, deny or appropriately condition the 
license.
    (b) Immediate effectiveness of certain decisions. Except as provided 
in paragraphs (d) through (g) of this section, or as otherwise ordered 
by the Commission in special circumstances, an initial decision 
directing the issuance or amendment of a construction permit, a 
construction authorization, an operating license or a license under 10 
CFR Part 72 to store spent fuel in an independent spent fuel storage 
installation (ISFSI) at a reactor site is effective immediately upon 
issuance unless the presiding officer finds that good cause has been 
shown by a party why the initial decision should not become immediately 
effective, subject to review thereof and further decision by the 
Commission upon petition for review filed by any party under Sec.  2.341 
or upon its own motion.
    (c) Issuance of license after initial decision. Except as provided 
in paragraphs (d) through (g) of this section, or as otherwise ordered 
by the Commission in special circumstances, the Director of Nuclear 
Reactor Regulation or Director of Nuclear Material Safety and 
Safeguards, as appropriate, notwithstanding the filing or granting of a 
petition for review, shall issue a construction permit, a construction 
authorization, an operating license, or a license under 10 CFR part 72 
to store spent fuel in an independent spent fuel storage installation at 
a reactor site, or amendments thereto, authorized by an initial 
decision, within ten (10) days from the date of issuance of the 
decision.

[[Page 66]]

    (d) Immediate effectiveness of initial decisions on a ISFSI and MRS. 
An initial decision directing the issuance of an initial license for the 
construction and operation of an independent spent fuel storage 
installation (ISFSI) located at a site other than a reactor site or a 
monitored retrievable storage installation (MRS) under 10 CFR Part 72 
becomes effective only upon order of the Commission. The Director of 
Nuclear Material Safety and Safeguards may not issue an initial license 
for the construction and operation of an independent spent fuel storage 
installation (ISFSI) located at a site other than a reactor site or a 
monitored retrievable storage installation (MRS) under 10 CFR part 72 
until expressly authorized to do so by the Commission.
    (e) [Reserved].
    (f) Nuclear power reactor construction permits--(1) Presiding 
officers. Presiding officers shall hear and decide all issues that come 
before them, indicating in their decisions the type of licensing action, 
if any, which their decision would authorize. The presiding officer's 
decisions concerning construction permits are not effective until the 
Commission actions outlined in paragraph (f)(2) of this section have 
taken place.
    (2) Commission. Within sixty (60) days of the service of any 
presiding officer decision that would otherwise authorize issuance of a 
construction permit, the Commission will seek to issue a decision on any 
stay motions that are timely filed. These motions must be filed as 
provided by Sec.  2.341. For the purpose of this paragraph, a stay 
motion is one that seeks to defer the effectiveness of a presiding 
officer decision beyond the period necessary for the Commission action 
described herein. If no stay papers are filed, the Commission will, 
within the same time period (or earlier if possible), analyze the record 
and construction permit decision below on its own motion and will seek 
to issue a decision on whether a stay is warranted. However, the 
Commission will not decide that a stay is warranted without giving the 
affected parties an opportunity to be heard. The initial decision will 
be considered stayed pending the Commission's decision. In deciding 
these stay questions, the Commission shall employ the procedures set out 
in Sec.  2.342.
    (g) Nuclear power reactor operating licenses--(1) Presiding 
officers. Presiding officers shall hear and decide all issues that come 
before them, indicating in their decisions the type of licensing action, 
if any, which their decision would authorize. A presiding officer's 
decision authorizing issuance of an operating license may not become 
effective if it authorizes operating at greater than five (5) percent of 
rated power until the Commission actions outlined in paragraph (g)(2) of 
this section have taken place. If a decision authorizes operation up to 
five (5) percent, the decision is effective and the Director shall issue 
the appropriate license in accordance with paragraph (c) of this 
section.
    (2) The Commission. (i) Reserving the power to step in at an earlier 
time, the Commission will, upon receipt of the presiding officer's 
decision authorizing issuance of an operating license, other than a 
decision authorizing only fuel loading and low power (up to five (5) 
percent of rated power) testing, review the matter on its own motion to 
determine whether to stay the effectiveness of the decision. An 
operating license decision will be stayed by the Commission, insofar as 
it authorizes other than fuel loading and low power testing, if it 
determines that it is in the public interest to do so, based on a 
consideration of the gravity of the substantive issue, the likelihood 
that it has been resolved incorrectly below, the degree to which correct 
resolution of the issue would be prejudiced by operation pending review, 
and other relevant public interest factors.
    (ii) For operating license decisions other than those authorizing 
only fuel loading and low power testing consistent with the target 
schedule set forth below, the parties may file brief comments with the 
Commission pointing out matters which, in their view, pertain to the 
immediate effectiveness issue. To be considered, these comments must be 
received within ten (10) days of the presiding officer's decision. 
However, the Commission may dispense with comments by so advising the 
parties. An extensive stay will not

[[Page 67]]

be issued without giving the affected parties an opportunity to be 
heard.
    (iii) The Commission intends to issue a stay decision within thirty 
(30) days of receipt of the presiding officer's decision. The presiding 
officer's initial decision will be considered stayed pending the 
Commission's decision insofar as it may authorize operations other than 
fuel loading and low power (up to five (5) percent of rated power) 
testing.
    (iv) In announcing a stay decision, the Commission may allow the 
proceeding to run its ordinary course or give instructions as to the 
future handling of the proceeding. Furthermore, the Commission may, in a 
particular case, determine that compliance with existing regulations and 
policies may no longer be sufficient to warrant approval of a license 
application and may alter those regulations and policies.
    (h) Lack of prejudice of Commission effectiveness decision. The 
Commission's effectiveness determination is entirely without prejudice 
to proceedings under Sec. Sec.  2.341 or 2.342.



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

    (a)(1) Except for requests for review or appeals of actions under 
Sec.  2.311 or in a proceeding on the high-level radioactive waste 
repository (which are governed by Sec.  2.1015), review of decisions and 
actions of a presiding officer are treated under this section.
    (2) Within forty (40) days after the date of a decision or action by 
a presiding officer, or within forty (40) days after a petition for 
review of the decision or action has been served under paragraph (b) of 
this section, whichever is greater, the Commission may review the 
decision or action on its own motion, unless the Commission, in its 
discretion, extends the time for its review.
    (b)(1) Within fifteen (15) days after service of a full or partial 
initial decision by a presiding officer, and within fifteen (15) days 
after service of any other decision or action by a presiding officer 
with respect to which a petition for review is authorized by this part, 
a party may file a petition for review with the Commission on the 
grounds specified in paragraph (b)(4) of this section. Unless otherwise 
authorized by law, a party to an NRC proceeding must file a petition for 
Commission review before seeking judicial review of an agency action.
    (2) A petition for review under this paragraph may not be longer 
than twenty-five (25) pages, and must contain the following:
    (i) A concise summary of the decision or action of which review is 
sought;
    (ii) A statement (including record citation) where the matters of 
fact or law raised in the petition for review were previously raised 
before the presiding officer and, if they were not, why they could not 
have been raised;
    (iii) A concise statement why in the petitioner's view the decision 
or action is erroneous; and
    (iv) A concise statement why Commission review should be exercised.
    (3) Any other party to the proceeding may, within ten (10) days 
after service of a petition for review, file an answer supporting or 
opposing Commission review. This answer may not be longer than twenty-
five (25) pages and should concisely address the matters in paragraph 
(b)(2) of this section to the extent appropriate. The petitioning party 
may file a reply brief within five (5) days of service of any answer. 
This reply brief may not be longer than five (5) pages.
    (4) The petition for review may be granted in the discretion of the 
Commission, giving due weight to the existence of a substantial question 
with respect to the following considerations:
    (i) A finding of material fact is clearly erroneous or in conflict 
with a finding as to the same fact in a different proceeding;
    (ii) A necessary legal conclusion is without governing precedent or 
is a departure from or contrary to established law;
    (iii) A substantial and important question of law, policy, or 
discretion has been raised;
    (iv) The conduct of the proceeding involved a prejudicial procedural 
error; or
    (v) Any other consideration which the Commission may deem to be in 
the public interest.
    (5) A petition for review will not be granted to the extent that it 
relies on

[[Page 68]]

matters that could have been but were not raised before the presiding 
officer. A matter raised sua sponte by a presiding officer has been 
raised before the presiding officer for the purpose of this section.
    (6) A petition for review will not be granted as to issues raised 
before the presiding officer on a pending motion for reconsideration.
    (c) (1) If a petition for review is granted, the Commission will 
issue an order specifying the issues to be reviewed and designating the 
parties to the review proceeding. The Commission may, in its discretion, 
decide the matter on the basis of the petition for review or it may 
specify whether any briefs may be filed.
    (2) Unless the Commission orders otherwise, any briefs on review may 
not exceed thirty (30) pages in length, exclusive of pages containing 
the table of contents, table of citations, and any addendum containing 
appropriate exhibits, statutes, or regulations. A brief in excess of ten 
(10) pages must contain a table of contents with page references and a 
table of cases (alphabetically arranged), cited statutes, regulations 
and other authorities, with references to the pages of the brief where 
they are cited.
    (d) Petitions for reconsideration of Commission decisions granting 
or denying review in whole or in part will not be entertained. A 
petition for reconsideration of a Commission decision after review may 
be filed within ten (10) days, but is not necessary for exhaustion of 
administrative remedies. However, if a petition for reconsideration is 
filed, the Commission decision is not final until the petition is 
decided. Any petition for reconsideration will be evaluated against the 
standard in Sec.  2.323(e).
    (e) Neither the filing nor the granting of a petition under this 
section stays the effect of the decision or action of the presiding 
officer, unless the Commission orders otherwise.
    (f) Interlocutory review. (1) A question certified to the Commission 
under Sec.  2.319(l), or a ruling referred or issue certified to the 
Commission under Sec.  2.323(f), will be reviewed if the certification 
or referral raises significant and novel legal or policy issues, and 
resolution of the issues would materially advance the orderly 
disposition of the proceeding.
    (2) The Commission may, in its discretion, grant interlocutory 
review at the request of a party despite the absence of a referral or 
certification by the presiding officer. A petition and answer to it must 
be filed within the times and in the form prescribed in paragraph (b) of 
this section and must be treated in accordance with the general 
provisions of this section. The petition for interlocutory review will 
be granted only if the party demonstrates that the issue for which the 
party seeks interlocutory review:
    (i) Threatens the party adversely affected by it with immediate and 
serious irreparable impact which, as a practical matter, could not be 
alleviated through a petition for review of the presiding officer's 
final decision; or
    (ii) Affects the basic structure of the proceeding in a pervasive or 
unusual manner.



Sec.  2.342  Stays of decisions.

    (a) Within ten (10) days after service of a decision or action of a 
presiding officer, any party to the proceeding may file an application 
for a stay of the effectiveness of the decision or action pending filing 
of and a decision on a petition for review. This application may be 
filed with the Commission or the presiding officer, but not both at the 
same time.
    (b) An application for a stay may be no longer than ten (10) pages, 
exclusive of affidavits, and must contain the following:
    (1) A concise summary of the decision or action which is requested 
to be stayed;
    (2) A concise statement of the grounds for stay, with reference to 
the factors specified in paragraph (e) of this section; and
    (3) To the extent that an application for a stay relies on facts 
subject to dispute, appropriate references to the record or affidavits 
by knowledgeable persons.
    (c) Service of an application for a stay on the other parties must 
be by the same method, e.g., electronic or facsimile transmission, mail, 
as the method for filing the application with

[[Page 69]]

the Commission or the presiding officer.
    (d) Within ten (10) days after service of an application for a stay 
under this section, any party may file an answer supporting or opposing 
the granting of a stay. This answer may not be longer than ten (10) 
pages, exclusive of affidavits, and should concisely address the matters 
in paragraph (b) of this section to the extent appropriate. Further 
replies to answers will not be entertained. Filing of and service of an 
answer on the other parties must be by the same method, e.g., electronic 
or facsimile transmission, mail, as the method for filing the 
application for the stay.
    (e) In determining whether to grant or deny an application for a 
stay, the Commission or presiding officer will consider:
    (1) Whether the moving party has made a strong showing that it is 
likely to prevail on the merits;
    (2) Whether the party will be irreparably injured unless a stay is 
granted;
    (3) Whether the granting of a stay would harm other parties; and
    (4) Where the public interest lies.
    (f) In extraordinary cases, where prompt application is made under 
this section, the Commission or presiding officer may grant a temporary 
stay to preserve the status quo without waiting for filing of any 
answer. The application may be made orally provided the application is 
promptly confirmed by electronic or facsimile transmission message. Any 
party applying under this paragraph shall make all reasonable efforts to 
inform the other parties of the application, orally if made orally.



Sec.  2.343  Oral argument.

    In its discretion, the Commission may allow oral argument upon the 
request of a party made in a petition for review, brief on review, or 
upon its own initiative.



Sec.  2.344  Final decision.

    (a) The Commission will ordinarily consider the whole record on 
review, but may limit the issues to be reviewed to those identified in 
an order taking review.
    (b) The Commission may adopt, modify, or set aside the findings, 
conclusions and order in the initial decision, and will state the basis 
of its action. The final decision will be in writing and will include:
    (1) A statement of findings and conclusions, with the basis for them 
on all material issues of fact, law or discretion presented;
    (2) All facts officially noticed;
    (3) The ruling on each material issue; and
    (4) The appropriate ruling, order, or denial of relief, with the 
effective date.



Sec.  2.345  Petition for reconsideration.

    (a)(1) Any petition for reconsideration of a final decision must be 
filed by a party within ten (10) days after the date of the decision.
    (2) Petitions for reconsideration of Commission decisions are 
subject to the requirements in Sec.  2.341(d).
    (b) A petition for reconsideration must demonstrate a compelling 
circumstance, such as the existence of a clear and material error in a 
decision, which could not have been reasonably anticipated, which 
renders the decision invalid. The petition must state the relief sought. 
Within ten (10) days after a petition for reconsideration has been 
served, any other party may file an answer in opposition to or in 
support of the petition.
    (c) Neither the filing nor the granting of the petition stays the 
decision unless the Commission orders otherwise.



Sec.  2.346  Authority of the Secretary.

    When briefs, motions or other papers are submitted to the Commission 
itself, as opposed to the officers who have been delegated authority to 
act for the Commission, the Secretary or the Assistant Secretary is 
authorized to:
    (a) Prescribe procedures for the filing of briefs, motions, or other 
pleadings, when the schedules differ from those prescribed by the rules 
of this part or when the rules of this part do not prescribe a schedule;
    (b) Rule on motions for extensions of time;
    (c) Reject motions, briefs, pleadings, and other documents filed 
with the

[[Page 70]]

Commission later then the time prescribed by the Secretary or the 
Assistant Secretary or established by an order, rule or regulation of 
the Commission unless good cause is shown for the late filing;
    (d) Prescribe all procedural arrangements relating to any oral 
argument to be held before the Commission;
    (e) Extend the time for the Commission to rule on a petition for 
review under Sec. Sec.  2.311 and 2.341;
    (f) Extend the time for the Commission to grant review on its own 
motion under Sec.  2.341;
    (g) Direct pleadings improperly filed before the Commission to the 
appropriate presiding officer for action;
    (h) Deny a request for hearings, where the request fails to comply 
with the Commission's pleading requirements set forth in this part, and 
fails to set forth an arguable basis for further proceedings;
    (i) Refer to the Atomic Safety and Licensing Board Panel or an 
Administrative Judge, as appropriate requests for hearing not falling 
under Sec.  2.104, where the requestor is entitled to further 
proceedings; and
    (j) Take action on minor procedural matters.



Sec.  2.347  Ex parte communications.

    In any proceeding under this subpart--
    (a) Interested persons outside the agency may not make or knowingly 
cause to be made to any Commission adjudicatory employee, any ex parte 
communication relevant to the merits of the proceeding.
    (b) Commission adjudicatory employees may not request or entertain 
from any interested person outside the agency or make or knowingly cause 
to be made to any interested person outside the agency, any ex parte 
communication relevant to the merits of the proceeding.
    (c) Any Commission adjudicatory employee who receives, makes, or 
knowingly causes to be made a communication prohibited by this section 
shall ensure that it, and any responses to the communication, are 
promptly served on the parties and placed in the public record of the 
proceeding. In the case of oral communications, a written summary must 
be served and placed in the public record of the proceeding.
    (d) Upon receipt of a communication knowingly made or knowingly 
caused to be made by a party in violation of this section, the 
Commission or other adjudicatory employee presiding in a proceeding may, 
to the extent consistent with the interests of justice and the policy of 
the underlying statutes, require the party to show cause why its claim 
or interest in the proceeding should not be dismissed, denied, 
disregarded, or otherwise adversely affected on account of the 
violation.
    (e) (1) The prohibitions of this section apply--
    (i) When a notice of hearing or other comparable order is issued in 
accordance with Sec. Sec.  2.104(a), 2.105(e)(2), 2.202(c), 2.204, 
2.205(e), or 2.312; or
    (ii) Whenever the interested person or Commission adjudicatory 
employee responsible for the communication has knowledge that a notice 
of hearing or other comparable order will be issued in accordance with 
Sec. Sec.  2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e), or 2.312.
    (2) The prohibitions of this section cease to apply to ex parte 
communications relevant to the merits of a full or partial initial 
decision when, in accordance with Sec.  2.341, the time has expired for 
Commission review of the decision.
    (f) The prohibitions in this section do not apply to--
    (1) Requests for and the provision of status reports;
    (2) Communications specifically permitted by statute or regulation;
    (3) Communications made to or by Commission adjudicatory employees 
in the Office of the General Counsel regarding matters pending before a 
court or another agency; and
    (4) Communications regarding generic issues involving public health 
and safety or other statutory responsibilities of the agency (e.g., 
rulemakings, congressional hearings on legislation, budgetary planning) 
not associated with the resolution of any proceeding under this subpart 
pending before the NRC.

[[Page 71]]



Sec.  2.348  Separation of functions.

    (a) In any proceeding under this subpart, any NRC officer or 
employee engaged in the performance of any investigative or litigating 
function in that proceeding or in a factually related proceeding may not 
participate in or advise a Commission adjudicatory employee about the 
initial or final decision on any disputed issue in that proceeding, 
except--
    (1) As witness or counsel in the proceeding;
    (2) Through a written communication served on all parties and made 
on-the-record of the proceeding; or
    (3) Through an oral communication made both with reasonable prior 
notice to all parties and with reasonable opportunity for all parties to 
respond.
    (b) The prohibition in paragraph (a) of this section does not apply 
to--
    (1) Communications to or from any Commission adjudicatory employee 
regarding--
    (i) The status of a proceeding;
    (ii) Matters for which the communications are specifically permitted 
by statute or regulation;
    (iii) NRC participation in matters pending before a court or another 
agency; or
    (iv) Generic issues involving public health and safety or other 
statutory responsibilities of the NRC (e.g., rulemakings, congressional 
hearings on legislation, budgetary planning) not associated with the 
resolution of any proceeding under this subpart pending before the NRC.
    (2) Communications to or from Commissioners, members of their 
personal staffs, Commission adjudicatory employees in the Office of the 
General Counsel, and the Secretary and employees of the Office of the 
Secretary, regarding--
    (i) Initiation or direction of an investigation or initiation of an 
enforcement proceeding;
    (ii) Supervision of NRC staff to ensure compliance with the general 
policies and procedures of the agency;
    (iii) NRC staff priorities and schedules or the allocation of agency 
resources; or
    (iv) General regulatory, scientific, or engineering principles that 
are useful for an understanding of the issues in a proceeding and are 
not contested in the proceeding.
    (3) None of the communications permitted by paragraph (b)(2) (i) 
through (iii) of this section is to be associated by the Commission 
adjudicatory employee or the NRC officer or employee performing 
investigative or litigating functions with the resolution of any 
proceeding under this subpart pending before the NRC.
    (c) Any Commission adjudicatory employee who receives a 
communication prohibited under paragraph (a) of this section shall 
ensure that it, and any responses to the communication, are placed in 
the public record of the proceeding and served on the parties. In the 
case of oral communications, a written summary must be served and placed 
in the public record of the proceeding.
    (d)(1) The prohibitions in this section apply--
    (i) When a notice of hearing or other comparable order is issued in 
accordance with Sec. Sec.  2.104(a), 2.105(e)(2), 2.202(c), 2.204, 
2.205(e), or 2.312; or
    (ii) Whenever an NRC officer or employee who is or has reasonable 
cause to believe he or she will be engaged in the performance of an 
investigative or litigating function or a Commission adjudicatory 
employee has knowledge that a notice of hearing or other comparable 
order will be issued in accordance with Sec. Sec.  2.104(a), 
2.105(e)(2), 2.202(c), 2.204, 2.205(e), or 2.312.
    (2) The prohibitions of this section cease to apply to the disputed 
issues pertinent to a full or partial initial decision when the time has 
expired for Commission review of the decision in accordance with Sec.  
2.341.
    (e) Communications to, from, and between Commission adjudicatory 
employees not prohibited by this section may not serve as a conduit for 
a communication that otherwise would be prohibited by this section or 
for an ex parte communication that otherwise would be prohibited by 
Sec.  2.347.
    (f) If an initial or final decision is stated to rest in whole or in 
part on fact or opinion obtained as a result of a communication 
authorized by this section, the substance of the communication must be 
specified in the record of the proceeding and every

[[Page 72]]

party must be afforded an opportunity to controvert the fact or opinion. 
If the parties have not had an opportunity to controvert the fact or 
opinion before the decision is filed, a party may controvert the fact or 
opinion by filing a petition for review of an initial decision, or a 
petition for reconsideration of a final decision that clearly and 
concisely sets forth the information or argument relied on to show the 
contrary. If appropriate, a party may be afforded the opportunity for 
cross-examination or to present rebuttal evidence.



Sec.  2.390  Public inspections, exemptions, requests for withholding.

    (a) Subject to the provisions of paragraphs (b), (d), (e), and (f) 
of this section, final NRC records and documents,\1\ including but not 
limited to correspondence to and from the NRC regarding the issuance, 
denial, amendment, transfer, renewal, modification, suspension, 
revocation, or violation of a license, permit, or order, or regarding a 
rulemaking proceeding subject to this part shall not, in the absence of 
an NRC determination of a compelling reason for nondisclosure after a 
balancing of the interests of the person or agency urging nondisclosure 
and the public interest in disclosure, be exempt from disclosure and 
will be made available for inspection and copying at the NRC Web site, 
http://www.nrc.gov, and/or at the NRC Public Document Room, except for 
matters that are:
---------------------------------------------------------------------------

    \1\Such records and documents do not include handwritten notes and 
drafts.
---------------------------------------------------------------------------

    (1)(i) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy; and
    (ii) Are in fact properly classified under that Executive order;
    (2) Related solely to the internal personnel rules and practices of 
the Commission;
    (3) Specifically exempted from disclosure by statute (other than 5 
U.S.C. 552(b)), but only if that statute requires that the matters be 
withheld from the public in such a manner as to leave no discretion on 
the issue, or establishes particular criteria for withholding or refers 
to particular types or matters to be withheld.
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Interagency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the Commission;
    (6) Personnel and medical files and similar files, the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority, or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or

[[Page 73]]

    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (b) The procedures in this section must be followed by anyone 
submitting a document to the NRC who seeks to have the document, or a 
portion of it, withheld from public disclosure because it contains trade 
secrets, privileged, or confidential commercial or financial 
information.
    (1) The submitter shall request withholding at the time the document 
is submitted and shall comply with the document marking and affidavit 
requirements set forth in this paragraph. The NRC has no obligation to 
review documents not so marked to determine whether they contain 
information eligible for withholding under paragraph (a) of this 
section. Any documents not so marked may be made available to the public 
at the NRC Web site, http://www.nrc.gov or at the NRC Public Document 
Room.
    (i) The submitter shall ensure that the document containing 
information sought to be withheld is marked as follows:
    (A) The top of the first page of the document and the top of each 
page containing such information must be marked with language 
substantially similar to: ``confidential information submitted under 10 
CFR 2.390''; ``withhold from public disclosure under 10 CFR 2.390''; or 
``proprietary'' to indicate it contains information the submitter seeks 
to have withheld.
    (B) Each document, or page, as appropriate, containing information 
sought to be withheld from public disclosure must indicate, adjacent to 
the information, or at the top if the entire page is affected, the basis 
(i.e., trade secret, personal privacy, etc.) for proposing that the 
information be withheld from public disclosure under paragraph (a) of 
this section.
    (ii) The Commission may waive the affidavit requirements on request, 
or on its own initiative, in circumstances the Commission, in its 
discretion, deems appropriate. Otherwise, except for personal privacy 
information, which is not subject to the affidavit requirement, the 
request for withholding must be accompanied by an affidavit that--
    (A) Identifies the document or part sought to be withheld;
    (B) Identifies the official position of the person making the 
affidavit;
    (C) Declares the basis for proposing the information be withheld, 
encompassing considerations set forth in Sec.  2.390(a);
    (D) Includes a specific statement of the harm that would result if 
the information sought to be withheld is disclosed to the public; and
    (E) Indicates the location(s) in the document of all information 
sought to be withheld.
    (iii) In addition, an affidavit accompanying a withholding request 
based on paragraph (a)(4) of this section must contain a full statement 
of the reason for claiming the information should be withheld from 
public disclosure. Such statement shall address with specificity the 
considerations listed in paragraph (b)(4) of this section. In the case 
of an affidavit submitted by a company, the affidavit shall be executed 
by an officer or upper-level management official who has been 
specifically delegated the function of reviewing the information sought 
to be withheld and authorized to apply for its withholding on behalf of 
the company. The affidavit shall be executed by the owner of the 
information, even though the information sought to be withheld is 
submitted to the Commission by another person. The application and 
affidavit shall be submitted at the time of filing the information 
sought to be withheld. The information sought to be withheld shall be 
incorporated, as far as possible, into a separate paper. The affiant 
must designate with appropriate markings information submitted in the 
affidavit as a trade secret, or confidential or privileged commercial or 
financial information within the meaning of Sec.  9.17(a)(4) of this 
chapter, and such information shall be subject to disclosure only in 
accordance with the provisions of Sec.  9.19 of this chapter.
    (2) A person who submits commercial or financial information 
believed to be privileged or confidential or a trade secret shall be on 
notice that it is the policy of the Commission to achieve an effective 
balance between legitimate concerns for protection of competitive 
positions and the right of the public to

[[Page 74]]

be fully apprised as to the basis for and effects of licensing or 
rulemaking actions, and that it is within the discretion of the 
Commission to withhold such information from public disclosure.
    (3) The Commission shall determine whether information sought to be 
withheld from public disclosure under this paragraph:
    (i) Is a trade secret or confidential or privileged commercial or 
financial information; and (ii) If so, should be withheld from public 
disclosure.
    (4) In making the determination required by paragraph (b)(3)(i) of 
this section, the Commission will consider:
    (i) Whether the information has been held in confidence by its 
owner;
    (ii) Whether the information is of a type customarily held in 
confidence by its owner and, except for voluntarily submitted 
information, whether there is a rational basis therefor;
    (iii) Whether the information was transmitted to and received by the 
Commission in confidence;
    (iv) Whether the information is available in public sources;
    (v) Whether public disclosure of the information sought to be 
withheld is likely to cause substantial harm to the competitive position 
of the owner of the information, taking into account the value of the 
information to the owner; the amount of effort or money, if any, 
expended by the owner in developing the information; and the ease or 
difficulty with which the information could be properly acquired or 
duplicated by others.
    (5) If the Commission determines, under paragraph (b)(4) of this 
section, that the record or document contains trade secrets or 
privileged or confidential commercial or financial information, the 
Commission will then determine whether the right of the public to be 
fully apprised as to the bases for and effects of the proposed action 
outweighs the demonstrated concern for protection of a competitive 
position, and whether the information should be withheld from public 
disclosure under this paragraph. If the record or document for which 
withholding is sought is deemed by the Commission to be irrelevant or 
unnecessary to the performance of its functions, it will be returned to 
the applicant.
    (6) Withholding from public inspection does not affect the right, if 
any, of persons properly and directly concerned to inspect the document. 
Either before a decision of the Commission on the matter of whether the 
information should be made publicly available or after a decision has 
been made that the information should be withheld from public 
disclosure, the Commission may require information claimed to be a trade 
secret or privileged or confidential commercial or financial information 
to be subject to inspection under a protective agreement by contractor 
personnel or government officials other than NRC officials, by the 
presiding officer in a proceeding, and under protective order by the 
parties to a proceeding. In camera sessions of hearings may be held when 
the information sought to be withheld is produced or offered in 
evidence. If the Commission subsequently determines that the information 
should be disclosed, the information and the transcript of such in 
camera session will be made publicly available.
    (c) The Commission either may grant or deny a request for 
withholding under this section.
    (1) If the request is granted, the Commission will notify the 
submitter of its determination to withhold the information from public 
disclosure.
    (2) If the Commission denies a request for withholding under this 
section, it will provide the submitter with a statement of reasons for 
that determination. This decision will specify the date, which will be a 
reasonable time thereafter, when the document will be available at the 
NRC Web site, http://www.nrc.gov. The document will not be returned to 
the submitter.
    (3) Whenever a submitter desires to withdraw a document from 
Commission consideration, it may request return of the document, and the 
document will be returned unless the information--
    (i) Forms part of the basis of an official agency decision, 
including but not limited to, a rulemaking proceeding or licensing 
activity;

[[Page 75]]

    (ii) Is contained in a document that was made available to or 
prepared for an NRC advisory committee;
    (iii) Was revealed, or relied upon, in an open Commission meeting 
held in accordance with 10 CFR part 9, subpart C;
    (iv) Has been requested in a Freedom of Information Act request; or
    (v) Has been obtained during the course of an investigation 
conducted by the NRC Office of Investigations.
    (d) The following information is considered commercial or financial 
information within the meaning of Sec.  9.17(a)(4) of this chapter and 
is subject to disclosure only in accordance with the provisions of Sec.  
9.19 of this chapter.
    (1) Correspondence and reports to or from the NRC which contain 
information or records concerning a licensee's or applicant's physical 
protection, classified matter protection, or material control and 
accounting program for special nuclear material not otherwise designated 
as Safeguards Information or classified as National Security Information 
or Restricted Data.
    (2) Information submitted in confidence to the Commission by a 
foreign source.
    (e) Submitting information to NRC for consideration in connection 
with NRC licensing or regulatory activities shall be deemed to 
constitute authority for the NRC to reproduce and distribute sufficient 
copies to carry out the Commission's official responsibilities.
    (f) The presiding officer, if any, or the Commission may, with 
reference to the NRC records and documents made available pursuant to 
this section, issue orders consistent with the provisions of this 
section and Sec.  2.705(c).



   Subpart D_Additional Procedures Applicable to Proceedings for the 
  Issuance of Licenses To Construct or Operate Nuclear Power Plants of 
                   Duplicate Design at Multiple Sites

    Source: 40 FR 2976, Jan. 17, 1975, unless otherwise noted.



Sec.  2.400  Scope of subpart.

    This subpart describes procedures applicable to licensing 
proceedings which involve the consideration in hearings of a number of 
applications, filed by one or more applicants pursuant to appendix N of 
part 52 of this chapter, for licenses to construct and operate nuclear 
power reactors of essentially the same design to be located at different 
sites.

[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]



Sec.  2.401  Notice of hearing on applications pursuant to appendix N of part 

52 for construction permits.

    (a) In the case of applications pursuant to appendix N of part 52 of 
this chapter for construction permits for nuclear power reactors of the 
type described in Sec.  50.22 of this chapter, the Secretary will issue 
notices of hearing pursuant to Sec.  2.104.
    (b) The notice of hearing will also state the time and place of the 
hearings on any separate phase of the proceeding.

[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]



Sec.  2.402  Separate hearings on separate issues; consolidation of 

proceedings.

    (a) In the case of applications under appendix N of part 52 of this 
chapter for construction permits for nuclear power reactors of a type 
described in Sec.  50.22 of this chapter, the Commission or the 
presiding officer may order separate hearings on particular phases of 
the proceeding, such as matters related to the acceptability of the 
design of the reactor, in the context of the site parameters postulated 
for the design or environmental matters.
    (b) If a separate hearing is held on a particular phase of the 
proceeding, the Commission or presiding officers of each affected 
proceeding may, under Sec.  2.317, consolidate for hearing on that phase 
two or more proceedings to consider common issues relating to the 
applications involved in the proceedings, if it finds that this action 
will be conducive to the proper dispatch of its business and to the ends 
of justice. In

[[Page 76]]

specifying the place of this consolidated hearing, due regard will be 
given to the convenience and necessity of the parties, petitioners for 
leave to intervene, or the attorneys or representatives of such persons, 
and the public interest.

[40 FR 2976, Jan. 17, 1975, as amended at 43 FR 17801, Apr. 26, 1978; 54 
FR 15398, Apr. 18, 1989; 69 FR 2256, Jan. 14, 2004; 70 FR 61887, Oct. 
27, 2005]



Sec.  2.403  Notice of proposed action on applications for operating licenses 

pursuant to appendix N of part 52.

    In the case of applications pursuant to appendix N of part 52 of 
this chapter for operating licenses for nuclear power reactors, if the 
Commission has not found that a hearing is in the public interest, the 
Director of Nuclear Reactor Regulation will, prior to acting thereon, 
cause to be published in the Federal Register, pursuant to Sec.  2.105, 
a notice of proposed action with respect to each application as soon as 
practicable after the applications have been docketed.

[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]



Sec.  2.404  Hearings on applications for operating licenses pursuant to 

appendix N of part 52.

    If a request for a hearing and/or petition for leave to intervene is 
filed within the time prescribed in the notice of proposed action on an 
application for an operating license pursuant to appendix N of part 52 
of this chapter with respect to a specific reactor(s) at a specific site 
and the Commission or an atomic safety and licensing board designated by 
the Commission or by the Chairman of the Atomic Safety and Licensing 
Board Panel has issued a notice of hearing or other appropriate order, 
the Commission or the atomic safety and licensing board may order 
separate hearings on particular phases of the proceeding and/or 
consolidate for hearing two or more proceedings in the manner described 
in Sec.  2.402.

[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]



Sec.  2.405  Initial decisions in consolidated hearings.

    At the conclusion of any hearing held under this subpart, the 
presiding officer will render a partial initial decision that may be 
appealed under Sec.  2.341. No construction permit or full power 
operating license will be issued until an initial decision has been 
issued on all phases of the hearing and all issues under the Act and the 
National Environmental Policy Act of 1969 appropriate to the proceeding 
have been resolved.

[69 FR 2256, Jan. 14, 2004]



Sec.  2.406  Finality of decisions on separate issues.

    Notwithstanding any other provision of this chapter, in a proceeding 
conducted pursuant to this subpart and appendix N of part 52 of this 
chapter, no matter which has been reserved for consideration in one 
phase of the hearing shall be considered at another phase of the hearing 
except on the basis of significant new information that substantially 
affects the conclusion(s) reached at the other phase or other good 
cause.

[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]



Sec.  2.407  Applicability of other sections.

    The provisions of subparts A and G relating to construction permits 
and operating licenses apply, respectively, to construction permits and 
operating licenses subject to this subpart, except as qualified by the 
provisions of this subpart.



   Subpart E_Additional Procedures Applicable to Proceedings for the 

    Issuance of Licenses To Manufacture Nuclear Power Reactors To Be 

Operated at Sites Not Identified in the License Application and Related 
                          Licensing Proceedings

    Source: 38 FR 30252, Nov. 2, 1973, unless otherwise noted.



Sec.  2.500  Scope of subpart.

    This subpart prescribes procedures applicable to licensing 
proceedings

[[Page 77]]

which involve the consideration in separate hearings of an application 
for a license to manufacture nuclear power reactors pursuant to appendix 
M of part 52 of this chapter, and applications for construction permits 
and operating licenses for nuclear power reactors which have been the 
subject of such an application for a license to manufacture such 
facilities (manufacturing license).

[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]



Sec.  2.501  Notice of hearing on application pursuant to appendix M of part 

52 for a license to manufacture nuclear power reactors.

    (a) In the case of an application pursuant to appendix M of part 52 
of this chapter for a license to manufacture nuclear power reactors of 
the type described in Sec.  50.22 of this chapter to be operated at 
sites not identified in the license application, the Secretary will 
issue a notice of hearing to be published in the Federal Register at 
least thirty (30) days prior to the date set for hearing in the notice. 
\1\ The notice shall be issued as soon as practicable after the 
application has been docketed. The notice will state:
---------------------------------------------------------------------------

    \1\ The thirty (30) day requirement of this paragraph is not 
applicable to a notice of the time and place of hearing published by the 
presiding officer after the notice of hearing described in this section 
has been published.
---------------------------------------------------------------------------

    (1) The time, place, and nature of the hearing and/or the prehearing 
conference;
    (2) The authority within which the hearing is to be held;
    (3) The matters of fact and law to be considered; and
    (4) The time within which answers to the notice shall be filed.
    (b) The issues stated in the notice of hearing pursuant to paragraph 
(a) of this section will not involve consideration of the particular 
sites at which any of the nuclear power reactors to be manufactured will 
be located and operated. Except as the Commission determines otherwise, 
the notice of hearing will state:
    (1) That, if the proceeding is a contested proceeding, the presiding 
officer will consider the following issues: \2\
---------------------------------------------------------------------------

    \2\ Issues (i) and (vi) are the issues pursuant to the Atomic Energy 
Act of 1954, as amended. Issue (vii) is the issue pursuant to the 
National Environmental Policy Act of 1969.
---------------------------------------------------------------------------

    (i) Whether the applicant has described the proposed design of, and 
the site parameters postulated for, the reactor(s), including, but not 
limited to, the principal architectural and engineering criteria for the 
design, and has identified the major features or components incorporated 
therein for the protection of the health and safety of the public;
    (ii) Whether such further technical or design information as may be 
required to complete the design report and which can reasonably be left 
for later consideration, will be supplied in a supplement to the design 
report;
    (iii) Whether safety features or components, if any, which require 
research and development have been described by the applicant and the 
applicant has identified, and there will be conducted a research and 
development program reasonably designed to resolve any safety questions 
associated with such features or components;
    (iv) Whether on the basis of the foregoing, there is reasonable 
assurance that (A) such safety questions will be satisfactorily resolved 
before any of the proposed nuclear power reactors are removed from the 
manufacturing site, and (B) taking into consideration the site criteria 
contained in part 100 of this chapter, the proposed reactor(s) can be 
constructed and operated at sites having characteristics that fall 
within the site parameters postulated for the design of the reactor(s) 
without undue risk to the health and safety of the public;
    (v) Whether the applicant is technically and financially qualified 
to design and manufacture the proposed reactor(s);
    (vi) Whether the issuance of a license for manufacture of the 
reactor(s) will be inimical to the common defense and security or to the 
health and safety of the public; and
    (vii) Whether, in accordance with the requirements of subpart A of 
part 51

[[Page 78]]

and appendix M of part 52 of this chapter, the license should be issued 
as proposed.
    (2) That, if the proceeding is not a contested proceeding, the 
presiding officer will determine (i) without conducting a de novo 
evaluation of the application, whether the application and the record of 
the proceeding contain sufficient information, and the review of the 
application by the Commission's staff has been adequate to support 
affirmative findings on paragraphs (b)(1) (i) through (v) of this 
section and a negative finding on paragraph (b)(1)(vi) of this section 
proposed to be made and the issuance of the license to manufacture 
proposed by the Director of Nuclear Reactor Regulation, and (ii) whether 
the review conducted by the Commission pursuant to the National 
Environmental Policy Act (NEPA) has been adequate.
    (3) That, regardless of whether the proceeding is contested or 
uncontested, the presiding officer will, in accordance with subpart A of 
part 51 and paragraph 3 of appendix M of part 52 of this chapter,
    (i) Determine whether the requirements of section 102(2) (A), (C) 
and (E) of the National Environmental Policy Act and subpart A of part 
51 of this chapter have been complied with in the proceeding;
    (ii) Independently consider the final balance among conflicting 
factors contained in the record of the proceeding with a view to 
determining the appropriate action to be taken; and
    (iii) Determine whether the manufacturing license should be issued, 
denied or appropriately conditioned to protect environmental values.
    (c) The place of hearing on an application for a manufacturing 
license will be Washington, DC, or such other location as the Commission 
deems appropriate.

[38 FR 30252, Nov. 2, 1973, as amended at 39 FR 26279, July 18, 1974; 39 
FR 33202, Sept. 16, 1974; 49 FR 9401, Mar. 12, 1984; 54 FR 15398, Apr. 
18, 1989; 54 FR 52342, Dec. 21, 1989]



Sec.  2.502  Notice of hearing on application for a permit to construct a 

nuclear power reactor manufactured pursuant to a Commission license issued 

pursuant to appendix M of part 52 of this chapter at the site at which the 

reactor is to be operated.

    The issues stated for consideration in the notice of hearing on an 
application for a permit to construct a nuclear power reactor(s) which 
is the subject of an application for a manufacturing license pursuant to 
appendix M of part 52 of this chapter, will be those stated in Sec.  
2.104(b) and, in addition, whether the site on which the facility is to 
be operated falls within the postulated site parameters specified in the 
relevant application for a manufacturing license.

[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]



Sec.  2.503  Finality of decisions on separate issues.

    Notwithstanding any other provision of this chapter, no matter which 
has been resolved at an earlier stage of the licensing process which 
involves a manufacturing license, a permit to construct a reactor for 
which a manufacturing license is sought, a license to operate such a 
reactor, and any amendment to such permit or licenses shall be 
determined to be at issue in any subsequent state of the licensing 
process except on the basis of significant new information that 
substantially affects the conclusion(s) reached at the earlier stage or 
other good cause.



Sec.  2.504  Applicability of other sections.

    The provisions of subparts A and G relating to construction permits 
apply to manufacturing licenses subject to this subpart, with respect to 
matters of radiological health and safety, environmental protection, and 
the common defense and security, except that Sec.  2.104 (a) and (b) do 
not apply to manufacturing licenses. The provisions of subparts A and G 
relating to construction permits and operating licenses apply, 
respectively, to construction permits and operating licenses subject to 
this subpart, except as qualified by the provisions of this subpart.

[[Page 79]]



Subpart F_Additional Procedures Applicable to Early Partial Decisions on 
 Site Suitability Issues in Connection With an Application for a Permit 
               To Construct Certain Utilization Facilities

    Source: 42 FR 22885, May 5, 1977, unless otherwise noted.



Sec.  2.600  Scope of subpart.

    This subpart prescribes procedures applicable to licensing 
proceedings which involve an early submittal of site suitability 
information in accordance with Sec.  2.101(a-1), and a hearing and early 
partial decision on issues of site suitability, in connection with an 
application for a permit to construct a utilization facility which is 
subject to Sec.  51.20(b) of this chapter and is of the type specified 
in Sec.  50.21(b) (2) or (3) or Sec.  50.22 of this chapter or is a 
testing facility.

[49 FR 9401, Mar. 12, 1984]



Sec.  2.601  Applicability of other sections.

    The provisions of subparts A and G relating to applications for 
construction permits and proceedings thereon apply, respectively, to 
aplications and proceedings in accordance with this subpart, except as 
specifically provided otherwise by the provisions of this subpart.



Sec.  2.602  Filing fees.

    Each application which contains a request for early review of site 
suitability issues under the procedures of this subpart shall be 
accompanied by any fee required by Sec.  50.30(e) and part 170 of this 
chapter.



Sec.  2.603  Acceptance and docketing of application for early review of site 

suitability issues.

    (a) Each part of an application submitted in accordance with Sec.  
2.101(a-1) of this part will be initially treated as a tendered 
application. If it is determined that any one of the parts as described 
in Sec.  2.101(a-1) is incomplete and not acceptable for processing, the 
Director of Nuclear Reactor Regulation will inform the applicant of this 
determination and the respects in which the document is deficient. Such 
a determination of completeness will generally be made within a period 
of thirty (30) days.
    (b)(1) The Director of Nuclear Reactor Regulation will accept for 
docketing an application for a construction permit for a utilization 
facility which is subject to Sec.  51.20(b) of this chapter and is of 
the type specified in Sec.  50.21(b) (2) or (3) or Sec.  50.22 or is a 
testing facility where part one of the application as described in Sec.  
2.101(a-1) is complete. Part one of any application will not be 
considered complete unless it contains proposed findings as required by 
Sec.  2.101(a-1)(1)(i) and unless it describes the applicant's site 
selection process, specifies the extent to which that process involves 
the consideration of alternative sites, explains the relationship 
between that process and the application for early review of site 
suitability issues, and briefly describes the applicant's long-range 
plans for ultimate development of the site. Upon assignment of a docket 
number, the procedures in Sec.  2.101(a) (3) and (4) relating to formal 
docketing and the submission and distribution of additional copies of 
the application shall be followed.
    (2) Additional parts of the application will be docketed upon a 
determination by the Director of Nuclear Reactor Regulation that they 
are complete.
    (c) If part one of the application is docketed, the Director of 
Nuclear Reactor Regulation will cause to be published in the Federal 
Register and send to the Governor or other appropriate official of the 
State in which the site is located, a notice of docketing of the 
application which states the purpose of the application, states the 
location of the proposed site, states that a notice of hearing will be 
published, requests comments within 120 days or such other time as may 
be specified on the initiation or outcome of an early site review from 
Federal, State, and local agencies and interested persons, and in the 
case of applications filed under section 103 of the Act, states that a 
person who wishes to have his views on the antitrust aspects of the 
application presented to the Attorney General for consideration shall 
submit

[[Page 80]]

such views in accordance with a subsequent notice that will be published 
in the Federal Register. In the case of a nuclear power reactor, such 
subsequent notice will be published following submission of the 
information required by Sec.  50.33a.

[42 FR 22885, May 5, 1977, as amended at 49 FR 9401, Mar. 12, 1984]



Sec.  2.604  Notice of hearing on application for early review of site 

suitability issues.

    (a) Where an applicant for a construction permit for a utilization 
facility subject to this subpart requests an early review and hearing 
and an early partial decision on issues of site suitability pursuant to 
Sec.  2.101(a-1), the provisions in the notice of hearing setting forth 
the matters of fact and law to be considered, as required by Sec.  
2.104, shall be modified so as to relate only to the site suitability 
issue or issues under review.
    (b) After docketing of part two of the application, as provided in 
Sec. Sec.  2.101(a-1) and 2.603, a supplementary notice of hearing will 
be published under Sec.  2.104 with respect to the remaining unresolved 
issues in the proceeding within the scope of Sec.  2.104. This 
supplementary notice of hearing will provide that any person whose 
interest may be affected by the proceeding and who desires to 
participate as a party in the resolution of the remaining issues shall 
file a petition for leave to intervene pursuant to Sec.  2.309 within 
the time prescribed in the notice. This supplementary notice will also 
provide appropriate opportunities for participation by a representative 
of an interested State under Sec.  2.315(c) and for limited appearances 
under Sec.  2.315(a).
    (c) Any person who was permitted to intervene as a party under the 
initial notice of hearing on site suitability issues and who was not 
dismissed or did not withdraw as a party may continue to participate as 
a party to the proceeding with respect to the remaining unresolved 
issues, provided that within the time prescribed for filing of petitions 
for leave to intervene in the supplementary notice of hearing, he or she 
files a notice of his intent to continue as a party, along with a 
supporting affidavit identifying the specific aspect or aspects of the 
subject matter of the proceeding as to which he or she wishes to 
continue to participate as a party and setting forth with particularity 
the basis for his contentions with regard to each aspect or aspects. A 
party who files a non-timely notice of intent to continue as a party may 
be dismissed from the proceeding, absent a determination that the party 
has made a substantial showing of good cause for failure to file on 
time, and with particular reference to the factors specified in 
Sec. Sec.  2.309(c)(1)(i) through (iv) and 2.309(d). The notice will be 
ruled upon by the Commission or presiding officer designated to rule on 
petitions for leave to intervene.
    (d) To the maximum extent practicable, the membership of the atomic 
safety and licensing board designated to preside in the proceeding on 
the remaining unresolved issues pursuant to the supplemental notice of 
hearing will be the same as the membership designated to preside in the 
initial notice of hearing on site suitability issues.

[42 FR 22885, May 5, 1977, as amended by 69 FR 2256, Jan. 14, 2004]



Sec.  2.605  Additional considerations.

    (a) The Commission will not conduct more than one review of site 
suitability issues with regard to a particular site prior to filing and 
review of part two of the application described in Sec.  2.101(a-1) of 
this part.
    (b) The Commission, upon its own initiative, or upon the motion of 
any party to the proceeding filed at least sixty (60) days prior to the 
date of the commencement of the evidentiary hearing on site suitability 
issues, may decline to initiate an early hearing or render an early 
partial decision on any issue or issues of site suitability:
    (1) In cases where no partial decision on the relative merits of the 
proposed site and alternative sites under subpart A of part 51 is 
requested, upon determination that there is a reasonable likelihood that 
further review would identify one or more preferable alternative sites 
and the partial decision on one or more site suitability issues would 
lead to an irreversible and irretrievable commitment of resources prior 
to the submittal of the remainder of the information required by Sec.  
50.30(f)

[[Page 81]]

of this chapter that would prejudice the later review and decision on 
such alternative sites; or
    (2) In cases where it appears that an early partial decision on any 
issue or issues of site suitability would not be in the public interest 
considering (i) the degree of likelihood that any early findings on 
those issues would retain their validity in later reviews, (ii) the 
objections, if any, of cognizant state or local government agencies to 
the conduct of an early review on those issues, and (iii) the possible 
effect on the public interest and the parties of having an early, if not 
necessarily conclusive, resolution of those issues.

[42 FR 22885, May 5, 1977, as amended at 49 FR 9401, Mar. 12, 1984]



Sec.  2.606  Partial decisions on site suitability issues.

    (a) The provisions of Sec. Sec.  2.331, 2.339, 2.340(b), 2.343, 
2.712, and 2.713 shall apply to any partial initial decision rendered in 
accordance with this subpart. Section 2.340(c) shall not apply to any 
partial initial decision rendered in accordance with this subpart. A 
limited work authorization may not be issued under 10 CFR 50.10(e) and 
no construction permit may be issued without completion of the full 
review required by section 102(2) of the National Environmental Policy 
Act of 1969, as amended, and subpart A of part 51 of this chapter. The 
authority of the Commission to review such a partial initial decision 
sua sponte, or to raise sua sponte an issue that has not been raised by 
the parties, will be exercised within the same time period as in the 
case of a full decision relating to the issuance of a construction 
permit.
    (b)(1) A partial decision on one or more site suitability issues 
pursuant to the applicable provisions of part 50, subpart A of part 51, 
and part 100 of this chapter issued in accordance with this subpart 
shall (i) clearly identify the site to which the partial decision 
applies and (ii) indicate to what extent additional information may be 
needed and additional review may be required to enable the Commission to 
determine in accordance with the provisions of the Act and the 
applicable provisions of the regulations in this chapter whether a 
construction permit for a facility to be located on the site identified 
in the partial decision should be issued or denied.
    (2) Following completion of Commission review of the partial initial 
decision of the Atomic Safety and Licensing Board, after hearing, on the 
site suitability issues, the partial decision shall remain in effect 
either for a period of five years or, where the applicant for the 
construction permit has made timely submittal of the information 
required to support the application as provided in Sec.  2.101(a-1), 
until the proceeding for a permit to construct a facility on the site 
identified in the partial decision has been concluded, \3\ unless the 
Commission or Atomic Safety and Licensing Board, upon its own initiative 
or upon motion by a party to the proceeding, finds that there exists 
significant new information that substantially affects the earlier 
conclusions and reopens the hearing record on site suitability issues. 
Upon good cause shown, the Commission may extend the five year period 
during which a partial decision shall remain in effect for a reasonable 
period of time not to exceed one year.
---------------------------------------------------------------------------

    \3\ The partial decision on site suitability issues shall be 
incorporated in the decision regarding issuance of a construction permit 
to the extent that it serves as a basis for the decision on a specific 
site issue(s).

[42 FR 22885, May 5, 1977, as amended at 49 FR 9401, Mar. 12, 1984; 69 
FR 2256, Jan. 14, 2004]



                Subpart G_Rules for Formal Adjudications

    Source: 69 FR 2256, Jan. 14, 2004, unless otherwise noted.



Sec.  2.700  Scope of subpart G.

    The provisions of this subpart apply to and supplement the 
provisions set forth in subpart C of this part with respect to 
enforcement proceedings initiated under subpart B of this part unless 
otherwise agreed to by the parties, proceedings conducted with respect 
to the initial licensing of a uranium enrichment facility, proceedings 
for the grant, renewal, licensee-initiated amendment, or termination of 
licenses or permits for nuclear power reactors,

[[Page 82]]

where the presiding officer by order finds that resolution of the 
contention necessitates resolution of: issues of material fact relating 
to the occurrence of a past event, where the credibility of an 
eyewitness may reasonably be expected to be at issue, and/or issues of 
motive or intent of the party or eyewitness material to the resolution 
of the contested matter, proceedings for initial applications for 
construction authorization for high-level radioactive waste repository 
noticed under Sec. Sec.  2.101(f)(8) or 2.105(a)(5), proceedings for 
initial applications for a license to receive and possess high-level 
radioactive waste at a geologic repository operations area, and any 
other proceeding as ordered by the Commission. If there is any conflict 
between the provisions of this subpart and those set forth in subpart C 
of this part, the provisions of this subpart control.



Sec.  2.701  Exceptions.

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



Sec.  2.702  Subpoenas.

    (a) On application by any party, the designated presiding officer 
or, if he or she is not available, the Chief Administrative Judge, or 
other designated officer will issue subpoenas requiring the attendance 
and testimony of witnesses or the production of evidence. The officer to 
whom application is made may require a showing of general relevance of 
the testimony or evidence sought, and may withhold the subpoena if such 
a showing is not made. However, the officer may not determine the 
admissibility of evidence.
    (b) Every subpoena will bear the name of the Commission, the name 
and office of the issuing officer and the title of the hearing, and will 
command the person to whom it is directed to attend and give testimony 
or produce specified documents or other things at a designated time and 
place. The subpoena will also advise of the quashing procedure provided 
in paragraph (f) of this section.
    (c) Unless the service of a subpoena is acknowledged on its face by 
the witness or is served by an officer or employee of the Commission, it 
must be served by a person who is not a party to the hearing and is not 
less than eighteen (18) years of age. Service of a subpoena must be made 
by delivery of a copy of the subpoena to the person named in it and 
tendering that person the fees for one day's attendance and the mileage 
allowed by law. When the subpoena is issued on behalf of the Commission, 
fees and mileage need not be tendered and the subpoena may be served by 
registered mail.
    (d) Witnesses summoned by subpoena must be paid the fees and mileage 
paid to witnesses in the district courts of the United States by the 
party at whose instance they appear.
    (e) The person serving the subpoena shall make proof of service by 
filing the subpoena and affidavit or acknowledgment of service with the 
officer before whom the witness is required to testify or produce 
evidence or with the Secretary. Failure to make proof of service does 
not affect the validity of the service.
    (f) On motion made promptly, and in any event at or before the time 
specified in the subpoena for compliance by the person to whom the 
subpoena is directed, and on notice to the party at whose instance the 
subpoena was issued, the presiding officer or, if he is unavailable, the 
Commission may:
    (1) Quash or modify the subpoena if it is unreasonable or requires 
evidence not relevant to any matter in issue, or
    (2) Condition denial of the motion on just and reasonable terms.
    (g) On application and for good cause shown, the Commission will 
seek judicial enforcement of a subpoena issued to a party and which has 
not been quashed.
    (h) The provisions of paragraphs (a) through (g) of this section are 
not applicable to the attendance and testimony of the Commissioners or 
NRC personnel, or to the production of records or documents in their 
custody.



Sec.  2.703  Examination by experts.

    (a) A party may request the presiding officer to permit a qualified 
individual who has scientific or technical training

[[Page 83]]

or experience to participate on behalf of that party in the examination 
and cross-examination of expert witnesses. The presiding officer may 
permit the individual to participate on behalf of the party in the 
examination and cross-examination of expert witnesses, upon finding:
    (1) That cross-examination by that individual would serve the 
purpose of furthering the conduct of the proceeding;
    (2) That the individual is qualified by scientific or technical 
training or experience to contribute to the development of an adequate 
decisional record in the proceeding by the conduct of such examination 
or cross-examination;
    (3) That the individual has read any written testimony on which he 
intends to examine or cross-examine and any documents to be used or 
referred to in the course of the examination or cross-examination; and
    (4) That the individual has prepared himself to conduct a meaningful 
and expeditious examination or cross-examination, and has submitted a 
cross-examination plan in accordance with Sec.  2.711(c).
    (b) Examination or cross-examination conducted under this section 
must be limited to areas within the expertise of the individual 
conducting the examination or cross-examination. The party on behalf of 
whom this examination or cross-examination is conducted and his or her 
attorney is responsible for the conduct of examination or cross-
examination by such individuals.



Sec.  2.704  Discovery--required disclosures.

    (a) Initial disclosures. Except to the extent otherwise stipulated 
or directed by order of the presiding officer or the Commission, a party 
other than the NRC staff shall, without awaiting a discovery request, 
provide to other parties:
    (1) The name and, if known, the address and telephone number of each 
individual likely to have discoverable information relevant to disputed 
issues alleged with particularity in the pleadings, identifying the 
subjects of the information; and
    (2) A copy of, or a description by category and location of, all 
documents, data compilations, and tangible things in the possession, 
custody, or control of the party that are relevant to disputed issues 
alleged with particularity in the pleadings. When any document, data 
compilation, or other tangible thing that must be disclosed is publicly 
available from another source, such as at the NRC Web site, http://
www.nrc.gov, and/or the NRC Public Document Room, a sufficient 
disclosure would be the location, the title and a page reference to the 
relevant document, data compilation, or tangible thing;
    (3) Unless otherwise stipulated or directed by the presiding 
officer, these disclosures must be made within forty-five (45) days 
after the issuance of a prehearing conference order following the 
initial prehearing conference specified in Sec.  2.329. A party shall 
make its initial disclosures based on the information then reasonably 
available to it. A party is not excused from making its disclosures 
because it has not fully completed its investigation of the case, 
because it challenges the sufficiency of another party's disclosures, or 
because another party has not made its disclosures.
    (b) Disclosure of expert testimony. (1) In addition to the 
disclosures required by paragraph (a) of this section, a party other 
than the NRC staff shall disclose to other parties the identity of any 
person who may be used at trial to present evidence under Sec.  2.711.
    (2) Except in proceedings with pre-filed written testimony, or as 
otherwise stipulated or directed by the presiding officer, this 
disclosure must be accompanied by a written report prepared and signed 
by the witness, containing: A complete statement of all opinions to be 
expressed and the basis and reasons therefor; the data or other 
information considered by the witness in forming the opinions; any 
exhibits to be used as a summary of or support for the opinions; the 
qualifications of the witness, including a list of all publications 
authored by the witness within the preceding ten years; and a listing of 
any other cases in which the witness has testified as an expert at trial

[[Page 84]]

or by deposition within the preceding four (4) years.
    (3) These disclosures must be made at the times and in the sequence 
directed by the presiding officer. In the absence of other directions 
from the presiding officer, or stipulation by the parties, the 
disclosures must be made at least ninety (90) days before the hearing 
commencement date or the date the matter is to be presented for hearing. 
If the evidence is intended solely to contradict or rebut evidence on 
the same subject matter identified by another party under paragraph 
(b)(2) of this section, the disclosures must be made within thirty (30) 
days after the disclosure made by the other party. The parties shall 
supplement these disclosures when required under paragraph (e) of this 
section.
    (c) Pretrial disclosures. (1) In addition to the disclosures 
required in the preceding paragraphs, a party other than the NRC staff 
shall provide to other parties the following information regarding the 
evidence that it may present at trial other than solely for impeachment 
purposes:
    (i) The name and, if not previously provided, the address and 
telephone number of each witness, separately identifying those whom the 
party expects to present and those whom the party may call if the need 
arises;
    (ii) The designation of those witnesses whose testimony is expected 
to be presented by means of a deposition and, when available, a 
transcript of the pertinent portions of the deposition testimony; and
    (iii) An appropriate identification of each document or other 
exhibit, including summaries of other evidence, separately identifying 
those which the party expects to offer and those which the party may 
offer if the need arises.
    (2) Unless otherwise directed by the presiding officer or the 
Commission, these disclosures must be made at least thirty (30) days 
before commencement of the hearing at which the issue is to be 
presented.
    (3) A party may object to the admissibility of documents identified 
under paragraph (c) of this section. A list of those objections must be 
served and filed within fourteen (14) days after service of the 
disclosures required by paragraphs (c)(1) and (2) of this section, 
unless a different time is specified by the presiding officer or the 
Commission. Objections not so disclosed, other than objections as to a 
document's admissibility under Sec.  2.711(e), are waived unless excused 
by the presiding officer or Commission for good cause shown.
    (d) Form of disclosures; filing. Unless otherwise directed by order 
of the presiding officer or the Commission, all disclosures under 
paragraphs (a) through (c) of this section must be made in writing, 
signed, served, and promptly filed with the presiding officer or the 
Commission.
    (e) Supplementation of responses. A party who has made a disclosure 
under this section is under a duty to supplement or correct the 
disclosure to include information thereafter acquired if ordered by the 
presiding officer or in the following circumstances:
    (1) A party is under a duty to supplement at appropriate intervals 
its disclosures under paragraph (a) of this section within a reasonable 
time after a party learns that in some material respect the information 
disclosed is incomplete or incorrect and if the additional or corrective 
information has not otherwise been made known to the other parties 
during the discovery process or in writing.
    (2) With respect to testimony of an expert from whom a report is 
required under paragraph (b) of this section, the duty extends both to 
information contained in the report and to information provided through 
a deposition of the expert, and any additions or other changes to this 
information must be disclosed by the time the party's disclosures under 
Sec.  2.704(c) are due.



Sec.  2.705  Discovery--additional methods.

    (a) Discovery methods. Parties may obtain discovery by one or more 
of the following methods: depositions upon oral examination or written 
interrogatories (Sec.  2.706); interrogatories to parties (Sec.  2.706); 
production of documents or things or permission to enter upon land or 
other property, for inspection and other purposes (Sec.  2.707); and 
requests for admission (Sec.  2.708).
    (b) Scope of discovery. Unless otherwise limited by order of the 
presiding

[[Page 85]]

officer in accordance with this section, the scope of discovery is as 
follows:
    (1) In general. Parties may obtain discovery regarding any matter, 
not privileged, that is relevant to the subject matter involved in the 
proceeding, whether it relates to the claim or defense of any other 
party, including the existence, description, nature, custody, condition, 
and location of any books, documents, or other tangible things and the 
identity and location of persons having knowledge of any discoverable 
matter. When any book, document, or other tangible thing sought is 
reasonably available from another source, such as at the NRC Web site, 
http://www.nrc.gov, and/or the NRC Public Document Room, sufficient 
response to an interrogatory on materials would be the location, the 
title and a page reference to the relevant book, document, or tangible 
thing. In a proceeding on an application for a construction permit or an 
operating license for a production or utilization facility, discovery 
begins only after the prehearing conference and relates only to those 
matters in controversy which have been identified by the Commission or 
the presiding officer in the prehearing order entered at the conclusion 
of that prehearing conference. In such a proceeding, discovery may not 
take place after the beginning of the prehearing conference held under 
Sec.  2.329 except upon leave of the presiding officer upon good cause 
shown. It is not a ground for objection that the information sought will 
be inadmissible at the hearing if the information sought appears 
reasonably calculated to lead to the discovery of admissible evidence.
    (2) Limitations. Upon his or her own initiative after reasonable 
notice or in response to a motion filed under paragraph (c) of this 
section, the presiding officer may alter the limits in these rules on 
the number of depositions and interrogatories, and may also limit the 
length of depositions under Sec.  2.706 and the number of requests under 
Sec. Sec.  2.707 and 2.708. The presiding officer shall limit the 
frequency or extent of use of the discovery methods otherwise permitted 
under these rules if he or she determines that:
    (i) The discovery sought is unreasonably cumulative or duplicative, 
or is obtainable from some other source that is more convenient, less 
burdensome, or less expensive;
    (ii) The party seeking discovery has had ample opportunity by 
discovery in the proceeding to obtain the information sought; or
    (iii) The burden or expense of the proposed discovery outweighs its 
likely benefit, taking into account the needs of the proceeding, the 
parties' resources, the importance of the issue in the proceeding, and 
the importance of the proposed discovery in resolving the issues.
    (3) Trial preparation materials. A party may obtain discovery of 
documents and tangible things otherwise discoverable under paragraph 
(b)(1) of this section and prepared in anticipation of or for the 
hearing by or for another party's representative (including his 
attorney, consultant, surety, indemnitor, insurer, or agent) only upon a 
showing that the party seeking discovery has substantial need of the 
materials in the preparation of this case and that he is unable without 
undue hardship to obtain the substantial equivalent of the materials by 
other means. In ordering discovery of such materials when the required 
showing has been made, the presiding officer shall protect against 
disclosure of the mental impressions, conclusions, opinions, or legal 
theories of an attorney for a party concerning the proceeding.
    (4) Claims of privilege or protection of trial preparation 
materials. When a party withholds information otherwise discoverable 
under these rules by claiming that it is privileged or subject to 
protection as trial preparation material, the party shall make the claim 
expressly and shall describe the nature of the documents, 
communications, or things not produced or disclosed in a manner that, 
without revealing information itself privileged or protected, will 
enable other parties to assess the applicability of the privilege or 
protection. Identification of these privileged materials must be made 
within the time provided for disclosure of the materials, unless 
otherwise extended by order of the presiding officer or the Commission.

[[Page 86]]

    (5) Nature of interrogatories. Interrogatories may seek to elicit 
factual information reasonably related to a party's position in the 
proceeding, including data used, assumptions made, and analyses 
performed by the party. Interrogatories may not be addressed to, or be 
construed to require:
    (i) Reasons for not using alternative data, assumptions, and 
analyses where the alternative data, assumptions, and analyses were not 
relied on in developing the party's position; or
    (ii) Performance of additional research or analytical work beyond 
that which is needed to support the party's position on any particular 
matter.
    (c) Protective order. (1) Upon motion by a party or the person from 
whom discovery is sought, accompanied by a certification that the movant 
has in good faith conferred or attempted to confer with other affected 
parties in an effort to resolve the dispute without action by the 
presiding officer, and for good cause shown, the presiding officer may 
make any order which justice requires to protect a party or person from 
annoyance, embarrassment, oppression, or undue burden or expense, 
including one or more of the following:
    (i) That the discovery not be had;
    (ii) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (iii) That the discovery may be had only by a method of discovery 
other than that selected by the party seeking discovery;
    (iv) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (v) That discovery be conducted with no one present except persons 
designated by the presiding officer;
    (vi) That, subject to the provisions of Sec. Sec.  2.709 and 2.390, 
a trade secret or other confidential research, development, or 
commercial information not be disclosed or be disclosed only in a 
designated way; or
    (vii) That studies and evaluations not be prepared.
    (2) If the motion for a protective order is denied in whole or in 
part, the presiding officer may, on such terms and conditions as are 
just, order that any party or person provide or permit discovery.
    (d) Sequence and timing of discovery. Except when authorized under 
these rules or by order of the presiding officer, or agreement of the 
parties, a party may not seek discovery from any source before the 
parties have met and conferred as required by paragraph (f) of this 
section, nor may a party seek discovery after the time limit established 
in the proceeding for the conclusion of discovery. Unless the presiding 
officer upon motion, for the convenience of parties and witnesses and in 
the interests of justice, orders otherwise, methods of discovery may be 
used in any sequence and the fact that a party is conducting discovery, 
whether by deposition or otherwise, does not operate to delay any other 
party's discovery.
    (e) Supplementation of responses. A party who responded to a request 
for discovery with a response is under a duty to supplement or correct 
the response to include information thereafter acquired if ordered by 
the presiding officer or, with respect to a response to an 
interrogatory, request for production, or request for admission, within 
a reasonable time after a party learns that the response is in some 
material respect incomplete or incorrect, and if the additional or 
corrective information has not otherwise been made known to the other 
parties during the discovery process or in writing.
    (f) Meeting of parties; planning for discovery. Except when 
otherwise ordered, the parties shall, as soon as practicable and in any 
event no more than thirty (30) days after the issuance of a prehearing 
conference order following the initial prehearing conference specified 
in Sec.  2.329, meet to discuss the nature and basis of their claims and 
defenses and the possibilities for a prompt settlement or resolution of 
the proceeding or any portion thereof, to make or arrange for the 
disclosures required by Sec.  2.704, and to develop a proposed discovery 
plan.
    (1) The plan must indicate the parties' views and proposals 
concerning:
    (i) What changes should be made in the timing, form, or requirement 
for disclosures under Sec.  2.704, including a

[[Page 87]]

statement as to when disclosures under Sec.  2.704(a)(1) were made or 
will be made;
    (ii) The subjects on which discovery may be needed, when discovery 
should be completed, and whether discovery should be conducted in phases 
or be limited to or focused upon particular issues;
    (iii) What changes should be made in the limitations on discovery 
imposed under these rules, and what other limitations should be imposed; 
and
    (iv) Any other orders that should be entered by the presiding 
officer under paragraph (c) of this section.
    (2) The attorneys of record and all unrepresented parties that have 
appeared in the proceeding are jointly responsible for arranging and 
being present or represented at the meeting, for attempting in good 
faith to agree on the proposed discovery plan, and for submitting to the 
presiding officer within ten (10) days after the meeting a written 
report outlining the plan.
    (g) Signing of disclosures, discovery requests, responses, and 
objections. (1) Every disclosure made in accordance with Sec.  2.704 
must be signed by at least one attorney of record in the attorney's 
individual name, whose address must be stated. An unrepresented party 
shall sign the disclosure and state the party's address. The signature 
of the attorney or party constitutes a certification that to the best of 
the signer's knowledge, information, and belief, formed after a 
reasonable inquiry, the disclosure is complete and correct as of the 
time it is made.
    (2) Every discovery request, response, or objection made by a party 
represented by an attorney must be signed by at least one attorney of 
record in the attorney's individual name, whose address must be stated. 
An unrepresented party shall sign the request, response, or objection 
and state the party's address. The signature of the attorney or party 
constitutes a certification that to the best of the signer's knowledge, 
information, and belief, formed after a reasonable inquiry, the request, 
response, or objection is:
    (i) Consistent with these rules and warranted by existing law or a 
good faith argument for the extension, modification, or reversal of 
existing law;
    (ii) Not interposed for any improper purpose, such as to harass or 
to cause unnecessary delay or needless increase in the cost of 
litigation; and
    (iii) Not unreasonable or unduly burdensome or expensive, given the 
needs of the case, the discovery already had in the case, the amount in 
controversy, and the importance of the issues at stake in the 
litigation.
    (3) If a request, response, or objection is not signed, it must be 
stricken unless it is signed promptly after the omission is called to 
the attention of the party making the request, response, or objection, 
and a party shall not be obligated to take any action with respect to it 
until it is signed.
    (4) If a certification is made in violation of the rule without 
substantial justification, the presiding officer, upon motion or upon 
its own initiative, shall impose upon the person who made the 
certification, the party on whose behalf the disclosure, request, 
response, or objection is made, or both, an appropriate sanction, which 
may, in appropriate circumstances, include termination of that person's 
right to participate in the proceeding.
    (h) Motion to compel discovery. (1) If a deponent or party upon whom 
a request for production of documents or answers to interrogatories is 
served fails to respond or objects to the request, or any part thereof, 
or fails to permit inspection as requested, the deposing party or the 
party submitting the request may move the presiding officer, within ten 
(10) days after the date of the response or after failure of a party to 
respond to the request, for an order compelling a response or inspection 
in accordance with the request. The motion must set forth the nature of 
the questions or the request, the response or objection of the party 
upon whom the request was served, and arguments in support of the 
motion. The motion must be accompanied by a certification that the 
movant has in good faith conferred or attempted to confer with other 
affected parties in an effort to resolve the dispute without action by 
the presiding officer. Failure to answer or respond may not be excused 
on the ground that the discovery

[[Page 88]]

sought is objectionable unless the person or party failing to answer or 
respond has applied for a protective order pursuant to paragraph (c) of 
this section. For purposes of this paragraph, an evasive or incomplete 
answer or response will be treated as a failure to answer or respond.
    (2) In ruling on a motion made under this section, the presiding 
officer may issue a protective order under paragraph (c) of this 
section.
    (3) This section does not preclude an independent request for 
issuance of a subpoena directed to a person not a party for production 
of documents and things. This section does not apply to requests for the 
testimony or interrogatories of the NRC staff under Sec.  2.709(a), or 
the production of NRC documents under Sec. Sec.  2.709(b) or Sec.  
2.390, except for paragraphs (c) and (e) of this section.



Sec.  2.706  Depositions upon oral examination and written interrogatories; 

interrogatories to parties.

    (a) Depositions upon oral examination and written interrogatories. 
(1) Any party desiring to take the testimony of any party or other 
person by deposition on oral examination or written interrogatories 
shall, without leave of the Commission or the presiding officer, give 
reasonable notice in writing to every other party, to the person to be 
examined and to the presiding officer of the proposed time and place of 
taking the deposition; the name and address of each person to be 
examined, if known, or if the name is not known, a general description 
sufficient to identify him or the class or group to which he belongs; 
the matters upon which each person will be examined and the name or 
descriptive title and address of the officer before whom the deposition 
is to be taken.
    (2) [Reserved]
    (3) Within the United States, a deposition may be taken before any 
officer authorized to administer oaths by the laws of the United States 
or of the place where the examination is held. Outside of the United 
States, a deposition may be taken before a secretary of an embassy or 
legation, a consul general, vice consul or consular agent of the United 
States, or a person authorized to administer oaths designated by the 
Commission.
    (4) Before any questioning, the deponent shall either be sworn or 
affirm the truthfulness of his or her answers. Examination and cross-
examination must proceed as at a hearing. Each question propounded must 
be recorded and the answer taken down in the words of the witness. 
Objections on questions of evidence must be noted in short form without 
the arguments. The officer may not decide on the competency, 
materiality, or relevancy of evidence but must record the evidence 
subject to objection. Objections on questions of evidence not made 
before the officer will not be considered waived unless the ground of 
the objection is one which might have been obviated or removed if 
presented at that time.
    (5) When the testimony is fully transcribed, the deposition must be 
submitted to the deponent for examination and signature unless he or she 
is ill, cannot be found, or refuses to sign. The officer shall certify 
the deposition or, if the deposition is not signed by the deponent, 
shall certify the reasons for the failure to sign, and shall promptly 
forward the deposition by registered mail to the Commission.
    (6) Where the deposition is to be taken on written interrogatories, 
the party taking the deposition shall serve a copy of the 
interrogatories, showing each interrogatory separately and consecutively 
numbered, on every other party with a notice stating the name and 
address of the person who is to answer them, and the name, description, 
title, and address of the officer before whom they are to be taken. 
Within ten (10) days after service, any other party may serve cross-
interrogatories. The interrogatories, cross-interrogatories, and answers 
must be recorded and signed, and the deposition certified, returned, and 
filed as in the case of a deposition on oral examination.
    (7) A deposition will not become a part of the record in the hearing 
unless received in evidence. If only part of a deposition is offered in 
evidence by a party, any other party may introduce any other parts. A 
party does not make a person his or her own witness for any purpose by 
taking his deposition.

[[Page 89]]

    (8) A deponent whose deposition is taken and the officer taking a 
deposition are entitled to the same fees as are paid for like services 
in the district courts of the United States. The fees must be paid by 
the party at whose instance the deposition is taken.
    (9) The witness may be accompanied, represented, and advised by 
legal counsel.
    (10) The provisions of paragraphs (a)(1) through (a)(9) of this 
section are not applicable to NRC personnel. Testimony of NRC personnel 
by oral examination and written interrogatories addressed to NRC 
personnel are subject to the provisions of Sec.  2.709.
    (b) Interrogatories to parties. (1) Any party may serve upon any 
other party (other than the NRC staff) written interrogatories to be 
answered in writing by the party served, or if the party served is a 
public or private corporation or a partnership or association, by any 
officer or agent, who shall furnish such information as is available to 
the party. A copy of the interrogatories, answers, and all related 
pleadings must be filed with the Secretary of the Commission, and must 
be served on the presiding officer and all parties to the proceeding.
    (2) Each interrogatory must be answered separately and fully in 
writing under oath or affirmation, unless it is objected to, in which 
event the reasons for objection must be stated in lieu of an answer. The 
answers must be signed by the person making them, and the objections by 
the attorney making them. The party upon whom the interrogatories were 
served shall serve a copy of the answers and objections upon all parties 
to the proceeding within fourteen (14) days after service of the 
interrogatories, or within such shorter or longer period as the 
presiding officer may allow. Answers may be used in the same manner as 
depositions (see Sec.  2.706(a)(7)).



Sec.  2.707  Production of documents and things; entry upon land for 

inspections and other purposes.

    (a) Request for discovery. Any party may serve on any other party a 
request to:
    (1) Produce and permit the party making the request, or a person 
acting on his or her behalf, to inspect and copy any designated 
documents, or to inspect and copy, test, or sample any tangible things 
which are within the scope of Sec.  2.704 and which are in the 
possession, custody, or control of the party upon whom the request is 
served; or
    (2) Permit entry upon designated land or other property in the 
possession or control of the party upon whom the request is served for 
the purpose of inspection and measuring, surveying, photographing, 
testing, or sampling the property or any designated object or operation 
on the property, within the scope of Sec.  2.704.
    (b) Service. The request may be served on any party without leave of 
the Commission or the presiding officer. Except as otherwise provided in 
Sec.  2.704, the request may be served after the proceeding is set for 
hearing.
    (c) Contents. The request must identify the items to be inspected 
either by individual item or by category, and describe each item and 
category with reasonable particularity. The request must specify a 
reasonable time, place, and manner of making the inspection and 
performing the related acts.
    (d) Response. The party upon whom the request is served shall serve 
on the party submitting the request a written response within thirty 
(30) days after the service of the request. The response must state, 
with respect to each item or category, that inspection and related 
activities will be permitted as requested, unless the request is 
objected to, in which case the reasons for objection must be stated. If 
objection is made to part of an item or category, the part must be 
specified.
    (e) NRC records and documents. The provisions of paragraphs (a) 
through (d) of this section do not apply to the production for 
inspection and copying or photographing of NRC records or documents. 
Production of NRC records or documents is subject to the provisions of 
Sec. Sec.  2.709 and 2.390.



Sec.  2.708  Admissions.

    (a) Apart from any admissions made during or as a result of a 
prehearing conference, at any time after his or her answer has been 
filed, a party may file a written request for the admission of

[[Page 90]]

the genuineness and authenticity of any relevant document described in 
or attached to the request, or for the admission of the truth of any 
specified relevant matter of fact. A copy of the document for which an 
admission of genuineness and authenticity is requested must be delivered 
with the request unless a copy has already been furnished.
    (b)(1) Each requested admission is considered made unless, within a 
time designated by the presiding officer or the Commission, and not less 
than ten (10) days after service of the request or such further time as 
may be allowed on motion, the party to whom the request is directed 
serves on the requesting party either:
    (i) A sworn statement denying specifically the relevant matters of 
which an admission is requested or setting forth in detail the reasons 
why he can neither truthfully admit nor deny them; or
    (ii) Written objections on the ground that some or all of the 
matters involved are privileged or irrelevant or that the request is 
otherwise improper in whole or in part.
    (2) Answers on matters to which such objections are made may be 
deferred until the objections are determined. If written objections are 
made to only a part of a request, the remainder of the request must be 
answered within the time designated.
    (c) Admissions obtained under the procedure in this section may be 
used in evidence to the same extent and subject to the same objections 
as other admissions.



Sec.  2.709  Discovery against NRC staff.

    (a)(1) In a proceeding in which the NRC staff is a party, the NRC 
staff will make available one or more witnesses, designated by the 
Executive Director for Operations or a delegee of the Executive Director 
for Operations, for oral examination at the hearing or on deposition 
regarding any matter, not privileged, that is relevant to the issues in 
the proceeding. The attendance and testimony of the Commissioners and 
named NRC personnel at a hearing or on deposition may not be required by 
the presiding officer, by subpoena or otherwise. However, the presiding 
officer may, upon a showing of exceptional circumstances, such as a case 
in which a particular named NRC employee has direct personal knowledge 
of a material fact not known to the witnesses made available by the 
Executive Director for Operations or a delegee of the Executive Director 
for Operations, require the attendance and testimony of named NRC 
personnel.
    (2) A party may file with the presiding officer written 
interrogatories to be answered by NRC personnel with knowledge of the 
facts, as designated by the Executive Director for Operations, or a 
delegee of the Executive Director for Operations. Upon a finding by the 
presiding officer that answers to the interrogatories are necessary to a 
proper decision in the proceeding and that answers to the 
interrogatories are not reasonably obtainable from any other source, the 
presiding officer may require that the NRC staff answer the 
interrogatories.
    (3) A deposition of a particular named NRC employee or answer to 
interrogatories by NRC personnel under paragraphs (a)(1) and (2) of this 
section may not be required before the matters in controversy in the 
proceeding have been identified by order of the Commission or the 
presiding officer, or after the beginning of the prehearing conference 
held in accordance with Sec.  2.329, except upon leave of the presiding 
officer for good cause shown.
    (4) The provisions of Sec.  2.704(c) and (e) apply to 
interrogatories served under this paragraph.
    (5) Records or documents in the custody of the Commissioners and NRC 
personnel are available for inspection and copying or photographing 
under paragraph (b) of this section and Sec.  2.390.
    (b) A request for the production of an NRC record or document not 
available under Sec.  2.390 by a party to an initial licensing 
proceeding may be served on the Executive Director for Operations or a 
delegee of the Executive Director for Operations, without leave of the 
Commission or the presiding officer. The request must identify the 
records or documents requested, either by individual item or by 
category, describe each item or category with reasonable particularity, 
and state why that

[[Page 91]]

record or document is relevant to the proceeding.
    (c) If the Executive Director for Operations, or a delegee of the 
Executive Director for Operations, objects to producing a requested 
record or document on the ground that it is not relevant or it is 
exempted from disclosure under Sec.  2.390 and the disclosure is not 
necessary to a proper decision in the proceeding or the document or the 
information therein is reasonably obtainable from another source, the 
Executive Director for Operations, or a delegee of the Executive 
Director for Operations, shall advise the requesting party.
    (d) If the Executive Director for Operations, or a delegee of the 
Executive Director for Operations, objects to producing a record or 
document, the requesting party may apply to the presiding officer, in 
writing, to compel production of that record or document. The 
application must set forth the relevancy of the record or document to 
the issues in the proceeding. The application will be processed as a 
motion in accordance with Sec.  2.323 (a) through (d). The record or 
document covered by the application must be produced for the in camera 
inspection of the presiding officer, exclusively, if requested by the 
presiding officer and only to the extent necessary to determine:
    (1) The relevancy of that record or document;
    (2) Whether the document is exempt from disclosure under Sec.  
2.390;
    (3) Whether the disclosure is necessary to a proper decision in the 
proceeding; and
    (4) Whether the document or the information therein is reasonably 
obtainable from another source.
    (e) Upon a determination by the presiding officer that the 
requesting party has demonstrated the relevancy of the record or 
document and that its production is not exempt from disclosure under 
Sec.  2.390 or that, if exempt, its disclosure is necessary to a proper 
decision in the proceeding, and the document or the information therein 
is not reasonably obtainable from another source, the presiding officer 
shall order the Executive Director for Operations, or a delegee of the 
Executive Director for Operations, to produce the document.
    (f) In the case of requested documents and records (including 
Safeguards Information referred to in sections 147 and 181 of the Atomic 
Energy Act, as amended) exempt from disclosure under Sec.  2.390, but 
whose disclosure is found by the presiding officer to be necessary to a 
proper decision in the proceeding, any order to the Executive Director 
for Operations or a delegee of the Executive Director for Operations, to 
produce the document or records (or any other order issued ordering 
production of the document or records) may contain any protective terms 
and conditions (including affidavits of non-disclosure) as may be 
necessary and appropriate to limit the disclosure to parties in the 
proceeding, to interested States and other governmental entities 
participating under Sec.  2.315(c), and to their qualified witnesses and 
counsel. When Safeguards Information protected from disclosure under 
section 147 of the Atomic Energy Act, as amended, is received and 
possessed by a party other than the Commission staff, it must also be 
protected according to the requirements of Sec.  73.21 of this chapter. 
The presiding officer may also prescribe additional procedures to 
effectively safeguard and prevent disclosure of Safeguards Information 
to unauthorized persons with minimum impairment of the procedural rights 
which would be available if Safeguards Information were not involved. In 
addition to any other sanction that may be imposed by the presiding 
officer for violation of an order issued pursuant to this paragraph, 
violation of an order pertaining to the disclosure of Safeguards 
Information protected from disclosure under section 147 of the Atomic 
Energy Act, as amended, may be subject to a civil penalty imposed under 
Sec.  2.205. For the purpose of imposing the criminal penalties 
contained in Section 223 of the Atomic Energy Act, as amended, any order 
issued pursuant to this paragraph with respect to Safeguards Information 
is considered to be an order issued under Section 161.b of the Atomic 
Energy Act.
    (g) A ruling by the presiding officer or the Commission for the 
production of a record or document will specify

[[Page 92]]

the time, place, and manner of production.
    (h) A request under this section may not be made or entertained 
before the matters in controversy have been identified by the Commission 
or the presiding officer, or after the beginning of the prehearing 
conference held under Sec.  2.329 except upon leave of the presiding 
officer for good cause shown.
    (i) The provisions of Sec.  2.705 (c) and (e) apply to production of 
NRC records and documents under this section.



Sec.  2.710  Motions for summary disposition.

    (a) Any party to a proceeding may move, with or without supporting 
affidavits, for a decision by the presiding officer in that party's 
favor as to all or any part of the matters involved in the proceeding. 
Summary disposition motions must be filed no later than twenty (20) days 
after the close of discovery. The moving party shall attach to the 
motion a separate, short, and concise statement of the material facts as 
to which the moving party contends that there is no genuine issue to be 
heard. Any other party may serve an answer supporting or opposing the 
motion, with or without affidavits, within twenty (20) days after 
service of the motion. The party shall attach to any answer opposing the 
motion a separate, short, and concise statement of the material facts as 
to which it is contended there exists a genuine issue to be heard. All 
material facts set forth in the statement required to be served by the 
moving party will be considered to be admitted unless controverted by 
the statement required to be served by the opposing party. The opposing 
party may, within ten (10) days after service, respond in writing to new 
facts and arguments presented in any statement filed in support of the 
motion. No further supporting statements or responses thereto will be 
entertained.
    (b) Affidavits must set forth the facts that would be admissible in 
evidence, and must demonstrate affirmatively that the affiant is 
competent to testify to the matters stated in the affidavit. The 
presiding officer may permit affidavits to be supplemented or opposed by 
depositions, answers to interrogatories or further affidavits. When a 
motion for summary decision is made and supported as provided in this 
section, a party opposing the motion may not rest upon the mere 
allegations or denials of his answer. The answer by affidavits or as 
otherwise provided in this section must set forth specific facts showing 
that there is a genuine issue of fact. If no answer is filed, the 
decision sought, if appropriate, must be rendered.
    (c) Should it appear from the affidavits of a party opposing the 
motion that he or she cannot, for reasons stated, present by affidavit 
facts essential to justify the party's opposition, the presiding officer 
may refuse the application for summary decision, order a continuance to 
permit affidavits to be obtained, or make an order as is appropriate. A 
determination to that effect must be made a matter of record.
    (d)(1) The presiding officer need not consider a motion for summary 
disposition unless its resolution will serve to expedite the proceeding 
if the motion is granted. The presiding officer may dismiss summarily or 
hold in abeyance untimely motions filed shortly before the hearing 
commences or during the hearing if the other parties or the presiding 
officer would be required to divert substantial resources from the 
hearing in order to respond adequately to the motion and thereby extend 
the proceeding.
    (2) The presiding officer shall render the decision sought if the 
filings in the proceeding, depositions, answers to interrogatories, and 
admissions on file, together with the statements of the parties and the 
affidavits, if any, show that there is no genuine issue as to any 
material fact and that the moving party is entitled to a decision as a 
matter of law. However, in any proceeding involving a construction 
permit for a production or utilization facility, the procedure described 
in this section may be used only for the determination of specific 
subordinate issues and may not be used to determine the ultimate issue 
as to whether the permit shall be issued.
    (e) The presiding officer shall issue an order no later than forty 
(40) days after any responses to the summary disposition motion are 
filed, indicating

[[Page 93]]

whether the motion is granted, or denied, and the bases therefore.



Sec.  2.711  Evidence.

    (a) General. Every party to a proceeding has the right to present 
oral or documentary evidence and rebuttal evidence and to conduct, in 
accordance with an approved cross-examination plan that contains the 
information specified in paragraph (c) of this section, any cross-
examination required for full and true disclosure of the facts.
    (b) Testimony. The parties shall submit direct testimony of 
witnesses in written form, unless otherwise ordered by the presiding 
officer on the basis of objections presented. In any proceeding in which 
advance written testimony is to be used, each party shall serve copies 
of its proposed written testimony on every other party at least fifteen 
(15) days in advance of the session of the hearing at which its 
testimony is to be presented. The presiding officer may permit the 
introduction of written testimony not so served, either with the consent 
of all parties present or after they have had a reasonable opportunity 
to examine it. Written testimony must be incorporated into the 
transcript of the record as if read or, in the discretion of the 
presiding officer, may be offered and admitted in evidence as an 
exhibit.
    (c) Cross-examination. (1) The presiding officer shall require a 
party seeking an opportunity to cross-examine to request permission to 
do so in accordance with a schedule established by the presiding 
officer. A request to conduct cross-examination must be accompanied by a 
cross-examination plan containing the following information:
    (i) A brief description of the issue or issues on which cross-
examination will be conducted;
    (ii) The objective to be achieved by cross-examination; and
    (iii) The proposed line of questions that may logically lead to 
achieving the objective of the cross-examination.
    (2) The cross-examination plan may be submitted only to the 
presiding officer and must be kept by the presiding officer in 
confidence until issuance of the initial decision on the issue being 
litigated. The presiding officer shall then provide each cross-
examination plan to the Commission's Secretary for inclusion in the 
official record of the proceeding.
    (d) Non-applicability to subpart B proceedings. Paragraphs (b) and 
(c) of this section do not apply to proceedings initiated under subpart 
B of this part for modification, suspension, or revocation of a license 
or to proceedings for imposition of a civil penalty, unless otherwise 
directed by the presiding officer.
    (e) Admissibility. Only relevant, material, and reliable evidence 
which is not unduly repetitious will be admitted. Immaterial or 
irrelevant parts of an admissible document will be segregated and 
excluded so far as is practicable.
    (f) Objections. An objection to evidence must briefly state the 
grounds of objection. The transcript must include the objection, the 
grounds, and the ruling. Exception to an adverse ruling is preserved 
without notation on-the-record.
    (g) Offer of proof. An offer of proof, made in connection with an 
objection to a ruling of the presiding officer excluding or rejecting 
proffered oral testimony, must consist of a statement of the substance 
of the proffered evidence. If the excluded evidence is in written form, 
a copy must be marked for identification. Rejected exhibits, adequately 
marked for identification, must be retained in the record.
    (h) Exhibits. A written exhibit will not be received in evidence 
unless the original and two copies are offered and a copy is furnished 
to each party, or the parties have been previously furnished with copies 
or the presiding officer directs otherwise. The presiding officer may 
permit a party to replace with a true copy an original document admitted 
in evidence.
    (i) Official record. An official record of a government agency or 
entry in an official record may be evidenced by an official publication 
or by a copy attested by the officer having legal custody of the record 
and accompanied by a certificate of his custody.
    (j) Official notice. (1) The Commission or the presiding officer may 
take official notice of any fact of which a court of the United States 
may take judicial notice or of any technical or

[[Page 94]]

scientific fact within the knowledge of the Commission as an expert 
body. Each fact officially noticed under this paragraph must be 
specified in the record with sufficient particularity to advise the 
parties of the matters which have been noticed or brought to the 
attention of the parties before final decision and each party adversely 
affected by the decision shall be given opportunity to controvert the 
fact.
    (2) If a decision is stated to rest in whole or in part on official 
notice of a fact which the parties have not had a prior opportunity to 
controvert, a party may controvert the fact by filing an appeal from an 
initial decision or a petition for reconsideration of a final decision. 
The appeal must clearly and concisely set forth the information relied 
upon to controvert the fact.



Sec.  2.712  Proposed findings and conclusions.

    (a) Any party to a proceeding may, or if directed by the presiding 
officer shall, file proposed findings of fact and conclusions of law, 
briefs and a proposed form of order or decision within the time provided 
by this section, except as otherwise ordered by the presiding officer:
    (1) The party who has the burden of proof shall, within thirty (30) 
days after the record is closed, file proposed findings of fact and 
conclusions of law and briefs, and a proposed form of order or decision.
    (2) Other parties may file proposed findings, conclusions of law and 
briefs within forty (40) days after the record is closed.
    (3) A party who has the burden of proof may reply within five (5) 
days after filing of proposed findings and conclusions of law and briefs 
by other parties.
    (b) Failure to file proposed findings of fact, conclusions of law, 
or briefs when directed to do so may be considered a default, and an 
order or initial decision may be entered accordingly.
    (c) Proposed findings of fact must be clearly and concisely set 
forth in numbered paragraphs and must be confined to the material issues 
of fact presented on-the-record, with exact citations to the transcript 
of record and exhibits in support of each proposed finding. Proposed 
conclusions of law must be set forth in numbered paragraphs as to all 
material issues of law or discretion presented on-the-record. An 
intervenor's proposed findings of fact and conclusions of law must be 
confined to issues which that party placed in controversy or sought to 
place in controversy in the proceeding.



Sec.  2.713  Initial decision and its effect.

    (a) After hearing, the presiding officer will render an initial 
decision which will constitute the final action of the Commission forty 
(40) days after its date unless any party petitions for Commission 
review in accordance with Sec.  2.341 or the Commission takes review sua 
sponte.
    (b) Where the public interest so requires, the Commission may direct 
that the presiding officer certify the record to it without an initial 
decision, and may:
    (1) Prepare its own decision which will become final unless the 
Commission grants a petition for reconsideration under Sec.  2.345; or
    (2) Omit an initial decision on a finding that due and timely 
execution of its functions imperatively and unavoidably so requires.
    (c) An initial decision will be in writing and will be based on the 
whole record and supported by reliable, probative, and substantial 
evidence. The initial decision will include:
    (1) Findings, conclusions, and rulings, with the reasons or basis 
for them, on all material issues of fact, law, or discretion presented 
on-the-record;
    (2) All facts officially noticed and relied on in making the 
decision;
    (3) The appropriate ruling, order, or denial of relief with the 
effective date;
    (4) The time within which a petition for review of the decision may 
be filed, the time within which answers in support of or in opposition 
to a petition for review filed by another party may be filed and, in the 
case of an initial decision which may become final in accordance with 
paragraph (a) of this section, the date when it may become final.

[[Page 95]]



                          Subpart H_Rulemaking



Sec.  2.800  Scope of rulemaking.

    This subpart governs the issuance, amendment and repeal of 
regulations in which participation by interested persons is prescribed 
under section 553 of title 5 of the U.S. Code.

[35 FR 11459, July 17, 1970]



Sec.  2.801  Initiation of rulemaking.

    Rulemaking may be initiated by the Commission at its own instance, 
on the recommendation of another agency of the United States, or on the 
petition of any other interested person.



Sec.  2.802  Petition for rulemaking.

    (a) Any interested person may petition the Commission to issue, 
amend or rescind any regulation. The petition should be addressed to the 
Secretary, Attention: Rulemakings and Adjudications Staff, and sent 
either by mail addressed to the U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001; by facsimile; by hand delivery to the NRC's 
offices at 11555 Rockville Pike, Rockville, Maryland; or, where 
practicable, by electronic submission, for example, via Electronic 
Information Exchange, e-mail, or CD-ROM. Electronic submissions must be 
made in a manner that enables the NRC to receive, read, authenticate, 
distribute, and archive the submission, and process and retrieve it a 
single page at a time. Detailed guidance on making electronic 
submissions can be obtained by visiting the NRC's Web site at http://
www.nrc.gov/site-help/eie.html, by calling (301) 415-6030, by e-mail to 
EIE@nrc.gov, or by writing the Office of Information Services, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance 
discusses, among other topics, the formats the NRC can accept, the use 
of electronic signatures, and the treatment of nonpublic information.
    (b) A prospective petitioner may consult with the NRC before filing 
a petition for rulemaking by writing to the Chief, Rules and Directives 
Branch, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. A 
prospective petitioner also may telephone the Rules and Directives 
Branch on (301) 415-7163, or toll free on (800) 368-5642, or send e-mail 
to NRCREP@nrc.gov.
    (1) In any consultation prior to the filing of a petition for 
rulemaking, the assistance that may be provided by the NRC staff is 
limited to--
    (i) Describing the procedure and process for filing and responding 
to a petition for rulemaking;
    (ii) Clarifying an existing NRC regulation and the basis for the 
regulation; and
    (iii) Assisting the prospective petitioner to clarify a potential 
petition so that the Commission is able to understand the nature of the 
issues of concern to the petitioner.
    (2) In any consultation prior to the filing of a petition for 
rulemaking, in providing the assistance permitted in paragraph (b)(1) of 
this section, the NRC staff will not draft or develop text or 
alternative approaches to address matters in the prospective petition 
for rulemaking.
    (c) Each petition filed under this section shall:
    (1) Set forth a general solution to the problem or the substance or 
text of any proposed regulation or amendment, or specify the regulation 
which is to be revoked or amended;
    (2) State clearly and concisely the petitioner's grounds for and 
interest in the action requested;
    (3) Include a statement in support of the petition which shall set 
forth the specific issues involved, the petitioner's views or arguments 
with respect to those issues, relevant technical, scientific or other 
data involved which is reasonably available to the petitioner, and such 
other pertinent information as the petitioner deems necessary to support 
the action sought. In support of its petition, petitioner should note 
any specific cases of which petitioner is aware where the current rule 
is unduly burdensome, deficient, or needs to be strengthened.
    (d) The petitioner may request the Commission to suspend all or any 
part of any licensing proceeding to which the petitioner is a party 
pending disposition of the petition for rulemaking.
    (e) If it is determined that the petition includes the information 
required by paragraph (c) of this section and is

[[Page 96]]

complete, the Director, Division of Administrative Services, Office of 
Administration, or designee, will assign a docket number to the 
petition, will cause the petition to be formally docketed, and will make 
a copy of the docketed petition available at the NRC Web site, http://
www.nrc.gov. Public comment may be requested by publication of a notice 
of the docketing of the petition in the Federal Register, or, in 
appropriate cases, may be invited for the first time upon publication in 
the Federal Register of a proposed rule developed in response to the 
petition. Publication will be limited by the requirements of Section 181 
of the Atomic Energy Act of 1954, as amended, and may be limited by 
order of the Commission.
    (f) If it is determined by the Executive Director for Operations 
that the petition does not include the information required by paragraph 
(c) of this section and is incomplete, the petitioner will be notified 
of that determination and the respects in which the petition is 
deficient and will be accorded an opportunity to submit additional data. 
Ordinarily this determination will be made within 30 days from the date 
of receipt of the petition by the Office of the Secretary of the 
Commission. If the petitioner does not submit additional data to correct 
the deficiency within 90 days from the date of notification to the 
petitioner that the petition is incomplete, the petition may be returned 
to the petitioner without prejudice to the right of the petitioner to 
file a new petition.
    (g) The Director, Division of Administrative Services, Office of 
Administration, will prepare on a semiannual basis a summary of 
petitions for rulemaking before the Commission, including the status of 
each petition. A copy of the report will be available for public 
inspection and copying at the NRC Web site, http://www.nrc.gov, and/or 
at the NRC Public Document Room.

[44 FR 61322, Oct. 25, 1979, as amended at 46 FR 35487, July 9, 1981; 52 
FR 31609, Aug. 21, 1987; 53 FR 52993, Dec. 30, 1988; 54 FR 53315, Dec. 
28, 1989; 56 FR 10360, Mar. 12, 1991; 59 FR 44895, Aug. 31, 1994; 59 FR 
60552, Nov. 25, 1994; 62 FR 27495, May 20, 1997; 63 FR 15742, Apr. 1, 
1998; 64 FR 48949, Sept. 9, 1999; 68 FR 58799, Oct. 10, 2003]



Sec.  2.803  Determination of petition.

    No hearing will be held on the petition unless the Commission deems 
it advisable. If the Commission determines that sufficient reason 
exists, it will publish a notice of proposed rulemaking. In any other 
case, it will deny the petition and will notify the petitioner with a 
simple statement of the grounds of denial.



Sec.  2.804  Notice of proposed rulemaking.

    (a) Except as provided by paragraph (d) of this section, when the 
Commission proposes to adopt, amend, or repeal a regulation, it will 
cause to be published in the Federal Register a notice of proposed 
rulemaking, unless all persons subject to the notice are named and 
either are personally served or otherwise have actual notice in 
accordance with law.
    (b) The notice will include:
    (1) Either the terms or substance of the proposed rule, or a 
specification of the subjects and issues involved;
    (2) The manner and time within which interested members of the 
public may comment, and a statement that copies of comments may be 
examined will be made available at the NRC Web site, http://www.nrc.gov;
    (3) The authority under which the regulation is proposed;
    (4) The time, place, and nature of the public hearing, if any;
    (5) If a hearing is to be held, designation of the presiding officer 
and any special directions for the conduct of the hearing; and
    (6) Such explanatory statement as the Commission may consider 
appropriate.
    (c) The publication or service of notice will be made not less than 
fifteen (15) days prior to the time fixed for hearing, if any, unless 
the Commission for good cause stated in the notice provides otherwise.
    (d) The notice and comment provisions contained in paragraphs (a), 
(b), and (c) of this section will not be required to be applied--
    (1) To interpretative rules, general statements of policy, or rules 
of agency organization, procedure, or practice; or
    (2) When the Commission for good cause finds that notice and public 
comment are impracticable, unnecessary,

[[Page 97]]

or contrary to the public interest, and are not required by statute. 
This finding, and the reasons therefor, will be incorporated into any 
rule issued without notice and comment for good cause.
    (e) The Commission shall provide for a 30-day post-promulgation 
comment period for--
    (1) Any rule adopted without notice and comment under the good cause 
exception on paragraph (d)(2) of this section where the basis is that 
notice and comment is ``impracticable'' or ``contrary to the public 
interest.''
    (2) Any interpretative rule, or general statement of policy adopted 
without notice and comment under paragraph (d)(1) of this section, 
except for those cases for which the Commission finds that such 
procedures would serve no public interest, or would be so burdensome as 
to outweigh any foreseeable gain.
    (f) For any post-promulgation comments received under paragraph (e) 
of this section, the Commission shall publish a statement in the Federal 
Register containing an evaluation of the significant comments and any 
revisions of the rule or policy statement made as a result of the 
comments and their evaluation.

[27 FR 377, Jan. 13, 1962, as amended at 50 FR 13010, Apr. 2, 1985; 64 
FR 48949, Sept. 9, 1999]



Sec.  2.805  Participation by interested persons.

    (a) In all rulemaking proceedings conducted under the provisions of 
Sec.  2.804(a), the Commission will afford interested persons an 
opportunity to participate through the submission of statements, 
information, opinions, and arguments in the manner stated in the notice. 
The Commission may grant additional reasonable opportunity for the 
submission of comments.
    (b) The Commission may hold informal hearings at which interested 
persons may be heard, adopting procedures which in its judgment will 
best serve the purpose of the hearing.

[27 FR 377, Jan. 13, 1962, as amended at 50 FR 13010, Apr. 2, 1985; 50 
FR 15865, Apr. 22, 1985]



Sec.  2.806  Commission action.

    The Commission will incorporate in the notice of adoption of a 
regulation a concise general statement of its basis and purpose, and 
will cause the notice and regulation to be published in the Federal 
Register or served upon affected persons.



Sec.  2.807  Effective date.

    The notice of adoption of a regulation will specify the effective 
date. Publication or service of the notice and regulation, other than 
one granting or recognizing exemptions or relieving from restrictions, 
will be made not less than thirty (30) days prior to the effective date 
unless the Commission directs otherwise on good cause found and 
published in the notice of rule making.



Sec.  2.808  Authority of the Secretary to rule on procedural matters.

    When briefs, motions or other papers listed herein are submitted to 
the Commission itself, as opposed to officers who have been delegated 
authority to act for the Commission, the Secretary or the Assistant 
Secretary are authorized to:
    (a) Prescribe schedules for the filing of statements, information, 
briefs, motions, responses or other pleadings, where such schedules may 
differ from those elsewhere prescribed in these rules or where these 
rules do not prescribe a schedule;
    (b) Rule on motions for extensions of time;
    (c) Reject motions, briefs, pleadings, and other documents filed 
with the Commission later than the time prescribed by the Secretary or 
the Assistant Secretary or established by an order, rule, or regulation 
of the Commission unless good cause is shown for the late filing; and
    (d) Prescribe all procedural arrangements relating to any oral 
argument to be held before the Commission.

[39 FR 24219, July 1, 1974]



Sec.  2.809  Participation by the Advisory Committee on Reactor Safeguards.

    (a) In its advisory capacity to the Commission, the ACRS may 
recommend that the Commission initiate

[[Page 98]]

rulemaking in a particular area. The Commission will respond to such 
rulemaking recommendation in writing within 90 days, noting its intent 
to implement, study, or defer action on the recommendation. In the event 
the Commission decides not to accept or decides to defer action on the 
recommendation, it will give its reasons for doing so. Both the ACRS 
recommendation and the Commission's response will be made available at 
the NRC Web site, http://www.nrc.gov, following transmittal of the 
Commission's response to the ACRS.
    (b) When a rule involving nuclear safety matters within the purview 
of the ACRS is under development by the NRC Staff, the Staff will ensure 
that the ACRS is given an opportunity to provide advice at appropriate 
stages and to identify issues to be considered during rulemaking 
hearings.

[46 FR 22358, Apr. 17, 1981, as amended at 64 FR 48949, Sept. 9, 1999]



Sec.  2.810  NRC size standards.

    The NRC shall use the size standards contained in this section to 
determine whether a licensee qualifies as a small entity in its 
regulatory programs.
    (a) A small business is a for-profit concern and is a--
    (1) Concern that provides a service or a concern not engaged in 
manufacturing with average gross receipts of $5 million or less over its 
last 3 completed fiscal years; or
    (2) Manufacturing concern with an average number of 500 or fewer 
employees based upon employment during each pay period for the preceding 
12 calendar months.
    (b) A small organization is a not-for-profit organization which is 
independently owned and operated and has annual gross receipts of $5 
million or less.
    (c) A small governmental jurisdiction is a government of a city, 
county, town, township, village, school district, or special district 
with a population of less than 50,000.
    (d) A small educational institution is one that is--
    (1) Supported by a qualifying small governmental jurisdiction; or
    (2) Not state or publicly supported and has 500 or fewer employees.
    (e) For the purposes of this section, the NRC shall use the Small 
Business Administration definition of receipts (13 CFR 121.402(b)(2)). A 
licensee who is a subsidiary of a large entity does not qualify as a 
small entity for purposes of this section.
    (f) Whenever appropriate in the interest of administering statutes 
and regulations within its jurisdiction, it is the practice of the NRC 
to answer inquiries from small entities concerning information on and 
advice about compliance with the statutes and regulations that affect 
them. To help small entities obtain information quickly, the NRC has 
established a toll-free telephone number at 1-800-368-5642.

[60 FR 18346, Apr. 11, 1995, as amended at 62 FR 26220, May 13, 1997]



  Subpart I_Special Procedures Applicable to Adjudicatory Proceedings 
     Involving Restricted Data and/or National Security Information

    Source: 41 FR 53329, Dec. 6, 1976, unless otherwise noted.



Sec.  2.900  Purpose.

    This subpart is issued pursuant to section 181 of the Atomic Energy 
Act of 1954, as amended, and section 201 of the Energy Reorganization 
Act of 1974, as amended, to provide such procedures in proceedings 
subject to this part as will effectively safeguard and prevent 
disclosure of Restricted Data and National Security Information to 
unauthorized persons, with minimum impairment of procedural rights.



Sec.  2.901  Scope of subpart I.

    This subpart applies, as applicable, to all proceedings under 
subparts G, J, K, L, M, and N of this part.

[69 FR 2264, Jan. 14, 2004]



Sec.  2.902  Definitions.

    As used in this subpart:
    (a) Government agency means any executive department, commission, 
independent establishment, corporation, wholly or partly owned by the 
United States of America, which is an instrumentality of the United 
States, or any

[[Page 99]]

board, bureau, division, service, office, officer, authority, 
administration, or other establishment in the executive branch of the 
Government.
    (b) Interested party means a party having an interest in the issue 
or issues to which particular Restricted Data or National Security 
Information is relevant. Normally the interest of a party in an issue 
may be determined by examination of the notice of hearing, the answers 
and replies.
    (c) The phrase introduced into a proceeding refers to the 
introduction or incorporation of testimony or documentary matter into 
any part of the official record of a proceeding subject to this part.
    (d) National Security Information means information that has been 
classified pursuant to Executive Order 12356.
    (e) Party, in the case of proceedings subject to this subpart 
includes a person admitted as a party under Sec.  2.309 or an interested 
State admitted under Sec.  2.315(c).

[41 FR 53329, Dec. 6, 1976, as amended at 47 FR 56314, Dec. 16, 1982; 69 
FR 2264, Jan. 14, 2004]



Sec.  2.903  Protection of restricted data and national security information.

    Nothing in this subpart shall relieve any person from safeguarding 
Restricted Data or National Security Information in accordance with the 
applicable provisions of laws of the United States and rules, 
regulations or orders of any Government Agency.



Sec.  2.904  Classification assistance.

    On request of any party to a proceeding or of the presiding officer, 
the Commission will designate a representative to advise and assist the 
presiding officer and the parties with respect to security 
classification of information and the safeguards to be observed.



Sec.  2.905  Access to restricted data and national security information for 

parties; security clearances.

    (a) Access to restricted data and national security information 
introduced into proceedings. Except as provided in paragraph (h) of this 
section, restricted data or national security information introduced 
into a proceeding subject to this part will be made available to any 
interested party having the required security clearance; to counsel for 
an interested party provided the counsel has the required security 
clearance; and to such additional persons having the required security 
clearance as the Commission or the presiding officer determined are 
needed by such party for adequate preparation or presentation of his 
case. Where the interest of such party will not be prejudiced, the 
Commission or presiding officer may postpone action upon an application 
for access under this paragraph until after a notice of hearing, 
answers, and replies have been filed.
    (b) Access to Restricted Data or National Security Information not 
introduced into proceedings.
    (1) On application showing that access to Restricted Data or 
National Security Information may be required for the preparation of a 
party's case, and except as provided in paragraph (h) of this section, 
the Commission or the presiding officer will issue an order granting 
access to such Restricted Data or National Security Information to the 
party upon his obtaining the required security clearance, to counsel for 
the party upon their obtaining the required security clearance, and to 
such other individuals as may be needed by the party for the preparation 
and presentation of his case upon their obtaining the required 
clearance.
    (2) Where the interest of the party applying for access will not be 
prejudiced, the Commission or the presiding officer may postpone action 
on an application pursuant to this paragraph until after a notice of 
hearing, answers and replies have been filed.
    (c) The Commission will consider requests for appropriate security 
clearances in reasonable numbers pursuant to this section. A reasonable 
charge will be made by the Commission for costs of security clearance 
pursuant to this section.
    (d) The presiding officer may certify to the Commission for its 
consideration and determination any questions relating to access to 
Restricted Data or National Security Information arising under this 
section. Any party affected by a determination or order of the presiding 
officer under this section may

[[Page 100]]

appeal forthwith to the Commission from the determination or order. The 
filing by the staff of an appeal from an order of a presiding officer 
granting access to Restricted Data or National Security Information 
shall stay the order pending determination of the appeal by the 
Commission.
    (e) Application granting access to restricted data or national 
security information.
    (1) An application under this section for orders granting access to 
restricted data or national security information not received from 
another Government agency will normally be acted upon by the presiding 
officer, or if a proceeding is not before a presiding officer, by the 
Commission.
    (2) An application under this section for orders granting access to 
restricted data or national security information where the information 
has been received by the Commission from another Government agency will 
be acted upon by the Commission.
    (f) To the extent practicable, an application for an order granting 
access under this section shall describe the subjects of Restricted Data 
or National Security Information to which access is desired and the 
level of classification (confidential, secret or other) of the 
information; the reasons why access to the information is requested; the 
names of individuals for whom clearances are requested; and the reasons 
why security clearances are being requested for those individuals.
    (g) On the conclusion of a proceeding, the Commission will terminate 
all orders issued in the proceeding for access to Restricted Data or 
National Security Information and all security clearances granted 
pursuant to them; and may issue such orders requiring the disposal of 
classified matter received pursuant to them or requiring the observance 
of other procedures to safeguard such classified matter as it deems 
necessary to protect Restricted Data or National Security Information.
    (h) Refusal to grant access to restricted data or national security 
information.
    (1) The Commission will not grant access to restricted data or 
national security information unless it determines that the granting of 
access will not be inimical to the common defense and security.
    (2) Access to Restricted Data or National Security Information which 
has been received by the Commission from another Government agency will 
not be granted by the Commission if the originating agency determines in 
writing that access should not be granted. The Commission will consult 
the originating agency prior to granting access to such data or 
information received from another Government agency.



Sec.  2.906  Obligation of parties to avoid introduction of restricted data or 

national security information.

    It is the obligation of all parties in a proceeding subject to this 
part to avoid, where practicable, the introduction of Restricted Data or 
National Security Information into the proceeding. This obligation rests 
on each party whether or not all other parties have the required 
security clearance.



Sec.  2.907  Notice of intent to introduce restricted data or national 

security information.

    (a) If, at the time of publication of a notice of hearing, it 
appears to the staff that it will be impracticable for it to avoid the 
introduction of Restricted Data or National Security Information into 
the proceeding, it will file a notice of intent to introduce Restricted 
Data or National Security Information.
    (b) If, at the time of filing of an answer to the notice of hearing 
it appears to the party filing that it will be impracticable for the 
party to avoid the introduction of Restricted Data or National Security 
Information into the proceeding, the party shall state in the answer a 
notice of intent to introduce Restricted Data or National Security 
Information into the proceeding.
    (c) If, at any later stage of a proceeding, it appears to any party 
that it will be impracticable to avoid the introduction of Restricted 
Data or National Security Information into the proceeding, the party 
shall give to the other parties prompt written notice of intent to 
introduce Restricted Data or National Security Information into the 
proceeding.

[[Page 101]]

    (d) Restricted Data or National Security Information shall not be 
introduced into a proceeding after publication of a notice of hearing 
unless a notice of intent has been filed in accordance with Sec.  2.908, 
except as permitted in the discretion of the presiding officer when it 
is clear that no party or the public interest will be prejudiced.



Sec.  2.908  Contents of notice of intent to introduce restricted data or 

other national security information.

    (a) A party who intends to introduce Restricted Data or other 
National Security Information shall file a notice of intent with the 
Secretary. The notice shall be unclassified and, to the extent 
consistent with classification requirements, shall include the 
following:
    (1) The subject matter of the Restricted Data or other National 
Security Information which it is anticipated will be involved;
    (2) The highest level of classification of the information 
(confidential, secret, or other);
    (3) The stage of the proceeding at which he anticipates a need to 
introduce the information; and
    (4) The relevance and materiality of the information to the issues 
on the proceeding.
    (b) In the discretion of the presiding officer, such notice, when 
required by Sec.  2.907(c), may be given orally on the record.



Sec.  2.909  Rearrangement or suspension of proceedings.

    In any proceeding subject to this part where a party gives a notice 
of intent to introduce Restricted Data or other National Security 
Information, and the presiding officer determines that any other 
interested party does not have required security clearances, the 
presiding officer may in his discretion:
    (a) Rearrange the normal order of the proceeding in a manner which 
gives such interested parties an opportunity to obtain required security 
clearances with minimum delay in the conduct of the proceeding.
    (b) Suspend the proceeding or any portion of it until all interested 
parties have had opportunity to obtain required security clearances. No 
proceeding shall be suspended for such reasons for more than 100 days 
except with the consent of all parties or on a determination by the 
presiding officer that further suspension of the proceeding would not be 
contrary to the public interest.
    (c) Take such other action as he determines to be in the best 
interest of all parties and the public.



Sec.  2.910  Unclassified statements required.

    (a) Whenever Restricted Data or other National Security Information 
is introduced into a proceeding, the party offering it shall submit to 
the presiding officer and to all parties to the proceeding an 
unclassified statement setting forth the information in the classified 
matter as accurately and completely as possible.
    (b) In accordance with such procedures as may be agreed upon by the 
parties or prescribed by the presiding officer, and after notice to all 
parties and opportunity to be heard thereon, the presiding officer shall 
determine whether the unclassified statement or any portion of it, 
together with any appropriate modifications suggested by any party, may 
be substituted for the classified matter or any portion of it without 
prejudice to the interest of any party or to the public interest.
    (c) If the presiding officer determines that the unclassified 
statement, together with such unclassified modifications as he finds are 
necessary or appropriate to protect the interest of other parties and 
the public interest, adequately sets forth information in the classified 
matter which is relevant and material to the issues in the proceeding, 
he shall direct that the classified matter be excluded from the record 
of the proceeding. His determination will be considered by the 
Commission as a part of the decision in the event of review.
    (d) If the presiding officer determines that an unclassified 
statement does not adequately present the information contained in the 
classified matter which is relevant and material to the issues in the 
proceeding, he shall include his reasons in his determination. This 
determination shall be included as

[[Page 102]]

part of the record and will be considered by the Commission in the event 
of review of the determination.
    (e) The presiding officer may postpone all or part of the procedures 
established in this section until the reception of all other evidence 
has been completed. Service of the unclassified statement required in 
paragraph (a) of this section shall not be postponed if any party does 
not have access to Restricted Data or other National Security 
Information.



Sec.  2.911  Admissibility of restricted data or other national security 

information.

    A presiding officer shall not receive any Restricted Data or other 
National Security Information in evidence unless:
    (a) The relevance and materiality of the Restricted Data or other 
National Security Information to the issues in the preceeding, and its 
competence, are clearly established; and
    (b) The exclusion of the Restricted Data or other National Security 
Information would prejudice the interests of a party or the public 
interest.



Sec.  2.912  Weight to be attached to classified evidence.

    In considering the weight and effect of any Restricted Data or other 
National Security Information received in evidence to which an 
interested party has not had opportunity to receive access, the 
presiding officer and the Commission shall give to such evidence such 
weight as is appropriate under the circumstances, taking into 
consideration any lack of opportunity to rebut or impeach the evidence.



Sec.  2.913  Review of Restricted Data or other National Security Information 

received in evidence.

    At the close of the reception of evidence, the presiding officer 
shall review the record and shall direct that any Restricted Data or 
other National Security Information be expunged from the record where 
such expunction would not prejudice the interests of a party or the 
public interest. Such directions by the presiding officer will be 
considered by the Commission in the event of review of the 
determinations of the presiding officer.



   Subpart J_Procedures Applicable to Proceedings for the Issuance of 
 Licenses for the Receipt of High-Level Radioactive Waste at a Geologic 
                               Repository

    Source: 54 FR 14944, Apr. 14, 1989, unless otherwise noted.



Sec.  2.1000  Scope of subpart J.

    The rules in this subpart, together with the rules in subparts C and 
G of this part, govern the procedure for an application for 
authorization to construct a high-level radioactive waste repository at 
a geologic repository operations area noticed under Sec. Sec.  
2.101(f)(8) or 2.105(a)(5), and for an application for a license to 
receive and possess high level radioactive waste at a geologic 
repository operations area. The procedures in this subpart take 
precedence over those in 10 CFR part 2, subpart C, except for the 
following provisions: Sec. Sec.  2.301; 2.303; 2.307; 2.309; 2.312; 
2.313; 2.314; 2.315; 2.316; 2.317(a); 2.318; 2.319; 2.320; 2.321; 2.322; 
2.323; 2.324; 2.325; 2.326; 2.327; 2.328; 2.330; 2.331; 2.333; 2.335; 
2.338; 2.339; 2.342; 2.343; 2.344; 2.345; 2.346; 2.348; and 2.390. The 
procedures in this subpart take precedence over those in 10 CFR part 2, 
subpart G, except for the following provisions: Sec. Sec.  2.701, 2.702; 
2.703; 2.708; 2.709; 2.710; 2.711; 2.712.

[69 FR 2264, Jan. 14, 2004]



Sec.  2.1001  Definitions.

    Bibliographic header means the minimum series of descriptive fields 
that a potential party, interested governmental participant, or party 
must submit with a document or other material.
    Circulated draft means a nonfinal document circulated for 
supervisory concurrence or signature in which the original author or 
others in the concurrence process have non-concurred. A ``circulated 
draft'' meeting the above criterion includes a draft of a document that 
eventually becomes a final document, and a draft of a document that does 
not become a final document due to either a decision not to finalize

[[Page 103]]

the document or the passage of a substantial period of time in which no 
action has been taken on the document.
    Complex document means a document that consists (entirely or in 
part) of electronic files having substantial portions that are neither 
textual nor image in nature, and graphic or other Binary Large Objects 
that exceed 50 megabytes and cannot logically be divided. For example, 
specialized submissions may include runtime executable software, viewer 
or printer executables, dynamic link library (.dll) files, large data 
sets associated with an executable, and actual software code for 
analytical programs that a party may intend to introduce into the 
proceeding.
    Document means any written, printed, recorded, magnetic, graphic 
matter, or other documentary material, regardless of form or 
characteristic.
    Documentary material means:
    (1) Any information upon which a party, potential party, or 
interested governmental participant intends to rely and/or to cite in 
support of its position in the proceeding for a construction 
authorization for a high-level radioactive waste repository at a 
geologic repository operations area pursuant to parts 60 or 63 of this 
chapter, a license to receive and possess high-level radioactive waste 
at a geologic repository operations area pursuant to parts 60 or 63 of 
this chapter;
    (2) Any information that is known to, and in the possession of, or 
developed by the party that is relevant to, but does not support, that 
information or that party's position; and
    (3) All reports and studies, prepared by or on behalf of the 
potential party, interested governmental participant, or party, 
including all related ``circulated drafts,'' relevant to both the 
license application and the issues set forth in the Topical Guidelines 
in Regulatory Guide 3.69, regardless of whether they will be relied upon 
and/or cited by a party. The scope of documentary material shall be 
guided by the topical guidelines in the applicable NRC Regulatory Guide.
    DOE means the U.S. Department of Energy or its duly authorized 
representatives.
    Electronic docket means the NRC information system that receives, 
distributes, stores, and retrieves the Commission's adjudicatory docket 
materials.
    Image means a visual likeness of a document, presented on a paper 
copy, microform, or a bit-map on optical or magnetic media.
    Interested governmental participant means any person admitted under 
Sec.  2.315(c) of this part to the proceeding on an application for a 
construction authorization for a high-level radioactive waste repository 
at a geologic repository operations area under parts 60 or 63 of this 
chapter, and an application for a license to receive and possess high 
level radioactive waste at a geologic repository operations area under 
parts 60 and 63 of this chapter.
    Large document means a document that consists of electronic files 
that are larger than 50 megabytes.
    Licensing Support Network means the combined system that makes 
documentary material available electronically to parties, potential 
parties, and interested governmental participants to a proceeding for a 
construction authorization for a high-level radioactive waste repository 
at a geologic repository operations area, and an application for a 
license to receive and possess high level radioactive waste at a 
geologic repository operations area under parts 60 and 63 of this 
chapter.
    LSN Administrator means the person within the U.S. Nuclear 
Regulatory Commission responsible for coordinating access to and the 
integrity of data available on the Licensing Support Network. The LSN 
Administrator shall not be in any organizational unit that either 
represents the U.S. Nuclear Regulatory Commission staff as a party to 
the high-level waste repository licensing proceeding or is a part of the 
management chain reporting to the Director, Office of Nuclear Material 
Safety and Safeguards. For the purposes of this subpart, the 
organizational unit within the NRC selected to be the LSN Administrator 
shall not be considered to be a party to the proceeding.
    Marginalia means handwritten, printed, or other types of notations 
added to a document excluding underlining and highlighting.

[[Page 104]]

    NRC means the U.S. Nuclear Regulatory Commission or its duly 
authorized representatives.
    Party for the purpose of this subpart means the DOE, the NRC staff, 
the host State, any affected unit of local government as defined in 
Section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 
10101), any affected Indian Tribe as defined in section 2 of the Nuclear 
Waste Policy Act of 1982, as amended (42 U.S.C. 10101), and a person 
admitted under Sec.  2.309 to the proceeding on an application for 
construction authorization for a high-level radioactive waste repository 
at a geologic repository operations area under parts 60 or 63 of this 
chapter, and an application for a license to receive and possess high 
level radioactive waste at a geologic repository operations area under 
parts 60 and 63 of this chapter; provided that a host State, affected 
unit of local government, or affected Indian Tribe files a list of 
contentions in accordance with the provisions of Sec.  2.309.
    Personal record means a document in the possession of an individual 
associated with a party, interested governmental participant, or 
potential party that was not required to be created or retained by the 
party, interested governmental participant, or potential party, and can 
be retained or discarded at the possessor's sole discretion, or 
documents of a personal nature that are not associated with any business 
of the party, interested governmental participant, or potential party.
    Potential party means any person who, during the period before the 
issuance of the first pre-hearing conference order under Sec.  
2.1021(d), is given access to the Licensing Support Network and who 
consents to comply with the regulations set forth in subpart J of this 
part, including the authority of the Pre-License Application Presiding 
Officer designated pursuant to Sec.  2.1010.
    Pre-license application electronic docket means the NRC's electronic 
information system that receives, distributes, stores, and maintains NRC 
pre-license application docket materials during the pre-license 
application phase.
    Pre-license application phase means the time period before a 
construction authorization for a high-level radioactive waste repository 
at a geologic repository operations area under parts 60 or 63 of this 
chapter is docketed under Sec.  2.101(f)(3), and the time period before 
a license application to receive and possess high-level radioactive 
waste at a geologic repository operations area under parts 60 or 63 is 
docketed under Sec.  2.101(f)(3).
    Pre-License Application Presiding Officer means one or more members 
of the Commission, or an atomic safety and licensing board, or a named 
officer who has been delegated final authority in the pre-license 
application phase with jurisdiction specified at the time of 
designation.
    Preliminary draft means any nonfinal document that is not a 
circulated draft.
    Presiding Officer means one or more members of the Commission, or an 
atomic safety and licensing board, or a named officer who has been 
delegated final authority in the matter, designated in the notice of 
hearing to preside.
    Searchable full text means the electronic indexed entry of a 
document that allows the identification of specific words or groups of 
words within a text file.
    Simple document means a document that consists of electronic files 
that are 50 megabytes or less.
    Topical Guidelines means the set of topics set forth in Regulatory 
Guide 3.69, Topical Guidelines for the Licensing Support System, which 
are intended to serve as guidance on the scope of ``documentary 
material''.

[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7795, Feb. 26, 1991; 63 
FR 71736, Dec. 30, 1998; 66 FR 29465, May 31, 2001; 66 FR 55788, Nov. 2, 
2001; 69 FR 2264, Jan. 14, 2004; 69 FR 32848, June 14, 2004]



Sec.  2.1002  [Reserved]



Sec.  2.1003  Availability of material.

    (a) Subject to the exclusions in Sec.  2.1005 and paragraphs (b), 
(c), and (e) of this section, DOE shall make available, no later than 
six months in advance of submitting its license application for a 
geologic repository, the NRC shall make available no later than thirty 
days after the DOE certification of compliance under Sec.  2.1009(b), 
and

[[Page 105]]

each other potential party, interested governmental participant or party 
shall make available no later than ninety days after the DOE 
certification of compliance under Sec.  2.1009(b)--
    (1) An electronic file including bibliographic header for all 
documentary material (including circulated drafts but excluding 
preliminary drafts) generated by, or at the direction of, or acquired 
by, a potential party, interested governmental participant or party; 
provided, however, that an electronic file need not be provided for 
acquired documentary material that has already been made available by 
the potential party, interested governmental participant or party that 
originally created the documentary material. Concurrent with the 
production of the electronic files will be an authentication statement 
for posting on the LSN Web site that indicates where an authenticated 
image copy of the documents can be obtained.
    (2) In electronic image format, subject to the claims of privilege 
in Sec.  2.1006, graphic-oriented documentary material that includes raw 
data, computer runs, computer programs and codes, field notes, 
laboratory notes, maps, diagrams and photographs, which have been 
printed, scripted, or hand written. Text embedded within these documents 
need not be separately entered in searchable full text. A bibliographic 
header must be provided for all graphic-oriented documentary material. 
Graphic-oriented documents may include--
    (i) Calibration procedures, logs, guidelines, data and 
discrepancies;
    (ii) Gauge, meter and computer settings;
    (iii) Probe locations;
    (iv) Logging intervals and rates;
    (v) Data logs in whatever form captured;
    (vi) Text data sheets;
    (vii) Equations and sampling rates;
    (viii) Sensor data and procedures;
    (ix) Data Descriptions;
    (x) Field and laboratory notebooks;
    (xi) Analog computer, meter or other device print-outs;
    (xii) Digital computer print-outs;
    (xiii) Photographs;
    (xiv) Graphs, plots, strip charts, sketches;
    (xv) Descriptive material related to the information identified in 
this paragraph.
    (3) In an electronic file, subject to the claims of privilege in 
Sec.  2.1006, only a bibliographic header for each item of documentary 
material that is not suitable for image or searchable full text.
    (4) An electronic bibliographic header for each documentary 
material--
    (i) For which a claim of privilege is asserted;
    (ii) Which constitutes confidential financial or commercial 
information; or
    (iii) Which constitutes safeguards information under Sec.  73.21 of 
this chapter.
    (b) Basic licensing documents generated by DOE, such as the Site 
Characterization Plan, the Environmental Impact Statement, and the 
license application, or by NRC, such as the Site Characterization 
Analysis, and the Safety Evaluation Report, shall be made available in 
electronic form by the respective agency that generated the document.
    (c) The participation of the host State in the pre-license 
application phase shall not affect the State's ability to exercise its 
disapproval rights under section 116(b)(2) of the Nuclear Waste Policy 
Act, as amended, 42 U.S.C. 10136(b)(2).
    (d) This subpart shall not affect any independent right of a 
potential party, interested governmental participant or party to receive 
information.
    (e) Each potential party, interested governmental participant or 
party shall continue to supplement its documentary material made 
available to other participants via the LSN with any additional material 
created after the time of its initial certification in accordance with 
paragraph (a)(1) through (a)(4) of this section until the discovery 
period in the proceeding has concluded.

[63 FR 71737, Dec. 30, 1998, as amended at 66 FR 29465, May 31, 2001; 69 
FR 2264, Jan. 14, 2004; 69 FR 32848, June 14, 2004]



Sec.  2.1004  Amendments and additions.

    Any document that has not been provided to other parties in 
electronic form must be identified in an electronic notice and made 
available for inspection and copying by the potential party, interested 
governmental

[[Page 106]]

participant, or party responsible for the submission of the document 
within five days after it has been requested unless some other time is 
approved by the Pre-License Application Presiding Officer or the 
Presiding Officer designated for the high-level waste proceeding. The 
time allowed under this paragraph will be stayed pending Officer action 
on a motion to extend the time.

[63 FR 71737, Dec. 30, 1998]



Sec.  2.1005  Exclusions.

    The following material is excluded from the requirement to provide 
electronic access, either pursuant to Sec.  2.1003, or through 
derivative discovery pursuant to Sec.  2.1019(i)--
    (a) Official notice materials;
    (b) Reference books and text books;
    (c) Material pertaining exclusively to administration, such as 
material related to budgets, financial management, personnel, office 
space, general distribution memoranda, or procurement, except for the 
scope of work on a procurement related to repository siting, 
construction, or operation, or to the transportation of spent nuclear 
fuel or high-level waste;
    (d) Press clippings and press releases;
    (e) Junk mail;
    (f) References cited in contractor reports that are readily 
available;
    (g) Classified material subject to subpart I of this part;
    (h) Readily available references, such as journal articles and 
proceedings, which may be subject to copyright.
    (i) Correspondence between a potential party, interested 
governmental participant, or party and the Congress of the United 
States.

[63 FR 71738, Dec. 30, 1998, as amended at 69 FR 32848, June 14, 2004]



Sec.  2.1006  Privilege.

    (a) Subject to the requirements in Sec.  2.1003(a)(4), the 
traditional discovery privileges recognized in NRC adjudicatory 
proceedings and the exceptions from disclosure in Sec.  2.390 may be 
asserted by potential parties, interested States, local governmental 
bodies, Federally-recognized Indian Tribes, and parties. In addition to 
Federal agencies, the deliberative process privilege may also be 
asserted by States, local governmental bodies, and Federally-recognized 
Indian Tribes.
    (b) Any document for which a claim of privilege is asserted, but is 
denied in whole or in part by the Pre-License Application Presiding 
Officer or the Presiding Officer, must be provided in electronic form by 
the party, interested governmental participant, or potential party that 
asserted the claim to--
    (1) The other participants; or
    (2) To the Pre-License Application Presiding Officer or to the 
Presiding Officer, for entry into a Protective Order file, if the Pre-
License Application Presiding Officer or the Presiding Officer so 
directs under Sec. Sec.  2.1010(b) or 2.1018(c).
    (c) Notwithstanding any availability of the deliberative process 
privilege under paragraph (a) of this section, circulated drafts not 
otherwise privileged shall be provided for electronic access pursuant to 
Sec.  2.1003(a).

[63 FR 71738, Dec. 30, 1998; 64 FR 15920, Apr. 2, 1999, as amended at 69 
FR 2265, Jan. 14, 2004]



Sec.  2.1007  Access.

    (a)(1) A system to provide electronic access to the Licensing 
Support Network shall be provided at the headquarters of DOE, and at all 
DOE Local Public Document Rooms established in the vicinity of the 
likely candidate site for a geologic repository, beginning in the pre-
license application phase.
    (2) A system to provide electronic access to the Licensing Support 
Network shall be provided at the NRC Web site, http://www.nrc.gov, and/
or at the NRC Public Document Room beginning in the pre-license 
application phase.
    (3) [Reserved]
    (b) Public availability of paper and electronic copies of the 
records of NRC and DOE, as well as duplication fees, and fee waiver for 
those records, is governed by the regulations of the respective 
agencies.

[63 FR 71738, Dec. 30, 1998, as amended at 64 FR 48949, Sept. 9, 1999]

[[Page 107]]



Sec.  2.1008  [Reserved]



Sec.  2.1009  Procedures.

    (a) Each potential party, interested governmental participant, or 
party shall--
    (1) Designate an official who will be responsible for administration 
of its responsibility to provide electronic files of documentary 
material ;
    (2) Establish procedures to implement the requirements in Sec.  
2.1003;
    (3) Provide training to its staff on the procedures for 
implementation of the responsibility to provide electronic files of 
documentary material;
    (4) Ensure that all documents carry the submitter's unique 
identification number;
    (5) Cooperate with the advisory review process established by the 
NRC under Sec.  2.1011(d).
    (b) The responsible official designated under paragraph (a)(1) of 
this section shall certify to the Pre-License Application Presiding 
Officer that the procedures specified in paragraph (a)(2) of this 
section have been implemented, and that to the best of his or her 
knowledge, the documentary material specified in Sec.  2.1003 has been 
identified and made electronically available. The initial certification 
must be made at the time the participant is required to comply with 
Sec.  2.1003. The responsible official for the DOE shall also update 
this certification at the time DOE submits the license application.

[63 FR 71738, Dec. 30, 1998, as amended at 66 FR 29466, May 31, 2001]



Sec.  2.1010  Pre-License Application Presiding Officer.

    (a)(1) The Commission may designate one or more members of the 
Commission, or an atomic safety and licensing board, or a named officer 
who has been delegated final authority on the matter to serve as the 
Pre-License Application Presiding Officer to rule on disputes over the 
electronic availability of documents during the pre-license application 
phase, including disputes relating to privilege, and disputes relating 
to the implementation of the recommendations of the Advisory Review 
Panel established under Sec.  2.1011(d).
    (2) The Pre-License Application Presiding Officer shall be 
designated at such time during the pre-license application phase as the 
Commission finds it appropriate, but in any event no later than fifteen 
days after the DOE certification of initial compliance under Sec.  
2.1009(b).
    (b) The Pre-License Application Presiding Officer shall rule on any 
claim of document withholding to determine--
    (1) Whether it is documentary material within the scope of this 
subpart;
    (2) Whether the material is excluded under Sec.  2.1005;
    (3) Whether the material is privileged or otherwise excepted from 
disclosure under Sec.  2.1006;
    (4) If privileged, whether it is an absolute or qualified privilege;
    (5) If qualified, whether the document should be disclosed because 
it is necessary to a proper decision in the proceeding;
    (6) Whether the material should be disclosed under a protective 
order containing such protective terms and conditions (including 
affidavits of nondisclosure) as may be necessary and appropriate to 
limit the disclosure to potential participants, interested governmental 
participants and parties in the proceeding, or to their qualified 
witnesses and counsel. When Safeguards Information protected from 
disclosure under section 147 of the Atomic Energy Act of 1954, as 
amended, is received and possessed by a potential party, interested 
governmental participant, or party, other than the Commission staff, it 
shall also be protected according to the requirements of Sec.  73.21 of 
this chapter. The Pre-License Application Presiding Officer may also 
prescribe such additional procedures as will effectively safeguard and 
prevent disclosure of Safeguards Information to unauthorized persons 
with minimum impairment of the procedural rights which would be 
available if Safeguards Information were not involved. In addition to 
any other sanction that may be imposed by the Pre-License Application 
Presiding Officer for violation of an order pertaining to the disclosure 
of Safeguards Information protected from disclosure under section 147 of 
the

[[Page 108]]

Atomic Energy Act of 1954, as amended, the entity in violation may be 
subject to a civil penalty imposed pursuant to Sec.  2.205. For the 
purpose of imposing the criminal penalties contained in section 223 of 
the Atomic Energy Act of 1954, as amended, any order issued pursuant to 
this paragraph with respect to Safeguards Information shall be deemed to 
be an order issued under section 161b of the Atomic Energy Act of 1954, 
as amended.
    (c) Upon a final determination that the material is relevant, and 
not privileged, exempt from disclosure, or otherwise exempt from 
production under Sec.  2.1005, the potential party, interested 
governmental participant, or party who asserted the claim of withholding 
must make the document available in accordance with the provisions of 
this subpart within five days.
    (d) The service of all pleadings and answers, orders, and decisions 
during the pre-license application phase shall be made according to the 
procedures specified in Sec.  2.1013(c) and entered into the pre-license 
application electronic docket.
    (e) The Pre-License Application presiding officer possesses all the 
general powers specified in Sec. Sec.  2.319 and 2.321(c).
    (f) The Commission, in designating the Pre-License Application 
Presiding Officer in accordance with paragraphs (a) (1) and (2) of this 
section, shall specify the jurisdiction of the Officer.

[63 FR 71738, Dec. 30, 1998, as amended at 66 FR 29466, May 31, 2001; 69 
FR 2265, Jan. 14, 2004]



Sec.  2.1011  Management of electronic information.

    (a) Electronic document production and the electronic docket are 
subject to the provisions of this subpart.
    (b)(1) The NRC, DOE, parties, and potential parties participating in 
accordance with the provision of this subpart shall be responsible for 
obtaining the computer system necessary to comply with the requirements 
for electronic document production and service.
    (2) The NRC, DOE, parties, and potential parties participating in 
accordance with the provision of this subpart shall comply with the 
following standards in the design of the computer systems necessary to 
comply with the requirements for electronic document production and 
service:
    (i) The participants shall make textual (or, where non-text, image) 
versions of their documents available on a web accessible server which 
is able to be canvassed by web indexing software (i.e., a ``robot'', 
``spider'', ``crawler'') and the participant system must make both data 
files and log files accessible to this software.
    (ii) The participants shall make bibliographic header data available 
in an HTTP (Hypertext Transfer Protocol) accessible, ODBC (Open Database 
Connectivity) and SQL (Structured Query Language)-compliant (ANSI 
IX3.135-1992/ISO 9075-1992) database management system (DBMS). 
Alternatively, the structured data containing the bibliographic header 
may be made available in a standard database readable (e.g., XML 
(Extensible Markup Language http://www.w3.org/xml/), comma delimited, or 
comma separated value (.csv)) file.
    (iii) Textual material must be formatted to comply with the ISO/IEC 
8859-1 character set and be in one of the following acceptable formats: 
ASCII, native word processing (Word, WordPerfect), PDF Normal, or HTML.
    (iv) Image files must be formatted as TIFF CCITT G4 for bi-tonal 
images or PNG (Portable Network Graphics) per [http://www.w3.org/TR/REC-
png-multi.html]) format for grey-scale or color images, or PDF (Portable 
Document Format--Image). TIFF, PDF, or PNG images will be stored at 300 
dpi (dots per inch) or greater, grey scale images at 150 dpi or greater 
with eight bits of tonal depth, and color images at 150 dpi or greater 
with 24 bits of color depth. Images found on participant machines will 
be stored as single image-per-page to facilitate retrieval of no more 
than a single page, or alternatively, images may be stored in an image-
per-document format if software is incorporated in the web server that 
allows image-per-page representation and delivery.
    (v) The participants shall programmatically link, preferably via 
hyperlink or some other automated process, the bibliographic header 
record with the text or image file it represents. Each participant's 
system

[[Page 109]]

must afford the LSN software enough information to allow a text or image 
file to be identified to the bibliographic data that describes it.
    (vi) To facilitate data exchange, participants shall adhere to 
hardware and software standards, including, but not limited to:
    (A) Network access must be HTTP/1.1 [http://www.faqs.org/rfcs/
rfc2068.html] over TCP (Transmission Control Protocol, [http://
www.faqs.org/rfcs/rfc793.html]) over IP (Internet Protocol, [http://
www.faqs.org/rfcs/rfc791.html]).
    (B) Associating server names with IP addresses must follow the DNS 
(Domain Name System), [http://www.faqs.org/rfcs/rfc1034.html] and 
[http://www.faqs.org/rfcs/rfc1035.html].
    (C) Web page construction must be HTML [http://www.w3.org/TR/REC-
html40/].
    (D) Electronic mail (e-mail) exchange between e-mail servers must be 
SMTP (Simple Mail Transport Protocol, [http://www.faqs.org/rfcs/
rfc821.html]).
    (E) Format of an electronic mail message must be per [http://
www.faqs.org/rfcs/rfc822.html] optionally extended by MIME (Multipurpose 
Internet Mail Extensions) per [http://www.faqs.org/rfcs/rfc2045.html]) 
to accommodate multipurpose e-mail.
    (c) The Licensing Support Network shall be coordinated by the LSN 
Administrator, who shall be designated before the start of the pre-
license application phase. The LSN Administrator shall have the 
responsibility to--
    (1) Identify technical and policy issues related to implementation 
of the LSN for LSN Advisory Review Panel and Commission consideration;
    (2) Address the consensus advice of the LSN Advisory Review Panel 
under paragraph (e)(1) of this section that is consistent with the 
requirements of this subpart;
    (3) Identify any problems experienced by participants regarding LSN 
availability, including the availability of individual participant's 
data, and provide a recommendation to resolve any such problems to the 
participant(s) and the Pre-License Application Presiding Officer 
relative to the resolution of any disputes regarding LSN availability, 
including disputes on the availability of an individual participant's 
data;
    (4) Identify any problems regarding the integrity of documentary 
material certified in accordance with Sec.  2.1009(b) by the 
participants to be in the LSN, and provide a recommendation to resolve 
any such problems to the participant(s) and the Pre-License Application 
Presiding Officer relative to the resolution of any disputes regarding 
the integrity of documentary material;
    (5) Provide periodic reports to the Commission on the status of LSN 
functionality and operability.
    (6) Evaluate LSN participant compliance with the basic design 
standards in paragraph (b)(2) of this section, and provide for 
individual variances from the design standards to accommodate changes in 
technology or problems identified during initial operability testing of 
the individual documentary collection websites or the ``central LSN 
site''.
    (7) Issue guidance for LSN participants on how best to comply with 
the design standards in paragraph (b)(2) of this section.
    (d) The Secretary of the Commission shall reconstitute the LSS 
Advisory Review Panel as the LSN Advisory Review Panel, composed of the 
interests currently represented on the LSS Advisory Review Panel. The 
Secretary of the Commission shall have the authority to appoint 
additional representatives to the LSN Advisory Review Panel consistent 
with the requirements of the Federal Advisory Committee Act, 5 U.S.C. 
app. I, giving particular consideration to potential parties, parties, 
and interested governmental participants who were not members of the NRC 
HLW Licensing Support System Advisory Review Panel.
    (e)(1) The LSN Advisory Review Panel shall provide advice to--
    (i) NRC on the fundamental issues of the type of computer system 
necessary to access the Licensing Support Network effectively under 
paragraph (b) of this section; and
    (ii) The Secretary of the Commission on the operation and 
maintenance of the electronic docket established for the HLW geologic 
repository licensing proceeding under the Commission's Rules of Practice 
(10 CFR part 2).

[[Page 110]]

    (iii) The LSN Administrator on solutions to improve the functioning 
of the LSN;
    (2) The responsibilities of the LSN Advisory Review Panel shall 
include advice on--
    (i) Format standards for providing electronic access to the 
documentary material certified by each participant to be made available 
in the LSN to the other parties, interested governmental participants, 
or potential parties;
    (ii) The procedures and standards for the electronic transmission of 
filings, orders, and decisions during both the pre-license application 
phase and the high-level waste licensing proceeding;
    (iii) Other duties as specified in this subpart or as directed by 
the Secretary of the Commission.

[63 FR 71739, Dec. 30, 1998, as amended at 66 FR 29466, May 31, 2001]



Sec.  2.1012  Compliance.

    (a) If the Department of Energy fails to make its initial 
certification at least six months prior to tendering the application, 
upon receipt of the tendered application, notwithstanding the provisions 
of Sec.  2.101(f)(3), the Director of the NRC's Office of Nuclear 
Material Safety and Safeguards will not docket the application until at 
least six months have elapsed from the time of the certification. The 
Director may determine that the tendered application is not acceptable 
for docketing under this subpart if the application is not accompanied 
by an updated certification pursuant to Sec.  2.1009(b), or if the 
Secretary of the Commission determines that the application is not 
submitted on optical storage media in a format consistent with NRC 
regulations and guidance, or for non-compliance with any other 
requirements identified in this subpart.
    (b)(1) A person, including a potential party given access to the 
Licensing Support Network under this subpart, may not be granted party 
status under Sec.  2.309, or status as an interested governmental 
participant under Sec.  2.315, if it cannot demonstrate substantial and 
timely compliance with the requirements of Sec.  2.1003 at the time it 
requests participation in the HLW licensing proceeding under Sec.  2.309 
or Sec.  2.315.
    (2) A person denied party status or interested governmental 
participant status under paragraph (b)(1) of this section may request 
party status or interested governmental participant status upon a 
showing of subsequent compliance with the requirements of Sec.  2.1003. 
Admission of such a party or interested governmental participant under 
Sec. Sec.  2.309 or 2.315, respectively, is conditioned on accepting the 
status of the proceeding at the time of admission.
    (c) The Presiding Officer shall not make a finding of substantial 
and timely compliance pursuant to paragraph (b) of this section for any 
person who is not in compliance with all applicable orders of the Pre-
License Application Presiding Officer designated pursuant to Sec.  
2.1010.

[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7796, Feb. 26, 1991; 63 
FR 71739, Dec. 30, 1998; 66 FR 29466, May 31, 2001; 69 FR 2265, Jan. 14, 
2004; 69 FR 32848, June 14, 2004]



Sec.  2.1013  Use of the electronic docket during the proceeding.

    (a)(1) As specified in Sec.  2.303, the Secretary of the Commission 
will maintain the official docket of the proceeding on the application 
for construction authorization for a high-level radioactive waste 
repository at a geologic repository operations area under parts 60 or 63 
of this chapter, and for applications for a license to receive and 
possess high level radioactive waste at a geologic repository operations 
area under parts 60 or 63 of this Chapter.
    (2) The Secretary of the Commission will establish an electronic 
docket to contain the official record materials of the high-level 
radioactive waste repository licensing proceeding in searchable full 
text, or, for material that is not suitable for entry in searchable full 
text, by header and image, as appropriate.
    (b) Absent good cause, all exhibits tendered during the hearing must 
have been made available to the parties in electronic form before the 
commencement of that portion of the hearing in which the exhibit will be 
offered. The electronic docket will contain a list of

[[Page 111]]

all exhibits, showing where in the transcript each was marked for 
identification and where it was received into evidence or rejected. For 
any hearing sessions recorded stenographically or by other means, 
transcripts will be entered into the electronic docket on a daily basis 
in order to afford next-day availability at the hearing. However, for 
any hearing sessions recorded on videotape or other video medium, if a 
copy of the video recording is made available to all parties on a daily 
basis that affords next-day availability at the hearing, a transcript of 
the session prepared from the video recording will be entered into the 
electronic docket within twenty-four (24) hours of the time the 
transcript is tendered to the electronic docket by the transcription 
service.
    (c)(1) All filings in the adjudicatory proceeding on the application 
for a high-level radioactive waste geologic repository under part 60 or 
63 of this chapter shall be transmitted by the submitter to the 
Presiding Officer, parties, and Secretary of the Commission, according 
to the following requirements--
    (i) ``Simple documents'' must be transmitted electronically via EIE;
    (ii) ``Large documents'' must be transmitted electronically in 
multiple transmissions of 50 megabytes or less each via EIE;
    (iii) ``Complex documents'':
    (A) Those portions that can be electronically submitted through the 
EIE, in 50 MB or less segments, must be transmitted electronically, 
along with a transmittal letter; and
    (B) Those portions that are not capable of being transmitted 
electronically must be submitted on optical storage media which must 
also include those portions of the document that had been or will be 
transmitted electronically.
    (iv) Electronic submissions must have the following resolution--
    (A) Electronic submissions of files created after January 1, 2004 
must have 300 dots per inch (dpi) as the minimum resolution for bi-
tonal, color, and grayscale, except in limited circumstances where 
submitters may need to use an image scanned before January 1, 2004, in a 
document created after January 1, 2004, or the scanning process for a 
large, one-page image may not successfully complete at the 300 dpi 
standard resolution.
    (B) Electronic submissions of files created before January 1, 2004, 
or electronic submissions created after January 1, 2004, which cannot 
meet the 300 dpi standard for color and grayscale, must meet the 
standard for documents placed on LSN participant Web sites in Sec.  
2.1011(b)(2)(iv) of this subpart, which is 150 dpi for color and 
grayscale documents and 300 dpi for bi-tonal documents.
    (v) Electronic submissions must be generated in the appropriate PDF 
output format by using:
    (A) PDF--Formatted Text and Graphics for textual documents converted 
from native applications;
    (B) PDF--Searchable Image (Exact) for textual documents converted 
from scanned documents; and
    (C) PDF--Image Only for graphic-, image-, and forms-oriented 
documents. In addition, Tagged Image File Format (TIFF) images and the 
results of spreadsheet applications must to be converted to PDF, except 
in those rare instances where PDF conversion is not practicable.
    (vi) Electronic submissions must not rely on hyperlinks to other 
documents or Web sites for completeness or access except for hyperlinks 
that link to material within the same PDF file. If the submittal 
contains hyperlinks to other documents or Web sites, then it must 
include a disclaimer to the effect that the hyperlinks may be inoperable 
or are not essential to the use of the filing. Information contained in 
hyperlinks to a Web site on the Internet or to another PDF file, that is 
necessary for the completeness of a filing, must be submitted in its 
entirety in the filing or as an attachment to the filing.
    (vii) All electronic submissions must be free of author-imposed 
security restrictions.
    (2) Filings required to be served shall be served upon either the 
parties and interested governmental participants, or their designated 
representatives. When a party or interested governmental participant has 
appeared by attorney, service must be made upon the attorney of record.

[[Page 112]]

    (3) Service upon a party or interested governmental participant is 
completed when the sender receives electronic acknowledgment (``delivery 
receipt'') that the electronic submission has been placed in the 
recipient's electronic mailbox.
    (4) Proof of service, stating the name and address of the person on 
whom served and the manner and date of service, shall be shown for each 
document filed, by--
    (i) Electronic acknowledgment (``delivery receipt'');
    (ii) The affidavit of the person making the service; or
    (iii) The certificate of counsel.
    (5) All Presiding Officer and Commission issuances and orders will 
be transmitted electronically to the parties and interested governmental 
participants.
    (d) Online access to the electronic docket, including a Protective 
Order File if authorized by a Presiding Officer, shall be provided to 
the Presiding Officer, the representatives of the parties and interested 
governmental participants, and the witnesses while testifying, for use 
during the hearing. Use of paper copy and other images will also be 
permitted at the hearing.

[63 FR 71739, Dec. 30, 1998, as amended at 66 FR 55788, Nov. 2, 2001; 69 
FR 2265, Jan. 14, 2004; 69 FR 32849, June 14, 2004]



Sec.  2.1015  Appeals.

    (a) No appeals from any Pre-License Application Presiding Officer or 
Presiding Officer order or decision issued under this subpart are 
permitted, except as prescribed in paragraphs (b), (c), and (d) of this 
section.
    (b) A notice of appeal from a Pre-License Application presiding 
officer order issued under Sec.  2.1010, a presiding officer prehearing 
conference order issued under Sec.  2.1021, a presiding officer order 
granting or denying a motion for summary disposition issued in 
accordance with Sec.  2.1025, or a presiding officer order granting or 
denying a petition to amend one or more contentions under Sec.  2.309, 
must be filed with the Commission no later than ten (10) days after 
service of the order. A supporting brief must accompany the notice of 
appeal. Any other party, interested governmental participant, or 
potential party may file a brief in opposition to the appeal no later 
than ten (10) days after service of the appeal.
    (c) Appeals from a Presiding Officer initial decision or partial 
initial decision must be filed and briefed before the Commission in 
accordance with the following requirements.
    (1) Notice of appeal. Within ten (10) days after service of an 
initial decision, any party may take an appeal to the Commission by 
filing a notice of appeal. The notice shall specify:
    (i) The party taking the appeal; and
    (ii) The decision being appealed.
    (2) Filing appellant's brief. Each appellant shall file a brief 
supporting its position on appeal within thirty (30) days (40 days if 
Commission staff is the appellant) after the filing of notice required 
by paragraph (a) of this section.
    (3) Filing responsive brief. Any party who is not an appellant may 
file a brief in support of or in opposition to the appeal within thirty 
(30) days after the period has expired for the filing and service of the 
brief of all appellants. Commission staff may file a responsive brief 
within forty (40) days after the period has expired for the filing and 
service of the briefs of all appellants. A responding party shall file a 
single responsive brief regardless of the number of appellants' briefs 
filed.
    (4) Brief content. A brief in excess of ten (10) pages must contain 
a table of contents, with page references, and a table of cases 
(alphabetically arranged), statutes, regulations, and other authorities 
cited, with references to the pages of the brief where they are cited.
    (i) An appellant's brief must clearly identify the errors of fact or 
law that are the subject of the appeal. An intervenor-appellant's brief 
must be confined to issues which the intervenor-appellant placed in 
controversy or sought to place in controversy in the proceeding. For 
each issue appealed, the precise portion of the record relied upon in 
support of the assertion of error must also be provided.
    (ii) Each responsive brief must contain a reference to the precise 
portion of the record which supports each factual assertion made.
    (5) Brief length. A party shall not file a brief in excess of 
seventy (70) pages in

[[Page 113]]

length, exclusive of pages containing the table of contents, table of 
citations and any addendum containing statutes, rules, regulations, etc. 
A party may request an increase of this page limit for good cause. Such 
a request shall be made by motion submitted at least seven (7) days 
before the date upon which the brief is due for filing and shall specify 
the enlargement requested.
    (6) Certificate of service. All documents filed under this section 
must be accompanied by a certificate reflecting service upon all other 
parties to the proceeding.
    (7) Failure to comply. A brief which in form or content is not in 
substantial compliance with the provisions of this section may be 
stricken, either on motion of a party or by the Commission on its own 
initiative.
    (d) When, in the judgment of a Pre-License Application presiding 
officer or presiding officer, prompt appellate review of an order not 
immediately appealable under paragraph (b) of this section is necessary 
to prevent detriment to the public interest or unusual delay or expense, 
the Pre-License Application presiding officer or presiding officer may 
refer the ruling promptly to the Commission, and shall provide notice of 
this referral to the parties, interested governmental participants, or 
potential parties. The parties, interested governmental participants, or 
potential parties may also request that the Pre-License Application 
presiding officer or presiding officer certify under Sec.  2.319 rulings 
not immediately appealable under paragraph (b) of this section.
    (e) Unless otherwise ordered, the filing of an appeal, petition for 
review, referral, or request for certification of a ruling shall not 
stay the proceeding or extend the time for the performance of any act.

[56 FR 7797, Feb. 26, 1991, as amended at 56 FR 29410, June 27, 1991; 69 
FR 2265, Jan. 14, 2004]



Sec.  2.1017  Computation of time.

    In computing any period of time, the day of the act, event, or 
default after which the designated period of time begins to run is not 
included. The last day of the period so computed is included unless it 
is a Saturday, Sunday, or legal holiday at the place where the action or 
event is to occur, in which event the period runs until the end of the 
next day which is neither a Saturday, Sunday, nor holiday. Whenever a 
party, potential party, or interested governmental participant, has the 
right or is required to do some act within a prescribed period after the 
service of a notice or other document upon it, one day shall be added to 
the prescribed period. If the electronic docket is unavailable for more 
than four access hours of any day that would be counted in the 
computation of time, that day will not be counted in the computation of 
time.

[63 FR 71740, Dec. 30, 1998]



Sec.  2.1018  Discovery.

    (a)(1) Parties, potential parties, and interested governmental 
participants in the high-level waste licensing proceeding may obtain 
discovery by one or more of the following methods:
    (i) Access to the documentary material made available pursuant to 
Sec.  2.1003;
    (ii) Entry upon land for inspection, access to raw data, or other 
purposes pursuant to Sec.  2.1020;
    (iii) Access to, or the production of, copies of documentary 
material for which bibliographic headers only have been submitted 
pursuant to Sec.  2.1003(a);
    (iv) Depositions upon oral examination pursuant to Sec.  2.1019;
    (v) Requests for admissions pursuant to Sec.  2.708;
    (vi) Informal requests for information not made electronically 
available, such as the names of witnesses and the subjects they plan to 
address; and
    (vii) Interrogatories and depositions upon written questions, as 
provided in paragraph (a)(2) of this section.
    (2) Interrogatories and depositions upon written questions may be 
authorized by order of the discovery master appointed under paragraph 
(g) of this section, or if no discovery master has been appointed, by 
order of the Presiding Officer, in the event that the parties are 
unable, after informal good faith efforts, to resolve a dispute in a 
timely fashion concerning the production of information.
    (b)(1) Parties, potential parties, and interested governmental 
participants,

[[Page 114]]

pursuant to the methods set forth in paragraph (a) of this section, may 
obtain discovery regarding any matter, not privileged, which is relevant 
to the licensing of the likely candidate site for a geologic repository, 
whether it relates to the claim or defense of the person seeking 
discovery or to the claim or defense of any other person. Except for 
discovery pursuant to Sec. Sec.  2.1018(a)(2) and 2.1019 of this 
subpart, all other discovery shall begin during the pre-license 
application phase. Discovery pursuant to Sec. Sec.  2.1018(a)(2) and 
2.1019 of this subpart shall begin after the issuance of the first pre-
hearing conference order under Sec.  2.1021 of this subpart, and shall 
be limited to the issues defined in that order or subsequent amendments 
to the order. It is not ground for objection that the information sought 
will be inadmissible at the hearing if the information sought appears 
reasonably calculated to lead to the discovery of admissible evidence.
    (2) A party, potential party, or interested governmental participant 
may obtain discovery of documentary material otherwise discoverable 
under paragraph (b)(1) of this section and prepared in anticipation of, 
or for the hearing by, or for another party's, potential party's, or 
interested governmental participant's representative (including its 
attorney, surety, indemnitor, insurer, or similar agent) only upon a 
showing that the party, potential party, or interested governmental 
participant seeking discovery has substantial need of the materials in 
the preparation of its case and that it is unable without undue hardship 
to obtain the substantial equivalent of the materials by other means. In 
ordering discovery of these materials when the required showing has been 
made, the Presiding Officer shall protect against disclosure of the 
mental impressions, conclusions, opinions, or legal theories of an 
attorney or other representative of a party, potential party, or 
interested governmental participant concerning the proceeding.
    (c)(1) Upon motion by a party, potential party, interested 
governmental participant, or the person from whom discovery is sought, 
and for good cause shown, the presiding officer may make any order that 
justice requires to protect a party, potential party, interested 
governmental participant, or other person from annoyance, embarrassment, 
oppression, or undue burden, delay, or expense, including one or more of 
the following:
    (i) That the discovery not be had;
    (ii) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (iii) That the discovery may be had only by a method of discovery 
other than that selected by the party, potential party, or interested 
governmental participant seeking discovery;
    (iv) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (v) That discovery be conducted with no one present except persons 
designated by the presiding officer;
    (vi) That, subject to the provisions of Sec.  2.390 of this part, a 
trade secret or other confidential research, development, or commercial 
information not be disclosed or be disclosed only in a designated way; 
or
    (vii) That studies and evaluations not be prepared.
    (2) If the motion for a protective order is denied in whole or in 
part, the presiding officer may, on such terms and conditions as are 
just, order that any party, potential party, interested governmental 
participant or other person provide or permit discovery.
    (d) Except as provided in paragraph (b) of this section, and unless 
the Presiding Officer upon motion, for the convenience of parties, 
potential parties, interested governmental participants, and witnesses 
and in the interest of justice, orders otherwise, methods of discovery 
may be used in any sequence, and the fact that a party, potential party, 
or interested governmental participant is conducting discovery, whether 
by deposition or otherwise, shall not operate to delay any other 
party's, potential party's, or interested governmental participant's 
discovery.
    (e) A party, potential party, or interested governmental participant 
who has made available in electronic form all material relevant to any 
discovery request or who has responded to a request for discovery with a 
response that was complete when made is under

[[Page 115]]

no duty to supplement its response to include information thereafter 
acquired, except as follows:
    (1) To the extent that written interrogatories are authorized 
pursuant to paragraph (a)(2) of this section, a party or interested 
governmental participant is under a duty to seasonably supplement its 
response to any question directly addressed to (i) the identity and 
location of persons having knowledge of discoverable matters, and (ii) 
the identity of each person expected to be called as an expert witness 
at the hearing, the subject matter on which the witness is expected to 
testify, and the substance of the witness' testimony.
    (2) A party, potential party, or interested governmental participant 
is under a duty seasonably to amend a prior response if it obtains 
information upon the basis of which (i) it knows that the response was 
incorrect when made, or (ii) it knows that the response though correct 
when made is no longer true and the circumstances are such that a 
failure to amend the response is in substance a knowing concealment.
    (3) A duty to supplement responses may be imposed by order of the 
Presiding Officer or agreement of the parties, potential parties, and 
interested governmental participants.
    (f)(1) If a deponent of a party, potential party, or interested 
governmental participant upon whom a request for discovery is served 
fails to respond or objects to the request, or any part thereof, the 
party, potential party, or interested governmental participant 
submitting the request or taking the deposition may move the Presiding 
Officer, within five days after the date of the response or after 
failure to respond to the request, for an order compelling a response in 
accordance with the request. The motion shall set forth the nature of 
the questions or the request, the response or objection of the party, 
potential party, interested governmental participant, or other person 
upon whom the request was served, and arguments in support of the 
motion. For purposes of this paragraph, an evasive or incomplete answer 
or response shall be treated as a failure to answer or respond. Failure 
to answer or respond shall not be excused on the ground that the 
discovery sought is objectionable unless the person, party, potential 
party, or interested governmental participant failing to answer or 
respond has applied for a protective order pursuant to paragraph (c) of 
this section.
    (2) In ruling on a motion made pursuant to this section, the 
Presiding Officer may make such a protective order as it is authorized 
to make on a motion made pursuant to paragraph (c) of this section.
    (3) An independent request for issuance of a subpoena may be 
directed to a nonparty for production of documents. This section does 
not apply to requests for the testimony of the NRC regulatory staff 
under Sec.  2.709.
    (g) The presiding officer, under Sec.  2.322, may appoint a 
discovery master to resolve disputes between parties concerning informal 
requests for information as provided in paragraphs (a)(1) and (a)(2) of 
this section.

[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 63 
FR 71740, Dec. 30, 1998; 69 FR 2266, Jan. 14, 2004]



Sec.  2.1019  Depositions.

    (a) Any party or interested governmental participant desiring to 
take the testimony of any person by deposition on oral examination 
shall, without leave of the Commission or the Presiding Officer, give 
reasonable notice in writing to every other party and interested 
governmental participant, to the person to be examined, and to the 
Presiding Officer of the proposed time and place of taking the 
deposition; the name and address of each person to be examined, if 
known, or if the name is not known, a general description sufficient to 
identify him or her or the class or group to which he or she belongs, 
the matters upon which each person will be examined and the name or 
descriptive title and address of the officer before whom the deposition 
is to be taken.
    (b) Within the United States, a deposition may be taken before any 
officer authorized to administer oaths by the laws of the United States 
or of the place where the examination is held. Outside of the United 
States, a deposition may be taken before a secretary of an embassy or 
legation, a consul general, vice consul or consular agent of

[[Page 116]]

the United States, or a person authorized to administer oaths designated 
by the Commission. Depositions may be conducted by telephone or by video 
teleconference at the option of the party or interested governmental 
participant taking the deposition.
    (c) The deponent shall be sworn or shall affirm before any questions 
are put to him or her. Examination and cross-examination shall proceed 
as at a hearing. Each question propounded shall be recorded and the 
answer taken down in the words of the witness. Objections on questions 
of evidence shall be noted in short form without the arguments. The 
officer shall not decide on the competency, materiality, or relevancy of 
evidence but shall record the evidence subject to objection. Objections 
on questions of evidence not made before the officer shall not be deemed 
waived unless the ground of the objection is one which might have been 
obviated or removed if presented at that time.
    (d) When the testimony is fully transcribed, the deposition shall be 
submitted to the deponent for examination and signature unless the 
deponent is ill or cannot be found or refuses to sign. The officer shall 
certify the deposition or, if the deposition is not signed by the 
deponent, shall certify the reasons for the failure to sign, and shall 
promptly transmit an electronic copy of the deposition to the Secretary 
of the Commission for entry into the electronic docket.
    (e) Where the deposition is to be taken on written questions as 
authorized under Sec.  2.1018(a)(2), the party or interested 
governmental participant taking the deposition shall electronically 
serve a copy of the questions, showing each question separately and 
consecutively numbered, on every other party and interested governmental 
participant with a notice stating the name and address of the person who 
is to answer them, and the name, description, title, and address of the 
officer before whom they are to be asked. Within ten days after service, 
any other party or interested governmental participant may serve cross-
questions. The questions, cross-questions, and answers shall be recorded 
and signed, and the deposition certified, returned, and transmitted in 
electronic form to the Secretary of the Commission for entry into the 
electronic docket as in the case of a deposition on oral examination.
    (f) A deposition will not become a part of the evidentiary record in 
the hearing unless received in evidence. If only part of a deposition is 
offered in evidence by a party or interested governmental participant, 
any other party or interested governmental participant may introduce any 
other parts. A party or interested governmental participant shall not be 
deemed to make a person its own witness for any purpose by taking his or 
her deposition.
    (g) A deponent whose deposition is taken and the officer taking a 
deposition shall be entitled to the same fees as are paid for like 
services in the district courts of the United States, to be paid by the 
party or interested governmental participant at whose instance the 
deposition is taken.
    (h) The deponent may be accompanied, represented, and advised by 
legal counsel.
    (i)(1) After receiving written notice of the deposition under 
paragraph (a) or paragraph (e) of this section, and ten days before the 
scheduled date of the deposition, the deponent shall submit an 
electronic index of all documents in his or her possession, relevant to 
the subject matter of the deposition, including the categories of 
documents set forth in paragraph (i)(2) of this section, to all parties 
and interested governmental participants. The index shall identify those 
records which have already been made available electronically. All 
documents that are not identical to documents already made available 
electronically, whether by reason of subsequent modification or by the 
addition of notations, shall be treated as separate documents.
    (2) The following material is excluded from the initial requirements 
of Sec.  2.1003 to be made available electronically, but is subject to 
derivative discovery under paragraph (i)(1) of this section--
    (i) Personal records;
    (ii) Travel vouchers;
    (iii) Speeches;
    (iv) Preliminary drafts;
    (v) Marginalia.

[[Page 117]]

    (3) Subject to paragraph (i)(6) of this section, any party or 
interested governmental participant may request from the deponent a 
paper copy of any or all of the documents on the index that have not 
already been provided electronically.
    (4) Subject to paragraph (i)(6) of this section, the deponent shall 
bring a paper copy of all documents on the index that the deposing party 
or interested governmental participant requests that have not already 
been provided electronically to an oral deposition conducted pursuant to 
paragraph (a) of this section, or in the case of a deposition taken on 
written questions pursuant to paragraph (e) of this section, shall 
submit such documents with the certified deposition.
    (5) Subject to paragraph (i)(6) of this section, a party or 
interested governmental participant may request that any or all 
documents on the index that have not already been provided 
electronically, and on which it intends to rely at hearing, be made 
electronically available by the deponent.
    (6) The deposing party or interested governmental participant shall 
assume the responsibility for the obligations set forth in paragraphs 
(i)(1), (i)(3), (i)(4), and (i)(5) of this section when deposing someone 
other than a party or interested governmental participant.

[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 63 
FR 71740, Dec. 30, 1998; 69 FR 2266, Jan. 14, 2004]



Sec.  2.1020  Entry upon land for inspection.

    (a) Any party, potential party, or interested governmental 
participant may serve on any other party, potential party, or interested 
governmental participant a request to permit entry upon designated land 
or other property in the possession or control of the party, potential 
party, or interested governmental participant upon whom the request is 
served for the purpose of access to raw data, inspection and measuring, 
surveying, photographing, testing, or sampling the property or any 
designated object or operation thereon, within the scope of Sec.  2.1018 
of this subpart.
    (b) The request may be served on any party, potential party, or 
interested governmental participant without leave of the Commission or 
the Presiding Officer.
    (c) The request shall describe with reasonable particularity the 
land or other property to be inspected either by individual item or by 
category. The request shall specify a reasonable time, place, and manner 
of making the inspection and performing the related acts.
    (d) The party, potential party, or interested governmental 
participant upon whom the request is served shall serve on the party, 
potential party, or interested governmental participant submitting the 
request a written response within ten days after the service of the 
request. The response shall state, with respect to each item or 
category, that inspection and related activities will be permitted as 
requested, unless the request is objected to, in which case the reasons 
for objection shall be stated. If objection is made to part of an item 
or category, the part shall be specified.

[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991]



Sec.  2.1021  First prehearing conference.

    (a) In any proceeding involving an application for a construction 
authorization for a HLW repository at a geologic repository operations 
area under parts 60 or 63 of this chapter, or an application for a 
license to receive and possess high-level radioactive waste at a 
geologic repository operations area pursuant to parts 60 or 63 of this 
chapter, the Commission or the presiding officer will direct the 
parties, interested governmental participants and any petitioners for 
intervention, or their counsel, to appear at a specified time and place, 
within seventy days after the notice of hearing is published, or such 
other time as the Commission or the presiding officer may deem 
appropriate, for a conference to:
    (1) Permit identification of the key issues in the proceeding;
    (2) Take any steps necessary for further identification of the 
issues;
    (3) Consider all intervention petitions to allow the Presiding 
Officer to make such preliminary or final determination as to the 
parties and interested

[[Page 118]]

governmental participants, as may be appropriate;
    (4) Establish a schedule for further actions in the proceeding; and
    (5) Establish a discovery schedule for the proceeding taking into 
account the objective of meeting the three year time schedule specified 
in section 114(d) of the Nuclear Waste Policy Act of 1982, as amended, 
42 U.S.C. 10134(d).
    (b) The Presiding Officer may order any further formal and informal 
conferences among the parties and interested governmental participants 
including teleconferences, to the extent that it considers that such a 
conference would expedite the proceeding.
    (c) A prehearing conference held pursuant to this section shall be 
stenographically reported.
    (d) The Presiding Officer shall enter an order which recites the 
action taken at the conference, the schedule for further actions in the 
proceeding, and any agreements by the parties, and which identifies the 
key issues in the proceeding, makes a preliminary or final determination 
as to the parties and interested governmental participants in the 
proceeding, and provides for the submission of status reports on 
discovery.

[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 66 
FR 55788, Nov. 2, 2001; 69 FR 2266, Jan. 14, 2004]



Sec.  2.1022  Second prehearing conference.

    (a) The Commission or the presiding officer in a proceeding on 
either an application for construction authorization for a high-level 
radioactive waste repository at a geologic repository operations area 
under parts 60 or 63 of this chapter, or an application for a license to 
receive and possess high-level radioactive waste at a geologic 
repository operations area under parts 60 or 63 of this chapter, shall 
direct the parties, interested governmental participants, or their 
counsel to appear at a specified time and place not later than thirty 
days after the Safety Evaluation Report is issued by the NRC staff for a 
conference to consider:
    (1) Any amended contentions submitted, which must be reviewed under 
the criteria in Sec.  2.309(c) of this part;
    (2) Simplification, clarification, and specification of the issues;
    (3) The obtaining of stipulations and admissions of fact and of the 
contents and authenticity of documents to avoid unnecessary proof;
    (4) Identification of witnesses and the limitation of the number of 
expert witnesses, and other steps to expedite the presentation of 
evidence;
    (5) The setting of a hearing schedule;
    (6) Establishing a discovery schedule for the proceeding taking into 
account the objective of meeting the three year time schedule specified 
in section 114(d) of the Nuclear Waste Policy Act of 1982, as amended, 
42 U.S.C. 10134(d); and
    (7) Such other matters as may aid in the orderly disposition of the 
proceeding.
    (b) A prehearing conference held pursuant to this section shall be 
stenographically reported.
    (c) The Presiding Officer shall enter an order which recites the 
action taken at the conference and the agreements by the parties, limits 
the issues or defines the matters in controversy to be determined in the 
proceeding, sets a discovery schedule, and sets the hearing schedule.

[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 69 
FR 2266, Jan. 14, 2004]



Sec.  2.1023  Immediate effectiveness.

    (a) Pending review and final decision by the Commission, and initial 
decision resolving all issues before the presiding officer in favor of 
issuance or amendment of either an authorization to construct a high-
level radioactive waste repository at a geologic repository operations 
area under parts 60 or 63 of this chapter, or a license to receive and 
possess high-level radioactive waste at a geologic repository operations 
area under parts 60 or 63 of this chapter will be immediately effective 
upon issuance except:
    (1) As provided in any order issued in accordance with Sec.  2.342 
that stays the effectiveness of an initial decision; or
    (2) As otherwise provided by the Commission in special 
circumstances.
    (b) The Director of Nuclear Material Safety and Safeguards, 
notwithstanding the filing or pendency of an

[[Page 119]]

appeal or a petition for review pursuant to Sec.  2.1015 of this 
subpart, promptly shall issue a construction authorization or a license 
to receive and possess high-level radioactive waste at a geologic 
respository operations area, or amendments thereto, following an initial 
decision resolving all issues before the Presiding Officer in favor of 
the licensing action, upon making the appropriate licensing findings, 
except--
    (1) As provided in paragraph (c) of this section; or
    (2) As provided in any order issued in accordance with Sec.  2.342 
of this part that stays the effectiveness of an initial decision; or
    (3) As otherwise provided by the Commission in special 
circumstances.
    (c)(1) Before the Director of Nuclear Material Safety and Safeguards 
may issue a construction authorization or a license to receive and 
possess waste at a geologic repository operations area in accordance 
with paragraph (b) of this section, the Commission, in the exercise of 
its supervisory authority over agency proceedings, shall undertake and 
complete a supervisory examination of those issues contested in the 
proceeding before the Presiding Officer to consider whether there is any 
significant basis for doubting that the facility will be constructed or 
operated with adequate protection of the public health and safety, and 
whether the Commission should take action to suspend or to otherwise 
condition the effectiveness of a Presiding Officer decision that 
resolves contested issues in a proceeding in favor of issuing a 
construction authorization or a license to receive and possess high-
level radioactive waste at a geologic repository operations area. This 
supervisory examination is not part of the adjudicatory proceeding. The 
Commission shall notify the Director in writing when its supervisory 
examination conducted in accordance with this paragraph has been 
completed.
    (2) Before the Director of Nuclear Material Safety and Safeguards 
issues a construction authorization or a license to receive and possess 
high-level radioactive waste at a geologic repository operations area, 
the Commission shall review those issues that have not been contested in 
the proceeding before the Presiding Officer but about which the Director 
must make appropriate findings prior to the issuance of such a license. 
The Director shall issue a construction authorization or a license to 
receive and possess high-level radioactive waste at a geologic 
repository operations area only after written notification from the 
Commission of its completion of its review under this paragraph and of 
its determination that it is appropriate for the Director to issue such 
a construction authorization or license. This Commission review of 
uncontested issues is not part of the adjudicatory proceeding.
    (3) No suspension of the effectiveness of a Presiding Officer's 
initial decision or postponement of the Director's issuance of a 
construction authorization or license that results from a Commission 
supervisory examination of contested issues under paragraph (c)(1) of 
this section or a review of uncontested issues under paragraph (c)(2) of 
this section will be entered except in writing with a statement of the 
reasons. Such suspension or postponement will be limited to such period 
as is necessary for the Commission to resolve the matters at issue. If 
the supervisory examination results in a suspension of the effectiveness 
of the Presiding Officer's initial decision under paragraph (c)(1) of 
this section, the Commission will take review of the decision sua sponte 
and further proceedings relative to the contested matters at issue will 
be in accordance with procedures for participation by the DOE, the NRC 
staff, or other parties and interested governmental participants to the 
Presiding Officer proceeding established by the Commission in its 
written statement of reasons. If a postponement results from a review 
under paragraph (c)(2) of this section, comments on the uncontested 
matters at issue may be filed by the DOE within ten days of service of 
the Commission's written statement.

[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 66 
FR 55789, Nov. 2, 2001; 69 FR 2266, Jan. 14, 2004]

[[Page 120]]



Sec.  2.1025  Authority of the Presiding Officer to dispose of certain issues 

on the pleadings.

    (a) Any party may move, with or without supporting affidavits, for a 
decision by the Presiding Officer in that party's favor as to all or any 
part of the matters involved in the proceeding. The moving party shall 
annex to the motion a separate, short, and concise statement of the 
material facts as to which the moving party contends that there is no 
genuine issue to be heard. Motions may be filed at any time. Any other 
party may file an answer supporting or opposing the motion, with or 
without affidavits, within twenty (20) days after service of the motion. 
The party shall annex to any answer opposing the motion a separate, 
short, and concise, statement of the material facts as to which it is 
contended there exists a genuine issue to be heard. All material facts 
set forth in the statement to be filed by the moving party will be 
deemed to be admitted unless controverted by the statement required to 
be filed by the opposing party. The opposing party may, within ten (10) 
days after service, respond in writing to new facts and arguments 
presented in any statement filed in support of the motion. No further 
supporting statements or responses thereto may be entertained. The 
Presiding Officer may dismiss summarily or hold in abeyance motions 
filed shortly before the hearing commences or during the hearing if the 
other parties or the Presiding Officer would be required to divert 
substantial resources from the hearing in order to respond adequately to 
the motion.
    (b) Affidavits must set forth those facts that would be admissible 
in evidence and show affirmatively that the affiant is competent to 
testify to the matters stated therein. The Presiding Officer may permit 
affidavits to be supplemented or opposed by further affidavits. When a 
motion for summary disposition is made and supported as provided in this 
section, a party opposing the motion may not rest upon the mere 
allegations or denials of its answer; its answer by affidavits or as 
otherwise provided in this section must set forth specific facts showing 
that there is a genuine issue of fact. If no such answer is filed, the 
decision sought, if appropriate, must be rendered.
    (c) The Presiding Officer shall render the decision sought if the 
filings in the proceeding show that there is no genuine issue as to any 
material fact and that the moving party is entitled to a decision as a 
matter of law. However, in any proceeding involving a construction 
authorization for a geologic repository operations area, the procedure 
described in this section may be used only for the determination of 
specific subordinate issues and may not be used to determine the 
ultimate issue as to whether the authorization must be issued.

[56 FR 7798, Feb. 26, 1991]



Sec.  2.1026  Schedule.

    (a) Subject to paragraphs (b) and (c) of this section, the Presiding 
Officer shall adhere to the schedule set forth in appendix D of this 
part.
    (b)(1) Pursuant to Sec.  2.307, the presiding officer may approve 
extensions of no more than fifteen (15) days beyond any required time 
set forth in this subpart for a filing by a party to the proceeding. 
Except in the case of exceptional and unforseen circumstances, requests 
for extensions of more than fifteen (15) days must be filed no later 
than five (5) days in advance of the required time set forth in this 
subpart for a filing by a party to the proceeding.
    (2) Extensions beyond 15 days must be referred to the Commission. If 
the Commission does not disapprove the extension within 10 days of 
receiving the request, the extension will be effective. If the 
Commission disapproves the extension, the date which was the subject of 
the extension request will be set for 5 days after the Commission's 
disapproval action.
    (c)(1) The Presiding Officer may delay the issuance of an order up 
to thirty days beyond the time set forth for the issuance in appendix D.
    (2) If the Presiding Officer anticipates that the issuance of an 
order will not occur until after the thirty day extension specified in 
paragraph (c)(1) of this section, the Presiding Officer shall notify the 
Commission at least ten days in advance of the scheduled date

[[Page 121]]

for the milestone and provide a justification for the delay.

[56 FR 7798, Feb. 26, 1991, as amended at 69 FR 2266, Jan. 14, 2004]



Sec.  2.1027  Sua sponte.

    In any initial decision in a proceeding on an application for a 
construction authorization for a high-level radioactive waste repository 
at a geologic repository operations area under parts 60 or 63 of this 
chapter, or an application for a license to receive and possess high-
level radioactive waste at a geologic repository operations area under 
parts 60 or 63 of this chapter, the Presiding Officer, other than the 
Commission, shall make findings of fact and conclusions of law on, and 
otherwise give consideration to, only those matters put into controversy 
by the parties and determined to be litigable issues in the proceeding.

[69 FR 2266, Jan. 14, 2004]



Subpart K_Hybrid Hearing Procedures for Expansion of Spent Nuclear Fuel 
           Storage Capacity at Civilian Nuclear Power Reactors

    Source: 50 FR 41670, Oct. 15, 1985, unless otherwise noted.



Sec.  2.1101  Purpose.

    The regulations in this subpart establish hybrid hearing procedures, 
as authorized by section 134 of the Nuclear Waste Policy Act of 1982 (96 
Stat. 2230), to be used at the request of any party in certain contested 
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. These procedures are intended to encourage and 
expedite onsite expansion of spent nuclear fuel storage capacity.



Sec.  2.1103  Scope of subpart K.

    The provisions of this subpart, together with subpart C and 
applicable provisions of subparts G and L of this part, govern all 
adjudicatory proceedings on applications filed after January 7, 1983, 
for a license or license amendment under part 50 of this chapter, to 
expand the spent fuel storage capacity at the site of a civilian nuclear 
power plant, through the use of high density fuel storage racks, fuel 
rod compaction, the transshipment of spent nuclear fuel to another 
civilian nuclear power reactor within the same utility system, the 
construction of additional spent nuclear fuel pool capacity or dry 
storage capacity, or by other means. This subpart also applies to 
proceedings on applications for a license under part 72 of this chapter 
to store spent nuclear fuel in an independent spent fuel storage 
installation located at the site of a civilian nuclear power reactor. 
This subpart shall not apply to the first application for a license or 
license amendment to expand the spent fuel storage capacity at a 
particular site through the use of a new technology not previously 
approved by the Commission for use at any other nuclear power plant. 
This subpart shall not apply to proceedings on applications for transfer 
of a license issued under part 72 of this chapter. Subpart M of this 
part applies to license transfer proceedings.

[69 FR 2266, Jan. 14, 2004]



Sec.  2.1105  Definitions.

    As used in this part:
    (a) Civilian nuclear power reactor means a civilian nuclear power 
plant required to be licensed as a utilization facility under section 
103 or 104(b) of the Atomic Energy Act of 1954.
    (b) Spent nuclear fuel means fuel that has been withdrawn from a 
nuclear reactor following irradiation, the constituent elements of which 
have not been separated by reprocessing.



Sec.  2.1107  Notice of proposed action.

    In connection with each application filed after January 7, 1983, for 
a license or an amendment to a license to expand the spent nuclear fuel 
storage capacity at the site of a civilian nuclear power plant, for 
which the Commission has not found that a hearing is required in the 
public interest, for which an adjudicatory hearing has not yet been 
convened, and for which a notice of proposed action has not yet been 
published as of the effective date of this subpart, the Commission will, 
prior to acting thereon, cause to be

[[Page 122]]

published in the Federal Register a notice of proposed action in 
accordance with Sec.  2.105. The notice of proposed action will identify 
the availability of the hybrid hearing procedures in this subpart, 
specify that any party may invoke these procedures by filing a timely 
request for oral argument under Sec.  2.1109, and provide that if a 
request for oral argument is granted, any hearing held on the 
application shall be conducted in accordance with the procedures in this 
subpart.



Sec.  2.1109  Requests for oral argument.

    (a)(1) In its request for hearing/petition to intervene filed in 
accordance with Sec.  2.309 or in the applicant's or the NRC staff's 
response to a request for a hearing/petition to intervene, any party may 
invoke the hybrid hearing procedures in this Subpart by requesting an 
oral argument. If it is determined that a hearing will be held, the 
presiding officer shall grant a timely request for oral argument.
    (2) The presiding officer may grant an untimely request for oral 
argument only upon a showing of good cause by the requesting party for 
failure to file on time and after providing the other parties an 
opportunity to respond to the untimely request.
    (b) The presiding officer shall issue a written order ruling on any 
requests for oral argument. If the presiding officer grants a request 
for oral argument, the order shall include a schedule for discovery and 
subsequent oral argument with respect to the admitted contentions.
    (c) If no party to the proceeding requests oral argument, or if all 
untimely requests for oral argument are denied, the presiding officer 
shall conduct the proceeding in accordance with the subpart under which 
the proceeding was initially conducted as determined in accordance with 
Sec.  2.310.

[50 FR 41670, Oct. 15, 1985, as amended at 69 FR 2267, Jan. 14, 2004]



Sec.  2.1113  Oral argument.

    (a) Twenty-five (25) days prior to the date set for oral argument, 
each party, including the NRC staff, shall submit to the presiding 
officer a detailed written summary of all the facts, data, and arguments 
which are known to the party at such time and on which the party 
proposes to rely at the oral argument either to support or to refute the 
existence of a genuine and substantial dispute of fact. Each party shall 
also submit all supporting facts and data in the form of sworn written 
testimony or other sworn written submission. Each party's written 
summary and supporting information shall be simultaneously served on all 
other parties to the proceeding.
    (b) Ten (10) days prior to the date set for oral argument, each 
party, including the NRC staff, may submit to the presiding officer a 
reply limited to addressing whether the written summaries, facts, data, 
and arguments filed under paragraph (a) of this section support or 
refute the existence of a genuine and substantial dispute of fact. Each 
party's reply shall be simultaneously served on all other parties to the 
proceeding.
    (c) Only facts and data in the form of sworn written testimony or 
other sworn written submission may be relied on by the parties during 
oral argument, and the presiding officer shall consider those facts and 
data only if they are submitted in that form.

[50 FR 41670, Oct. 15, 1985, as amended at 69 FR 2267, Jan. 14, 2004]



Sec.  2.1115  Designation of issues for adjudicatory hearing.

    (a) After due consideration of the oral presentation and the written 
facts and data submitted by the parties and relied on at the oral 
argument, the presiding officer shall promptly by written order:
    (1) Designate any disputed issues of fact, together with any 
remaining issues of law, for resolution in an adjudicatory hearing; and
    (2) Dispose of any issues of law or fact not designated for 
resolution in an adjudicatory hearing.

With regard to each issue designated for resolution in an adjudicatory 
hearing, the presiding officer shall identify the specific facts that 
are in genuine and substantial dispute, the reason why the decision of 
the Commission is likely to depend on the resolution of that dispute, 
and the reason why an adjudicatory hearing is likely to resolve the 
dispute. With regard to issues not

[[Page 123]]

designated for resolution in an adjudicatory hearing, the presiding 
officer shall include a brief statement of the reasons for the 
disposition. If the presiding officer finds that there are no disputed 
issues of fact or law requiring resolution in an adjudicatory hearing, 
the presiding officer shall also dismiss the proceeding.
    (b) No issue of law or fact shall be designated for resolution in an 
adjudicatory hearing unless the presiding officer determines that:
    (1) There is a genuine and substantial dispute of fact which can 
only be resolved with sufficient accuracy by the introduction of 
evidence in an adjudicatory hearing; and
    (2) The decision of the Commission is likely to depend in whole or 
in part on the resolution of that dispute.
    (c) In making a determination under paragraph (b) of this section, 
the presiding officer shall not consider:
    (1) Any issue relating to the design, construction, or operation of 
any civilian nuclear power reactor already licensed to operate at the 
site, or any civilian nuclear power reactor for which a construction 
permit has been granted at the site, unless the presiding officer 
determines that any such issue substantially affects the design, 
construction, or operation of the facility or activity for which a 
license application, authorization, or amendment to expand the spent 
nuclear fuel storage capacity is being considered; or
    (2) Any siting or design issue fully considered and decided by the 
Commission in connection with the issuance of a construction permit or 
operating license for a civilian nuclear power reactor at that site, 
unless (i) such issue results from any revision of siting or design 
criteria by the Commission following such decision; and (ii) the 
presiding officer determines that such issue substantially affects the 
design, construction, or operation of the facility or activity for which 
a license application, authorization, or amendment to expand the spent 
nuclear fuel storage capacity is being considered.
    (d) The provisions of paragraph (c) of this section shall apply only 
with respect to licenses, authorizations, or amendments to licenses or 
authorizations applied for under the Atomic Energy Act of 1954, as 
amended, before December 31, 2005.
    (e) Unless the presiding officer disposes of all issues and 
dismisses the proceeding, appeals from the presiding officer's order 
disposing of issues and designating one or more issues for resolution in 
an adjudicatory hearing are interlocutory and must await the end of the 
proceeding.

[50 FR 41671, Oct. 15, 1985; 50 FR 45398, Oct. 31, 1985]



Sec.  2.1117  Burden of proof.

    The applicant bears the ultimate burden of proof (risk of non-
persuasion) with respect to the contention in the proceeding. The 
proponent of the request for an adjudicatory hearing bears the burden of 
demonstrating under Sec.  2.1115(b) that an adjudicatory hearing should 
be held.

[69 FR 2267, Jan. 14, 2004]



Sec.  2.1119  Applicability of other sections.

    In proceedings subject to this part, the provisions of subparts A, 
C, and L of this part are also applicable, except where inconsistent 
with the provisions of this subpart.

[69 FR 2267, Jan. 14, 2004]



       Subpart L_Informal Hearing Procedures for NRC Adjudications

    Source: 69 FR 2267, Jan. 14, 2004, unless otherwise noted.



Sec.  2.1200  Scope of subpart L.

    The provisions of this subpart, together with subpart C of this 
part, govern all adjudicatory proceedings conducted under the authority 
of the Atomic Energy Act of 1954, as amended, the Energy Reorganization 
Act, and 10 CFR part 2, except for proceedings on the licensing of the 
construction and operation of a uranium enrichment facility, proceedings 
on an initial application for construction authorization for a high-
level radioactive waste geologic repository at a geologic repository 
operations area noticed under Sec. Sec.  2.101(f)(8) or 2.105(a)(5), 
proceedings on an initial application for a license to receive and 
possess high-level radioactive waste at a geologic repository

[[Page 124]]

operations area, proceedings on enforcement matters unless all parties 
otherwise agree and request the application of Subpart L procedures, and 
proceedings for the direct or indirect transfer of control of an NRC 
license when the transfer requires prior approval of the NRC under the 
Commission's regulations, governing statutes, or pursuant to a license 
condition.



Sec.  2.1201  Definitions.

    The definitions of terms contained in Sec.  2.4 apply to this 
subpart unless a different definition is provided in this subpart.



Sec.  2.1202  Authority and role of NRC staff.

    (a) During the pendency of any hearing under this subpart, 
consistent with the NRC staff's findings in its own review of the 
application or matter which is the subject of the hearing and as 
authorized by law, the NRC staff is expected to issue its approval or 
denial of the application promptly, or take other appropriate action on 
the underlying regulatory matter for which a hearing was provided. When 
the NRC staff takes its action, it shall notify the presiding officer 
and the parties to the proceeding of its action. That notice must 
include the NRC staff's position on the matters in controversy before 
the presiding officer with respect to the staff action. The NRC staff's 
action on the matter is effective upon issuance by the staff, except in 
matters involving:
    (1) An application to construct and/or operate a production or 
utilization facility;
    (2) An application for an amendment to a construction authorization 
for a high-level radioactive waste repository at a geologic repository 
operations area falling under either 10 CFR 60.32(c)(1) or 10 CFR part 
63;
    (3) An application for the construction and operation of an 
independent spent fuel storage installation (ISFSI) located at a site 
other than a reactor site or a monitored retrievable storage 
installation (MRS) under 10 CFR part 72; and
    (4) Production or utilization facility licensing actions that 
involve significant hazards considerations as defined in 10 CFR 50.92.
    (b)(1) The NRC staff is not required to be a party to a proceeding 
under this subpart, except where:
    (i) The proceeding involves an application denied by the NRC staff 
or an enforcement action proposed by the NRC staff; or
    (ii) The presiding officer determines that the resolution of any 
issue in the proceeding would be aided materially by the NRC staff's 
participation in the proceeding as a party and orders the staff to 
participate as a party for the identified issue. In the event that the 
presiding officer determines that the NRC staff's participation is 
necessary, the presiding officer shall issue an order identifying the 
issue(s) on which the staff is to participate as well as setting forth 
the basis for the determination that staff participation will materially 
aid in resolution of the issue(s).
    (2) Within fifteen (15) days of the issuance of the order granting 
requests for hearing/petitions to intervene and admitting contentions, 
the NRC staff shall notify the presiding officer and the parties whether 
it desires to participate as a party, and identify the contentions on 
which it wishes to participate as a party. If the NRC staff desires to 
be a party thereafter, the NRC staff shall notify the presiding officer 
and the parties, identify the contentions on which it wishes to 
participate as a party, and make the disclosures required by Sec.  
2.336(b)(3) through (5) unless accompanied by an affidavit explaining 
why the disclosures cannot be provided to the parties with the notice.
    (3) Once the NRC staff chooses to participate as a party, it shall 
have all the rights and responsibilities of a party with respect to the 
admitted contention/matter in controversy on which the staff chooses to 
participate.



Sec.  2.1203  Hearing file; prohibition on discovery.

    (a)(1) Within thirty (30) days of the issuance of the order granting 
requests for hearing/petitions to intervene and admitting contentions, 
the NRC staff shall file in the docket, present to the presiding 
officer, and make available

[[Page 125]]

to the parties to the proceeding a hearing file.
    (2) The hearing file must be made available to the parties either by 
service of hard copies or by making the file available at the NRC Web 
site, http://www.nrc.gov.
    (3) The hearing file also must be made available for public 
inspection and copying at the NRC Web site, http://www.nrc.gov, and/or 
at the NRC Public Document Room.
    (b) The hearing file consists of the application, if any, and any 
amendment to the application, and, when available, any NRC environmental 
impact statement or assessment and any NRC report related to the 
proposed action, as well as any correspondence between the applicant/
licensee and the NRC that is relevant to the proposed action. Hearing 
file documents already available at the NRC Web site and/or the NRC 
Public Document Room when the hearing request/petition to intervene is 
granted may be incorporated into the hearing file at those locations by 
a reference indicating where at those locations the documents can be 
found. The presiding officer shall rule upon any issue regarding the 
appropriate materials for the hearing file.
    (c) The NRC staff has a continuing duty to keep the hearing file up 
to date with respect to the materials set forth in paragraph (b) of this 
section and to provide those materials as required in paragraphs (a) and 
(b) of this section.
    (d) Except as otherwise permitted by subpart C of this part, a party 
may not seek discovery from any other party or the NRC or its personnel, 
whether by document production, deposition, interrogatories or 
otherwise.



Sec.  2.1204  Motions and requests.

    (a) General requirements. In proceedings under this subpart, 
requirements for motions and requests and responses to them are as 
specified in Sec.  2.323.
    (b) Requests for cross-examination by the parties. (1) In any oral 
hearing under this subpart, a party may file a motion with the presiding 
officer to permit cross-examination by the parties on particular 
admitted contentions or issues. The motion must be accompanied by a 
cross-examination plan containing the following information:
    (i) A brief description of the issue or issues on which cross-
examination will be conducted;
    (ii) The objective to be achieved by cross-examination; and
    (iii) The proposed line of questions that may logically lead to 
achieving the objective of the cross-examination.
    (2) The cross-examination plan may be submitted only to the 
presiding officer and must be kept by the presiding officer in 
confidence until issuance of the initial decision on the issue being 
litigated. The presiding officer shall then provide each cross-
examination plan to the Commission's Secretary for inclusion in the 
official record of the proceeding.
    (3) The presiding officer shall allow cross-examination by the 
parties only if the presiding officer determines that cross-examination 
by the parties is necessary to ensure the development of an adequate 
record for decision.



Sec.  2.1205  Summary disposition.

    (a) Unless the presiding officer or the Commission directs 
otherwise, motions for summary disposition may be submitted to the 
presiding officer by any party no later than forty-five (45) days before 
the commencement of hearing. The motions must be in writing and must 
include a written explanation of the basis of the motion, and affidavits 
to support statements of fact. Motions for summary disposition must be 
served on the parties and the Secretary at the same time that they are 
submitted to the presiding officer.
    (b) Any other party may serve an answer supporting or opposing the 
motion within twenty (20) days after service of the motion.
    (c) The presiding officer shall issue a determination on each motion 
for summary disposition no later than fifteen (15) days before the date 
scheduled for commencement of hearing. In ruling on motions for summary 
disposition, the presiding officer shall apply the standards for summary 
disposition set forth in subpart G of this part.



Sec.  2.1206  Informal hearings.

    Hearings under this subpart will be oral hearings as described in 
Sec.  2.1207,

[[Page 126]]

unless, within fifteen (15) days of the service of the order granting 
the request for hearing, the parties unanimously agree and file a joint 
motion requesting a hearing consisting of written submissions. A motion 
to hold a hearing consisting of written submissions will not be 
entertained unless there is unanimous consent of the parties.



Sec.  2.1207  Process and schedule for submissions and presentations in an 

oral hearing.

    (a) Unless otherwise limited by this subpart or by the presiding 
officer, participants in an oral hearing may submit and sponsor in the 
hearings:
    (1) Initial written statements of position and written testimony 
with supporting affidavits on the admitted contentions. These materials 
must be filed on the dates set by the presiding officer.
    (2) Written responses and rebuttal testimony with supporting 
affidavits directed to the initial statements and testimony of other 
participants. These materials must be filed within twenty (20) days of 
the service of the materials submitted under paragraph (a)(1) of this 
section unless the presiding officer directs otherwise.
    (3)(i) Proposed questions for the presiding officer to consider for 
propounding to the persons sponsoring the testimony. Unless the 
presiding officer directs otherwise, these questions must be received by 
the presiding officer no later than twenty (20) days after the service 
of the materials submitted under paragraph (a)(1) of this section, 
unless that date is less than five (5) days before the scheduled 
commencement of the oral hearing, in which case the questions must be 
received by the presiding officer no later than five (5) days before the 
scheduled commencement of the hearing. Proposed questions need not be 
filed with any other party.
    (ii) Proposed questions directed to rebuttal testimony for the 
presiding officer to consider for propounding to persons sponsoring the 
testimony. Unless the presiding officer directs otherwise, these 
questions must be received by the presiding officer no later than seven 
(7) days after the service of the rebuttal testimony submitted under 
paragraph (a)(2) of this section, unless that date is less than five (5) 
days before the scheduled commencement of the oral hearing, in which 
case the questions must be received by the presiding officer no later 
than five (5) days before the scheduled commencement of the hearing. 
Proposed questions directed to rebuttal need not be filed with any other 
party.
    (iii) Questions submitted under paragraphs (a)(3)(i) and (ii) of 
this section may be propounded at the discretion of the presiding 
officer. All questions must be kept by the presiding officer in 
confidence until they are either propounded by the presiding officer, or 
until issuance of the initial decision on the issue being litigated. The 
presiding officer shall then provide all proposed questions to the 
Commission's Secretary for inclusion in the official record of the 
proceeding.
    (b) Oral hearing procedures. (1) The oral hearing must be 
transcribed.
    (2) Written testimony will be received into evidence in exhibit 
form.
    (3) Participants may designate and present their own witnesses to 
the presiding officer.
    (4) Testimony for the NRC staff will be presented only by persons 
designated by the Executive Director for Operations or his delegee for 
that purpose.
    (5) The presiding officer may accept written testimony from a person 
unable to appear at the hearing, and may request that person to respond 
in writing to questions.
    (6) Participants and witnesses will be questioned orally or in 
writing and only by the presiding officer or the presiding officer's 
designee (e.g., a Special Assistant appointed under Sec.  2.322). The 
presiding officer will examine the participants and witnesses using 
questions prepared by the presiding officer or the presiding officer's 
designee, questions submitted by the participants at the discretion of 
the presiding officer, or a combination of both. Questions may be 
addressed to individuals or to panels of participants or witnesses. No 
party may submit proposed questions to the presiding officer at the 
hearing, except upon request by, and in the sole discretion of, the 
presiding officer.

[[Page 127]]



Sec.  2.1208  Process and schedule for a hearing consisting of written 

presentations.

    (a) Unless otherwise limited by this subpart or by the presiding 
officer, participants in a hearing consisting of written presentations 
may submit:
    (1) Initial written statements of position and written testimony 
with supporting affidavits on the admitted contentions. These materials 
must be filed on the dates set by the presiding officer;
    (2) Written responses, rebuttal testimony with supporting affidavits 
directed to the initial statements and testimony of witnesses and other 
participants, and proposed written questions for the presiding officer 
to consider for submission to the persons sponsoring testimony under 
paragraph (a)(1) of this section. These materials must be filed within 
twenty (20) days of the service of the materials submitted under 
paragraph (a)(1) of this section unless the presiding officer directs 
otherwise;
    (3) Written questions on the written responses and rebuttal 
testimony submitted under paragraph (a)(2) of this section, which the 
presiding officer may, in his or her discretion, require the persons 
offering the written responses and rebuttal testimony to provide 
responses. These questions must be filed within seven (7) days of 
service of the materials submitted under paragraph (a)(2) of this 
section unless the presiding officer directs otherwise; and
    (4) Written concluding statements of position on the contentions. 
These statements shall be filed within twenty (20) days of the service 
of written responses to the presiding officer's questions to the 
participants or, in the absence of questions from the presiding officer, 
within twenty (20) days of the service of the materials submitted under 
paragraph (a)(2) of this section unless the presiding officer directs 
otherwise.
    (b) The presiding officer may formulate and submit written questions 
to the participants that he or she considers appropriate to develop an 
adequate record.



Sec.  2.1209  Findings of fact and conclusions of law.

    Each party shall file written post-hearing proposed findings of fact 
and conclusions of law on the contentions addressed in an oral hearing 
under Sec.  2.1207 or a written hearing under Sec.  2.1208 within thirty 
(30) days of the close of the hearing or at such other time as the 
presiding officer directs.



Sec.  2.1210  Initial decision and its effect.

    (a) Unless the Commission directs that the record be certified to it 
in accordance with paragraph (b) of this section, the presiding officer 
shall render an initial decision after completion of an informal hearing 
under this subpart. That initial decision constitutes the final action 
of the Commission on the contested matter forty (40) days after the date 
of issuance, unless:
    (1) Any party files a petition for Commission review in accordance 
with Sec.  2.1212;
    (2) The Commission, in its discretion, determines that the presiding 
officer's initial decision is inconsistent with the staff's action as 
described in the notice required by Sec.  2.1202(a) and that the 
inconsistency warrants Commission review, in which case the Commission 
will review the initial decision; or
    (3) The Commission takes review of the decision sua sponte.
    (b) The Commission may direct that the presiding officer certify the 
record to it without an initial decision and prepare a final decision if 
the Commission finds that due and timely execution of its functions 
warrants certification.
    (c) An initial decision must be in writing and must be based only 
upon information in the record or facts officially noticed. The record 
must include all information submitted in the proceeding with respect to 
which all parties have been given reasonable prior notice and an 
opportunity to comment as provided in Sec. Sec.  2.1207 or 2.1208. The 
initial decision must include:
    (1) Findings, conclusions, and rulings, with the reasons or basis 
for them, on all material issues of fact or law admitted as part of the 
contentions in the proceeding;

[[Page 128]]

    (2) The appropriate ruling, order, or grant or denial of relief with 
its effective date;
    (3) The action the NRC staff shall take upon transmittal of the 
decision to the NRC staff under paragraph (e) of this section, if the 
initial decision is inconsistent with the NRC staff action as described 
in the notice required by Sec.  2.1202(a); and
    (4) The time within which a petition for Commission review may be 
filed, the time within which any answers to a petition for review may be 
filed, and the date when the decision becomes final in the absence of a 
petition for Commission review or Commission sua sponte review.
    (d) Pending review and final decision by the Commission, an initial 
decision resolving all issues before the presiding officer is 
immediately effective upon issuance except:
    (1) As provided in any order issued in accordance with Sec.  2.1211 
that stays the effectiveness of an initial decision; or
    (2) As otherwise provided by this part (e.g., Sec.  2.340) or by the 
Commission in special circumstances.
    (e) Once an initial decision becomes final, the Secretary shall 
transmit the decision to the NRC staff for action in accordance with the 
decision.



Sec.  2.1211  Immediate effectiveness of initial decision directing issuance 

or amendment of licenses under part 61 of this chapter.

    An initial decision directing the issuance of a license under part 
61 of this chapter (relating to land disposal of radioactive waste or 
any amendments to such a license authorizing actions which may 
significantly affect the health and safety of the public) will become 
effective only upon order of the Commission. The Director of Nuclear 
Material Safety and Safeguards may not issue a license under part 61 of 
this chapter, or any amendment to such a license that may significantly 
affect the health and safety of the public until expressly authorized to 
do so by the Commission.



Sec.  2.1212  Petitions for Commission review of initial decisions.

    Parties may file petitions for review of an initial decision under 
this subpart in accordance with the procedures set out in Sec.  2.341. 
Unless otherwise authorized by law, a party to an NRC proceeding must 
file a petition for Commission review before seeking judicial review of 
an agency action.



Sec.  2.1213  Application for a stay.

    (a) Any application for a stay of the effectiveness of the NRC 
staff's action on a matter involved in a hearing under this subpart must 
be filed with the presiding officer within five (5) days of the issuance 
of the notice of the NRC staff's action under Sec.  2.1202(a) and must 
be filed and considered in accordance with paragraphs (b), (c) and (d) 
of this section.
    (b) An application for a stay of the NRC staff's action may not be 
longer than ten (10) pages, exclusive of affidavits, and must contain:
    (1) A concise summary of the action which is requested to be stayed; 
and
    (2) A concise statement of the grounds for a stay, with reference to 
the factors specified in paragraph (d) of this section.
    (c) Within ten (10) days after service of an application for a stay 
of the NRC staff's action under this section, any party and/or the NRC 
staff may file an answer supporting or opposing the granting of a stay. 
Answers may not be longer than ten (10) pages, exclusive of affidavits, 
and must concisely address the matters in paragraph (b) of this section 
as appropriate. Further replies to answers will not be entertained.
    (d) In determining whether to grant or deny an application for a 
stay of the NRC staff's action, the following will be considered:
    (1) Whether the requestor will be irreparably injured unless a stay 
is granted;
    (2) Whether the requestor has made a strong showing that it is 
likely to prevail on the merits;
    (3) Whether the granting of a stay would harm other participants; 
and
    (4) Where the public interest lies.
    (e) Any application for a stay of the effectiveness of the presiding 
officer's initial decision or action under this subpart shall be filed 
with the Commission in accordance with Sec.  2.342.

[[Page 129]]



   Subpart M_Procedures for Hearings on License Transfer Applications

    Source: 63 FR 66730, Dec. 3, 1998, unless otherwise noted.



Sec.  2.1300  Scope of subpart M.

    The provisions of this subpart, together with subpart C of this 
part, govern all adjudicatory proceedings on an application for the 
direct or indirect transfer of control of an NRC license when the 
transfer requires prior approval of the NRC under the Commission's 
regulations, governing statutes, or pursuant to a license condition. 
This subpart provides the only mechanism for requesting hearings on 
license transfer requests, unless contrary case specific orders are 
issued by the Commission.

[69 FR 2270, Jan. 14, 2004]



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

    (a) The Commission will notice the receipt of each application for 
direct or indirect transfer of a specific NRC license by placing a copy 
of the application at the NRC Web site, http://www.nrc.gov.
    (b) The Commission will also publish in the Federal Register a 
notice of receipt of an application for approval of a license transfer 
involving 10 CFR part 50 and part 52 licenses, 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.
    (c) 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.

[63 FR 66730, Dec. 3, 1998, as amended at 64 FR 48949, Sept. 9, 1999]



Sec.  2.1302  Notice of withdrawal of an application.

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



Sec.  2.1303  Availability of documents.

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

[63 FR 66730, Dec. 3, 1998, as amended at 64 FR 48949, Sept. 9, 1999]



Sec.  2.1304  Hearing procedures.

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



Sec.  2.1305  Written comments.

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

[[Page 130]]



Sec.  2.1308  Oral hearings.

    Hearings under this subpart will be oral hearings, unless, within 15 
days of the service of the notice or order granting the hearing, the 
parties unanimously agree and file a joint motion requesting a hearing 
consisting of written comments. No motion to hold a hearing consisting 
of written comments will be entertained absent consent of all the 
parties.

[69 FR 2270, Jan. 14, 2004]



Sec.  2.1309  Notice of oral hearing.

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



Sec.  2.1310  Notice of hearing consisting of written comments.

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



Sec.  2.1311  Conditions in a notice or order.

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



Sec.  2.1315  Generic determination regarding license amendments to reflect 

transfers.

    (a) Unless otherwise determined by the Commission with regard to a 
specific application, the Commission has determined that any amendment 
to the license of a utilization facility or the license of an 
Independent Spent Fuel Storage Installation which does no more than 
conform the license to reflect the transfer action, involves 
respectively, ``no significant hazards consideration,'' or ``no genuine 
issue as to whether the health and safety of the public will be 
significantly affected.''
    (b) Where administrative license amendments are necessary to reflect 
an approved transfer, such amendments will be included in the order that 
approves the transfer. Any challenge to the administrative license 
amendment is limited to the question of whether the license amendment 
accurately reflects the approved transfer.

[63 FR 66730, Dec. 3, 1998, as amended at 69 FR 2270, Jan. 14, 2004]



Sec.  2.1316  Authority and role of NRC staff.

    (a) During the pendency of any hearing under this subpart, 
consistent with the NRC staff's findings in its Safety Evaluation Report 
(SER), the staff is

[[Page 131]]

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



Sec.  2.1319  Presiding Officer.

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



Sec.  2.1320  Responsibility and power of the Presiding Officer in an oral 

hearing.

    (a) The Presiding Officer in any oral hearing shall conduct a fair 
hearing, develop a record that will contribute to informed 
decisionmaking, and, within the framework of the Commission's orders, 
have the power necessary to achieve these ends, including the power to:
    (1) Take action to avoid unnecessary delay and maintain order;
    (2) Dispose of procedural requests;
    (3) Question participants and witnesses, and entertain suggestions 
as to questions which may be asked of participants and witnesses.
    (4) Order consolidation of participants;
    (5) Establish the order of presentation;
    (6) Hold conferences before or during the hearing;
    (7) Establish time limits;
    (8) Limit the number of witnesses; and
    (9) Strike or reject duplicative, unreliable, immaterial, or 
irrelevant presentations.
    (b) Where the Commission itself does not preside:
    (1) The Presiding Officer may certify questions or refer rulings to 
the Commission for decision;
    (2) Any hearing order may be modified by the Commission; and
    (3) The Presiding Officer will certify the completed hearing record 
to the Commission, which may then issue its decision on the hearing or 
provide that additional testimony be presented.



Sec.  2.1321  Participation and schedule for submission in a hearing 

consisting of written comments.

    Unless otherwise limited by this subpart or by the Commission, 
participants in a hearing consisting of written comments may submit:
    (a) Initial written statements of position and written testimony 
with supporting affidavits on the issues. These materials must be filed 
on the date set by the Commission or the presiding officer.
    (b) Written responses, rebuttal testimony with supporting affidavits 
directed to the initial statements and

[[Page 132]]

testimony of other participants, and proposed written questions for the 
Presiding Officer to consider for submittal to persons sponsoring 
testimony submitted under paragraph (a) of this section. These materials 
shall to filed within 20 days of the filing of the materials submitted 
under paragraph (a) of this section, unless the Commission or Presiding 
Officer directs otherwise. Proposed written questions directed to 
rebuttal testimony for the Presiding Officer to consider for submittal 
to persons offering such testimony shall be filed within 7 days of the 
filing of the rebuttal testimony.
    (c) Written concluding statements of position on the issues. These 
materials shall be filed within 20 days of the filing of the materials 
submitted under paragraph (b) of this section, unless the Commission or 
the Presiding Officer directs otherwise.

[63 FR 66730, Dec. 3, 1998, as amended at 69 FR 2271, Jan. 14, 2004]



Sec.  2.1322  Participation and schedule for submissions in an oral hearing.

    (a) Unless otherwise limited by this subpart or by the Commission, 
participants in an oral hearing may submit and sponsor in the hearings:
    (1) Initial written statements of position and written testimony 
with supporting affidavits on the issues. These materials must be filed 
on the date set by the Commission or the presiding officer.
    (2)(i) Written responses and rebuttal testimony with supporting 
affidavits directed to the initial statements and testimony of other 
participants;
    (ii) Proposed questions for the Presiding Officer to consider for 
propounding to persons sponsoring testimony.
    (3) These materials must be filed within 20 days of the filing of 
the materials submitted under paragraph (a)(1) of this section, unless 
the Commission or Presiding Officer directs otherwise.
    (4) Proposed questions directed to rebuttal testimony for the 
Presiding Officer to consider for propounding to persons offering such 
testimony shall be filed within 7 days of the filing of the rebuttal 
testimony.
    (b) The oral hearing should commence within 65 days of the date of 
the Commission's notice granting a hearing unless the Commission or 
Presiding Officer directs otherwise. Ordinarily, questioning in the oral 
hearing will be conducted by the Presiding Officer, using either the 
Presiding Officer's questions or questions submitted by the participants 
or a combination of both.
    (c) Written post-hearing statements of position on the issues 
addressed in the oral hearing may be submitted within 20 days of the 
close of the oral hearing.
    (d) The Commission, on its own motion, or in response to a request 
from a Presiding Officer other than the Commission, may use additional 
procedures, such as direct and cross-examination, or may convene a 
formal hearing under subpart G of this part on specific and substantial 
disputes of fact, necessary for the Commission's decision, that cannot 
be resolved with sufficient accuracy except in a formal hearing. The 
staff will be a party in any such formal hearing. Neither the Commission 
nor the Presiding Officer will entertain motions from the parties that 
request such special procedures or formal hearings.

[63 FR 66730, Dec. 3, 1998, as amended at 69 FR 2271, Jan. 14, 2004]



Sec.  2.1323  Presentation of testimony in an oral hearing.

    (a) All direct testimony in an oral hearing shall be filed no later 
than 15 days before the hearing or as otherwise ordered or allowed 
pursuant to the provisions of Sec.  2.1322.
    (b) Written testimony will be received into evidence in exhibit 
form.
    (c) Participants may designate and present their own witnesses to 
the Presiding Officer.
    (d) Testimony for the NRC staff will be presented only by persons 
designated for that purpose by either the Executive Director for 
Operations or a delegee of the Executive Director for Operations.
    (e) Participants and witnesses will be questioned orally or in 
writing and only by the Presiding Officer. Questions may be addressed to 
individuals or to panels of participants or witnesses.

[[Page 133]]

    (f) The Presiding Officer may accept written testimony from a person 
unable to appear at the hearing, and may request him or her to respond 
to questions.
    (g) No subpoenas will be granted at the request of participants for 
attendance and testimony of participants or witnesses or the production 
of evidence.

[63 FR 66730, Dec. 3, 1998, as amended at 69 FR 2271, Jan. 14, 2004]



Sec.  2.1324  Appearance in an oral hearing.

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



Sec.  2.1325  Motions and requests.

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



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

on license transfer.

    (a) Any application for a stay of the effectiveness of the NRC 
staff's order on the license transfer application shall be filed with 
the Commission within 5 days of the issuance of the notice of staff 
action pursuant to Sec.  2.1316(a).
    (b) An application for a stay must be no longer than 10 pages, 
exclusive of affidavits, and must contain:
    (1) A concise summary of the action which is requested to be stayed; 
and
    (2) A concise statement of the grounds for a stay, with reference to 
the factors specified in paragraph (d) of this section.
    (c) Within 10 days after service of an application for a stay under 
this section, any participant may file an answer supporting or opposing 
the granting of a stay. Answers must be no longer than 10 pages, 
exclusive of affidavits, and should concisely address the matters in 
paragraph (b) of this section, as appropriate. No further replies to 
answers will be entertained.
    (d) In determining whether to grant or deny an application for a 
stay, the Commission will consider:
    (1) Whether the requestor will be irreparably injured unless a stay 
is granted;
    (2) Whether the requestor has made a strong showing that it is 
likely to prevail on the merits;
    (3) Whether the granting of a stay would harm other participants; 
and
    (4) Where the public interest lies.



Sec.  2.1331  Commission action.

    (a) Upon completion of a hearing, the Commission will issue a 
written opinion including its decision on the license transfer 
application and the reasons for the decision.
    (b) The decision on issues designated for hearing under Sec.  2.309 
will be based on the record developed at hearing.

[63 FR 66730, Dec. 3, 1998, as amended at 69 FR 2271, Jan. 14, 2004]

[[Page 134]]



           Subpart N_Expedited Proceedings with Oral Hearings

    Source: 69 FR 2271, Jan. 14, 2004, unless otherwise noted.



Sec.  2.1400  Purpose and scope of subpart N.

    The purpose of this subpart is to provide simplified procedures for 
the expeditious resolution of disputes among parties in an informal 
hearing process. The provisions of this subpart, together with subpart C 
of this part, govern all adjudicatory proceedings conducted under the 
authority of the Atomic Energy Act of 1954, as amended, the Energy 
Reorganization Act of 1974, and 10 CFR part 2 except for proceedings on 
the licensing of the construction and operation of a uranium enrichment 
facility, proceedings on an initial application for authorization to 
construct a high-level radioactive waste repository at a geologic 
repository operations area noticed under Sec. Sec.  2.101(f)(8) or 
2.105(a)(5), proceedings on an initial application for authorization to 
receive and possess high-level radioactive waste at a geologic 
repository operations area, proceedings on an initial application for a 
license to receive and possess high-level radioactive waste at a 
geologic repository operations area, proceedings on enforcement matters 
unless all parties otherwise agree and request the application of 
subpart N procedures, and proceedings for the direct or indirect control 
of an NRC license when the transfer requires prior approval of the NRC 
under the Commission's regulations, governing statutes, or pursuant to a 
license condition.



Sec.  2.1401  Definitions.

    The definitions of terms in Sec.  2.4 apply to this subpart unless a 
different definition is provided in this subpart.



Sec.  2.1402  General procedures and limitations; requests for other 

procedures.

    (a) Generally-applicable procedures. For proceedings conducted under 
this subpart:
    (1) Except where provided otherwise in this subpart or specifically 
requested by the presiding officer or the Commission, written pleadings 
and briefs (regardless of whether they are in the form of a letter, a 
formal legal submission, or otherwise) are not permitted;
    (2) Requests to schedule a conference to consider oral motions may 
be in writing and served on the Presiding officer and the parties;
    (3) Motions for summary disposition before the hearing has concluded 
and motions for reconsideration to the presiding officer or the 
Commission are not permitted;
    (4) All motions must be presented and argued orally;
    (5) The presiding officer will reflect all rulings on motions and 
other requests from the parties in a written decision. A verbatim 
transcript of oral rulings satisfies this requirement;
    (6) Except for the information disclosure requirements set forth in 
subpart C of this part, requests for discovery will not be entertained; 
and
    (7) The presiding officer may issue written orders and rulings 
necessary for the orderly and effective conduct of the proceeding;
    (b) Other procedures. If it becomes apparent at any time before a 
hearing is held that a proceeding selected for adjudication under this 
subpart is not appropriate for application of this subpart, the 
presiding officer or the Commission may, on its own motion or at the 
request of a party, order the proceeding to continue under another 
appropriate subpart. If a proceeding under this subpart is discontinued 
because the proceeding is not appropriate for application of this 
subpart, the presiding officer may issue written orders necessary for 
the orderly continuation of the hearing process under another subpart.
    (c) Request for cross-examination. A party may present an oral 
motion to the presiding officer to permit cross-examination by the 
parties on particular admitted contentions or issues. The presiding 
officer may allow cross-examination by the parties if he or she 
determines that cross-examination by the parties is necessary for the 
development of an adequate record for decision.

[[Page 135]]



Sec.  2.1403  Authority and role of the NRC staff.

    (a) During the pendency of any hearing under this subpart, 
consistent with the NRC staff's findings in its own review of the 
application or matter which is the subject of the hearing and as 
authorized by law, the NRC staff is expected to issue its approval or 
denial of the application promptly, or take other appropriate action on 
the matter which is the subject of the hearing. When the NRC staff takes 
its action, it shall notify the presiding officer and the parties to the 
proceeding of its action. The NRC staff's action on the matter is 
effective upon issuance, except in matters involving:
    (1) An application to construct and/or operate a production or 
utilization facility;
    (2) An application for the construction and operation of an 
independent spent fuel storage installation located at a site other than 
a reactor site or a monitored retrievable storage facility under 10 CFR 
part 72; or
    (3) Production or utilization facility licensing actions that 
involve significant hazards considerations as defined in 10 CFR 50.92.
    (b)(1) The NRC staff is not required to be a party to proceedings 
under this subpart, except where:
    (i) The proceeding involves an application denied by the NRC staff 
or an enforcement action proposed by the staff; or
    (ii) The presiding officer determines that the resolution of any 
issue in the proceeding would be aided materially by the NRC staff's 
participation in the proceeding as a party and orders the staff to 
participate as a party for the identified issue. In the event that the 
presiding officer determines that the NRC staff's participation is 
necessary, the presiding officer shall issue an order identifying the 
issue(s) on which the staff is to participate as well as setting forth 
the basis for the determination that staff participation will materially 
aid in resolution of the issue(s).
    (2) Within fifteen (15) days of the issuance of the order granting 
requests for hearing/petitions to intervene and admitting contentions, 
the NRC staff shall notify the presiding officer and the parties whether 
it desires to participate as a party, and identify the contentions on 
which it wishes to participate as a party. If the NRC staff desires to 
be a party thereafter, the NRC staff shall notify the presiding officer 
and the parties, identify the contentions on which it wishes to 
participate as a party, and make the disclosures required by Sec.  
2.336(b)(3) through (5) unless accompanied by an affidavit explaining 
why the disclosures cannot be provided to the parties with the notice.
    (3) Once the NRC staff chooses to participate as a party, it shall 
have all the rights and responsibilities of a party with respect to the 
admitted contention/matter in controversy on which the staff chooses to 
participate.



Sec.  2.1404  Prehearing conference.

    (a) No later than forty (40) days after the order granting requests 
for hearing/petitions to intervene, the presiding officer shall conduct 
a prehearing conference. At the discretion of the presiding officer, the 
prehearing conference may be held in person or by telephone or through 
the use of video conference technology.
    (b) At the prehearing conference, each party shall provide the 
presiding officer and the parties participating in the conference with a 
statement identifying each witness the party plans to present at the 
hearing and a written summary of the oral and written testimony of each 
proposed witness. If the prehearing conference is not held in person, 
each party shall forward the summaries of the party's witnesses' 
testimony to the presiding officer and the other parties by such means 
that will ensure the receipt of the summaries by the commencement of the 
prehearing conference.
    (c) At the prehearing conference, the parties shall describe the 
results of their efforts to settle their disputes or narrow the 
contentions that remain for hearing, provide an agreed statement of 
facts, if any, identify witnesses that they propose to present at 
hearing, provide questions or question areas that they would propose to 
have the presiding officer cover with the witnesses at the hearing, and 
discuss other pertinent matters. At the conclusion of the conference, 
the presiding officer

[[Page 136]]

will issue an order specifying the issues to be addressed at the hearing 
and setting forth any agreements reached by the parties. The order must 
include the scheduled date for any hearing that remains to be held, and 
address any other matters as appropriate.



Sec.  2.1405  Hearing.

    (a) No later than twenty (20) days after the conclusion of the 
prehearing conference, the presiding officer shall hold a hearing on any 
contention that remains in dispute. At the beginning of the hearing, the 
presiding officer shall enter into the record all agreements reached by 
the parties before the hearing.
    (b) A hearing will be recorded stenographically or by other means, 
under the supervision of the presiding officer. A transcript will be 
prepared from the recording that will be the sole official transcript of 
the hearing. The transcript will be prepared by an official reporter who 
may be designated by the Commission or may be a regular employee of the 
Commission. Except as limited by section 181 of the Act or order of the 
Commission, the transcript will be available for inspection in the 
agency's public records system. Copies of transcripts are available to 
the parties and to the public from the official reporter on payment of 
the charges fixed therefor. If a hearing is recorded on videotape or 
other video medium, copies of the recording of each daily session of the 
hearing may be made available to the parties and to the public from the 
presiding officer upon payment of a charge fixed by the Chief 
Administrative Judge. Parties may purchase copies of the transcript from 
the reporter.
    (c) Hearings will be open to the public, unless portions of the 
hearings involving proprietary or other protectable information are 
closed in accordance with the Commission's regulations.
    (d) At the hearing, the presiding officer will not receive oral 
evidence that is irrelevant, immaterial, unreliable or unduly 
repetitious. Testimony will be under oath or affirmation.
    (e) The presiding officer may question witnesses who testify at the 
hearing, but the parties may not do so.
    (f) Each party may present oral argument and a final statement of 
position at the close of the hearing. Written post-hearing briefs and 
proposed findings are not permitted unless ordered by the presiding 
officer.



Sec.  2.1406  Initial decision--issuance and effectiveness.

    (a) Where practicable, the presiding officer will render a decision 
from the bench. In rendering a decision from the bench, the presiding 
officer shall state the issues in the proceeding and make clear its 
findings of fact and conclusions of law on each issue. The presiding 
officer's decision and order must be reduced to writing and transmitted 
to the parties as soon as practicable, but not later than twenty (20) 
days, after the hearing ends. If a decision is not rendered from the 
bench, a written decision and order will be issued not later than thirty 
(30) days after the hearing ends. Approval of the Chief Administrative 
Judge must be obtained for an extension of these time periods, and in no 
event may a written decision and order be issued later than sixty (60) 
days after the hearing ends without the express approval of the 
Commission.
    (b) The presiding officer's written decision must be served on the 
parties and filed with the Commission when issued.
    (c) The presiding officer's initial decision is effective and 
constitutes the final action of the Commission twenty (20) days after 
the date of issuance of the written decision unless any party appeals to 
the Commission in accordance with Sec.  2.1407 or the Commission takes 
review of the decision sua sponte or the regulations in this part 
specify other requirements with regard to the effectiveness of decisions 
on certain applications.



Sec.  2.1407  Appeal and Commission review of initial decision.

    (a)(1) Within fifteen (15) days after service of a written initial 
decision, a party may file a written appeal seeking the Commission's 
review on the grounds specified in paragraph (b) of this section. Unless 
otherwise authorized by law, a party must file an appeal with the 
Commission before seeking judicial review.

[[Page 137]]

    (2) An appeal under this section may not be longer than twenty (20) 
pages and must contain the following:
    (i) A concise statement of the specific rulings and decisions that 
are being appealed;
    (ii) A concise statement (including record citations) where the 
matters of fact or law raised in the appeal were previously raised 
before the presiding officer and, if they were not, why they could not 
have been raised;
    (iii) A concise statement why, in the appellant's view, the decision 
or action is erroneous; and
    (iv) A concise statement why the Commission should review the 
decision or action, with particular reference to the grounds specified 
in paragraph (b) of this section.
    (3) Any other party to the proceeding may, within fifteen (15) days 
after service of the appeal, file an answer supporting or opposing the 
appeal. The answer may not be longer than twenty (20) pages and should 
concisely address the matters specified in paragraph (a)(2) of this 
section. The appellant does not have a right to reply. Unless it directs 
additional filings or oral arguments, the Commission will decide the 
appeal on the basis of the filings permitted by this paragraph.
    (b) In considering the appeal, the Commission will give due weight 
to the existence of a substantial question with respect to the following 
considerations:
    (1) A finding of material fact is clearly erroneous or in conflict 
with a finding as to the same fact in a different proceeding;
    (2) A necessary legal conclusion is without governing precedent or 
is a departure from, or contrary to, established law;
    (3) A substantial and important question of law, policy or 
discretion has been raised by the appeal;
    (4) The conduct of the proceeding involved a prejudicial procedural 
error; or
    (5) Any other consideration which the Commission may deem to be in 
the public interest.
    (c) Once a decision becomes final agency action, the Secretary shall 
transmit the decision to the NRC staff for action in accordance with the 
decision.



                     Subpart O_Legislative Hearings

    Source: 69 FR 2273, Jan. 14, 2004, unless otherwise noted.



Sec.  2.1500  Purpose and scope.

    The purpose of this subpart is to provide for simplified, 
legislative hearing procedures to be used, at the Commission's sole 
discretion, in:
    (a) Any design certification rulemaking hearings under subpart B of 
part 52 of this chapter that the Commission may choose to conduct; and
    (b) Developing a record to assist the Commission in resolving, under 
Sec.  2.335(d), a petition filed under Sec.  2.335(b).



Sec.  2.1501  Definitions.

    Demonstrative information means physical things, not constituting 
documentary information.
    Documentary information means information, ordinarily contained in 
documents or electronic files, but may also include photographs and 
digital audio files.



Sec.  2.1502  Commission decision to hold legislative hearing.

    (a) The Commission may, in its discretion, hold a legislative 
hearing in either a design certification rulemaking under Sec.  52.51(b) 
of this chapter, or a proceeding where a question has been certified to 
it under Sec.  2.335(d).
    (b) Notice of Commission decision--(1) Hearing in design 
certification rulemakings. If, at the time a proposed design 
certification rule is published in the Federal Register under Sec.  
52.51(a) of this chapter, the Commission decides that a legislative 
hearing should be held, the information required by paragraph (c) of 
this section must be included in the Federal Register notice for the 
proposed design certification rule. If, following the submission of 
written public comments submitted on the proposed design certification 
rule which are submitted in accordance with Sec.  52.51(a) of this 
chapter, the Commission decides to conduct a legislative hearing, the 
Commission shall publish a notice in the Federal

[[Page 138]]

Register and on the NRC Web site indicating its determination to conduct 
a legislative hearing. The notice shall contain the information 
specified in paragraph (c) of this section, and specify whether the 
Commission or a presiding officer will conduct the legislative hearing.
    (2) Hearings under Sec.  2.335(d). If, following a certification of 
a question to the Commission by a Licensing Board under Sec.  2.335(d), 
the Commission decides to hold a legislative hearing to assist it in 
resolving the certified question, the Commission shall issue an order 
containing the information required by paragraph (c) of this section. 
The Commission shall serve the order on all parties in the proceeding. 
In addition, if the Commission decides that persons and entities other 
than those identified in paragraph (c)(2) may request to participate in 
the legislative hearing, the Commission shall publish a notice of its 
determination to hold a legislative hearing in the Federal Register and 
on the NRC Web site. The notice shall contain the information specified 
in paragraph (c) of this section, and refer to the criteria in Sec.  
2.1504 which will be used in determining requests to participate in the 
legislative hearing.
    (c) If the Commission decides to hold a legislative hearing, it 
shall, in accordance with paragraph (b) of this section:
    (1) Identify with specificity the issues on which it wishes to 
compile a record;
    (2) Identify, in a hearing associated with a question certified to 
the Commission under Sec.  2.335(d), the parties and interested 
State(s), governmental bodies, and Federally-recognized Indian Tribe 
under Sec.  2.315(c), who may participate in the legislative hearing;
    (3) Identify persons and entities that may, in the discretion of the 
Commission, be invited to participate in the legislative hearing;
    (4) Indicate whether other persons and entities may request, in 
accordance with Sec.  2.1504, to participate in the legislative hearing, 
and the criteria that the Commission or presiding officer will use in 
determining whether to permit such participation;
    (5) Indicate whether the Commission or a presiding officer will 
conduct the legislative hearing;
    (6) Specify any special procedures to be used in the legislative 
hearing;
    (7) Set the dates for submission of requests to participate in the 
legislative hearing, submission of written statements and demonstrative 
and documentary information, and commencement of the oral hearing; and
    (8) Specify the location where the oral hearing is to be held. 
Ordinarily, oral hearings will be held in the Washington, DC 
metropolitan area.



Sec.  2.1503  Authority of presiding officer.

    If the Commission appoints a presiding officer to conduct the 
legislative hearing, the presiding officer shall be responsible for 
expeditious development of a sufficient record on the Commission-
identified issues, consistent with the direction provided by the 
Commission under Sec.  2.1502(c). The presiding officer has the 
authority otherwise accorded to it under Sec. Sec.  2.319(a), (c), (e), 
(g), (h), and (i), 2.324, and 2.333 to control the course of the 
proceeding, and may exercise any other authority granted to it by the 
Commission in accordance with Sec.  2.1502(c)(6).



Sec.  2.1504  Request to participate in legislative hearing.

    (a) Any person or entity who wishes to participate in a legislative 
hearing noticed under either Sec.  2.1502(b)(1) or (b)(2) shall submit a 
request to participate by the date specified in the notice. The request 
must address:
    (1) A summary of the person's position on the subject matter of the 
legislative hearing; and
    (2) The specific information, expertise or experience that the 
person possesses with respect to the subject matter of the legislative 
hearing.
    (b) The Commission or presiding officer shall, within ten (10) days 
of the date specified for submission of requests to participate, 
determine whether the person or entity has met the criteria specified by 
the Commission under Sec.  2.1502(c)(4) for determining requests to 
participate in the legislative hearing, and issue an order to that 
person or entity informing them of the presiding officer's decision. A 
presiding officer's determinations in this regard are final and not 
subject to any motion for reconsideration or appeal to the

[[Page 139]]

Commission; and the Commission's determination in this regard are final 
and are not subject to a motion for reconsideration.



Sec.  2.1505  Role of the NRC staff.

    The NRC staff shall be available to answer any Commission or 
presiding officer's questions on staff-prepared documents, provide 
additional information or documentation that may be available to the 
staff, and provide other assistance that the Commission or presiding 
officer may request without requiring the NRC staff to assume the role 
of an advocate. The NRC staff may request to participate in the 
legislative hearing by providing notice to the Commission or presiding 
officer, as applicable, within the time period established for 
submitting a request to participate; or if no notice is provided under 
Sec.  2.1502(b)(2), within ten (10) days of the Commission's order 
announcing its determination to conduct a legislative hearing.



Sec.  2.1506  Written statements and submission of information.

    All participants shall file written statements on the Commission-
identified issues, and may submit documentary and demonstrative 
information. Written statements, copies of documentary information, and 
a list and short description of any demonstrative information to be 
submitted must be received by the NRC (and in a hearing on issues 
stemming from a Sec.  2.335(b) petition, by the parties in the 
proceeding in which the petition was filed) no later than ten (10) days 
before the commencement of the oral hearing.



Sec.  2.1507  Oral hearing.

    (a) Not less than five (5) days before the commencement of the oral 
hearing, the presiding officer shall issue an order setting forth the 
grouping and order of appearance of the witnesses at the oral hearing. 
The order shall be filed upon all participants by email or facsimile 
transmission if possible, otherwise by overnight mail.
    (b) The Commission or presiding officer may question witnesses. 
Neither the Commission nor the presiding officer will ordinarily permit 
participants to submit recommended questions for the Commission or 
presiding officer to propound to witnesses. However, if the Commission 
or presiding officer believe that the conduct of the oral hearing will 
be expedited and that consideration of such proposed questions will 
assist in developing a more focused hearing record, the Commission or 
presiding officer may, in its discretion, permit the participants to 
submit recommended questions for the Commission or presiding officer's 
consideration.
    (c) The Commission or presiding officer may request, or upon request 
of a participant may, in the presiding officer's discretion, permit the 
submission of additional information following the close of the oral 
hearing. Such information must be submitted no later than five (5) days 
after the close of the oral hearing and must be served at the same time 
upon all participants at the oral hearing.



Sec.  2.1508  Recommendation of presiding officer.

    (a) If the Commission is not acting as a presiding officer, the 
presiding officer shall, within thirty (30) days following the close of 
the legislative hearing record, certify the record to the Commission on 
each of the issues identified by the Commission.
    (b) The presiding officer's certification for each Commission-
identified issue shall contain:
    (1) A transcript of the oral phase of the legislative hearing;
    (2) A list of all participants;
    (3) A list of all witnesses at the oral hearing, and their 
affiliation with a participant;
    (4) A list, and copies of, all documentary information submitted by 
the participants with ADAMS accession numbers;
    (5) All demonstrative information submitted by the participants;
    (6) Any written answers submitted by the NRC staff in response to 
questions posed by the presiding officer with ADAMS accession numbers;
    (7) A certification that all documentary information has been 
entered into ADAMS, and have been placed on the NRC Web site unless 
otherwise protected from public disclosure;

[[Page 140]]

    (8) A certification by the presiding officer that the record 
contains sufficient information for the Commission to make a reasoned 
determination on the Commission-identified issue; and
    (9) At the option of the presiding officer, a summary of the 
information in the record and a proposed resolution of the Commission-
identified issue with a supporting basis.



Sec.  2.1509  Ex parte communications and separation of functions.

    Section 2.347 applies in a legislative hearing. Section 2.348 
applies in a legislative hearing only where the hearing addresses an 
issue certified to the Commission under Sec.  2.335(d), and then only 
with respect to the underlying contested matter.

                     Appendix A to Part 2 [Reserved]

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.

  I. Model Milestones for a Hearing on an Enforcement Action Conducted 
                     Under 10 CFR Part 2, Subpart G

    These model milestones would apply to enforcement proceedings 
conducted under 10 CFR Part 2, Subpart G. As required by 10 CFR 2.332 
and 2.334, the presiding officer establishes, by order, a schedule for 
the conduct of the proceeding. In establishing a schedule, the presiding 
officer should use these milestones as a starting point, make 
appropriate modifications to the milestones, and set detailed schedules 
(e.g., for filings) based upon all relevant information. Such 
information would include, but not be limited to, the complexity of the 
issues, any other relevant consideration that a party brings to the 
attention of the presiding officer, and the NRC's interest in providing 
a fair and expeditious resolution of the issues to be adjudicated in the 
proceeding. The model milestones are based on the Commission's Rules of 
Practice in 10 CFR Part 2, Subparts B, C, and G.
    The model milestones are based upon the following assumptions: (i) 
the issues to be litigated will involve both disputes over fact and 
issues of compliance with the Commission's regulations and requirements; 
and (ii) no petitions to intervene are filed pursuant to 10 CFR 
2.309(a)-(b). The model milestones reflect electronic filing and service 
in accordance with 10 CFR 2.305. In some cases, preparation of direct 
testimony and motions for summary disposition can proceed once initial 
mandatory disclosures have been made. The time periods set forth in the 
model milestones reflect these assumptions.

                            Model Milestones
                       [10 CFR Part 2, Subpart G]
 Within 20 days of date   Person subject to order
 of enforcement order:                       files answer; if order
                                             immediately effective,
                                             motion to set aside
                                             immediate effectiveness
                                             due; requests for hearing
                                             due.
 Within 100 days of       Presiding officer issues
 enforcement order:                          order on hearing request by
                                             person who is subject of
                                             enforcement order.
 Within 25 days of        Presiding officer sets
 presiding officer decision granting         initial schedule for the
 hearing:                                    proceeding.
 Within 145 days of       Discovery complete.
 presiding officer decision granting
 hearing:
 Within 155 days of       Motions for summary
 presiding officer decision granting         disposition due.
 hearing:
 Within 235 days of       Presiding officer decisions
 presiding officer decision granting         on motions for summary
 hearing:                                    disposition.
 Within 245 days of       Prehearing conference
 presiding officer decision granting         (optional); presiding
 hearing:                                    officer sets schedule for
                                             remainder of proceeding.
 Within 275 days of       Written testimony filed.
 presiding officer decision granting
 hearing:
 Within 90 days of end    Presiding officer issues
 of evidentiary hearing and closing of       initial decision.
 record:
------------------------------------------------------------------------

II. Model Milestones for Hearings Conducted Under 10 CFR Part 2, Subpart 
                                    L

    These model milestones would apply to proceedings conducted under 10 
CFR Part 2, Subpart L, including those on applications for combined 
licenses (COLs), renewed licenses, and license amendments. While such 
proceedings differ insofar as the scope and complexity of the NRC staff 
reviews for the requested actions may vary, such differences will be 
reflected in the staff's schedule for issuing its review documents in a 
particular type of action. Because the milestones are keyed to the 
staff's review schedule, separate milestones are not identified for 
proceedings on the different types of actions.
    As required by 10 CFR 2.332 and 2.334, the presiding officer 
establishes, by order, a schedule for the conduct of each proceeding. In 
establishing a schedule, the presiding officer should use these 
milestones as a starting point, make appropriate modifications to the 
milestones, and set detailed schedules (e.g., for filings) based upon 
all relevant information. Such information would include, but not be 
limited to, the number of contentions admitted, the complexity of the 
issues, the

[[Page 141]]

NRC staff's schedule for completion of its safety and environmental 
evaluations, any other relevant consideration that a party brings 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 admitted 
for adjudication in the proceeding. The model milestones are based on 
the Commission's Rules of Practice in 10 CFR Part 2, Subparts B, C, and 
L.
    The model milestones include only the most significant events in the 
proceeding and are based upon the following assumptions: (I) the issues 
to be litigated will involve both disputes over fact and issues of 
compliance with the Commission's regulations and requirements; (ii) an 
oral hearing under 10 CFR 2.1207 will be held rather than a written 
hearing under 10 CFR 2.1208; and (iii) the final Safety Evaluation 
Report (SER) and final environmental document will be issued 
simultaneously. The model milestones reflect electronic filing and 
service in accordance with 10 CFR 2.305.

                            Model Milestones
                       [10 CFR Part 2, Subpart L]
 Within 140 of            Presiding officer decision
 publication days of notice in Federal       on intervention petitions
 Register:                                   and admission of
                                             contentions.
 Within 55 days of        Presiding officer to set
 presiding officer decision granting         initial schedule for
 intervention and admitting contentions:     proceeding, based on staff
                                             schedule for issuing draft
                                             and final SERs and any
                                             necessary NEPA document.
 Within 30 days of        Proposed late-filed
 issuance of SER and any necessary NEPA      contentions on SER and
 document:                                   necessary NEPA documents
                                             filed; motions for summary
                                             disposition on previously
                                             admitted contentions due.
 Within 85 days of        Presiding officer decision
 issuance of SER and NEPA document:          on admission of proposed
                                             late-filed contentions and
                                             motions for summary
                                             disposition; presiding
                                             officer sets schedule for
                                             remainder of proceeding.
 Within 14 days after     All parties complete updates
 presiding officer decision on amended/      of mandatory disclosures.
 late-filed contentions:
 Within 115 days of       Motions for summary
 issuance of SER and NEPA document:          disposition due.
 Within 155 days of       Written direct testimony
 issuance of SER and NEPA document:          filed.
 Within 175 days of       Evidentiary hearing begins.
 issuance of SER and NEPA document:
 Within 90 days of end    Presiding officer issues
 of evidentiary hearing and closing of       initial decision.
 record:
------------------------------------------------------------------------

III. Model Milestones for a Hearing on a Transfer of a License Conducted 
                     Under 10 CFR Part 2, Subpart M

    These model milestones would apply to proceedings conducted under 10 
CFR Part 2, Subpart M on applications for license transfer. As required 
by 10 CFR 2.332 and 2.334, the presiding officer establishes, by order, 
a schedule for the conduct of each proceeding. In establishing a 
schedule, the presiding officer should use these milestones as a 
starting point, make appropriate modifications to the milestones, and 
set detailed schedules (e.g., for filings) based upon all relevant 
information. Such information would include, but not be limited to, the 
number of contentions admitted, the complexity of the issues, the NRC 
staff's schedule for completion of its safety and environmental 
evaluations, any other relevant consideration that a party brings 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 admitted 
for adjudication in the proceeding. The model milestones are based on 
the Commission's Rules of Practice in 10 CFR Part 2, Subparts B, C and 
M.
    The model milestones include only the most significant events in the 
proceeding, and are based upon the following assumptions: (i) The issues 
to be litigated will involve both disputes over fact and issues of 
compliance with the Commission's regulations and requirements; (ii) the 
parties do not file a joint request under 10 CFR 2.1308 for a hearing 
consisting of written comments; (iii) the final Safety Evaluation Report 
(SER) is not necessary to resolve the issues to be litigated; (iv) the 
Commission itself does not serve as the presiding officer; and (v) the 
Commission does not order further taking of testimony after the 
presiding officer certifies the record to the Commission under 10 CFR 
2.1319(f). The model milestones reflect electronic filing and service in 
accordance with 10 CFR 2.305.

                            Model Milestones
                       [10 CFR Part 2, Subpart M]
 Within 100 days of       Presiding officer decision
 publication of Federal Register notice of   on intervention petitions
 opportunity for hearing:                    and admission of
                                             contentions.
 Within 30 days of order  NRC staff and other parties
 granting hearing petitions:                 complete mandatory
                                             disclosures.
 Within 12 days of        Presiding Officer issues
 completion of mandatory disclosures:        scheduling order to
                                             address, inter alia,
                                             scheduling of oral hearing,
                                             filing of written
                                             statements of position,
                                             direct testimony, and
                                             rebuttal testimony.
 Within 45 days of        Oral hearing commences.
 scheduling order:

[[Page 142]]

 
 Within 25 days after     Presiding officer certifies
 hearing ends:                               hearing record to the
                                             Commission.
------------------------------------------------------------------------

 IV. Model Milestones for a Hearing on an Enforcement Action Conducted 
                     Under 10 CFR Part 2, Subpart N

    These model milestones would apply to enforcement proceedings 
conducted under 10 CFR Part 2, Subpart N. As required by 10 CFR 2.332 
and 2.334, the presiding officer establishes, by order, a schedule for 
the conduct of each proceeding. In establishing a schedule, the 
presiding officer should use these milestones as a starting point, make 
appropriate modifications to the milestones, and set detailed schedules 
based upon all relevant information. The model milestones are based on 
the Commission's Rules of Practice in 10 CFR Part 2, Subparts B, C, and 
N.
    The model milestones are based upon the following assumptions: (i) 
The issues to be litigated will involve both disputes over fact and 
issues of compliance with the Commission's regulations and requirements; 
and (ii) no petitions to intervene are filed pursuant to 10 CFR 
2.309(a)-(b). The model milestones reflect electronic filing and service 
in accordance with 10 CFR 2.305. The only discovery provided is the 
mandatory disclosure made by each party pursuant to 10 CFR 2.336.

                            Model Milestones
                       [10 CFR Part 2, Subpart N]
 Within 20 of date of     Person subject to order
 enforcement order:                          files answer; if order
                                             immediately effective,
                                             motion to set aside
                                             immediate effectiveness
                                             due; requests for hearing
                                             due, including joint motion
                                             to use Subpart N
                                             procedures.
 Within 50 days of date   Presiding officer decision
 of enforcement order:                       on requests for hearing and
                                             confirms use of Subpart N
                                             procedures (note: if
                                             presiding officer concludes
                                             that Subpart N procedures
                                             should not be used, the
                                             Model Milestone for
                                             Enforcement Actions under
                                             Subpart G are applicable).
 Within 30 days of        Mandatory disclosures
 presiding officer decision granting         complete.
 hearing:
 Within 40 days of        Prehearing conference to
 presiding officer decision granting         specify issues for hearing
 hearing:                                    and set schedules for
                                             remaining course of
                                             proceeding.
 Within 60 days of        Evidentiary hearing begins.
 presiding officer decision granting
 hearing:
 Within 30 days of end    Presiding officer issues
 of evidentiary hearing and closing of       initial decision.
 record:
------------------------------------------------------------------------


[70 FR 20462, Apr. 20, 2005]

                     Appendix C to Part 2 [Reserved]

 Appendix D to Part 2--Schedule for the Proceeding on Consideration of 
 Construction Authorization for a High-Level Waste Geologic Repository.

------------------------------------------------------------------------
 Day         Regulation  (10 CFR)                     Action
------------------------------------------------------------------------
    0  2.101(f)(8), 2.105(a)(5)........  Federal Register Notice of
                                          Hearing.
   30  2.309(b)(2).....................  Petition to intervene/request
                                          for hearing, w/contentions.
   30  2.309(b)(2).....................  Petition for status as
                                          interested government
                                          participant.
   55  2.315(c)........................  Answers to intervention &
                                          interested government
                                          participant Petitions.
   62  2.309(h)(1).....................  Petitioner's response to
                                          answers.
   70  2.1021..........................  First Prehearing conference.
  100  2.309(h)(2).....................  First Prehearing Conference
                                          Order identifying participants
                                          in proceeding, admitted
                                          contentions, and setting
                                          discovery and other schedules.
  110  2.1021..........................  Appeals from First Prehearing
                                          Conference Order.
  120  ................................  Briefs in opposition to
                                          appeals.
  150  2.1021, 2.329...................  Commission ruling on appeals
                                          for First Prehearing
                                          Conference Order.
  548  ................................  NRC Staff issues SER.
  578  2.1022..........................  Second Prehearing Conference.
  608  2.1021, 2.1022..................  Discovery complete; Second
                                          Prehearing Conference Order
                                          finalizes issues for hearing
                                          and sets schedule for prefiled
                                          testimony and hearing.
  618  2.1015(b).......................  Appeals from Second Prehearing
                                          Conference Order.
  628  2.1015(b), c.f. 2.710(a)........  Briefs in opposition to
                                          appeals; last date for filing
                                          motions for summary
                                          disposition.
  648  c.f. 2.710(a)...................  Last date for responses to
                                          summary disposition motions.
  658  2.710(a)........................  Commission ruling on appeals
                                          from Second Prehearing
                                          Conference Order; last date
                                          for party opposing summary
                                          disposition motion to file
                                          response to new facts and
                                          arguments in any response
                                          supporting summary disposition
                                          motion.
  698  2.1015(b).......................  Decision on summary disposition
                                          motions (may be determination
                                          to dismiss or to hold in
                                          abeyance).
  720  c.f. 2.710(a)...................  Evidentiary hearing begins.
  810  ................................  Evidentiary hearing ends.
  840  2.712(a)(1).....................  Applicant's proposed findings.
  850  2.712(a)(2).....................  Other parties' proposed
                                          findings.
  855  2.712(a)(3).....................  Applicant's reply to other
                                          parties' proposed findings.
  955  2.713...........................  Initial decision.
  965  2.342(a), 2.345(a), 2.1015(c)(1)  Stay motion. Petition for
                                          reconsideration, notice of
                                          appeal.
  975  2.342(d), 2.345(b)..............  Other parties' responses to
                                          stay motion and Petitions for
                                          reconsideration.
  985  ................................  Commission ruling on stay
                                          motion.
  995  2.1015(c)(2)....................  Appellant's briefs.
 1015  2.1015(c)(3)....................  Appellee's briefs.

[[Page 143]]

 
 1055  2.1023 Supp. Info...............  Completion of NMSS and
                                          Commission supervisory review;
                                          issuance of construction
                                          authorization; NWPA 3-year
                                          period tolled.
 1125  ................................  Commission decision.
------------------------------------------------------------------------


[69 FR 2275, Jan. 14, 2004; 69 FR 25997, May 11, 2004]



PART 4_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OR ACTIVITIES 

RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM THE COMMISSION--Table of Contents




                           General Provisions

Sec.
4.1 Purpose and scope.
4.2 Subparts.
4.3 Application of this part.
4.4 Definitions.
4.5 Communications and reports.
4.6 Maintenance of records.
4.8 Information collection requirements: OMB approval.

 Subpart A_Regulations Implementing Title VI of the Civil Rights Act of 
       1964 and Title IV of the Energy Reorganization Act of 1974

                        Discrimination Prohibited

4.11 General prohibition.
4.12 Specific discriminatory actions prohibited.
4.13 Employment practices.
4.14 Medical emergencies.

                           Assurances Required

4.21 General requirements.
4.22 Continuing Federal financial assistance.
4.24 Assurances from institutions.

                         Compliance Information

4.31 Cooperation and assistance.
4.32 Compliance reports.
4.33 Access to sources of information.
4.34 Information to beneficiaries and participants.

                        Conduct of Investigations

4.41 Periodic compliance reviews.
4.42 Complaints.
4.43 Investigations.
4.44 Resolution of matters.
4.45 Intimidatory or retaliatory acts prohibited.

                      Means of Effecting Compliance

4.46 Means available.
4.47 Noncompliance with Sec.  4.21.
4.48 Termination of or refusal to grant or to continue Federal financial 
          assistance.
4.49 Other means authorized by law.

                         Opportunity for Hearing

4.51 Notice of opportunity for hearing.

                          Hearings and Findings

4.61 Presiding officer.
4.62 Right to counsel.
4.63 Procedures, evidence, and record.
4.64 Consolidated or joint hearings.

                          Decisions and Notices

4.71 Initial decision or certification.
4.72 Exceptions and final decision.
4.73 Rulings required.
4.74 Content of orders.
4.75 Post termination proceedings.

                             Judicial Review

4.81 Judicial review.

           Effect on Other Regulations; Forms and Instructions

4.91 Effect on other regulations.
4.92 Forms and instructions.
4.93 Supervision and coordination.

Subpart B_Regulations Implementing Section 504 of the Rehabilitation Act 
                           of 1973, as Amended

4.101 Definitions.

                        Discriminatory Practices

4.121 General prohibitions against discrimination.
4.122 General prohibitions against employment discrimination.
4.123 Reasonable accommodation.
4.124 Employment criteria.
4.125 Preemployment inquiries.
4.126 General requirement concerning accessibility.
4.127 Existing facilities.
4.128 New construction.

                               Enforcement

4.231 Responsibility of applicants and recipients.
4.232 Notice.
4.233 Enforcement procedures.

 Subpart C_Regulations Implementing the Age Discrimination Act of 1975, 
                               as Amended

                                 General

4.301 Purpose and scope.
4.302 Application of this subpart.

[[Page 144]]

4.303 Definitions.

              Standards for Determining Age Discrimination

4.311 Rules against age discrimination.
4.312 Definitions of ``normal operation'' and ``statutory objective''.
4.313 Exceptions to the rules against age discrimination. Normal 
          operation or statutory objective of any program or activity.
4.314 Exceptions to the rules against age discrimination. Reasonable 
          factors other than age.
4.315 Burden of proof.

                        Duties of NRC Recipients

4.321 Assurance of compliance.
4.322 Written notice, technical assistance, and educational materials.
4.324 Information requirements.

         Investigation, Conciliation, and Enforcement Procedures

4.331 Compliance reviews.
4.332 Complaints.
4.333 Mediation.
4.334 Investigation.
4.335 Prohibition against intimidation or retaliation.
4.336 Compliance procedure.
4.337 Hearings, descisions, post-termination proceedings.
4.338 Remedial and affirmative action by recipients.
4.339 Alternate funds disbursal procedure.
4.340 Exhaustion of administrative remedies.
4.341 Reports.

Subpart D [Reserved]

 Subpart E_Enforcement of Nondiscrimination on the Basis of Handicap in 
    Programs or Activities Conducted by the U.S. Nuclear Regulatory 
                               Commission

4.501 Purpose.
4.502 Application.
4.503 Definitions.
4.504-4.509 [Reserved]
4.510 Self-evaluation.
4.511 Notice.
4.512-4.529 [Reserved]
4.530 General prohibitions against discrimination.
4.531-4.539 [Reserved]
4.540 Employment.
4.541-4.548 [Reserved]
4.549 Program accessibility: Discrimination prohibited.
4.550 Program accessibility: Existing facilities.
4.551 Program accessibility: New construction and alterations.
4.552-4.559 [Reserved]
4.560 Communications.
4.561-4.569 [Reserved]
4.570 Compliance procedures.
4.571-4.999 [Reserved]

Appendix A to Part 4--Federal Financial Assistance to Which This Part 
          Applies

    Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); sec. 
274, 73 Stat. 688, as amended (42 U.S.C. 2021); sec. 201, 88 Stat. 1242, 
as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 
note).
    Subpart A also issued under secs. 602-605, Pub. L. 88-352, 78 Stat. 
252, 253 (42 U.S.C. 2000d-1-2000d-4); sec. 401, 88 Stat. 1254 (42 U.S.C. 
5891).
    Subpart B also issued under sec. 504, Pub. L. 93-112, 87 Stat. 394 
(29 U.S.C. 706); sec. 119, Pub. L. 95-602, 92 Stat. 2984 (29 U.S.C. 
794); sec. 122, Pub. L. 95-602, 92 Stat. 2984 (29 U.S.C. 706(6)).
    Subpart C also issued under Title III of Pub. L. 94-135, 89 Stat. 
728, as amended (42 U.S.C. 6101).
    Subpart E also issued under 29 U.S.C. 794.

    Source: 29 FR 19277, Dec. 31, 1964, unless otherwise noted.

                           General Provisions



Sec.  4.1  Purpose and scope.

    The regulations in this part implement:
    (a) The provisions of title VI of the Civil Rights Act of 1964, Pub. 
L. 88-352; (78 Stat. 241; 42 U.S.C. 2000a note), and title IV of the 
Energy Reorganization Act of 1974, Pub. L. 93-438, (88 Stat. 1233; 42 
U.S.C. 5801 note), which relate to nondiscrimination with respect to 
race, color, national origin or sex in any program or activity receiving 
Federal financial assistance from NRC;
    (b) The provisions of section 504 of the Rehabilitation Act of 1973, 
as amended, Pub. L. 93-112 (87 Stat. 355; 29 U.S.C. 701 note), Pub. L. 
95-602 (92 Stat. 2955; 29 U.S.C. 701 note), which relates to 
nondiscrimination with respect to the handicapped in any program or 
activity receiving Federal financial assistance; and
    (c) The provisions of the Age Discrimination Act of 1975, as amended 
Pub. L. 94-135 (89 Stat. 713; 42 U.S.C. 3001 note), Pub. L. 95-478 (92 
Stat. 1513; 42 U.S.C. 3001 note), which relates to nondiscrimination on 
the basis of age in any program or activity receiving Federal financial 
assistance.

[52 FR 25357, July 7, 1987]

[[Page 145]]



Sec.  4.2  Subparts.

    Subpart A sets forth rules applicable to title VI of the Civil 
Rights Act of 1964 and title IV of the Energy Reorganization Act of 
1974. (The Acts are collectively referred to in subpart A as ``the 
Act''.) Subpart B sets forth rules applicable specifically to matters 
pertaining to section 504 of the Rehabilitation Act of 1973, as amended. 
Subpart C sets forth rules pertaining to the provisions of the Age 
Discrimination Act of 1975, as amended, Pub. L. 94-135 (89 Stat. 713; 42 
U.S.C. 3001 note), Pub. L. 95-478 (92 Stat. 1513; 42 U.S.C. 3001 note), 
which relates to nondiscrimination on the basis of age in any program or 
activity receiving Federal financial assistance.

[52 FR 25358, July 7, 1987]



Sec.  4.3  Application of this part.

    This part applies to any program for which Federal financial 
assistance is authorized under a law administered by NRC. The types of 
Federal financial assistance to which this part applies are listed in 
appendix A of this part; appendix A may be revised from time to time by 
notice published in the Federal Register. This part applies to money 
paid, property transferred, or other Federal assistance extended, by way 
of grant, entitlement, cooperative agreement, loan, contract, or other 
agreement by NRC, or an authorized contractor or subcontractor of NRC, 
the terms of which require compliance with this part. If any statutes 
implemented by this part are otherwise applicable, the failure to list a 
type of Federal financial assistance in appendix A does not mean a 
program or activity is not covered by this part. This part does not 
apply to--
    (a) Contracts of insurance or guaranty; or
    (b) Procurement contracts; or
    (c) Employment practices under any program or activity except as 
provided in Sec. Sec.  4.13, 4.122 and 4.302.

[52 FR 25358, July 7, 1987, as amended at 68 FR 51344, Aug. 26, 2003]



Sec.  4.4  Definitions.

    (a) Applicant means one who submits an application, request, or plan 
required to be approved by NRC, or by a primary recipient, as a 
condition to eligibility for Federal financial assistance; 
``application'' means such an application, request, or plan.
    (b) Commission means the Commission of five members or a quorum 
thereof sitting as a body; ``NRC'' means the Nuclear Regulatory 
Commission and its duly authorized representatives.
    (c) Facility includes all or any portion of structures, equipment, 
or other real or personal property or interests therein, and the 
provisions of facilities includes the construction, expansion, 
renovation, remodeling, alteration or acquisition of facilities.
    (d) Federal financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which 
NRC provides or otherwise makes available assistance in the form of--
    (1) Funds;
    (2) Services of Federal personnel or other personnel at Federal 
expense; or
    (3) Real and personal property or any interest in or use of 
property, including--
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration;
    (ii) Proceeds from a subsequent transfer or lease of property if the 
Federal share of its fair market value is not returned to the Federal 
Government; and the
    (iii) Sale and lease of, and the permission to use (other than on 
casual or transient basis) Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient.
    (e) Administrative Law Judge means an individual appointed pursuant 
to section 11 of the Administrative Procedure Act to conduct proceedings 
subject to this part.
    (f) Primary recipient means any recipient which is authorized or 
required to extend Federal financial assistance to another recipient.

[[Page 146]]

    (g) Program or activity and program mean all of the operations of 
any entity described in paragraphs (g)(1) through (4) of this section, 
any part of which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 8801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (g)(1), (2), or (3) of this section.
    (h) Recipient means any State, political subdivision of any State, 
or instrumentality of any State or political subdivision, any public or 
private agency, institution, or organization, or other entity, or any 
individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, including any 
successor, assignee, or transferee thereof, but such term does not 
include any ultimate beneficiary.
    (i) Responsible NRC official means the Director of the Office of 
Small Business and Civil Rights or any other officer to whom the 
Executive Director for Operations has delegated the authority to act.
    (j) United States means the States of the United States, the 
District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, 
Guam, Wake Island, and the territories and possessions of the United 
States, and the term ``State'' means any one of the foregoing.

[29 FR 19277, Dec. 31, 1964, as amended at 45 FR 14535, Mar. 6, 1980; 45 
FR 18905, Mar. 24, 1980. Redesignated and amended at 52 FR 25358, July 
7, 1987; 63 FR 15742, Apr. 1, 1998; 68 FR 51344, Aug. 26, 2003; 68 FR 
75389, Dec. 31, 2003]



Sec.  4.5  Communications and reports.

    Except as otherwise indicated, communications and reports relating 
to this part may be sent to the NRC by mail addressed to the U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand 
delivery to the NRC's offices at 11555 Rockville Pike, Rockville, 
Maryland; or, where practicable, by electronic submission, for example, 
via Electronic Information Exchange, or CD-ROM. Electronic submissions 
must be made in a manner that enables the NRC to receive, read, 
authenticate, distribute, and archive the submission, and process and 
retrieve it a single page at a time. Detailed guidance on making 
electronic submissions can be obtained by visiting the NRC's Web site at 
http://www.nrc.gov/site-help/eie.html, by calling (301) 415-6030, by e-
mail to EIE@nrc.gov, or by writing the Office of Information Services, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The 
guidance discusses, among other topics, the formats the NRC can accept, 
the use of electronic signatures, and the treatment of nonpublic 
information.

[68 FR 58799, Oct. 10, 2003]



Sec.  4.6  Maintenance of records.

    Each record required by this part must be legible throughout the 
retention period specified by each Commission regulation. The record may 
be the original or a reproduced copy or a

[[Page 147]]

microform provided that the copy or microform is authenticated by 
authorized personnel and that the microform is capable of producing a 
clear copy throughout the required retention period. The record may also 
be stored in electronic media with the capability for producing legible, 
accurate, and complete records during the required retention period. 
Records such as letters, drawings, specifications, must include all 
pertinent information such as stamps, initials, and signatures. The 
licensee shall maintain adequate safeguards against tampering with and 
loss of records.

[53 FR 19244, May 27, 1988]



Sec.  4.8  Information collection requirements: OMB approval.

    (a) The Nuclear Regulatory Commission has submitted the information 
collection requirements contained in this part to the Office of 
Management and Budget (OMB) for approval as required by the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.). The NRC may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number. OMB 
has approved the information collection requirements contained in this 
part under control number 3150-0053.
    (b) The approved information collection requirements contained in 
this part appear in Sec. Sec.  4.32, 4.34, 4.125, 4.127, 4.231, 4.232, 
4.322, and 4.324.

[62 FR 52184, Oct. 6, 1997]



 Subpart A_Regulations Implementing Title VI of the Civil Rights Act of 
       1964 and Title IV of the Energy Reorganization Act of 1974

                        Discrimination Prohibited



Sec.  4.11  General prohibition.

    No person in the United States shall, on the ground of sex, race, 
color, or national origin, be excluded from participation in, be denied 
the benefits of, or be otherwise subjected to discrimination under any 
program to which this subpart applies.

[29 FR 19277, Dec. 31, 1964, as amended at 40 FR 8778, Mar. 3, 1975]



Sec.  4.12  Specific discriminatory actions prohibited.

    (a) A recipient to which this subpart applies may not, directly or 
through contractual or other arrangements, on the ground of sex, race, 
color, or national origin:
    (1) Deny an individual any service, financial aid, or other benefit 
provided under the program;
    (2) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (3) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (4) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (5) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibilty, 
membership or other requirement or condition which individuals must meet 
in order to be provided any service, financial aid, or other benefit 
provided under the program;
    (6) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program (including the opportunity to participate in the program as 
an employee but only to the extent set forth in Sec.  4.13).
    (b) A recipient in determining the types of services, financial aid, 
or other benefits, or facilities which will be provided under any such 
program, or the class of individuals to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program, or the class of individuals to be 
afforded an opportunity to participate in any such program, may not, 
directly

[[Page 148]]

or through contractual or other arrangements, utilize criteria or 
methods of administration which have the effect of subjecting 
individuals to discrimination because of their sex, race, color, or 
national origin, or have the effect of defeating or substantially 
impairing accomplishment of the objectives of the program as respects 
individuals of a particular sex, race, color, or national origin.
    (c) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits of, or subjecting 
them to discrimination under any program to which this subpart applies, 
on the grounds of sex, race, color, or national origin; or with the 
purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of the Act or this subpart.
    (d) As used in this section the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
shall be deemed to include any services, financial aid, or other benefit 
provided in or through a facility provided with the aid of Federal 
financial assistance.
    (e) The enumeration of specific forms of prohibited discrimination 
in this section and Sec.  4.13 does not limit the generality of the 
prohibition in Sec.  4.11.
    (f) This subpart does not prohibit the consideration of sex, race, 
color, or national origin if the purpose and effect are to remove or 
overcome the consequences of practices or impediments which have 
restricted the availability of, or participation in, the program or 
activity receiving Federal financial assistance, on the grounds of sex, 
race, color or national origin. Where previous discriminatory practice 
or usage tends, on the grounds of sex, race, color, or national origin, 
to exclude individuals from participation in, to deny them the benefits 
of, or to subject them to discrimination under any program or activity 
to which this subpart applies, the applicant or recipient has an 
obligation to take reasonable action to remove or overcome the 
consequences of the prior discriminatory practice or usage, and to 
accomplish the purposes of the Act.

[29 FR 19277, Dec. 31, 1964, as amended at 38 FR 17927, July 5, 1973; 40 
FR 8778 Mar. 3, 1975; 68 FR 51344, Aug. 26, 2003]



Sec.  4.13  Employment practices.

    (a) Where a primary objective of the Federal financial assistance to 
a program to which this subpart applies is to provide employment, a 
recipient may not, directly or through contractual or other 
arrangements, subject an individual to discrimination on the ground of 
sex, race, color, or national origin in its employment practices under 
such program (including recruitment or recruitment advertising, 
employment, layoff or termination, upgrading, demotion, or transfer, 
rates of pay or other forms of compensation, and use of facilities), 
including programs where a primary objective of the Federal financial 
assistance to a program is (1) to assist such individuals through 
employment to meet expenses incident to the commencement or continuation 
of their education or training, or (2) to provide work experience which 
contributes to the education or training of such individuals. (Examples 
of such Federal financial assistance are nuclear training equipment 
grants, grants and loans of materials for training, and fellowships.) 
The requirements applicable to construction employment under any such 
program shall be those specified in or pursuant to part III of Executive 
Order 11246 or any Executive order which supersedes it.
    (b) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the grounds of sex, 
race, color, or national origin in the employment practices of the 
recipient or other persons subject to this subpart tends, on the grounds 
of sex, race, color, or national origin, to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program to which this subpart applies, the 
provisions of paragraph (a) of this section shall apply to the 
employment practices of the recipient or other persons subject to this 
subpart to the extent

[[Page 149]]

necessary to assure equality of opportunity to, and nondiscriminatory 
treatment of, beneficiaries.

[38 FR 17927, July 5, 1973, as amended at 40 FR 8778, Mar. 3, 1975; 68 
FR 51344, Aug. 26, 2003]



Sec.  4.14  Medical emergencies.

    A recipient shall not be deemed to have failed to comply with Sec.  
4.11 if immediate provision of a service or other benefit to an 
individual is necessary to prevent his death or serious impairment of 
his health, and such service or other benefit cannot be provided except 
by or through a medical institution which refuses or fails to comply 
with Sec.  4.11.

                           Assurances Required



Sec.  4.21  General requirements.

    (a) Every grant, loan or contract to which this subpart applies, 
except an application to which Sec.  4.22 applies, shall, as a condition 
to its approval by NRC, or by the appropriate NRC contractor or 
subcontractor, and the extension of any Federal financial assistance 
pursuant thereto, contain or be accompanied by an assurance that the 
program will be conducted in compliance with all requirements imposed by 
or pursuant to this subpart. In the case of a grant, loan, or contract 
involving Federal financial assistance to provide real property or 
structures thereon, the assurance shall obligate the recipient, or, in 
the case of a subsequent transfer, the transferee, for the period during 
which the real property or structures are used for a purpose for which 
the Federal financial assistance is extended, or for another purpose 
involving the provision of similar services or benefits. In the case of 
personal property the assurance shall obligate the recipient for the 
period during which he retains ownership or possession of the property. 
In all other cases the assurance shall obligate the recipient for the 
period during which Federal financial assistance is extended pursuant to 
the grant, loan or contract. The Commission will specify the form of the 
foregoing assurances and the extent to which like assurances will be 
required of subgrantees, contractors and subcontractors, successors in 
interest, and other participants. Any such assurance shall include 
provisions which give the United States a right to seek its judicial 
enforcement.
    (b) In the case of real property, structures or improvements 
thereon, or interests therein, which was acquired with Federal financial 
assistance, or in the case where Federal financial assistance is 
provided in the form of a transfer of real property or interest therein 
from the Federal Government, the instrument effecting or recording the 
transfer shall contain a covenant running with the land assuring 
nondiscrimination for the period during which the real property is used 
for a purpose for which the Federal financial assistance is extended or 
for another purpose involving the provision of similar services or 
benefits. Where no transfer of property is involved, but property is 
improved with Federal financial assistance, the recipient shall agree to 
include such a covenant in any subsequent transfer of such property. 
Where the property is obtained from the Federal Government, such 
covenant may also include a condition coupled with a right to be 
reserved by the NRC to revert title to the property in the event of a 
breach of the covenant where, in the discretion of the NRC, such a 
condition and right of reverter is appropriate to the program and to the 
nature of the grant and the grantee. In such event if a transferee of 
real property proposes to mortgage or otherwise encumber the real 
property as security for financing construction of new, or improvement 
of existing, facilities on such property for the purposes for which the 
property was transferred, the NRC may agree, upon request of the 
transferee and if necessary to accomplish such financing, and upon such 
conditions as the NRC deems appropriate, to forbear the exercise of such 
right to revert title for so long as the lien of such mortgage or other 
encumbrance remains effective.
    (c) Transfers of surplus property are subject to regulations issued 
by the Administrator of General Services (41 CFR 101-6.2).

[29 FR 19277, Dec. 31, 1964, as amended at 38 FR 17927, July 5, 1973; 68 
FR 51344, Aug. 26, 2003; 68 FR 75389, Dec. 31, 2003]

[[Page 150]]



Sec.  4.22  Continuing Federal financial assistance.

    Every application by a State or a State agency for continuing 
Federal financial assistance shall require the submission of and every 
grant, loan, or contract to or with a State or a State agency for 
continuing Federal financial assistance to which this subpart applies, 
shall, as a condition to its approval and the extension of any Federal 
financial assistance pursuant to the grant, loan or contract, contain or 
be accompanied by, a statement that the program is (or, in the case of a 
new program, will be) conducted in compliance with all requirements 
imposed by or pursuant to this subpart, and shall provide or be 
accompanied by provisions for such methods of administration for the 
program as are found by the responsible NRC official to give reasonable 
assurance that the recipient and all other recipients of Federal 
financial assistance under such program will comply with all 
requirements imposed by or pursuant to this subpart.

[38 FR 17928, July 5, 1973, as amended at 68 FR 51344, Aug. 26, 2003]



Sec.  4.24  Assurances from institutions.

    (a) In the case of a grant, loan or contract involving Federal 
financial assistance to an institution of higher education, the 
assurance required by Sec.  4.21 shall extend to admission practices and 
to all other practices relating to the treatment of students.
    (b) The assurance required with respect to an institution of higher 
education, hospital, or any other institution, insofar as the assurance 
relates to the institution's practices with respect to admission or 
other treatment of individuals as students, patients, or clients of the 
institution or to the opportunity to participate in the provision of 
services or other benefits to such individuals, shall be applicable to 
the entire institution.

[29 FR 19277, Dec. 31, 1964, as amended at 68 FR 51344, Aug. 26, 2003]

                         Compliance Information



Sec.  4.31  Cooperation and assistance.

    The responsible NRC official shall to the fullest extent practicable 
seek the cooperation of recipients in obtaining compliance with this 
subpart and shall provide assistance and guidance to recipients to help 
them comply voluntarily with this subpart.



Sec.  4.32  Compliance reports.

    (a) Each recipient shall keep records and submit to the responsible 
NRC official, timely, complete, and accurate compliance reports at the 
times and in the form and containing the information that the 
responsible NRC official may determine to be necessary to enable the 
official to ascertain whether the recipient has complied or is complying 
with this subpart.
    (b) In the case in which a primary recipient extends Federal 
financial assistance to any other recipient, the other recipient shall 
also submit necessary compliance reports to the primary recipient to 
enable the primary recipient to carry out its obligations under this 
subpart.
    (c) The primary recipient shall retain each record of information 
needed to complete a compliance report pursuant to paragraph (a) of this 
section for three years or as long as the primary recipient retains the 
status of primary recipient as defined in Sec.  4.4, whichever is 
shorter.

[53 FR 19244, May 27, 1988, as amended at 68 FR 51344, Aug. 26, 2003]



Sec.  4.33  Access to sources of information.

    Each recipient shall permit access by the responsible NRC official 
during normal business hours to such of its books, records, accounts, 
and other sources of information, and its facilities as may be pertinent 
to ascertain compliance with this subpart. Where any information 
required of a recipient is in the exclusive possession of any other 
agency, institution or person and that agency, institution or person 
shall fail or refuse to furnish this information, the recipient shall so 
certify in its report and shall set forth what efforts it has made to 
obtain the information.



Sec.  4.34  Information to beneficiaries and participants.

    Each recipient shall make available to participants, beneficiaries, 
and

[[Page 151]]

other interested persons such information regarding the provisions of 
this subpart and its applicability to the program for which the 
recipient receives Federal financial assistance, and make such 
information available to them in such manner, as the responsible NRC 
official finds necessary to apprise such persons of the protections 
against discrimination assured them by the Act and this subpart.

[29 FR 19277, Dec. 31, 1964, as amended at 68 FR 51344, Aug. 26, 2003]

                        Conduct of Investigations



Sec.  4.41  Periodic compliance reviews.

    The responsible NRC official shall from time to time review the 
practices of recipients to determine whether they are complying with 
this subpart.



Sec.  4.42  Complaints.

    Any person who believes himself or any specific class of individuals 
to be subjected to discrimination prohibited by this subpart may by 
himself or by a representative file with the responsible NRC official a 
written complaint. A complaint must be filed not later than ninety (90) 
days from the date of the alleged discrimination, unless the time for 
filing is extended by the responsible NRC official. A complaint shall be 
signed by the complainant or his representative.



Sec.  4.43  Investigations.

    The responsible NRC official will make a prompt investigation 
whenever a compliance review, report, complaint, or any other 
information indicates a possible failure to comply with this subpart. 
The investigation should include, where appropriate, a review of the 
pertinent practices and policies of the recipient, the circumstances 
under which the possible noncompliance with this subpart occurred, and 
other factors relevant to a determination as to whether the recipient 
has failed to comply with this subpart.



Sec.  4.44  Resolution of matters.

    (a) If an investigation pursuant to Sec.  4.43 indicates a failure 
to comply with this subpart, the responsible NRC official will so inform 
the recipient and the matter will be resolved by voluntary means 
whenever possible. If it has been determined that the matter cannot be 
resolved by voluntary means, action will be taken as provided for in 
Sec. Sec.  4.46 through 4.49.
    (b) If an investigation does not warrant action pursuant to 
paragraph (a) of this section, the responsible NRC official will so 
inform the recipient and the complainant, if any, in writing.



Sec.  4.45  Intimidatory or retaliatory acts prohibited.

    No recipient or other person shall intimidate, threaten, coerce, or 
discriminate against any individual for the purpose of interfering with 
any right or privilege secured by the Act or this subpart, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this subpart. The 
identity of complainants shall be kept confidential, except to the 
extent necessary to carry out the purposes of this subpart including the 
conduct of any investigation, hearing, or judicial proceeding arising 
thereunder.

[29 FR 19277, Dec. 31, 1964, as amended at 40 FR 8778, Mar. 3, 1975]

                      Means of Effecting Compliance



Sec.  4.46  Means available.

    If there appears to be a failure or threatened failure to comply 
with any of the provisions of this subpart, and if the noncompliance or 
threatened concompliance cannot be corrected by informal means, 
compliance with this subpart may be effected by the suspension or 
termination of or refusal to grant or to continue Federal financial 
assistance or by any other means authorized by law. Such other means may 
include, but are not limited to: (a) A reference to the Department of 
Justice with a recommendation that appropriate proceedings be brought to 
enforce any rights of the United States under any law of the United 
States (including other titles of the Act), or any assurance or other 
contractual undertaking, and (b) any applicable proceeding under State 
or local law.

[[Page 152]]



Sec.  4.47  Noncompliance with Sec.  4.21.

    If an applicant fails or refuses to furnish an assurance required 
under Sec.  4.21 or otherwise fails or refuses to comply with a 
requirement imposed by or pursuant to that section, Federal financial 
assistance may be refused in accordance with the procedures of Sec.  
4.48.

[45 FR 14535, Mar. 6, 1980]



Sec.  4.48  Termination of or refusal to grant or to continue Federal 

financial assistance.

    No order suspending, terminating, or refusing to grant or continue 
Federal financial assistance shall become effective until: (a) The 
responsible NRC official has advised the applicant or recipient of his 
failure to comply and has determined that compliance cannot be secured 
by voluntary means, (b) there has been an express finding on the record, 
after opportunity for hearing, of a failure by the applicant or 
recipient to comply with the requirement imposed by or pursuant to this 
subpart, (c) the action has been approved by the Commission pursuant to 
Sec.  4.72, and (d) the expiration of thirty (30) days after the 
Commission has filed with the committee of the House and the committee 
of the Senate having legislative jurisdiction over the program involved, 
a full written report of the circumstances and the grounds for such 
action. Any action to suspend or terminate or to refuse to grant or to 
continue Federal financial assistance shall be limited to the particular 
political entity, or part thereof, or other applicant or recipient as to 
whom such finding has been made and shall be limited in its effect to 
the particular program, or part thereof, in which such noncompliance has 
been so found.



Sec.  4.49  Other means authorized by law.

    No action to effect compliance by any other means authorized by law 
shall be taken until: (a) The responsible NRC official has determined 
that compliance cannot be secured by voluntary means, (b) the recipient 
or other person has been notified of its failure to comply and of the 
action to be taken to effect compliance, and (c) the expiration of at 
least ten (10) days from the mailing of such notice to the recipient or 
other person. During this period of at least ten (10) days, additional 
efforts shall be made to persuade the recipient or other person to 
comply with this subpart and to take such corrective action as may be 
appropriate.

[38 FR 17928, July 5, 1973]

                         Opportunity for Hearing



Sec.  4.51  Notice of opportunity for hearing.

    (a) Whenever an opportunity for hearing is required by Sec.  4.48, 
the responsible NRC official shall serve on the applicant or recipient, 
by registered or certified mail, return receipt requested, a notice of 
opportunity for hearing which will:
    (1) Inform the applicant or recipient of his right within twenty 
(20) days of the date of the notice of opportunity for hearing, or such 
other period as may be specified in the notice, to request a hearing;
    (2) Set forth the alleged item or items of noncompliance with this 
subpart;
    (3) Specify the issues;
    (4) State that compliance with this subpart may be effected by an 
order providing for the termination of or refusal to grant or to 
continue assistance, as appropriate; and
    (5) Provide that the applicant or recipient may file a written 
answer to the notice of opportunity for hearing under oath or 
affirmation within twenty (20) days of its date, or such other period as 
may be specified in the notice.
    (b) The applicant or recipient may respond to a notice of 
opportunity for hearing by filing a written answer under oath or 
affirmation. The answer shall specifically admit or deny each 
allegation, or, where the applicant or recipient does not have knowledge 
or information sufficient to form a belief, the answer may so state and 
the statements shall have the effect of a denial. Allegations of fact 
not denied shall be deemed to be admitted. The answer shall separately 
state and identify matters alleged as affirmative defenses and may also 
set forth the matters of fact and law on which the applicant or 
recipient relies. The answer may request a hearing.

[[Page 153]]

    (c) If the answer requests a hearing, the Commission will issue a 
notice of hearing specifying:
    (1) The time, place, and nature thereof;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held; and
    (3) The matters of fact and law asserted or to be considered. The 
time and place of hearing will be fixed with due regard for the 
convenience and necessity of the parties or their representatives and 
for the public interest. An answer to a notice of hearing is not 
required.
    (d) An applicant or recipient may file an answer, and waive or fail 
to request a hearing, without waiving the requirement for findings of 
fact and conclusions of law or the right to seek Commission review in 
accordance with the provisions of Sec. Sec.  4.71 through 4.74. At the 
time an answer is filed the applicant or recipient may also submit 
written information or argument for the record if he does not request a 
hearing.
    (e) An answer or stipulation may consent to the entry of an order in 
substantially the form set forth in the notice of opportunity for 
hearing; such order may be entered by the responsible Commission 
official. The consent of the applicant or recipient to the entry of an 
order shall constitute a waiver by him of a right to: (1) A hearing 
under the Act and Sec.  4.48, (2) findings of fact and conclusions of 
law, and (3) seek Commission review.
    (f) The failure of an applicant or recipient to file an answer 
within the period prescribed, or, if he requests a hearing, his failure 
to appear therefor, shall constitute a waiver by him of a right to: (1) 
A hearing under the Act and Sec.  4.48, (2) conclusions of law, and (3) 
seek Commission review. In the event of such waiver, the responsible NRC 
official may find the facts on the basis of the record available and 
enter an order in substantially the form set forth in the notice of 
opportunity for hearing.
    (g) An order entered in accordance with paragraph (e) or (f) of this 
section shall constitute the final decision of the Commission, unless 
the Commission, on its own motion, within forty-five (45) days after 
entry of the order, issues its own decision, which shall then constitute 
the final decision of the Commission.
    (h) A copy of an order entered by the responsible NRC official shall 
be mailed to the applicant or recipient and to the complainant, if any.
    (i) Nothing in this section shall be deemed to place the burden of 
proof on the applicant or recipient.

[29 FR 19277, Dec. 31, 1964, as amended at 38 FR 17928, July 5, 1973; 40 
FR 8778, Mar. 3, 1975; 68 FR 51344, Aug. 26, 2003]

                          Hearings and Findings



Sec.  4.61  Presiding officer.

    One or more members of the Commission or one or more administrative 
law judges appointed pursuant to section 3105 of title 5 of the United 
States Code shall: (a) Preside at a hearing and (b) make findings of 
fact and conclusions of law if an applicant or recipient waives a 
hearing and submits written information or argument for the record in 
accordance with Sec.  4.51(d).

[35 FR 11459, July 17, 1970]



Sec.  4.62  Right to counsel.

    In all proceedings under Sec. Sec.  4.51-4.81, the applicant or 
recipient and the responsible NRC official shall have the right to be 
represented by counsel. A notice of appearance shall be filed by counsel 
prior to participation in any such proceedings.



Sec.  4.63  Procedures, evidence, and record.

    (a) The hearing, decision, and any administrative review thereof 
shall be conducted in conformity with 5 U.S.C. 554-557 (sections 5-8 of 
the Administrative Procedure Act), and in accordance with such 
procedures as are proper (and not inconsistent with Sec. Sec.  4.61 
through 4.64) relating to the conduct of the hearing, giving of notices 
subsequent to those provided for in Sec.  4.51, taking of testimony, 
exhibits, arguments and briefs, requests for finding, and other related 
matters. Both the responsible NRC official and the applicant or 
recipient shall be entitled to introduce all relevant evidence on the 
issues as stated in the notice of hearing or as determined by the 
presiding officer at the outset of or during the hearing.

[[Page 154]]

    (b) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this subpart, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the presiding officer. The presiding officer may exclude 
irrelevant, immaterial, or unduly repetitious evidence. All documents 
and other evidence offered or taken for the record shall be open to 
examination by the parties and opportunity shall be given to refute 
facts and arguments advanced on either side of the issues. A transcript 
shall be made of the oral evidence except to the extent the substance 
thereof is stipulated for the record.
    (c) Each decision made after a hearing has been held shall be based 
on the hearing record, and written findings of fact and conclusions of 
law shall be made.
    (d) If an applicant or recipient waives a hearing and submits 
written information or argument for the record in accordance with Sec.  
4.51(d), written findings of fact and conclusions of law shall be made.

[29 FR 19277, Dec. 31, 1964, as amended at 35 FR 11459, July 17, 1970; 
38 FR 17928, July 5, 1973]



Sec.  4.64  Consolidated or joint hearings.

    In cases in which the same or related facts are asserted to 
constitute noncompliance with this subpart with respect to two or more 
Federal statutes, authorities, or other means by which Federal financial 
assistance is extended and to which this subpart applies or 
noncompliance with this subpart and the regulations of one or more other 
Federal departments or agencies issued under title VI of the Civil 
Rights Act of 1964, the Commission may, by agreement with such other 
departments or agencies, where applicable, provide for the conduct of 
consolidated or joint hearings, and for the application to such hearings 
of rules of procedure not inconsistent with this subpart. Final 
decisions in such cases, insofar as this regulation is concerned shall 
be made in accordance with Sec.  4.72.

[29 FR 19277, Dec. 31, 1964, as amended at 40 FR 8778, Mar. 3, 1975; 68 
FR 51344, Aug. 26, 2003]

                           Decision and Notice



Sec.  4.71  Initial decision or certification.

    The officer designated:
    (a) To preside at a hearing, or,
    (b) To make findings of fact and conclusions of law if an applicant 
or recipient waives a hearing and submits written information or 
argument for the record in accordance with Sec.  4.51(d), shall render 
an initial decision on the record, or, if the Commission so directs, 
shall certify the entire record to the Commission for decision, together 
with a recommended decision on the record. A copy of such initial 
decision, or of such certification and recommended decision, shall be 
mailed to the applicant or recipient.



Sec.  4.72  Exceptions and final decision.

    (a) The applicant or recipient, within thirty (30) days of the 
mailing of an initial decision or a recommended decision, may file with 
the Commission his exceptions to such decision, with his reasons 
therefor.
    (b) In the absence of exceptions to an initial decision, the 
Commission may, on its own motion within forty-five (45) days after the 
mailing of such initial decision, serve on the applicant or recipient a 
notice that the Commission will review the decision.
    (c) Upon the filing of exceptions to an initial decision or of a 
notice of review, the Commission shall review such initial decision and 
issue its own decision on the record with its reasons therefor.
    (d) In the absence of either exceptions to an initial decision or of 
a notice of review, such initial decision shall constitute the final 
decision of the Commission.
    (e) Upon the filing of exceptions to a recommended decision, the 
Commission shall review such recommended decision and issue its own 
decision on the record with its reasons therefor.
    (f) In the absence of exceptions to a recommended decision, the 
Commission shall review such recommended

[[Page 155]]

decision and issue its own decision on the record with its reasons 
therefor.



Sec.  4.73  Rulings required.

    Each decision of a presiding officer or the Commission shall set 
forth the rulings on each finding, conclusion, or exception presented, 
and shall identify the requirement or requirements imposed by or 
pursuant to this subpart with which it is found that the applicant or 
recipient has failed to comply.



Sec.  4.74  Content of orders.

    The final decision may provide for suspension or termination of, or 
refusal to grant or continue Federal financial assistance, in whole or 
in part, to which this regulation applies, and may contain such terms, 
conditions, and other provisions as are consistent with and will 
effectuate the purposes of the Act and this subpart, including 
provisions designed to assure that no Federal financial assistance to 
which this regulation applies will thereafter be extended to the 
applicant or recipient determined by such decision to be in default in 
its performance of an assurance given by it pursuant to this subpart, or 
to have otherwise failed to comply with this subpart, unless and until 
it corrects its noncompliance and satisfies the NRC that it will fully 
comply with this subpart. A copy of the final decision shall be mailed 
to the applicant or recipient and the complainant, if any.

[29 FR 19277, Dec. 31, 1964, as amended at 68 FR 51344, Aug. 26, 2003]



Sec.  4.75  Post termination proceedings.

    (a) An applicant or recipient adversely affected by an order issued 
under Sec.  4.74 shall be restored to full eligibility to receive 
Federal financial assistance if it satisfies the terms and conditions of 
that order for such eligibility or if it brings itself into compliance 
with this subpart and provides reasonable assurance that it will fully 
comply with this subpart.
    (b) Any applicant or recipient adversely affected by an order 
entered pursuant to Sec.  4.74 may at any time request the responsible 
NRC official to restore fully its eligibility to receive Federal 
financial assistance. Any such request shall be supported by information 
showing that the applicant or recipient has met the requirements of 
paragraph (a) of this section. If the responsible NRC official 
determines that those requirements have been satisfied, he shall restore 
such eligibility.
    (c) If the responsible NRC official denies any such request, the 
applicant or recipient may submit a request for a hearing in writing, 
specifying why it believes such official to have been in error. It shall 
thereupon be given an expeditious hearing, with the decision on the 
record, in accordance with rules of procedure issued by the responsible 
NRC official. The applicant or recipient will be restored to such 
eligibility if it proves at such a hearing that it satisfied the 
requirements of paragraph (a) of this section. While proceedings under 
this section are pending, the sanctions imposed by the order issued 
under Sec.  4.74 shall remain in effect.

[38 FR 17928, July 5, 1973, as amended at 40 FR 8778, Mar. 3, 1975]

                             Judicial Review



Sec.  4.81  Judicial review.

    Action taken pursuant to section 602 of the Civil Rights Act of 1964 
is subject to judicial review as provided in section 603 of that Act.

[40 FR 8778, Mar. 3, 1975]

           Effect on Other Regulations; Forms and Instructions



Sec.  4.91  Effect on other regulations.

    All regulations, orders, or like directions heretofore issued by any 
officer of the NRC which impose requirements designed to prohibit any 
discrimination against individuals on the grounds of sex, race, color, 
or national origin under any program to which this subpart applies, and 
which authorize the suspension or termination of or refusal to grant or 
to continue Federal financial assistance to any applicant for or 
recipient of such assistance for failure to comply with such 
requirements, are hereby superseded to the extent that such 
discrimination is prohibited by this subpart, except that nothing in 
this subpart shall be deemed to relieve any person of any obligation 
assumed or imposed under any such superseded regulation, order, 
instruction, or like

[[Page 156]]

direction prior to the effective date of this subpart. Nothing in this 
subpart, however, shall be deemed to supersede any of the following 
(including future amendments thereof):
    (a) Executive Orders 10925, 11114, and 11246 and regulations issued 
thereunder, or
    (b) Executive Order 11063 and regulations issued thereunder and any 
other regulations or instructions insofar as such order, regulations or 
instructions prohibit discrimination on the grounds of sex, race, color, 
or national origin in any program or situation to which this subpart is 
inapplicable, or prohibit discrimination on any other ground.

[29 FR 19277, Dec. 31, 1964, as amended at 38 FR 17928, July 5, 1973; 40 
FR 8778, Mar. 3, 1975; 68 FR 51344, Aug. 26, 2003]



Sec.  4.92  Forms and instructions.

    The responsible NRC official shall issue and promptly make available 
to interested persons forms and detailed instructions and procedures for 
effectuating this subpart as applied to programs to which this subpart 
applies and for which he is responsible.



Sec.  4.93  Supervision and coordination.

    The Commission may from time to time assign to officials of other 
departments or agencies of the Government, with the consent of the 
department or agency involved, responsibilities in connection with the 
effectuation of the purposes of title VI of the Civil Rights Act of 1964 
and this subpart, other than responsibility for final decision as 
provided in Sec.  4.72, including the achievement of effective 
coordination and maximum uniformity within the NRC and within the 
Executive Branch of the Government in the application of title VI of the 
Civil Rights Act and this subpart to similar programs and in similar 
situations. Any action taken, determination made, or requirement imposed 
by an official of another department or agency acting pursuant to an 
assignment of responsibility under this section shall have the same 
effect as though such action had been taken by the responsible NRC 
official.

[40 FR 8778, Mar. 3, 1975]



Subpart B_Regulations Implementing Section 504 of the Rehabilitation Act 
                           of 1973, as Amended

    Source: 45 FR 14535, Mar. 6, 1980, unless otherwise noted.



Sec.  4.101  Definitions.

    As used in this subpart:
    (a) Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment. Such term does not include any individual who is an 
alcoholic or drug abuser whose current use of alcohol or drugs prevents 
such individual from performing the duties of the job in question or 
whose employment, by reason of such current alcohol or drug abuse, would 
constitute a direct threat to property or the safety of others.
    (b) As used in paragraph (a) of this section, the phrase:
    (1) Physical or mental impairment means: (i) Any physiological 
disorder or condition, cosmetic disfigurement, or anatomical loss 
affecting one or more of the following body systems: Neurological; 
musculoskeletal; special sense organs; respiratory, including speech 
organs; cardiovascular; reproductive; digestive, genitourinary; hemic 
and lymphatic; skin; and endocrine; or (ii) any mental or psychological 
disorder, such as mental retardation, organic brain syndrome, emotional 
or mental illness, and specific learning disabilities. The term physical 
or mental impairment includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, and emotional 
illness.
    (2) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or

[[Page 157]]

physical impairment that substantially limits one or more major life 
activities.
    (4) Is regarded as having an impairment means:
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by a recipient as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Does not have a physical or mental impairment but is treated 
by a recipient as having such an impairment.
    (c) Qualified handicapped person means: (1) With respect to 
employment, a handicapped person who, with reasonable accommodation, can 
perform essential functions of the job in question and (2) with respect 
to services, a handicapped person who meets the essential eligibility 
requirements for the receipt of such services.
    (d) Section 504 means section 504 of the Rehabilitation Act of 1973, 
Pub. L. 93-112, as amended by the Rehabilitation, Comprehensive 
Services, and Developmental Disabilities Amendments of 1978, Pub. L. 95-
602 (29 U.S.C. 794).

                        Discriminatory Practices



Sec.  4.121  General prohibitions against discrimination.

    (a) No qualified handicapped person, shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subject to discrimination under any program or activity 
that receives Federal financial assistance.
    (b)(1) A recipient, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap:
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person by providing significant assistance to any agency, organization, 
or person that discriminates on the basis of handicap in providing any 
aid, benefit, or service to beneficiaries of the recipient's program or 
activity;
    (vi) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) A recipient may not deny a qualified handicapped person the 
opportunity to participate in aid, benefits, or services that are not 
separate or different, despite the existence of permissibly separate or 
different aid, benefits, or services.
    (3) A recipient may not directly or through contractual or other 
arrangements, utilize criteria or methods of administration: (i) That 
have the effect of subjecting qualified handicapped persons to 
discrimination on the basis of handicap, (ii) that have the purpose or 
effect of defeating or substantially impairing accomplishment of the 
objectives of the recipient's program or activity with respect to 
handicapped persons, or (iii) that perpetuate the discrimination of 
another recipient if both recipients are subject to common 
administrative control or are agencies of the same State.
    (4) A recipient may not, in determining the site or location of a 
facility, make selections: (i) That have the effect of excluding 
handicapped persons

[[Page 158]]

from, denying them the benefits of, or otherwise subjecting them to 
discrimination under any program or activity that receives Federal 
financial assistance or (ii) that have the purpose or effect of 
defeating or substantially impairing the accomplishment of the 
objectives of the program or activity with respect to handicapped 
persons.
    (c) The exclusion of nonhandicapped persons from aid, benefits, or 
services limited by Federal statute or Executive Order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
aid, benefits, or services limited by Federal statute or Executive Order 
to a different class of handicapped persons is not prohibited by this 
subpart.
    (d) Recipients shall administer programs or activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.
    (e) Recipients shall take appropriate steps to ensure that 
communications with their applicants, employees, and beneficiaries are 
available to persons with impaired vision and hearing.

[45 FR 14535, Mar. 6, 1980, as amended at 68 FR 51345, Aug. 26, 2003]



Sec.  4.122  General prohibitions against employment discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be subjected to discrimination in employment under any program or 
activity that receives Federal financial assistance.
    (b) A recipient shall make all decisions concerning employment under 
any program or activity to which this subpart applies in a manner which 
ensures that discrimination on the basis of handicap does not occur and 
may not limit, segregate, or classify applicants or employees in any way 
that adversely affects their opportunities or status because of 
handicap.
    (c) The prohibition against discrimination in employment applies to 
the following activities:
    (1) Recruitment, advertising, and the processing of applications for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities and selection for leaves of absence to pursue training;
    (8) Employer sponsored activities, including those that are social 
or recreational; and
    (9) Any other term, condition, or privilege of employment.
    (d) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this subpart. 
The relationships referred to in this paragraph include relationships 
with employment and referral agencies, with labor unions, with 
organizations providing or administering fringe benefits to employees of 
the recipient, and with organizations providing training and 
apprenticeships.

[45 FR 14535, Mar. 6, 1980, as amended at 68 FR 51345, Aug. 26, 2003]



Sec.  4.123  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program or activity.
    (b) Reasonable accommodation may include: (1) Making facilities used 
by employees readily accessible to and usable by handicapped persons, 
and (2) job restructuring, part-time or modified work schedules, 
acquisition or modification of equipment or devices, the provision of 
readers or interpreters, and other similar actions. This list is

[[Page 159]]

neither all-inclusive nor meant to suggest that an employer must follow 
all the actions listed.
    (c) In determining pursuant to paragraph (a) of this section whether 
an accommodation would impose an undue hardship on the operation of a 
recipient's program or activity, factors to be considered include:
    (1) The overall size of the recipient's program or activity with 
respect to number of employees, number and type of facilities, and size 
of budget;
    (2) The type of the recipient's operations, including the 
composition and structure of the recipient's workforce; and
    (3) The nature and cost of the accommodation needed.
    (d) A recipient may not deny any employment opportunity to a 
qualified handicapped employee or applicant if the basis for denial is 
the need to make reasonable accommodation to the physical or mental 
limitations of the employee or applicant.

[45 FR 14535, Mar. 6, 1980, as amended at 68 FR 51345, Aug. 26, 2003]



Sec.  4.124  Employment criteria.

    (a) A recipient may not make use of any employment test or other 
selection criterion that screens out or tends to screen out handicapped 
persons or any class of handicapped persons unless:
    (1) The test score or other selection criterion as used by the 
recipient is shown to be job-related for the position in question; and
    (2) Alternative job-related tests or criteria that do not screen out 
or tend to screen out as many handicapped persons are not available.
    (b) A recipient shall select and administer tests concerning 
employment so as best to ensure that, when administered to an applicant 
or employee who has a handicap that impairs sensory, manual, or speaking 
skills, the test results accurately reflect the applicant's or 
employee's job skills, aptitude, or whatever other factor the test 
purports to measure, rather than reflecting the applicant's or 
employee's impaired sensory, manual, or speaking skills (except where 
those skills are the factors that the test purports to measure).



Sec.  4.125  Preemployment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct a preemployment medical examination or may not 
make preemployment inquiry of an applicant as to whether the applicant 
is a handicapped person or as to the nature of severity of a handicap. A 
recipient may, however, make preemployment inquiry into an applicant's 
ability to perform job-related functions.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination, or when a recipient is taking voluntary 
action to overcome the effects of conditions that resulted in limited 
participation in its federally assisted program or activity, or when a 
recipient is taking affirmative action pursuant to section 503 of the 
Rehabilitation Act of 1973, the recipient may invite applicants for 
employment to indicate whether and to what extent they are handicapped: 
Provided, That:
    (1) The recipient makes clear to the applicant that the information 
requested is intended for use solely in connection with its remedial 
action obligations or its voluntary or affirmative action efforts; and
    (2) The recipient makes clear to the applicant that the information 
is being requested on a voluntary basis, that it will be kept 
confidential as provided in paragraph (d) of this section, that refusal 
to provide it will not subject the applicant to any adverse treatment, 
and that it will be used only in accordance with this subpart.
    (c) Nothing in this section shall prohibit a recipient from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty: 
Provided, That:
    (1) All entering employees are subjected to such an examination 
regardless of handicap; and
    (2) The results of such an examination are used only in accordance 
with the requirements of this subpart.
    (d) Information obtained in accordance with this section as to the 
medical condition or history of the applicant must be collected on 
separate forms. The recipient shall retain each form as a record for 
three years from

[[Page 160]]

the date the applicant's employment ends, or, if not hired, from the 
date of application. Each form must be accorded confidentiality as a 
medical record, except that:
    (1) Supervisors and managers may be informed regarding restrictions 
on the work or duties that may be assigned to handicapped persons and 
regarding necessary accommodations;
    (2) First aid and safety personnel may be informed, where 
appropriate, if the condition associated with the handicap might require 
emergency treatment; and
    (3) Government officials investigating compliance with the 
Rehabilitation Act of 1973 shall be provided relevant information upon 
request.

[45 FR 14535, Mar. 6, 1980, as amended at 53 FR 19244, May 27, 1988]



Sec.  4.126  General requirement concerning accessibility.

    No qualified handicapped person shall, because a recipient's 
facilities are inaccessible to or unusable by handicapped persons, be 
denied the benefits of, be excluded from participation in, or otherwise 
be subjected to discrimination under any program or activity that 
receives Federal financial assistance.

[45 FR 14535, Mar. 6, 1980, as amended at 68 FR 51345, Aug. 26, 2003]



Sec.  4.127  Existing facilities.

    (a) Accessibility. A recipient shall operate each program or 
activity so that when each part is viewed in its entirety it is readily 
accessible to and usable by handicapped persons. This paragraph does not 
necessarily require a recipient to make each of its existing facilities 
or every part of an existing facility accessible to and usable by 
handicapped persons.
    (b) Methods. A recipient may comply with the requirements of 
paragraph (a) of this section through such means as redesign of 
equipment, reassignment of classes or other services to accessible 
buildings, assignment of aids to beneficiaries, home visits, delivery of 
health, welfare or other social services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities in 
conformance with the requirements of Sec.  4.128 or any other methods 
that result in making its program or activity accessible to and usable 
by handicapped persons. A recipient is not required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with paragraph (a) of this section. In choosing 
among available methods for meeting the requirement of paragraph (a) of 
this section, a recipient shall give priority to those methods that 
serve handicapped persons in the most integrated setting appropriate.
    (c) Time period. A recipient shall comply with the requirement of 
paragraph (a) of this section within 60 days of the effective date of 
this subpart except that where structural changes in facilities are 
necessary, the changes are to be made within three years of the 
effective date of this subpart, but in any event, as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities are necessary to meet the requirement of paragraph (a) of 
this section, a recipient shall develop a transition plan setting forth 
the steps necessary to complete the changes. The plan is to be developed 
with the assistance of interested persons, including handicapped 
persons, or organizations representing handicapped persons, and the plan 
is to meet with the approval of the NRC. The recipient shall retain a 
copy of the transition plan as a record until any structural change to a 
facility is complete. A copy of the transition plan is to be made 
available for public inspection. At a minimum, the plan is to:
    (1) Identify physical obstacles in the recipient's facilities that 
limit the accessibility and usability of its program or activity to 
handicapped persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible to and usable by handicapped persons;
    (3) Specify the schedule for taking the steps necessary to achieve 
full accessibility under paragraph (a) of this section and, if the time 
period or the transition plan is longer than 1 year, identify steps that 
will be taken during each year of the transition period; and
    (4) Indicate the person responsible for implementation of the plan.

[[Page 161]]

    (e) Notice. The recipient shall adopt and implement procedures to 
ensure that interested persons, including persons with impaired vision 
or hearing, can obtain information concerning the existence and location 
of services, activities, and facilities that are accessible to, and 
usable by, handicapped persons.

[45 FR 14535, Mar. 6, 1980, as amended at 53 FR 19244, May 27, 1988; 68 
FR 51345, Aug. 26, 2003]



Sec.  4.128  New construction.

    (a) Design, construction, and alteration. New facilities shall be 
designed and constructed to be readily accessible to and usable by 
handicapped persons. Alterations to existing facilities shall, to the 
maximum extent feasible, be designed and constructed to be readily 
accessible to and usable by handicapped persons.
    (b) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of January 18, 1991, design, construction, or alteration of 
buildings in conformance with sections 3--8 of the Uniform Federal 
Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6) 
shall be deemed to comply with the requirements of this section with 
respect to those buildings. Departures from particular technical and 
scoping requirements of UFAS by the use of other methods are permitted 
where substantially equivalent or greater access to and usability of the 
building is provided.
    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of persons with physical handicaps.
    (3) This section does not require recipients to make building 
alterations that have little likelihood of being accomplished without 
removing or altering a load-bearing structural member.

[55 FR 52138, 52139, Dec. 19, 1990]

                               Enforcement



Sec.  4.231  Responsibility of applicants and recipients.

    (a) Assurances. An applicant for Federal financial assistance to 
which this subpart applies shall submit an assurance, on a form 
specified by the responsible NRC official, that the program or activity 
will be operated in compliance with the subpart. An applicant may 
incorporate these assurances by reference in subsequent applications to 
the NRC.
    (b) Duration of obligation. The assurance will obligate the 
recipient for the period during which Federal financial assistance is 
extended.
    (c) Remedial action. (1) If the responsible NRC official finds that 
a recipient has discriminated against persons on the basis of handicap 
in violation of section 504 or this subpart, the recipient shall take 
such remedial action as the responsible NRC official deems necessary to 
overcome the effect of the discrimination.
    (2) Where a recipient is found to have discriminated against persons 
on the basis of handicap in violation of section 504 or this subpart and 
where another recipient exercises control over the recipient that has 
discriminated, the responsible NRC official, where appropriate, may 
require either or both recipients to take remedial action.
    (3) The responsible NRC official may, where necessary to overcome 
the effects of discrimination in violation of section 504 or this 
subpart, require a recipient to take remedial action: (i) With respect 
to handicapped persons who are no longer participants in the recipient's 
program or activity but who were participants in the program when such 
discrimination occurred or (ii) with respect to handicapped persons who 
would have been participants in the program or activity had the 
discrimination not occurred.
    (d) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this subpart, to overcome the effects of 
conditions that resulted in limited participation in the recipient's 
program or activity by qualified handicapped persons.
    (e) Self-evaluation. (1) A recipient shall as soon as practicable:

[[Page 162]]

    (i) Evaluate, with the assistance of interested persons, including 
handicapped persons or organizations representing handicapped persons, 
its current policies and practices and the effects thereof that do not 
or may not meet the requirements of this subpart;
    (ii) Modify, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
any policies and practices that do not meet the requirements of this 
subpart; and
    (iii) Take, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from adherence to those policies and 
practices.
    (2) A recipient shall, for at least three years following completion 
of the evaluation required under paragraph (e)(1) of this section, 
maintain on file, make available for public inspection, and provide to 
the responsible NRC official upon request: (i) A list of the interested 
persons consulted, (ii) a description of areas examined and any problems 
identified, and (iii) a description of any modifications made and of any 
remedial steps taken.
    (f) Designation of responsible employee. A recipient shall designate 
at least one person to coordinate its efforts to comply with this 
subpart.

[45 FR 14535, Mar. 6, 1980, as amended at 68 FR 51345, Aug. 26, 2003]



Sec.  4.232  Notice.

    (a) A recipient shall take appropriate initial and continuing steps 
to notify participants, beneficiaries, applicants, and employees, 
including those with impaired vision or hearing, and unions or 
professional organizations holding collective bargaining or professional 
agreements with the recipient that it does not discriminate on the basis 
of handicap in violation of section 504 and this subpart. The 
notification shall state, where appropriate, that the recipient does not 
discriminate in admission or access to, or treatment or employment in, 
its programs or activities. The notification shall also include an 
identification of the responsible employee designated pursuant to Sec.  
4.231(f). A present recipient shall make the initial notification 
required by this paragraph within 90 days of the effective date of this 
subpart. Methods of initial and continuing notification may include the 
posting of notices, publication in newspapers and magazines, placement 
of notices in recipients' publications, and distribution of memoranda or 
other written communications.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants, or employees, if shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications.

[45 FR 14535, Mar. 6, 1980, as amended at 68 FR 51345, Aug. 26, 2003]



Sec.  4.233  Enforcement procedures.

    The enforcement and hearing procedures set forth in Sec. Sec.  4.41 
through 4.75 of subpart A with respect to discrimination based on sex, 
race, color or national origin shall be used for the enforcement of the 
regulations in subpart B with respect to discrimination based on 
handicap.



 Subpart C_Regulations Implementing the Age Discrimination Act of 1975, 
                               as Amended

    Source: 52 FR 25358, July 7, 1987, unless otherwise noted.

                                 General



Sec.  4.301  Purpose and scope.

    The purpose of this subpart is to set forth NRC policies and 
procedures under the Age Discrimination Act of 1975 which prohibits 
discrimination on the basis of age in programs or activities receiving 
Federal financial assistance.

[[Page 163]]



Sec.  4.302  Application of this subpart.

    (a) The Age Discrimination Act of 1975 and these regulations apply 
to any program or activity receiving Federal financial assistance from 
NRC.
    (b) The Age Discrimination Act of 1975 and these regulations do not 
apply to--
    (1) An age distinction contained in that part of a Federal, State, 
or local statute or ordinance adopted by an elected, general purpose 
legislative body that--
    (i) Provides any benefits or assistance to persons based on age; or
    (ii) Establishes criteria for participation in age-related terms; or
    (iii) Describes intended beneficiaries or target groups in age-
related terms.
    (2) Any employment practice of any employer, employment agency, 
labor organization, or any labor-management joint apprenticeship 
training program, except for any program or activity receiving Federal 
financial assistance for public service employment under the 
Comprehensive Employment and Training Act of 1974 (CETA) (29 U.S.C. 801 
et seq.).



Sec.  4.303  Definitions.

    As used in this subpart:
    (a) Act means the Age Discrimination Act of 1975, as amended, (title 
III of Pub. L. 94-135; 89 Stat. 713; 42 U.S.C. 3001 note).
    (b) Action means any act, activity, policy, rule, standard, or 
method of administration; or the use of any policy, rule, standard, or 
method of administration.
    (c) Age means how old a person is, or the number of elapsed years 
from the date of a person's birth.
    (d) Age distinction means any action using age or an age-related 
term.
    (e) Age-related term means a word or words which necessarily imply a 
particular age or range of ages (for example, ``children,'' ``adult,'' 
``older persons,'' but not ``student'').
    (f) Subrecipient means any of the entities in the definition of 
``recipient'' to which a recipient extends or passes on Federal 
financial assistance. A subrecipient is generally regarded as a 
recipient of Federal financial assistance and has all the duties of a 
recipient in these regulations.

              Standards for Determining Age Discrimination



Sec.  4.311  Rules against age discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Sec. Sec.  4.313 and 4.314 of this subpart.
    (a) General rule. No person in the United States shall, on the basis 
of age, be excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under, any program or activity receiving 
Federal financial assistance.
    (b) Specific rules. A recipient may not, in any program or activity 
receiving Federal financial assistance, directly or through contractual, 
licensing, or other arrangements use age distinctions or take any other 
actions which have the effect, on the basis of age, of--
    (1) Excluding individuals from, denying them the benefits of, or 
subjecting them to discrimination under, a program or activity receiving 
Federal financial assistance, or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance.
    (c) The specific forms of age discrimination listed in paragraph (b) 
of this section do not necessarily constitute a complete list.



Sec.  4.312  Definitions of ``normal operation'' and ``statutory objective''.

    For purposes of Sec. Sec.  4.313 and 4.314, the terms ``normal 
operation'' and ``statutory objective'' have the following meaning:
    (a) Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objectives.
    (b) Statutory objective means any purposes of a program or activity 
expressly stated in any Federal statute State statute, or local statute 
or ordinance adopted by an elected general purpose legislative body.



Sec.  4.313  Exceptions to the rules against age discrimination. Normal 

operation or statutory objective of any program or activity.

    A recipient is permitted to take an action, otherwise prohibited by 
Sec.  4.311,

[[Page 164]]

if the action reasonably takes into account age as a factor necessary to 
the normal operation or the achievement of any statutory objective of a 
program or activity. An action reasonably takes into account age as a 
factor necessary to the normal operation or the achievement of any 
statutory objective of a program or activity, if--
    (a) Age is used as a measure or approximation of one or more other 
characteristics; and
    (b) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective of the program or activity; and
    (c) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (d) The other characteristic(s) are impractical to measure directly 
on an individual basis.

[52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]



Sec.  4.314  Exceptions to the rule against age discrimination. Reasonable 

factors other than age.

    A recipient is permitted to take an action otherwise prohibited by 
Sec.  4.311 which is based on a factor other than age, even though that 
action may have a disproportionate effect on persons of different ages. 
An action may be based on a factor other than age only if the factor 
bears a direct and substantial relationship to the normal operation of 
the program or activity or to the achievement of a statutory objective.



Sec.  4.315  Burden of proof.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Sec. Sec.  4.313 and 4.314 is on the 
recipient of Federal financial assistance.

                        Duties of NRC Recipients



Sec.  4.321  Assurance of compliance.

    Each NRC recipient has primary responsibility to ensure that its 
programs or activities are in compliance with the Act and these 
regulations. Each recipient will sign an assurance of compliance that 
its programs or activities will be conducted in compliance with all the 
requirements imposed by the Act and these regulations. A recipient also 
has responsibility to maintain records, provide information, and to 
afford access to its records to NRC, to the extent required to determine 
whether it is in compliance with the Act and these regulations.

[52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]



Sec.  4.322  Written notice, technical assistance, and educational materials.

    (a) NRC will provide written notice to each recipient of its 
obligations under the Act and these regulations, including its 
obligation under paragraph (b) of this section.
    (b) Where a recipient makes available Federal financial assistance 
from NRC to a subrecipient, the recipient shall provide the subrecipient 
written notice of the subrecipient's obligations under the Act and these 
regulations.
    (c) NRC will provide technical assistance, where necessary, to 
recipients to aid them in complying with the Act and these regulations.
    (d) NRC will make available educational materials which set forth 
the rights and obligations of recipients and beneficiaries under the Act 
and these regulations.



Sec.  4.324  Information requirements.

    Each recipient shall:
    (a) Make available upon request to NRC information necessary to 
determine whether the recipient is complying with the Act and these 
regulations.
    (b) Permit reasonable access by NRC to the recipient's books, 
records, accounts, facilities, and other sources of information to the 
extent necessary to determine whether the recipient is in compliance 
with the Act and these regulations.

         Investigation, Conciliation, and Enforcement Procedures



Sec.  4.331  Compliance reviews.

    (a) NRC may conduct compliance reviews and preaward reviews of 
recipients or use other similar procedures that will permit it to 
investigate and correct violations of the Act and these regulations. NRC 
may conduct these

[[Page 165]]

reviews even in absence of a complaint against a recipient. The review 
may be as comprehensive as necessary to determine whether a violation of 
these regulations has occurred.
    (b) If a compliance review or preaward review indicates a violation 
of the Act or these regulations, NRC will attempt to achieve voluntary 
compliance with the Act. If voluntary compliance cannot be achieved, NRC 
will arrange for enforcement as described in Sec.  4.336.



Sec.  4.332  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with NRC, alleging discrimination 
prohibited by the Act or these regulations based on an action occurring 
on or after July 1, 1979. A complainant shall file a complaint within 
180 days from the date the complainant first had knowledge of the 
alleged act of discrimination. However, for good cause shown, NRC may 
extend this time limit.
    (b) NRC will attempt to facilitate the filing of complaints wherever 
possible, including taking the following measures:
    (1) Accepting a complaint as sufficient for further processing 
that--
    (i) Is made in writing;
    (ii) Alleges a violation of the Act;
    (iii) Identifies the parties involved and the date the complainant 
first had knowledge of the alleged violation;
    (iv) Describes generally the action or practice complained of; and
    (v) Is signed by the complainant.
    (2) Freely permitting a complainant to add information to the 
complaint to meet the requirements of a sufficient complaint.
    (3) Notifying the complainant and the recipient of their rights and 
obligations under the complaint procedure, including the right to have a 
representative at all stages of the complaint procedures.
    (4) Notifying the complainant and the recipient (or their 
representatives) of their right to contact NRC for information and 
assistance regarding the complaint resolution process.
    (c) Each recipient and complainant shall participate actively in 
efforts toward speedy resolution of the complaint.
    (d) NRC will return to the complainant any complaint outside the 
jurisdiction of these regulations, and will state the reason(s) why it 
is outside the jurisdiction of these regulations.



Sec.  4.333  Mediation.

    (a) Referral of complaints for mediation. NRC will refer to a 
mediation agency designated by the Secretary of the Department of Health 
and Human Services all complaints that--
    (1) Fall within the jurisdiction of the Act and these regulations; 
and
    (2) Contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extent necessary to reach an agreement or make 
an informed judgment that an agreement is not possible. There must be at 
least one meeting with the mediator before NRC will accept a judgment 
that an agreement is not possible. However, the recipient and the 
complainant need not meet with the mediator at the same time.
    (c) If the complainant and the recipient reach an agreement, the 
mediator shall prepare a written statement of the agreement and have the 
complainant and recipient sign it. The mediator shall send a copy of the 
agreement to NRC. NRC will take no further action on the complaint 
unless the complainant or recipient fails to comply with the agreement.
    (d) The mediator shall protect the confidentiality of all 
information obtained in the course of the mediation process. No mediator 
shall testify in any adjudicative proceeding, produce any document, or 
otherwise disclose any information obtained in the course of the 
mediation process without prior approval of the head of the agency 
appointing the mediator.
    (e) NRC will use the mediation process for a maximum of 60 days 
after receiving a complaint. Mediation ends if--
    (1) From the time NRC receives the complaint 60 days elapse; or
    (2) Prior to the end of that 60-day period, the mediator determines 
an agreement is reached; or

[[Page 166]]

    (3) Prior to the end of that 60-day period, the mediator determines 
that an agreement cannot be reached.
    (f) The mediator shall return unresolved complaints to NRC.



Sec.  4.334  Investigation.

    (a) Informal investigation. (1) NRC will investigate complaints that 
are unresolved after mediation or are reopened because of a violation of 
a mediation agreement.
    (2) As part of the initial investigation, NRC will use informal 
fact-finding methods, including joint or separate discussions with the 
complaint and recipient to establish the facts and, if possible, settle 
the complaint on terms that are mutually agreeable to the parties. NRC 
may seek the assistance of any involved State agency.
    (3) NRC will put any agreement in writing and have it signed by the 
parties and an authorized official at NRC.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of NRC, including compliance reviews and 
investigation of other complaints which may involve the recipient.
    (5) Settlement of a complaint under this section will not constitute 
a finding of discrimination by the NRC against a recipient or an 
admission of discrimination by the recipient.
    (b) Formal investigation. If NRC cannot resolve the complaint 
through informal investigation, it will begin to develop formal findings 
through further investigation of the complaint. If the investigation 
indicates a violation of these regulations, NRC will attempt to obtain 
voluntary compliance. If NRC cannot obtain voluntary compliance, it will 
begin enforcement as described in Sec.  4.336.

[52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]



Sec.  4.335  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who--
    (a) Attempts to assert a right protected by the Act or these 
regulations; or
    (b) Cooperates in any mediation, investigation, hearing, or other 
part of NRC's investigation, conciliation, and enforcement process.



Sec.  4.336  Compliance procedure.

    (a) NRC may enforce the Act and these regulations through--
    (1) Termination of a recipient's Federal financial assistance from 
NRC under the program or activity involved where the recipient has 
violated the Act or these regulations. The determination of the 
recipient's violation may be made only after a recipient has had an 
opportunity for a hearing on the record before an administrative law 
judge. Therefore, cases that are settled in mediation, or prior to a 
hearing, will not involve termination of a recipient's Federal fiancial 
assistance from NRC.
    (2) Any other means authorized by law including but not limited to--
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations of the recipients created 
by the Act or these regulations.
    (ii) Use of any requirement of or referral to any Federal, State, or 
local government agency that will have the effect of correcting a 
violation of the Act or these regulations.
    (b) NRC will limit any termination under Sec.  4.336(a)(1) to the 
particular recipient and particular program or activity NRC finds in 
violation of Act or these regulations. NRC will not base any part of a 
termination on a finding with respect to any program or activity of the 
recipient that does not receive Federal financial assistance from NRC.
    (c) NRC will take no action under paragraph (a) until--
    (1) The Commission, or designee, has advised the recipient of its 
failure to comply with the Act or these regulations and has determined 
that voluntary compliance cannot be obtained.
    (2) 30 days have elapsed after the Commission, or designee, has sent 
a written report of the circumstances and grounds of the action to the 
committees of the Congress having legislative jurisdiction over the 
program or activity involved. A report will be filed whenever any action 
is taken under paragraph (a) of this section.

[[Page 167]]

    (d) NRC also may defer granting new Federal financial assistance to 
a recipient when termination proceedings under Sec.  4.336(a)(1) are 
initiated.
    (1) New Federal financial assistance includes all assistance for 
which NRC requires an application or approval, including renewal or 
continuation of existing activities or authorization of new activities, 
during the deferral period. New Federal financial assistance does not 
include increases in funding as a result of change computation of 
formula awards or assistance approved prior to the beginning of 
termination proceedings under Sec.  4.336(a)(1).
    (2) NRC will not begin a deferral until the recipient has received a 
notice of an opportunity for a hearing under Sec.  4.336(a)(1). NRC will 
not continue a deferral for more than 60 days unless a hearing has begun 
within that time or the time for beginning the hearings has been 
extended by mutual consent of the recipient and NRC. NRC will not 
continue a deferral for more than 30 days after the close of the 
hearing, unless the hearing results in a finding against the recipient.

[52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]



Sec.  4.337  Hearings, decisions, post-termination proceedings.

    Certain NRC procedural provisions applicable to title VI of the 
Civil Rights Act of 1964 apply to NRC enforcement of these regulations. 
They are Sec. Sec.  4.61 through 4.64 and Sec. Sec.  4.71 through 4.75.



Sec.  4.338  Remedial and affirmative action by recipients.

    (a) Where NRC finds a recipient has discriminated on the basis of 
age, the recipient shall take any remedial action that NRC may require 
to overcome the effects of the discrimination. If another recipient 
exercises control over the recipient that has discriminated, NRC may 
require both recipients to take remedial action.
    (b) Even in the absence of a finding of discrimination, a recipient 
may take affirmative action to overcome the effects of conditions that 
resulted in limited participation in the recipient's program or activity 
on the basis of age.
    (c) If a recipient, operating a program that serves the elderly or 
children in addition to persons of other ages, provides special benefits 
to the elderly or to children, the provision of those benefits shall be 
presumed to be voluntary affirmative action provided that it does not 
have the effect of excluding otherwise eligible persons from 
participation in the program or activity.

[52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]



Sec.  4.339  Alternate funds disbursal procedure.

    (a) When NRC withholds funds from a recipient under these 
regulations, the Commission, or designee, may disburse the withheld 
funds directly to an alternate recipient, any public or nonprofit 
private organization or agency, or State or political subdivision of the 
State.
    (b) Any alternative recipient will be required to demonstrate--
    (1) The ability to comply with these regulations; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the Federal financial assistance.

[52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]



Sec.  4.340  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Act. Administrative remedies are 
exhausted if--
    (1) 180 days have elapsed since the complainant filed the complaint 
and NRC has made no finding with regard to the complaint; or
    (2) NRC issues any finding in favor of the recipient.
    (b) If NRC fails to make a finding within 180 days or issues a 
finding in favor of the recipient, NRC will--
    (1) Promptly advise the complainant; and
    (2) Advise the complainant of his or her right to bring a civil 
action under section 305(e) of the Act of injunctive relief that will 
effect the purposes of the Act; and
    (3) Inform the complainant that--

[[Page 168]]

    (i) The complainant may bring a civil action only in a United States 
District Court for the district in which the recipient is found or 
transacts business;
    (ii) A complainant prevailing in a civil action has the right to be 
awarded the costs of the action, including reasonable attorney's fees, 
but that the complainant must demand these costs in the complaint;
    (iii) That before commencing the action, the complainant shall give 
30 days notice by registered mail to the Commission, the Secretary of 
the Department of Health and Human Services, the Attorney General of the 
United States, and the recipient;
    (iv) The notice must state the relief requested, the court in which 
the complainant is bringing the action, and whether or not attorney's 
fees are demanded in the event the complainant prevails; and
    (v) The complainant may not bring an action if the same alleged 
violation of the Act by the same recipient is the subject of pending 
action in any court of the United States.



Sec.  4.341  Reports.

    The NRC shall submit to the Secretary of Health and Human Services, 
not later than December 31 of each year, a report which--
    (a) Describes in detail the steps taken during the preceding fiscal 
year to carry out the Act; and
    (b) Contains data on the frequency, type, and resolution of 
complaints and on any compliance reviews, sufficient to permit analysis 
of the agency's progress in reducing age discrimination in programs or 
activities receiving Federal financial assistance from NRC; and
    (c) Contains data directly relevant to the extent of any pattern or 
practice of age discrimination which NRC has identified in any programs 
or activities receiving Federal financial assistance from NRC and to 
progress toward eliminating it; and
    (d) Contains evaluative or interpretative information which NRC 
determines is useful in analyzing agency progress in reducing age 
discrimination in programs or activities receiving Federal financial 
assistance from NRC; and
    (e) Contains whatever other data the Secretary of HHS may require.

[52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]

Subpart D [Reserved]



 Subpart E_Enforcement of Nondiscrimination on the Basis of Handicap in 

    Programs or Activities Conducted by the U.S. Nuclear Regulatory 
                               Commission

    Source: 51 FR 22888, 22896, June 23, 1986, unless otherwise noted.



Sec.  4.501  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the United States Postal 
Service.



Sec.  4.502  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec.  4.503  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters,

[[Page 169]]

notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
and drug addiction and alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, a handicapped person who is a member of 
a class of persons otherwise entitled by statute, regulation, or agency 
policy to receive education services from the agency.
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature;
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person is defined for purposes of 
employment in 29

[[Page 170]]

CFR 1613.702(f), which is made applicable to this part by Sec.  4.540.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec.  4.504-4.509  [Reserved]



Sec.  4.510  Self-evaluation.

    (a) The agency shall, by August 24, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec.  4.511  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Sec. Sec.  4.512-4.529  [Reserved]



Sec.  4.530  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or

[[Page 171]]

activities that are not separate or different, despite the existence of 
permissibly separate or different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangments, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec.  4.531-4.539  [Reserved]



Sec.  4.540  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.



Sec. Sec.  4.541-4.548  [Reserved]



Sec.  4.549  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec.  4.550, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec.  4.550  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where

[[Page 172]]

agency personnel believe that the proposed action would fundamentally 
alter the program or activity or would result in undue financial and 
administrative burdens, the agency has the burden of proving that 
compliance with Sec.  4.550(a) would result in such alteration or 
burdens. The decision that compliance would result in such alteration or 
burdens must be made by the agency head or his or her designee after 
considering all agency resources available for use in the funding and 
operation of the conducted program or activity, and must be accompanied 
by a written statement of the reasons for reaching that conclusion. If 
an action would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that handicapped persons 
receive the benefits and services of the program or activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by handicapped persons. The agency is not 
required to make structural changes in existing facilities where other 
methods are effective in achieving compliance with this section. The 
agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
handicapped persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec.  4.550(a) in historic preservation programs, the agency shall give 
priority to methods that provide physical access to handicapped persons. 
In cases where a physical alteration to an historic property is not 
required because of Sec.  4.550(a)(2) or (a)(3), alternative methods of 
achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by October 21, 1986, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by August 22, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by February 23, 1987 a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.

[[Page 173]]



Sec.  4.551  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 
CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec.  4.552-4.559  [Reserved]



Sec.  4.560  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf person (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and adminstrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec.  4.560 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the agency head or his or 
her designee after considering all agency resources available for use in 
the funding and operation of the conducted program or activity, and must 
be accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the agency shall take any 
other action that would not result in such an alteration or such burdens 
but would nevertheless ensure that, to the maximum extent possible, 
handicapped persons receive the benefits and services of the program or 
activity.



Sec. Sec.  4.561-4.569  [Reserved]



Sec.  4.570  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Civil Rights Program Manager, Office of Small Business and 
Civil Rights, shall be responsible for coordinating implementation of 
this section. Complaints should be sent to the NRC using an appropriate 
method listed in Sec.  4.5.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180

[[Page 174]]

days of the alleged act of discrimination. The agency may extend this 
time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec.  4.570(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[51 FR 22888, 22896, June 23, 1986, as amended at 68 FR 58799, Oct. 10, 
2003]



Sec. Sec.  4.571-4.999  [Reserved]

 Appendix A to Part 4--Federal Financial Assistance to Which This Part 
                               Applies\1\
---------------------------------------------------------------------------

    \1\ Categories of assistance may be added to appendix A from time to 
time by notice published in the Federal Register. This part shall be 
deemed to apply to all grants, loans or contracts entered into under any 
such category of assistance on or after the effective date of the 
inclusion of the category of assistance in appendix A.
---------------------------------------------------------------------------

    (a) Conferences on regulatory programs. Agreements for financial 
assistance to State officials, without full-cost recovery, for visits to 
NRC facilities and offices or to other locations to confer on regulatory 
programs and related matters.
    (b) Orientation and instruction. Agreements for assistance to State 
and local officials, without full-cost recovery, to receive orientation 
and on-the-job instruction at NRC facilities and offices.
    (c) Courses in fundamentals of radiation. Agreements for the conduct 
of courses for State and local employees, without full-cost recovery, in 
fundamentals of radiation and radiation protection.
    (d) Participation in meetings and conferences. Agreements for 
participation, without full-cost recovery, in meetings, conferences, 
workshops, and symposia to assist scientific, professional or 
educational institutions or groups.
    (e) Research Support. Agreements for the financial support of basic 
and applied scientific research and for the exchange of scientific 
information.

[29 FR 19277, Dec. 31, 1964, as amended at 38 FR 17929, July 5, 1973; 40 
FR 8778, Mar. 3, 1975; 45 FR 14539, Mar. 6, 1980; 52 FR 25361, July 7, 
1987]



PART 5_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR 

ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A_Introduction

Sec.
5.100 Purpose and effective date.
5.105 Definitions.
5.110 Remedial and affirmative action and self-evaluation.

[[Page 175]]

5.115 Assurance required.
5.120 Transfers of property.
5.125 Effect of other requirements.
5.130 Effect of employment opportunities.
5.135 Designation of responsible employee and adoption of grievance 
          procedures.
5.140 Dissemination of policy.

                           Subpart B_Coverage

5.200 Application.
5.205 Educational institutions and other entities controlled by 
          religious organizations.
5.210 Military and merchant marine educational institutions.
5.215 Membership practices of certain organizations.
5.220 Admissions.
5.225 Educational institutions eligible to submit transition plans.
5.230 Transition plans.
5.235 Statutory amendments.

     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

5.300 Admission.
5.305 Preference in admission.
5.310 Recruitment.

 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

5.400 Education programs or activities.
5.405 Housing.
5.410 Comparable facilities.
5.415 Access to course offerings.
5.420 Access to schools operated by LEAs.
5.425 Counseling and use of appraisal and counseling materials.
5.430 Financial assistance.
5.435 Employment assistance to students.
5.440 Health and insurance benefits and services.
5.445 Marital or parental status.
5.450 Athletics.
5.455 Textbooks and curricular material.

Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

5.500 Employment.
5.505 Employment criteria.
5.510 Recruitment.
5.515 Compensation.
5.520 Job classification and structure.
5.525 Fringe benefits.
5.530 Marital or parental status.
5.535 Effect of state or local law or other requirements.
5.540 Advertising.
5.545 Pre-employment inquiries.
5.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

5.600 Notice of covered programs.
5.605 Enforcement procedures.

Appendix A to Part 5--List of Federal Financial Assistance Administered 
          by the Nuclear Regulatory Commission to Which Title IX Applies

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52875, Aug. 30, 2000, unless otherwise noted.



                         Subpart A_Introduction



Sec.  5.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be September 29, 2000.



Sec.  5.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means Program Manager, Civil Rights 
Program.

[[Page 176]]

    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a technical field, whether or not the 
school or institution offers certificates, diplomas, or degrees and 
whether or not it offers full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom

[[Page 177]]

Federal financial assistance is extended directly or through another 
recipient and that operates an education program or activity that 
receives such assistance, including any subunit, successor, assignee, or 
transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Sec. Sec.  
5.100 through 5.605.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.



Sec.  5.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec.  5.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the

[[Page 178]]

applicant or recipient to whom such assurance applies fails to commit 
itself to take whatever remedial action is necessary in accordance with 
Sec.  5.110(a) to eliminate existing discrimination on the basis of sex 
or to eliminate the effects of past discrimination whether occurring 
prior to or subsequent to the submission to the designated agency 
official of such assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec.  5.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Sec. Sec.  5.205 through 5.235(a).



Sec.  5.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.



Sec.  5.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.

[[Page 179]]



Sec.  5.135  Designation of responsible employee and adoption of grievance 

procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations. The recipient shall notify all its students and employees 
of the name, office address, and telephone number of the employee or 
employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.



Sec.  5.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Sec. Sec.  5.300 through 5.310 do not apply to the recipient, and 
that inquiries concerning the application of Title IX and these Title IX 
regulations to such recipient may be referred to the employee designated 
pursuant to Sec.  5.135, or to the designated agency official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.



                           Subpart B_Coverage



Sec.  5.200  Application.

    Except as provided in Sec. Sec.  5.205 through 5.235(a), these Title 
IX regulations apply to every recipient and to each education program or 
activity operated by such recipient that receives Federal financial 
assistance.

[[Page 180]]



Sec.  5.205  Educational institutions and other entities controlled by 

religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict 
with a specific tenet of the religious organization.



Sec.  5.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec.  5.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the 
membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec.  5.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Sec. Sec.  5.225 and 5.230, and Sec. Sec.  5.300 through 5.310, 
each administratively separate unit shall be deemed to be an educational 
institution.
    (c) Application of Sec. Sec.  5.300 through 5.310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec.  5.300 
through 5.310 apply to each recipient. A recipient to which Sec. Sec.  
5.300 through 5.310 apply shall not discriminate on the basis of sex in 
admission or recruitment in violation of Sec. Sec.  5.300 through 5.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec.  5.300 through 5.310 apply only to institutions of vocational 
education, professional education, graduate higher education, and public 
institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Sec. Sec.  5.300 through 5.310 do not apply to any public institution of 
undergraduate higher education that traditionally and continually from 
its establishment has had a policy of admitting students of only one 
sex.



Sec.  5.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec.  5.300 through 5.310 apply that:
    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Sec. Sec.  5.300 through 5.310.

[[Page 181]]



Sec.  5.230  Transition plans.

    (a) Submission of plans. An institution to which Sec.  5.225 applies 
and that is composed of more than one administratively separate unit may 
submit either a single transition plan applicable to all such units, or 
a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec.  5.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec.  5.300 through 
5.310 unless such treatment is necessitated by an obstacle identified in 
paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec.  5.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec.  5.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of

[[Page 182]]

which is extended Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec.  5.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Sec. Sec.  5.300 through Sec. Sec.  5.310 apply, 
except as provided in Sec. Sec.  5.225 and Sec. Sec.  5.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Sec. Sec.  5.300 through 5.310 apply 
shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or

[[Page 183]]

    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Sec. Sec.  5.300 through 5.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec.  5.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec.  5.305  Preference in admission.

    A recipient to which Sec. Sec.  5.300 through 5.310 apply shall not 
give preference to applicants for admission, on the basis of attendance 
at any educational institution or other school or entity that admits as 
students only or predominantly members of one sex, if the giving of such 
preference has the effect of discriminating on the basis of sex in 
violation of Sec. Sec.  5.300 through 5.310.



Sec.  5.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.  
5.300 through 5.310 apply shall not discriminate on the basis of sex in 
the recruitment and admission of students. A recipient may be required 
to undertake additional recruitment efforts for one sex as remedial 
action pursuant to Sec.  5.110(a), and may choose to undertake such 
efforts as affirmative action pursuant to Sec.  5.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec.  5.300 through 5.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Sec. Sec.  5.300 through 5.310.



 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec.  5.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
5.400 through 5.455 do not apply to actions of a recipient in connection 
with admission of its students to an education program or activity of a 
recipient to which Sec. Sec.  5.300 through 5.310 do not apply, or an 
entity, not a recipient, to which Sec. Sec.  5.300 through 5.310 would 
not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec.  5.400 
through 5.455, in providing any aid, benefit, or service to a student, a 
recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or

[[Page 184]]

condition for the provision of such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec.  5.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.

[[Page 185]]

    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.



Sec.  5.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec.  5.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec.  5.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission, courses, services, and 
facilities comparable to each course, service, and facility offered in 
or through such schools.



Sec.  5.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or other materials for appraising or counseling students shall 
not use different materials for students on the basis of their sex or 
use materials that permit or require different treatment of students on 
such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is

[[Page 186]]

necessary to assure itself that such disproportion is not the result of 
discrimination in the instrument or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec.  5.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec.  5.450.



Sec.  5.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates Sec. Sec.  
5.500 through 5.550.



Sec.  5.440  Health and insurance benefits and services.

    Subject to Sec.  5.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall

[[Page 187]]

not discriminate on the basis of sex, or provide such benefit, service, 
policy, or plan in a manner that would violate Sec. Sec.  5.500 through 
5.550 if it were provided to employees of the recipient. This section 
shall not prohibit a recipient from providing any benefit or service 
that may be used by a different proportion of students of one sex than 
of the other, including family planning services. However, any recipient 
that provides full coverage health service shall provide gynecological 
care.



Sec.  5.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec.  5.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec.  5.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the

[[Page 188]]

designated agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.



Sec.  5.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec.  5.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Sec. Sec.  5.500 
through 5.550, including relationships with employment and referral 
agencies, with labor unions, and with organizations providing or 
administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Sec. Sec.  5.500 through 5.550 
apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;

[[Page 189]]

    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec.  5.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec.  5.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Sec. Sec.  5.500 through 5.550.



Sec.  5.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec.  5.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec.  5.550.



Sec.  5.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec.  5.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that

[[Page 190]]

does not provide for equal periodic benefits for members of each sex and 
for equal contributions to the plan by such recipient for members of 
each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec.  5.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec.  5.235(d), 
a recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec.  5.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec.  5.500 through 5.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec.  5.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.



Sec.  5.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.



Sec.  5.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec.  5.500 
through 5.550 provided it is shown that sex is a bona fide occupational 
qualification for that action, such that consideration of sex with 
regard to such action is essential to successful operation of the 
employment function concerned. A recipient shall not take action 
pursuant to this

[[Page 191]]

section that is based upon alleged comparative employment 
characteristics or stereotyped characterizations of one or the other 
sex, or upon preference based on sex of the recipient, employees, 
students, or other persons, but nothing contained in this section shall 
prevent a recipient from considering an employee's sex in relation to 
employment in a locker room or toilet facility used only by members of 
one sex.



                          Subpart F_Procedures



Sec.  5.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such Federal agency shall periodically republish the notice of 
covered programs to reflect changes in covered programs. Copies of this 
notice also shall be made available upon request to the Federal agency's 
office that enforces Title IX.



Sec.  5.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 10 CFR 4.21 through 4.75.

[65 FR 52875, Aug. 30, 2000]

Appendix A to Part 5--List of Federal Financial Assistance Administered 
     by the Nuclear Regulatory Commission to Which Title IX Applies

    Note: All recipients of Federal financial assistance from NRC are 
subject to Title IX, but Title IX's anti-discrimination prohibitions are 
limited to the educational components of the recipient's program or 
activity, if any. Failure to list a type of Federal assistance below 
shall not mean, if Title IX is otherwise applicable, that a program or 
activity is not covered by Title IX.
    (a) Conferences on regulatory programs and related matters. 
Agreements for financial assistance to State and local officials, 
without full-cost recovery, to confer on regulatory programs and related 
matters at NRC facilities and offices, or other locations.
    (b) Orientations and instruction. Agreements for financial 
assistance to State and local officials, without full-cost recovery, to 
receive orientation and on-the-job instruction at NRC facilities and 
offices, or other locations.
    (c) Technical training courses. Agreements for financial assistance 
to State and local officials, without full-cost recovery to attend 
training on nuclear material licensing, inspection and emergency 
response regulatory responsibilities to ensure compatibility between NRC 
and Agreement State regulation.
    (d) Participation in meetings and conferences. Agreements for 
participation, without full-cost recovery, in meetings, conferences, 
workshops, and symposia to assist scientific, professional or 
educational institutions or groups.
    (e) Research support. Agreements for the financial support of basic 
and applied scientific research and for the exchanges of scientific 
information.

[66 FR 709, Jan. 4, 2001]



PART 7_ADVISORY COMMITTEES--Table of Contents




Sec.
7.1 Policy.
7.2 Definitions.
7.3 Interpretations.
7.4 Establishment of advisory committees.
7.5 Consultation with Committee Management Secretariat on establishment 
          of advisory committees; advisory committee charters.
7.6 Amendments to advisory committee charters.
7.7 Termination, renewal, and rechartering of advisory committees.
7.8 Charter filing requirements.
7.9 Public notice of advisory committee establishment, reestablishment, 
          or renewal.
7.10 The NRC Advisory Committee Management Officer.
7.11 The Designated Federal Officer.
7.12 Public participation in and public notice of advisory committee 
          meetings.
7.13 Minutes of advisory committee meetings.
7.14 Public information on advisory committees.
7.15 Procedures for closing an NRC advisory committee meeting.
7.16 Annual comprehensive review.
7.17 Reports required for advisory committees.
7.18 Appointment, compensation, and expense reimbursement of advisory 
          committee members, staffs, and consultants.
7.19 Advisory committee members with disabilities.
7.20 Conflict of interest reviews of advisory committee members' outside 
          interests.
7.21 Costs of duplication of documents.
7.22 Fiscal and administrative responsibilities.


[[Page 192]]


    Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); sec. 
201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 92-463, 86 
Stat. 770 (5 U.S.C. App.).

    Source: 54 FR 26948, June 27, 1989, unless otherwise noted.



Sec.  7.1  Policy.

    The regulations in this part define the policies and procedures to 
be followed by the Nuclear Regulatory Commission in the establishment, 
utilization, and termination of advisory committees. In general, it is 
the policy of the Commission that--
    (a) Except where there is express legal authority to the contrary, 
the function of NRC advisory committees shall be advisory only.
    (b) Each NRC advisory committee shall function in compliance with 
the Federal Advisory Commitee Act and this part.
    (c) The number of NRC advisory committees shall be kept to the 
minimum necessary, and the number of members of each NRC advisory 
committee shall be limited to the fewest necessary to accomplish 
committee objectives.
    (d)(1) An NRC advisory committee shall be established only:
    (i) When establishment of the committee is required by law;
    (ii) When the Commission determines that the committee is essential 
to the conduct of NRC business; or
    (iii) When the information to be obtained is not available through 
an existing advisory committee or a source within the Federal 
Government.
    (2) Before establishing an advisory committee, the Commission shall 
consider whether:
    (i) Committee deliberations will result in a significant 
contribution to the creation, amendment, or elimination of regulations, 
guidelines, or rules affecting NRC business;
    (ii) The information to be obtained is available through another 
source within the Federal Government;
    (iii) The committee will make recommendations resulting in 
significant improvements in service or reductions in cost; or
    (iv) The committee's recommendations will provide an important 
additional perspective or viewpoint relating to NRC's mission. The 
advice or recommendations of an advisory committee should be the result 
of the advisory committee's independent judgment.
    (e) Except where otherwise required by law, an NRC advisory 
committee shall be terminated whenever the stated objectives of the 
committee have been accomplished, the subject matter or work of the 
committee has become obsolete, the committee's main functions have been 
assumed by another entity within the Federal Government, or the cost of 
operating the committee has become excessive in relation to the benefits 
accruing to the Federal Government from its activities.
    (1) An advisory committee not required to be established by statute 
terminates no later than two years after its establishment or last 
renewal, unless renewed.
    (2) An advisory committee required to be established by statute 
terminates upon the expiration of the time explicitly specified in the 
statute or implied by operation of the statute.
    (f) NRC advisory committees shall be balanced in their membership in 
terms of the points of view represented and the functions to be 
performed.
    (g) The Congress shall be kept informed of the number, purpose, 
membership, activities, and cost of NRC advisory committees.
    (h) NRC advisory committee meetings shall be open to the public, 
except where closure is determined to be justified under Sec.  7.15.
    (i) The Commission may periodically invite feedback from the public 
regarding the effectiveness of NRC advisory committees.

[54 FR 26948, June 27, 1989, as amended at 67 FR 79838, Dec. 31, 2002]



Sec.  7.2  Definitions.

    Act means the Federal Advisory Committee Act, as amended, 5 U.S.C. 
App.
    Administrator means the Administrator of General Services.
    Advisory committee means any committee, board, commission, council, 
conference, panel, task force, or similar group, or any subcommittee or 
other subgroup thereof, that is established by statute for the purpose 
of providing advice or recommendations on issues of policy to an 
official,

[[Page 193]]

branch, or agency of the Federal Government, or that is established or 
utilized by the President or any agency official to obtain advice or 
recommendations on issues or policies that fall within the scope of his 
or her responsibilities, except that the term ``advisory committee'' 
does not include the following advisory meetings or groups:
    (1) Any group composed wholly of full-time officers or employees of 
the Federal Government;
    (2) Any group specifically exempted from the Act or these 
regulations by an Act of Congress;
    (3) Any local civic group whose primary function is that of 
rendering a public service with respect to a Federal program, or any 
State or local committee, council, board, commission, or similar group 
established to advise or make recommendations to any State or local 
government unit or an official thereof;
    (4) Any group that performs primarily operational functions 
specifically provided by law. Operational functions are those 
specifically authorized by statute or Presidential directive, such as 
making or implementing Government decisions or policy, as long as the 
group does not become primarily advisory in nature;
    (5) Any meeting initiated by the President or one or more Federal 
employees for the purpose of obtaining advice or recommendations from 
one individual;
    (6) Any meeting between an NRC employee with a non-governmental 
individual or group where advice or recommendations are provided by the 
attendees on an individual basis and are not sought from the group as a 
whole;
    (7) Any meeting with a committee or group created by a non-Federal 
entity that is not managed or controlled by the President or a Federal 
employee;
    (8) Any meeting of two or more advisory committee members convened 
solely to:
    (i) Discuss administrative matters relating to the operation of 
their advisory committee;
    (ii) Receive administrative information from a Federal employee;
    (iii) Gather information or conduct research for a chartered 
advisory committee to analyze relevant issues and facts for their 
advisory committee; or
    (iv) Draft proposed position papers for deliberation by their 
advisory committee;
    (9) Any meeting with a group initiated by the President or by one or 
more Federal employees for the purpose of exchanging facts or 
information;
    (10) Any meeting attended only by full-time or permanent part-time 
officers or employees of the Federal Government and elected officers of 
State, local, and tribal governments (or their designated employees with 
authority to act on their own behalf), acting in their official 
capacities. However, the purpose of the meeting must be solely to 
exchange views, information, or advice relating to the management or 
implementation of Federal programs established pursuant to statute, that 
explicitly or inherently share intergovernmental responsibilities or 
administration;
    (11) Any meeting of an NRC contractor, applicant, or licensee with 
an NRC employee to discuss specific matters involving the solicitation, 
issuance, or implementation of a contract or the Commission's effort to 
ensure compliance with its regulations; and
    (12) Any meeting of a subcommittee or other subgroup of an advisory 
committee where the subgroup's recommendations will be reviewed by its 
parent advisory committee.
    Agency means an agency of the Government of the United States as 
defined in 5 U.S.C. 551(1).
    Commission means the Nuclear Regulatory Commission of five members, 
or a quorum thereof, sitting as a body, as provided by section 201 of 
the Energy Reorganization Act of 1974, 42 U.S.C. 5841, (88 Stat. 1242).
    Committee Management Secretariat means the organization established 
within the General Services Administration, pursuant to section 7(a) of 
the Act, which is responsible for all matters relating to advisory 
committees, and carries out the responsibilities of the Administrator of 
the General Services Administration under the Act and

[[Page 194]]

Executive Order 12024 (42 FR 61445; December 1, 1977).
    Committee meeting means any gathering of advisory committee members 
(whether in person, by telephone, or through electronic means) held with 
the approval of an agency for the purpose of deliberating on the 
substantive matters upon which the advisory committee provides advice or 
recommendations.
    Committee member means an individual who is appointed to serve on an 
advisory committee and has the full right and obligation to participate 
in the activities of the committee, including voting on committee 
recommendations.
    Designated Federal Officer means a government employee appointed, 
pursuant to Sec.  7.11(a), to chair or attend each meeting of an NRC 
advisory committee to which he or she is assigned.
    Discretionary advisory committee means any advisory committee that 
is established, but not required to be established, under the authority 
of an agency head, and its establishment or termination is within the 
legal discretion of an agency head.
    GSA means the General Services Administration.
    Non-discretionary advisory committee means any advisory committee 
either required by statute or Presidential directive. A non-
discretionary committee required by statute generally is identified 
specifically in a statute by name, purpose, or functions and its 
establishment is mandated.
    NRC means the agency established by title II of the Energy 
Reorganization Act of 1974, 42 U.S.C. 5801 (88 Stat. 1233), and known as 
the Nuclear Regulatory Commission.
    NRC Advisory Committee Management Officer means the individual 
appointed, pursuant to Sec.  7.10(a), to supervise and control the 
establishment and management of NRC advisory committees.
    NRC Public Document Room means the Public Document Room maintained 
by the NRC at 11555 Rockville Pike, Rockville, Maryland 20852-2738.
    Presidential advisory committee means an advisory committee 
established by statute or directed by the President to advise the 
President.
    Staff member means any individual who serves in a support capacity 
to an advisory committee.
    Subcommittee means a subgroup of an advisory committee, whether or 
not its members are drawn in whole or in part from the parent advisory 
committee.
    Utilized committee means a committee or group not established by the 
Federal Government, but whose operations are managed or controlled by a 
Federal agency.

[67 FR 79839, Dec. 31, 2002]



Sec.  7.3  Interpretations.

    Except as specifically authorized by the Commission in writing, no 
interpretation of the meaning of the regulations in this part by an NRC 
officer or employee, other than a written interpretation by the General 
Counsel, shall be binding upon the Commission.



Sec.  7.4  Establishment of advisory committees.

    (a) An NRC advisory committee may be established under this part 
only if its establishment--
    (1) Is specifically directed or authorized by statute or by 
Executive Order of the President; or
    (2) Has been determined by the Commission to be in the public 
interest and essential to the performance of the duties imposed on the 
Commission by law.

The determination required by paragraph (a)(2) of this section shall be 
a matter of formal record, and shall include a statement of a clearly 
defined purpose for the advisory committee.



Sec.  7.5  Consultation with Committee Management Secretariat on establishment 

of advisory committees; advisory committee charters.

    (a) Before establishing a discretionary advisory committee, the NRC 
shall consult with the Committee Management Secretariat. With a full 
understanding of the background and purpose behind the proposed advisory 
committee, the Committee Management Secretariat may share its knowledge 
and experience with the NRC on how best to make use of the proposed 
committee, alternate methods of attaining the agency's purpose, or 
whether a pre-existing advisory committee performs

[[Page 195]]

similar functions. Such consultation should include the transmittal of 
the proposed committee charter and the following information:
    (1) A request for a review of the proposed charter;
    (2) An explanation stating why the committee is essential to the 
conduct of NRC business and is in the public interest;
    (3) An explanation stating why the committee's functions cannot be 
performed by the NRC, an existing NRC advisory committee, or other means 
(such as a public hearing); and
    (4) A description of NRC's plan to attain balanced membership on the 
committee. The plan must ensure that, in the selection of members for 
the advisory committee, the NRC will consider a cross-section of those 
directly affected, interested, and qualified, as appropriate to the 
nature and functions of the committee. For purposes of attaining balance 
in an NRC advisory committee's membership, the Commission shall consider 
for membership interested persons and groups with professional, 
technical, or personal qualifications or experience that will contribute 
to the functions and tasks to be performed.
    (b) Each proposed committee charter submitted for review pursuant to 
paragraph (a) of this section shall contain the following information:
    (1) The committee's official designation;
    (2) The committee's objectives and the scope of its activity;
    (3) The period of time necessary for the committee to carry out its 
purposes;
    (4) The NRC official to whom the committee will report;
    (5) The NRC office responsible for providing support for the 
committee;
    (6) A description of the duties that the committee will perform, and 
if such duties are not solely advisory, a specification of the authority 
for the functions that are not advisory;
    (7) The estimated annual operating costs, in dollars and person 
years, for the committee;
    (8) The estimated number and frequency of committee meetings; and
    (9) The committee's termination date, if less than two years from 
the date of the committee's establishment.
    (c) The requirements of this part, including the requirements of 
paragraphs (a) and (b) of this section, shall apply to any subcommittee 
that functions independently of the parent advisory committee (such as 
by making recommendations directly to the agency rather than to the 
parent advisory committee), regardless of whether the subcommittee's 
members are drawn in whole or in part from the parent advisory 
committee.
    (d) After the Committee Management Secretariat has notified the 
Commission of the results of its review of a proposal to establish or 
utilize an NRC discretionary advisory committee, submitted pursuant to 
paragraph (a) of this section, the Commission shall notify the Committee 
Management Secretariat whether the advisory committee is actually being 
established. Filing of the advisory committee charter pursuant to Sec.  
7.8 shall be deemed to fulfill this notification requirement. If the 
advisory committee is not being established, the Commission shall so 
advise the Committee Management Secretariat, stating whether NRC intends 
to take any further action with respect to the proposed advisory 
committee.
    (e) The date of filing of an advisory committee charter pursuant to 
Sec.  7.8 shall be added to the charter when such filing takes place, 
shall appear on the face of the charter, and shall constitute the date 
of establishment, renewal, or reestablishment of the committee.

[67 FR 79840, Dec. 31, 2002]



Sec.  7.6  Amendment to advisory committee charters.

    (a) Final authority for amending the charter of an NRC advisory 
committee established or utilized by the NRC is vested in the 
Commission.
    (b) Any proposed changes made to a current charter for an NRC 
advisory committee shall be coordinated with the General Counsel to 
ensure that they are consistent with applicable legal requirements. When 
a statute or

[[Page 196]]

Executive Order that directed or authorized the establishment of an 
advisory committee is amended, those sections of the advisory 
committee's charter affected by the amendments shall also be amended.
    (c)(1) The charter of an NRC advisory committee established under 
general agency authority may be amended when the Commission determines 
that the existing charter no longer reflects the objectives or functions 
of the committee. Such changes may be minor (such as revising the name 
of the advisory committee or modifying the estimated number or frequency 
of meetings), or they may be major (such as revising the objectives or 
composition of the committee).
    (2) The procedures in paragraph (b) of this section shall be used in 
the case of charter amendments involving minor changes. A proposed major 
amendment to the charter of an advisory committee established under 
general agency authority shall be submitted to the Committee Management 
Secretariat for review with an explanation of the purpose of the changes 
and why they are necessary.
    (3) A committee charter that has been amended pursuant to this 
paragraph is subject to the filing requirements set forth in Sec.  7.8.
    (4) Amendment of an existing advisory committee charter pursuant to 
this paragraph does not constitute renewal of the committee for purposes 
of Sec.  7.7.

[67 FR 79840, Dec. 31, 2002]



Sec.  7.7  Termination, renewal, and rechartering of advisory committees.

    (a) Except as provided in paragraph (b)(1) of this section, each NRC 
advisory committee shall terminate two years after it is established, 
reestablished, or renewed, unless--
    (1) It has been terminated sooner;
    (2) It has been renewed or reestablished before the end of such 
period in accordance with the procedures set forth in paragraph (b) of 
this section; or
    (3) Its duration has been otherwise designated by law. The NRC 
Committee Management Officer shall notify the Committee Management 
Secretariat of the effective date of termination of any advisory 
committee that has been terminated by the NRC.
    (b)(1) An NRC advisory committee that is established by statute 
shall require rechartering by the filing of a new charter every 2 years 
after the date of enactment of the statute establishing the committee. 
If a new charter is not filed, the committee is not terminated, but it 
may not meet or take any actions.
    (2) Any other NRC advisory committee may be renewed, provided that 
such renewal is carried out in compliance with the procedures set forth 
in Sec.  7.5, except that an advisory committee established by the 
President may be renewed by appropriate action of the President and the 
filing of a new charter. Renewal of an NRC advisory committee shall not 
be deemed to terminate the appointment of any committee member who was 
previously appointed to serve on the committee.

[54 FR 26948, June 27, 1989, as amended at 67 FR 79840, Dec. 31, 2002]



Sec.  7.8  Charter filing requirements.

    No advisory committee may meet or take any action until a charter 
has been filed by the Committee Management Officer designated in 
accordance with Sec.  7.10.
    (a) To establish, renew, or reestablish a discretionary advisory 
committee, a charter must be filed with:
    (1) The Commission;
    (2) The Committee on Environment and Public Works of the United 
States Senate and the Committee on Energy and Commerce of the United 
States House of Representatives;
    (3) The Library of Congress, Anglo-American Acquisitions Division, 
Government Documents Section, Federal Advisory Committee Desk, 101 
Independence Avenue, S.E., Washington, DC 20540-4172; and
    (4) The Committee Management Secretariat, indicating the date the 
charter was filed with the congressional committees.
    (b) Charter filing requirements for non-discretionary advisory 
committees are the same as those in paragraph (a) of this section, 
except the date of establishment for a Presidential advisory committee 
is the date the charter is filed with the Secretariat.

[[Page 197]]

    (c) Subcommittees that report directly to a Federal employee or 
agency must comply with this subpart.

[67 FR 79841, Dec. 31, 2002]



Sec.  7.9  Public notice of advisory committee establishment, reestablishment, 

or renewal.

    (a) After the Commission has received notice from the Committee 
Management Secretariat that its review of a proposal to establish, 
reestablish, renew, or utilize an NRC discretionary advisory committee 
has been completed, the Commission shall publish a notice in the Federal 
Register that the committee is being established, reestablished, 
renewed, or utilized. In the case of a new committee, the notice shall 
also describe the nature and purpose of the committee and shall include 
a statement that the committee is necessary and in the public interest.
    (b) Notices required to be published pursuant to paragraph (a) of 
this section shall be published at least 15 calendar days before the 
committee charter is filed pursuant to Sec.  7.8, except that the 
Committee Management Secretariat may approve publication for less than 
15 days for good cause shown. The 15-day advance notice requirement does 
not apply to advisory committee renewals, notices of which may be 
published concurrently with the filing of the charter.

[67 FR 79841, Dec. 31, 2002]



Sec.  7.10  The NRC Advisory Committee Management Officer.

    (a) The Chairman of the Commission or designee shall appoint an NRC 
Advisory Committee Management Officer to carry out the functions 
specified in paragraph (b) of this section.
    (b) The NRC Advisory Committee Management Officer shall--
    (1) Carry out all responsibilities relating to NRC advisory 
committees delegated to such officer by the Commission;
    (2) Ensure that administrative guidelines and management controls 
are issued that apply to all NRC advisory committees;
    (3) Exercise control and supervision over the establishment, 
procedures, and accomplishments of NRC advisory committees;
    (4) Assemble and maintain the reports, records, and other papers of 
any such committee during this existence;
    (5) Carry out, on behalf of the NRC, the provisions of the Freedom 
of Information Act (5 U.S.C. 552) and implementing NRC regulations (10 
CFR part 9, subpart A) with respect to such reports, records, and other 
papers;
    (6) Ensure that, subject to the Freedom of Information Act and 
implementing NRC regulations at 10 CFR part 9, subpart A, copies of the 
records, reports, transcript minutes, appendices, working papers, 
drafts, studies, agenda, or other documents that were made available to 
or prepared for or by each NRC advisory committee are available for 
public inspection and copying at the NRC Web site, http://www.nrc.gov, 
at the NRC Public Document Room, or both, until the advisory committee 
ceases to exist;
    (7) Ensure that, subject to the Freedom of Information Act and 
implementing NRC regulations, at least eight copies of each report made 
by each NRC advisory committee and, where appropriate, background papers 
prepared by consultants, shall be filed with the Library of Congress;
    (8) Ensure that NRC keeps such records as will fully disclose the 
disposition of any funds that may be at the disposal of NRC advisory 
committees and the nature and extent of their activities; and
    (9) Ensure that NRC keeps such other records and provides such 
support services as are required by Sec.  7.22.
    (c) For purposes of paragraph (b) of this section, the term 
``records'' includes (but is not limited to):
    (1) A set of approved charters and membership lists for each NRC 
advisory committee;
    (2) Copies of NRC's portion of the Committee Management Secretariat 
Annual Comprehensive Review of Federal advisory committees required by 
section 7(b) of the Act;
    (3) NRC guidelines on committee management operations and procedures 
as maintained and updated; and

[[Page 198]]

    (4) NRC determinations to close advisory committee meetings made 
pursuant to Sec.  7.15.

[54 FR 26948, June 27, 1989; 54 FR 28554, July 6, 1989; 54 FR 31646, 
Aug. 1, 1989; 64 FR 48949, Sept. 9, 1999; 67 FR 79841, Dec. 31, 2002]



Sec.  7.11  The Designated Federal Officer.

    (a) The Chairman of the Commission or designee shall appoint a 
Designated Federal Officer or alternate Designated Federal Officer for 
each NRC advisory committee. The individual holding either position must 
be employed by the Federal Government on either a full-time or a 
permanent part-time basis.
    (b) All meetings of an NRC advisory committee must be convened or 
approved by the committee's Designated Federal Officer or alternate, and 
the agenda for each committee meeting (except a meeting of a 
Presidential advisory committee) must be approved by that individual.
    (c) An NRC advisory committee may not hold a meeting in the absence 
of its Designated Federal Officer or alternate.
    (d) It shall also be the responsibility of the Designated Federal 
Officer or alternate to:
    (1) Attend all meetings of the committee for which he or she has 
been appointed;
    (2) Adjourn the meetings of the committee when such adjournment is 
in the public interest;
    (3) Chair the meetings of the committee when so directed by the 
Commission;
    (4) Ensure compliance with the requirements of Sec.  7.13 regarding 
minutes of meetings of the committee; and
    (5) Make copies of committee documents required to be maintained for 
public inspection and copying pursuant to Sec.  7.14(b) and ensure their 
availability at the NRC Web site, http://www.nrc.gov, at the NRC Public 
Document Room, or both.

[67 FR 79841, Dec. 31, 2002]



Sec.  7.12  Public participation in and public notice of advisory committee 

meetings.

    (a) Each meeting of an NRC advisory committee shall be held at a 
reasonable time and in a place reasonably accessible to the public, 
including persons with disabilities. Any advisory committee meeting 
conducted in whole or part by teleconference, video conference, the 
Internet, or other electronic medium must comply with this section. The 
size of the meeting room must be sufficient to accommodate advisory 
committee members, committee or agency staff, and interested members of 
the public, except that the provisions of this paragraph relating to the 
room size shall not apply to any part of an NRC advisory committee 
meeting that has been closed pursuant to Sec.  7.15.
    (b) Any member of the public who wishes to do so shall be permitted 
to file a written statement with an NRC advisory committee regarding any 
matter discussed at a meeting of the committee. The committee chairman 
may also permit members of the public to speak at meetings of the 
committee in accordance with procedures established by the committee.
    (c)(1) Except when the President or designee determines in writing 
that no notice should be published for reasons of national security, at 
least 15 days prior to an NRC advisory committee meeting, a notice that 
includes the following information shall be published in the Federal 
Register:
    (i) The exact name of the advisory committee as chartered;
    (ii) The time, date, place, and purpose of the meeting;
    (iii) A summary of the agenda of the meeting;
    (iv) Whether all or part of the meeting is open to the public; and
    (v) The name and telephone number of the Designated Federal Officer, 
alternate, or other responsible agency employee who may be contacted for 
additional information concerning the meeting.
    (2) If any part of the meeting is closed, the notice shall provide 
the reasons for the closure, citing the specific matter that has been 
determined to justify the closure under Sec.  7.15. The Commission may 
publish a single notice announcing multiple meetings; however, a meeting 
may not be announced so far in advance as to prevent the public from 
being adequately informed of an NRC advisory committee's schedule.

[[Page 199]]

    (d) In exceptional circumstances, less than 15 days notice of an 
advisory committee meeting may be given, provided that there is as much 
prior notice as possible and the reasons for the shorter time are 
included in the committee meeting notice published in the Federal 
Register.
    (e) In addition to notice required by paragraph (c) of this section, 
the NRC may also use other forms of notice, such as press releases, 
posting the information on the NRC Web site, http://www.nrc.gov, or 
notice by mail, to inform the public of advisory committee meetings. To 
that end, the Designated Federal Officer or alternate for each NRC 
advisory committee will, to the extent practicable, maintain lists of 
people and organizations interested in that advisory committee and 
notify them of meetings by mail.
    (f) Meetings of a subcommittee whose recommendations will not be 
reviewed by its parent advisory committee shall be conducted in 
accordance with all notice and openness requirements contained in this 
section and in Sec. Sec.  7.13, 7.14, and 7.15.

[54 FR 26948, June 27, 1989, as amended at 67 FR 79841, Dec. 31, 2002]



Sec.  7.13  Minutes of advisory committee meetings.

    (a) Detailed minutes shall be kept of each NRC advisory committee 
meeting. The minutes shall include the following information:
    (1) The time, date, and place of the meeting;
    (2) A list of the attendees at the meeting who are advisory 
committee members or staff, agency employees, or members of the public 
who presented oral or written statements;
    (3) An estimate of the number of other members of the public who 
were present;
    (4) The extent of public participation; and
    (5) An accurate description of each matter discussed during the 
meeting and its resolution, if any, by the committee.
    (b) The minutes of an NRC advisory committee meeting shall include a 
copy of each report or other document received, issued, or approved by 
the committee in connection with the meeting. If it is impracticable to 
attach a document to the minutes, the minutes shall describe the 
document in sufficient detail to permit it to be identified readily.
    (c) The chairperson of an NRC advisory committee shall certify the 
accuracy of the minutes of each of the committee's meetings.
    (d) A verbatim transcript of an advisory committee meeting may be 
substituted for minutes required by this section, providing that the use 
of such a transcript is in accordance with the requirements of 
paragraphs (a), (b), and (c) of this section.

[54 FR 26948, June 27, 1989, as amended at 67 FR 79842, Dec. 31, 2002]



Sec.  7.14  Public information on advisory committees.

    (a) The Nuclear Regulatory Commission shall maintain systematic 
information on the nature, functions, and operations of each NRC 
advisory committee. A complete set of the charters of NRC advisory 
committees and copies of the annual reports required by Sec.  7.17(a) 
will be maintained for public inspection at either the NRC Web site, 
http://www.nrc.gov, at the NRC Public Document Room, or both.
    (b) Subject to the provisions of the Freedom of Information Act (5 
U.S.C. 552) and NRC's Freedom of Information Act regulations at 10 CFR 
part 9, subpart A, copies of NRC advisory committees' records, reports, 
transcripts, minutes, appendices, working papers, drafts, studies, 
agenda, and other documents shall be maintained for public inspection 
and copying at the NRC Web site, http://www.nrc.gov, at the NRC Public 
Document Room, or both. To provide the public a meaningful opportunity 
to comprehend fully the work undertaken by an NRC advisory committee, 
advisory committee records should be available to the public as soon as 
practicable. Members of the public or other interested parties may 
review non-exempt advisory committee records without filing a request 
for these records under the Freedom of Information Act.
    (c) Official records generated by or for an advisory committee must 
be retained for the duration of the advisory committee. Upon termination 
of the

[[Page 200]]

advisory committee, the records must be processed in accordance with the 
Federal Records Act (44 U.S.C. Chapters 21, 29-33) and regulations 
issued by the National Archives and Records Administration (see 36 CFR 
Parts 1220, 1222, 1228, and 1234), or in accordance with the 
Presidential Records Act (44 U.S.C. Chapter 22).

[67 FR 79842, Dec. 31, 2002]



Sec.  7.15  Procedures for closing an NRC advisory committee meeting.

    (a) To close all or part of a meeting of an NRC advisory committee, 
the committee shall submit a written request for closure to the General 
Counsel, citing specific exemptions listed in the Government in the 
Sunshine Act (5 U.S.C. 552b), as implemented by 10 CFR 9.104, that 
justify the closure. The request shall provide the General Counsel 
sufficient time for review in order to make a determination prior to 
publication of the meeting notice pursuant to Sec.  7.12.
    (b) If the General Counsel finds that the request for closure is 
consistent with the provisions of the Government in the Sunshine Act and 
this part, a determination shall be issued in writing that all or part 
of the meeting will be closed. The determination shall include a 
statement of the reasons for the closing, citing the applicable 
exemptions in the Government in the Sunshine Act (as implemented by 10 
CFR 9.104).
    (c) Except when the President or designee determines in writing that 
no notice should be published for reasons of national security, the 
Secretary of the Commission shall make a copy of the determination to 
close all or part of an NRC advisory committee meeting available to the 
public upon request. If such a determination has been issued, the 
meeting notice published in the Federal Register should comply with the 
provisions of Sec.  7.12 applicable to closed meetings.

[67 FR 79842, Dec. 31, 2002]



Sec.  7.16  Annual comprehensive review.

    (a) The Chairman of the Commission shall conduct an annual 
comprehensive review of the activities and responsibilities of each NRC 
advisory committee to determine whether the committee--
    (1) Is carrying out its purposes or, consistent with the provisions 
of applicable statutes, its responsibilities should be revised.
    (2) Should be merged with another advisory committee.
    (3) Should be terminated.
    (b) The comprehensive review required by paragraph (a) of this 
section shall include consideration of such information regarding the 
committee as is required for the Commission's annual report to the GSA 
Secretariat pursuant to Sec.  7.17(a) and such other information as may 
be requested from the Committee by the NRC Advisory Committee Management 
Officer. The results of such review shall be included in the annual 
report to the GSA Secretariat.
    (c) If, as a result of the review required by this section, the 
Commission determines that an advisory committee is no longer needed, 
the committee shall be terminated; except that in the case of an 
advisory committee established by an Act of Congress or the President, 
the committee's termination shall be recommended to the President or the 
Congress, as the case may be.

[54 FR 26948, June 27, 1989, as amended at 67 FR 79842, Dec. 31, 2002]



Sec.  7.17  Reports required for advisory committees.

    (a) The Commission shall furnish a report on the activities of NRC 
advisory committees annually to the Committee Management Secretariat on 
a fiscal year basis. The report must contain information regarding NRC 
advisory committees consistent with instructions provided by the 
Committee Management Secretariat. A copy of the report shall be made 
available at the NRC Web site, http://www.nrc.gov, at the NRC Public 
Document Room, or both. The information provided by the Commission 
regarding its advisory committees is contained in the Committee 
Management Secretariat's report which is available on its Web site, 
http://www.gsa.gov/committeemanagement.

[[Page 201]]

    (b) Any NRC advisory committee holding closed or partially closed 
meetings shall issue a report, at least annually, setting forth a 
summary of its activities consistent with the policy of the Government 
in the Sunshine Act (5 U.S.C. 552b), as implemented by 10 CFR 9.104. A 
copy of the report shall be made available at the NRC Web site, http://
www.nrc.gov, at the NRC Public Document Room, or both.
    (c) Subject to the Freedom of Information Act (5 U.S.C. 552) and 
implementing NRC regulations (10 CFR part 9, subpart A), eight copies of 
each report made by an advisory committee, including any report on 
closed meetings pursuant to paragraph (b) of this section, and, where 
appropriate, background papers prepared by consultants, shall be filed 
for public inspection and use with the Library of Congress, Anglo-
American Acquisitions Division, Government Documents Section, Federal 
Advisory Committee Desk, 101 Independence Avenue, SE., Washington, DC 
20540-4172.

[67 FR 79842, Dec. 31, 2002]



Sec.  7.18  Appointment, compensation, and expense reimbursement of advisory 

committee members, staffs, and consultants.

    (a) Unless otherwise provided by law, advisory committee members 
serve at the pleasure of the Commission and their terms are at the sole 
discretion of the Commission.
    (b) Except where otherwise provided by law, the Commission may 
accept the gratuitous services of an NRC advisory committee member, 
staff member, or consultant who agrees in advance to serve without 
compensation.
    (c)(1) Subject to the provisions of paragraph (c)(2) of this 
section, if the Commission determines that compensation of a member of 
an NRC advisory committee is appropriate, the amount that will be paid 
shall be fixed by the Chairman of the Commission at a rate that is the 
daily equivalent of a rate in NRC's General Grade Salary Schedule, 
unless the member is appointed as a consultant and compensated at a rate 
applicable to NRC consultants.
    (2) In determining an appropriate rate of pay for a member of an NRC 
advisory committee, the Chairman of the Commission shall give 
consideration to the significance, scope, and technical complexity of 
the matters with which the advisory committee is concerned and the 
qualifications required of the committee member; provided that the 
Chairman may not set the rate of pay for an NRC advisory committee 
member higher than the daily equivalent rate for level IV of the 
Executive Schedule under 5 U.S.C. 5315, unless a higher rate is 
expressly allowed by another statute. The Chairman may authorize a rate 
of basic pay in excess of the maximum rate of basic pay established for 
NRC's General Grade Salary Schedule. This maximum rate includes an 
applicable locality payment. The Commission may pay advisory committee 
members on either an hourly or a daily rate basis. The Commission may 
not provide additional compensation in any form, such as bonuses or 
premium pay. The Chairman may not delegate the responsibility for making 
a determination that a higher rate of pay than that established by NRC's 
General Grade Salary Schedule is necessary and justified for an NRC 
advisory committee member, and such a determination must be reviewed 
annually.
    (d)(1) Each NRC advisory committee staff member may be paid at a 
rate that is the daily equivalent of a rate in NRC's General Grade 
Salary Schedule in which the staff member's position would appropriately 
be placed.
    (2) A staff member of an NRC advisory committee may not be paid at a 
rate higher than the daily equivalent of the maximum rate for a GG-15 
under NRC's General Grade Salary Schedule, unless the Chairman of the 
Commission determines that the staff member's position would 
appropriately be placed at a grade higher than GG-15, provided that in 
establishing rates of compensation, the Chairman shall comply with any 
applicable statutes, regulations, Executive Orders, and administrative 
guidelines. The Commission may provide advisory committee staff members 
with additional compensation, such as bonuses or premium pay, as long as 
the aggregate compensation does not exceed the rate of pay for Executive 
Schedule level IV.

[[Page 202]]

    (3) A Federal employee may serve as a staff member of an NRC 
advisory committee only with the knowledge of the advisory committee's 
Designated Federal Officer or alternate and the approval of the 
employee's direct supervisor. A staff member who is not otherwise a 
Federal employee shall be appointed in accordance with applicable agency 
procedures, following consultation with the advisory committee.
    (e)(1) Subject to the limitations in paragraph (e)(2) of this 
section, the following factors shall be considered in determining an 
appropriate rate of pay for a consultant to an NRC advisory committee:
    (i) The qualifications required of the consultant, and
    (ii) The significance, scope, and technical complexity of the work 
for which his services are required;
    (2) The rate of pay for an NRC advisory committee consultant may not 
be higher than the maximum rate of basic pay established by NRC's 
General Salary Schedule (that is, the GG-15, step 10 rate, excluding 
locality pay or any other supplement), unless a higher rate is expressly 
allowed by another statute. The appointment and compensation of NRC 
experts and consultants must be in conformance with applicable 
regulations issued by the United States Office of Personnel Management 
(see 5 CFR part 304).
    (f) A member or staff member of an NRC advisory committee engaged in 
the performance of duties away from his or her home or regular place of 
business may be allowed travel expenses, including per diem in lieu of 
subsistence, as authorized by section 5703, title 5, United States Code, 
for persons employed intermittently in the Government service.
    (g) Nothing in this section shall:
    (1) Prevent any full-time Federal employee who provides services to 
an NRC advisory committee from receiving compensation at a rate at which 
he or she would otherwise be compensated as a full-time Federal 
employee;
    (2) Prevent any individual who provides services to an NRC advisory 
committee, and who immediately before providing such services was a 
full-time Federal employee, from receiving compensation at a rate at 
which he or she was compensated as a full-time Federal employee; or
    (3) Affect a rate of pay or a limitation on a rate of pay that is 
specifically established by law or a rate of pay established under the 
NRC's General Grade Salary Schedule and evaluation system.

[67 FR 79843, Dec. 31, 2002]



Sec.  7.19  Advisory committee members with disabilities.

    An NRC advisory committee member who is disabled may be provided 
services by a personal assistant while performing advisory committee 
duties, if the member;
    (a) Qualifies as disabled under section 501 of the Rehabilitation 
Act of 1973 (29 U.S.C. 794) ; and
    (b) Does not otherwise qualify for assistance under 5 U.S.C. 3102 by 
reason of being an employee of NRC.

[67 FR 79843, Dec. 31, 2002]



Sec.  7.20  Conflict of interest reviews of advisory committee members' 

outside interests.

    The Designated Federal Officer or alternate for each NRC advisory 
committee and the General Counsel or designee shall review the interests 
and affiliations of each member of the Designated Federal Officer's 
advisory committee annually, and upon the commencement of the member's 
appointment to the committee, for the purpose of ensuring that such 
appointment is consistent with the laws and regulations on conflict of 
interest applicable to that member.

[67 FR 79843, Dec. 31, 2002]



Sec.  7.21  Cost of duplication of documents.

    Copies of the records, reports, transcripts, minutes, appendices, 
working papers, drafts, studies, agenda, or other documents that were 
made available to or prepared for or by an NRC advisory committee shall 
be made available to any person at the actual cost of duplication 
prescribed in part 9 of this chapter. (For availability of information 
on advisory committees, see Sec.  7.14.)

[[Page 203]]



Sec.  7.22  Fiscal and administrative responsibilities.

    (a) The Office of the Chief Financial Officer shall keep such 
records as will fully disclose the disposition of any funds that may be 
at the disposal of NRC advisory committees.
    (b) The Office of Information Services shall keep such records as 
will fully disclose the nature and extent of activities of NRC advisory 
committees.
    (c) NRC shall provide support services (including staff support and 
meeting space) for each advisory committee established by or reporting 
to it unless the establishing authority provides otherwise. Where any 
such advisory committee reports to another agency in addition to NRC, 
only one agency shall be responsible for support services at any one 
time, and the establishing authority shall designate the agency 
responsible for providing such services.

[54 FR 26948, June 27, 1989, as amended at 63 FR 15742, Apr. 1, 1998]



PART 8_INTERPRETATIONS--Table of Contents




Sec.
8.1 Interpretation of section 152 of the Atomic Energy Act of 1954; 
          opinion of the General Counsel.
8.2 Interpretation of Price-Anderson Act, section 170 of the Atomic 
          Energy Act of 1954.
8.3 [Reserved]
8.4 Interpretation by the General Counsel: AEC jurisdiction over nuclear 
          facilities and materials under the Atomic Energy Act.
8.5 Interpretation by the General Counsel of Sec.  73.55 of this 
          chapter; illumination and physical search requirements.

    Authority: Secs. 152, 161, 68 Stat. 944, 948, as amended; 42 U.S.C. 
2182, 2201.



Sec.  8.1  Interpretation of section 152 of the Atomic Energy Act of 1954; 

opinion of the General Counsel.

    (a) Inquiries have been received as to the applicability of the 
provisions of section 152 of the Atomic Energy Act of 1954 (68 Stat. 
944) to inventions or discoveries made or conceived in the course of 
activities under licenses issued by the Atomic Energy Commission.
    (b) In my [General Counsel, U.S. Atomic Energy Commission] opinion a 
license issued by the Atomic Energy Commission is not a ``contract, 
subcontract, arrangement or other relationship with the Commission'' as 
those terms are used in section 152 of the act. Hence, the mere fact 
that an invention or discovery is made by a licensee in the course of 
activities authorized by a license would not give the Commission rights 
under section 152 with respect to such invention or discovery. On the 
other hand, if a licensee has entered into a ``contract, subcontract, 
arrangement or other relationship with the Commission,'' inventions or 
discoveries made or conceived by the licensee under the contract or 
other relationship would come within the purview of section 152.
    (c) As used in this section, ``license'' means a license issued 
pursuant to Chapter 6 (Special Nuclear Material), 7 (Source Material), 8 
(Byproduct Material) or 10 (Atomic Energy Licenses) of the Atomic Energy 
Act of 1954, or a construction permit issued pursuant to section 185 of 
the act.

[21 FR 1414, Mar. 3, 1956]



Sec.  8.2  Interpretation of Price-Anderson Act, section 170 of the Atomic 

Energy Act of 1954.

    (a) It is my opinion that an indemnity agreement entered into by the 
Atomic Energy Commission under the authority of the Atomic Energy Act of 
1954 (42 U.S.C. 2011, et seq.), hereafter cited as ``the Act,'' as 
amended by Pub. L. 85-256 (the ``Price-Anderson Act'') 42 U.S.C. 2210 
indemnifies persons indemnified against public liability for bodily 
injury, sickness, disease or death, or loss of or damage to property, or 
for loss of use of property caused outside the United States by a 
nuclear incident occurring within the United States.
    (b) Section 170 authorizes the Commission to indemnify against 
``public liability'' as defined in section 11(u) of the Act. \1\ 
Coverage under the Act

[[Page 204]]

therefore is predicated upon ``public liability,'' and requires (1) 
``legal liability'' for (2) a ``nuclear incident.'' Determination of the 
Act's coverage, therefore, necessitates a finding that these two 
elements are present.
---------------------------------------------------------------------------

    \1\ Sec. 11u. ``The term `public liability' means any legal 
liability arising out of or resulting from a nuclear incident, except 
claims under State or Federal Workmen's Compensation Acts of employees 
of persons indemnified who are employed at the site of and in connection 
with the activity where the nuclear incident occurs, and except for 
claims arising out of an act of war. `Public Liability' also includes 
damage to property of persons indemnified: Provided, That such property 
is covered under the terms of the financial protection required, except 
property which is located at the site of and used in connection with the 
activity where the nuclear incident occurs.''
---------------------------------------------------------------------------

    (c) In the case of damage outside of the United States caused by a 
nuclear facility based in the United States there would be a ``nuclear 
incident'' as defined in section 11(o) since there would be an 
``occurrence within the United States causing * * * damage.'' \2\ The 
``occurrence'' would be ``within the United States'' since 
``occurrence'' is intended by the Act to be ``that event at the site of 
the licensed activity * * * which may cause damage rather than the site 
where the damage may perhaps be caused.'' (S. Rep. 296, 85th Cong., 1st 
Sess., p. 16 1957) (hereafter cited as Report). In section 11(o) an 
``occurrence'' is that which causes damage. It would be, therefore, an 
event taking place at the site. This definition of ``occurrence'' is 
referred to in the Report at page 22 and is crucial to the Act's placing 
of venue under section 170(e). \3\ 027 In its definition of ``nuclear 
incident.'' The Act makes no limitation upon the place where the damage 
is received but states only that the ``occurrence'' must be within the 
United States.
---------------------------------------------------------------------------

    \2\ Sec. 11o. ``The term `nuclear incident' means any occurrence 
within the United States causing bodily injury, sickness, disease, or 
death, or loss of or damage to property, or for loss of use of property, 
arising out of or resulting from the radioactive, toxic, explosive, or 
other hazardous properties of source, special nuclear, or byproduct 
material: * * *''
    \3\ ``In order to provide a framework for establishing the 
limitation of liability, the Commission or any person indemnified is 
permitted to apply to the appropriate district court of the United 
States which has venue in bankruptcy matters over the site of the 
nuclear incident. Again it should be pointed out that the site is where 
the occurrence takes place which gives rise to the liability, not the 
place where the damage may be caused * * * '' Report. p. 22.
---------------------------------------------------------------------------

    (d) Similarly, the requirement of ``legal liability'' would be met. 
The words of the Act impose no limitation that the liability be one for 
damage caused in the United States but, on the contrary, are exceedingly 
broad permitting indemnification for ``any legal liability.'' In the 
most exhaustive study of the subject, it is stated that the phrase ``any 
legal liability'' indicates that liability for damage outside the United 
States is covered by the Act. Atomic Industrial Forum, Financial 
Protection Against Atomic Hazards 61 n. 355 (1957).
    (e) Thus the precise language of the Act provides coverage for 
damage ensuing both within and without the United States arising out of 
an occurrence within the United States. There would be no occasion for 
doubt were it not for a single statement contained in the Report of the 
Joint Committee on Atomic Energy on the Price-Anderson Act. The Report 
states, at p. 16 that ``[i]f there is anything from a nuclear incident 
at the licensed activity which causes injury abroad, or if there is any 
activity abroad which causes further injury in the United States the 
situation will require further investigation at that time.'' This 
sentence follows an explicit and lengthy statement that the 
``occurrence'' is an event at the site of the activity:

    * * * The occurrence which is the subject of this definition is that 
event at the site of the licensed activity, or activity for which the 
Commission has entered into a contract, which may cause damage, rather 
than the site where the damage may perhaps be caused. This site must be 
within the United States. The suggested exclusion of facilities under 
license for export was not accepted. This is because the definition of 
``nuclear incident'' limits the occurrence causing damage to one within 
the United States. It does not matter what license may be applicable if 
the occurrence is within the United States. If there is anything from a 
nuclear incident at the licensed activity which causes injury abroad or 
if there is any activity abroad which causes further injury in the 
United States the situation will require further investigation by the 
Congress at that time * * *


Read literally, the last sentence would seem inconsistent with the 
preceding

[[Page 205]]

statement. It is, however, possible to read the sentence as consistent 
with the preceding statement if it is taken as indicating a recognition 
by Congress of the fact that the statutory limitation of liability to 
$500,000,000 would probably not limit claims by foreign residents to 
that amount in foreign courts and that therefore the persons indemnified 
were not fully protected against bankrupting claims, one of the primary 
purposes of the bill. \4\
---------------------------------------------------------------------------

    \4\ Atomic Industrial Forum, Financial Protection Against Atomic 
Hazards, The International Aspects, p. 52 (1959).
---------------------------------------------------------------------------

    (f) The point in question received scant consideration during the 
hearings preceding adoption of the bill held by the Joint Committee on 
Atomic Energy. A summary of the study of the Atomic Industrial Forum, 
cited above, was introduced into the record of the hearing and included 
a conclusion that the provisions of the bill seemed to cover the 
situation. \5\ That conclusion would seem entitled to more than ordinary 
weight since the Forum study received the careful consideration of the 
Joint Committee. \6\ and the study referenced a statement from the 1956 
Report very similar to the confusing statement in the 1957 Report noted 
above. \7\
---------------------------------------------------------------------------

    \5\ Hearings before the Joint Committee on Atomic Energy, 
Governmental Indemnity and Reactor Safety, 85th Cong., 1st Sess., p. 181 
(1957) (hereinafter referred to as ``Hearings.'')
    \6\ Hearings, p. 168.
    \7\ Hearings, p. 182.
---------------------------------------------------------------------------

    (g) There was also a rather ambiguous colloquy in the hearings 
between Representative Cole and Mr. Charles Haugh in which 
Representative Cole indicated that the Joint Committee

``* * * will do pretty well if we successfully protect the American 
people and property owners in this country without worrying about those 
that live abroad.'' \8\
---------------------------------------------------------------------------

    \8\ Hearings, p. 97. It is significant to note that Mr. Haugh stated 
at that point the problem of the reactor operator who is concerned with 
any type of liability. He noted that the insurance contracts would cover 
``* * * the instance where * * * something happen[ed] out of the country 
and a suit is brought in the United States on that.''
---------------------------------------------------------------------------

    (h) Congress, in enacting the Price-Anderson Indemnity Act added to 
section 2 of the Atomic Energy Act of 1954, a new subsection which 
stated, inter alia:

    In order * * * to encourage the development of the atomic energy 
industry, * * * the United States may make funds available for a portion 
of the damages suffered by the public from nuclear incidents and may 
limit the liability of those persons liable for such losses.


This statutory purpose is frustrated if the atomic energy industry is 
not protected from bankrupting liabilities for damages caused abroad by 
an accident occurring in the United States. \9\ In the Report, the Joint 
Committee on Atomic Energy made explicit mention of the fact that the 
private insurance to be provided for reactor operators included

[[Page 206]]

coverage for damage in Canada and Mexico and, at another point, noted 
the Committee's hope that the insurance contract in its final form would 
cover the same scope as the bill. \10\
---------------------------------------------------------------------------

    \9\ The Atomic Industrial Forum study notes that ``[T]o be adequate, 
the governmental indemnity must cover industry's liability to residents 
of the countries who suffer as a result of an accident at an 
installation based in the United States.'' p. 61. This is certainly the 
case and one of the major Congressional purposes is frustrated should 
the Act be said to be unclear on this point. The principal reason for 
the conclusion that there is coverage reached in the Forum study is the 
fact that Price-Anderson provides indemnity for ``any legal liability.'' 
Arthur Murphy, Director of the study, in a recent article, has stated 
that the confusing sentence in the Report is `` * * * inconsistent with 
the flat coverage of any legal liability by the indemnity.'' Murphy, 
Liability for Atomic Accidents and Insurance, in Law and Administration 
in Nuclear Energy 75 (1959). In the testimony before the Joint Committee 
last year, Professor Samuel D. Estep, one of three authors of the 
comprehensive study of Atoms and the Law apparently relying upon the 
legislative history, stated that the problem of a reactor accident in 
the United States causing damage in a foreign country was unclear, 
presumably since he considered the phrase ``any legal liability'' 
directed at a different problem. Hearings before the Joint Committee on 
Atomic Energy, Indemnity and Reactor Safety, 86th Cong., 1st Sess., p. 
77 (1959); Stason Estep, and Pierce, Atoms and the Law, 577 (1959). 
Professor Estep stated that there ``surely ought to be'' coverage and 
suggested a clarifying amendment. His statement that the phrase ``any 
legal liability'' covers only the question of time restrictions for 
claims seems to me erroneous since the language used, ``any legal 
liability,'' seems intentionally broad. Additionally, should this very 
narrow reading be given to admittedly broad statutory language, the 
Congressional purpose would be frustrated.
    \10\ Report, p. 11.
---------------------------------------------------------------------------

    (i) It is my opinion that since the language of the Act draws no 
distinction between damage received in the United States and that 
received abroad, none can properly be drawn. To read the Act as imposing 
such a limitation in the absence of statutory direction and in the light 
of an avowed Congressional intention to encourage the development of the 
atomic energy industry would be unwarranted. The confusing sentence 
cited in the Report must, therefore, be read consistently with the 
language of the Act in the manner suggested above, i.e., as recognizing 
Congressional inability to limit foreign liability, or must be ignored 
as inconsistent with the broad coverage of the statutory language.

[25 FR 4075, May 7, 1960]



Sec.  8.3  [Reserved]



Sec.  8.4  Interpretation by the General Counsel: AEC jurisdiction over 

nuclear facilities and materials under the Atomic Energy Act.

    (a) By virtue of the Atomic Energy Act of 1954, as amended, \11\ the 
individual States may not, in the absence of an agreement with the 
Atomic Energy Commission, regulate the materials described in the Act 
from the standpoint of radiological health and safety. Even States which 
have entered into agreements with the AEC lack authority to regulate the 
facilities described in the Act, including nuclear power plants and the 
discharge of effluents from such facilities, from the standpoint of 
radiological health and safety.
---------------------------------------------------------------------------

    \11\ Pub. L. 83-703, 68 Stat. 919.
---------------------------------------------------------------------------

    (b) The Atomic Energy Act of 1954 sets out a pattern for licensing 
and regulation of certain nuclear materials and facilities on the basis 
of the common defense and security and radiological health and safety. 
The regulatory pattern requires, in general, that the construction and 
operation of production facilities (nuclear reactors used for production 
and separation of plutonium or uranium-233 or fuel reprocessing plants) 
and utilization facilities (nuclear reactors used for production of 
power, medical therapy, research, and testing) and the possession and 
use of byproduct material (radioisotopes), source material (thorium and 
uranium ores), and special nuclear material (enriched uranium and 
plutonium, used as fuel in nuclear reactors), be licensed and regulated 
by the Commission. \12\ In carrying out its statutory responsibilities 
for the protection of the public health and safety from radiation 
hazards and for the promotion of the common defense and security, the 
AEC has promulgated regulations which establish requirements for the 
issuance of licenses (Parts 30-36, 40, 50, 70, 71, and 100 of this 
chapter) and specify standards for radiation protection (part 20 of this 
chapter).
---------------------------------------------------------------------------

    \12\ The terms ``byproduct material,'' ``source material,'' and 
``special nuclear material'' are defined in the Atomic Energy Act, 
sections 11e, 11z, and 11aa, respectively. The terms ``production 
facility'' and ``utilization facility'' are defined in sections 11v and 
11cc of the Act, respectively.
---------------------------------------------------------------------------

    (c) The Atomic Energy Act of 1954 had the effect of preempting to 
the Federal Government the field of regulation of nuclear facilities and 
byproduct, source, and special nuclear material. Whatever doubts may 
have existed as to that preemption were settled by the passage of the 
Federal-State amendment to the Atomic Energy Act of 1954 in 1959. \13\
---------------------------------------------------------------------------

    \13\ Pub. L. 86-373, 73 Stat. 688.
---------------------------------------------------------------------------

    (d) Prior to 1954, all nuclear facilities and the special nuclear 
material produced by or used in them were owned by the AEC. \14\ This 
Federal monopoly of atomic energy activities was due in large part to 
the use of atomic energy materials and facilities in our national 
weapons program, and the large capital investment required for their 
development. The Atomic Energy Act of 1954 permitted private ownership 
of nuclear facilities for the first time, but only

[[Page 207]]

under a comprehensive, pervasive system of Federal regulation and 
licensing. That Act recognized no State responsibility or authority over 
such facilities and materials except the States' traditional regulatory 
authority over generation, sale, and transmission of electric power 
produced through the use of nuclear facilities. \15\ As interest grew in 
the private construction of facilities and the use of atomic energy 
materials, and the numbers of persons qualified in the field increased, 
questions arose as to the role State authorities should play with regard 
to the public health and safety aspects of such activities. Several 
bills were introduced with respect to Federal-State cooperation in 1956 
and 1957. \16\ An AEC proposed bill which would have authorized 
concurrent radiation safety standards to be enforced by the States was 
forwarded to the Joint Committee on Atomic Energy in 1957, but was never 
reported out. Finally, in 1959, legislation was enacted whose purpose 
was to promote an orderly regulatory pattern between the Federal and 
State governments with respect to regulation of byproduct, source, and 
special nuclear material, while avoiding dual regulation (see section 
274a). That legislation added section 274, the so-called Federal-State 
amendment, to the Atomic Energy Act.
---------------------------------------------------------------------------

    \14\ Atomic Energy Act of 1946, Pub. L. 79-585, 60 Stat. 755.
    \15\ Sec. 271, 42 U.S.C. 2018.
    \16\ S. 4298 and H.R. 8676, 84th Cong., second session; S. 53, 85th 
Cong., first session.
---------------------------------------------------------------------------

    (e) Section 274 (42 U.S.C. 2021) authorizes the Commission to enter 
into an agreement with the Governor of any State providing for the 
discontinuance of regulatory authority of the Commission with respect to 
byproduct materials, source materials, and special nuclear materials in 
quantities not sufficient to form a ``critical mass.'' However, section 
274c (42 U.S.C. 2021(c)) provides that the Commission shall retain 
authority and responsibility with respect to the regulation of:
    (1) The construction and operation of production or utilization 
facilities (note: this includes construction and operation of nuclear 
power plants);
    (2) The export and import of by-product, source or special nuclear 
material or production or utilization facilities;
    (3) The disposal into the ocean of waste byproduct, source or 
special nuclear materials; and
    (4) The disposal of such other byproduct, source or special nuclear 
material as the Commission determines should, because of the hazards or 
potential hazards thereof, not be so disposed of without a Commission 
license.
    (f) The amendment, in providing for the discontinuance of some of 
the AEC's regulatory authority over source, by-product and special 
nuclear material in States which entered into agreements with the AEC, 
made clear that there should be no ``dual regulation'' with respect to 
those materials for the purpose of protection of the public health and 
safety from radiation hazards.
    (g) Section 274b of the Atomic Energy Act (42 U.S.C. 2021(b)) states 
that:

    During the duration of such an agreement it is recognized that the 
State shall have authority to regulate the materials covered by the 
agreement for the protection of the public health and safety from 
radiation hazards.


Section 274k (42 U.S.C. 2021(k)) states:

    Nothing in this section shall be construed to affect the authority 
of any State or local agency to regulate activities for purposes other 
than protection against radiation hazards.

    (h) In its comments on the bill that was enacted as section 274, the 
Joint Committee on Atomic Energy commented that:

    It is not intended to leave any room for the exercise of dual or 
concurrent jurisdiction by States to control radiation hazards by 
regulating byproduct, source, or special nuclear materials. The intent 
is to have the material regulated and licensed either by the Commission, 
or by the State and local governments, but not by both. \17\
---------------------------------------------------------------------------

    \17\ 1959 U.S. Code Congressional and Administrative News, v. 2, p. 
2879.


---------------------------------------------------------------------------
In explaining section 274k, the Joint Committee said:

    As indicated elsewhere, the Commission has exclusive authority to 
regulate for protection against radiation hazards until such time as the 
State enters into an agreement with the Commission to assume such 
responsibility. \18\
---------------------------------------------------------------------------

    \18\ Id. at pp. 2882-3.


[[Page 208]]


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

    (i) It seems completely clear that the Congress, in enacting section 
274, intended to preempt to the Federal Government the total 
responsibility and authority for regulating, from the standpoint of 
radiological health and safety, the specified nuclear facilities and 
materials; that it stated that intent unequivocally; and that the 
enactment of section 274 effectively carried out the Congressional 
intent, subject to the arrangement for limited relinquishment of AEC's 
regulatory authority and assumption thereof by states in areas 
permitted, and subject to conditions imposed, by section 274. \19\
---------------------------------------------------------------------------

    \19\ As noted above, regulation of construction and operation of 
production or utilization facilities was one of the areas reserved to 
the AEC. It is clear from the legislative history of section 274 that 
control of ``operation'' of such facilities includes the regulation of 
the radiological effects of the discharge of affluents from the 
facilities. (Hearings before the Joint Committee on Atomic Energy on 
Federal-State Relationships in the Atomic Energy Field, 86th Cong., 
first session, 1959, p. 306.) AEC regulations implementing section 274 
recognize that intent by defining facility operation to include the 
discharge of radioactive effluents from the facility site (10 CFR 
150.15).
---------------------------------------------------------------------------

    (j) Thus, under the pattern of the Atomic Energy Act, as amended by 
section 274, States which have not entered into a section 274 agreement 
with the AEC are without authority to license or regulate, from the 
standpoint of radiological health and safety, byproduct, source, and 
special nuclear material or production and utilization facilities. Even 
those States which have entered into a section 274 agreement with the 
AEC (Agreement States) lack authority to license or regulate, from the 
standpoint of radiological health and safety, the construction and 
operation of production and utilization facilities (including nuclear 
power plants) and other activities reserved to the AEC by section 274c. 
(To the extent that Agreement States have authority to regulate 
byproduct, source, and special nuclear material, their section 274 
Agreements require them to use their best efforts to assure that their 
regulatory programs for protection against radiation hazards will 
continue to be compatible with the AEC's program for the regulation of 
byproduct, source and special nuclear material.)
    (k) The following judicial precedents and legal authorities support 
the foregoing conclusions: Northern California Ass'n, Etc. v. Public 
Utilities Commission, 37 Cal. Rep. 432, 390 P. 2d 200 (1964); Boswell v. 
City of Long Beach, CCH Atomic Energy Law Reports, par. 4045 (1960); 
Opinion of the Attorney General of Michigan (Oct. 31, 1962); Opinion of 
the Attorney General of South Dakota (July 23, 1964); New York State Bar 
Association, Committee on Atomic Energy, State Jurisdiction to Regulate 
Atomic Activities (July 12, 1963). No precedents or authorities to the 
contrary have come to our attention.

[34 FR 7273, May 3, 1969]



Sec.  8.5  Interpretation by the General Counsel of Sec.  73.55 of this 

chapter; illumination and physical search requirements.

    (a) A request has been received to interpret 10 CFR 73.55(c)(5) and 
73.55(d)(1).

10 CFR 73.55(c)(5) provides:

    Isolation zones and all exterior areas within the protected area 
shall be provided with illumination sufficient for the monitoring and 
observation requirements of paragraphs (c)(3), (c)(4), and (h)(4) of 
this section, but not less than 02. footcandle measured horizontally at 
ground level.

    (b) The requester contends that the regulation is satisfied if 0.2 
footcandle is provided only at the protected area boundary and the 
isolation zone. The language of the regulation is clearly to the 
contrary. It requires not less than 0.2 footcandle for ``all exterior 
areas within the protected area.'' This regulation helps effectuate the 
monitoring and observation requirements of 10 CFR 73.55. For example, 10 
CFR 73.55(c)(4) states that ``All exterior areas within the protected 
area shall be periodically checked to detect the presence of 
unauthorized persons, vehicles, or materials.'' In the absence of 
illumination, such checking could not be fully effective.
    (c) The requester also asks whether the illumination requirement 
extends to the tops and sides of buildings within the protected area. To 
effectuate the monitoring and observation requirements cited above, 
illumination must

[[Page 209]]

be maintained for the tops and sides of all accessible structures within 
the protected area. This interpretation is consistent with that given by 
the Commission's staff to affected licensees and applicants at a series 
of regional meetings held in March of 1977 and will be reflected in 
forthcoming revisions to NUREG 0220, Draft Interim Acceptance Criteria 
for a Physical Security Plan for Nuclear Power Plants (March 1977).
    (d) 10 CFR 73.55(d)(1) provides in pertinent part: The search 
function for detection of firearms, explosives, and incendiary devices 
shall be conducted either by a physical search or by use of equipment 
capable of detecting such devices.
    (e) The requester contends that until ``equipment capable of 
detecting such devices'' is in place, a licensee need not comply with 
the search requirement, but can utilize instead previous security 
programs. This contention is based on the first sentence of 10 CFR 73.55 
which provides in pertinent part that the requirements of paragraph (d) 
of that section shall be met by May 25, 1977, ``except for any 
requirement involving construction and installation of equipment not 
already in place expressed in (paragraph)(d)(1) * * * '' Under this 
sentence only those requirements of paragraph (d) which involve 
``construction and installation of equipment'' do not take effect on May 
25, 1977. Because a ``physical search'' does not require ``construction 
and installation of equipment'', implementation of such searches is 
required on May 25, 1977. The regulation provides alternative: ``the 
search function * * * shall be conducted either by a physical search or 
by use of equipment * * *.'' Thus when appropriate equipment is in 
place, the search function need not involve a physical search.
    (f) The paragraphs above set forth interpretation of regulations; 
they do not apply those regulations to particular factual settings. For 
example, no effort is made to state what lighting system might be used 
for a given facility; all that is stated is that a system must provide 
not less than 0.2 footcandle for all exterior areas within the protected 
area. Similarly, no effort is made to define what is an adequate 
``physical search''; all that is stated is that, in the absence of 
appropriate equipment, such searches must begin on May 25, 1977.

[42 FR 33265, June 30, 1977]



PART 9_PUBLIC RECORDS--Table of Contents




Sec.
9.1 Scope and purpose.
9.3 Definitions.
9.5 Interpretations.
9.6 Communications.
9.8 Information collection requirements: OMB approval.

            Subpart A_Freedom of Information Act Regulations

9.11 Scope of subpart.
9.13 Definitions.
9.15 Availability of records.
9.17 Agency records exempt from public disclosure.
9.19 Segregation of exempt information and deletion of identifying 
          details.
9.21 Publicly available records.
9.23 Requests for records.
9.25 Initial disclosure determination.
9.27 Form and content of responses.
9.28 Predisclosure notification procedures for information containing 
          trade secrets or confidential commercial or financial 
          information.
9.29 Appeal from initial determination.
9.31 Extension of time for response.
9.33 Search, review, and special service fees.
9.34 Assessment of interest and debt collection.
9.35 Duplication fees.
9.37 Fees for search and review of agency records by NRC personnel.
9.39 Search and duplication provided without charge.
9.40 Assessment of fees.
9.41 Requests for waiver or reduction of fees.
9.43 Processing of requests for a waiver or reduction of fees.
9.45 Annual report to the Attorney General of the United States.

                    Subpart B_Privacy Act Regulations

9.50 Scope of subpart.
9.51 Definitions.

Procedures Applicable to Requests by Individuals for Information, Access 
              or Amendment of Records Maintained About Them

                        presentation of requests

9.52 Types of requests.
9.53 Requests; how and where presented.
9.54 Verification of identity of individuals making requests.

[[Page 210]]

9.55 Specification of records.
9.56 Accompanying persons.

                 nrc procedures for processing requests

9.60 Acknowledgement of requests.
9.61 Procedures for processing requests for records exempt in whole or 
          in part.
9.62 Records under control of another Government agency.

                       determinations and appeals

9.65 Access determinations; appeals.
9.66 Determinations authorizing or denying correction of records; 
          appeals.
9.67 Statements of disagreement.
9.68 NRC statement of explanation.
9.69 Notices of correction or dispute.

            disclosure to others of records about individuals

9.80 Disclosure of record to persons other than the individual to whom 
          it pertains.
9.81 Notices of subpoenas.
9.82 Notices of emergency disclosures.

                                  fees

9.85 Fees.

                               enforcement

9.90 Violations.

                               exemptions

9.95 Specific exemptions.

          Subpart C_Government in the Sunshine Act Regulations

9.100 Scope of subpart.
9.101 Definitions.
9.102 General requirement.
9.103 General provisions.
9.104 Closed meetings.
9.105 Commission procedures.
9.106 Persons affected and motions for reconsideration.
9.107 Public announcement of Commission meetings.
9.108 Certification, transcripts, recordings and minutes.
9.109 Report to Congress.

 Subpart D_Production or Disclosure in Response to Subpoenas or Demands 
                     of Courts or Other Authorities

9.200 Scope of subpart.
9.201 Production or disclosure prohibited unless approved by appropriate 
          NRC official.
9.202 Procedure in the event of a demand for production or disclosure.
9.203 Procedure where response to demand is required prior to receiving 
          instructions.
9.204 Procedure in the event of an adverse ruling.

    Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); sec. 
201, 88 Stat. 1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 
2750 (44 U.S.C. 3504 note).
    Subpart A also issued under 5 U.S.C. 552; 31 U.S.C. 9701; Pub. L. 
99-570.
    Subpart B is also issued under 5 U.S.C. 552a.
    Subpart C also issued under 5 U.S.C. 552b.



Sec.  9.1  Scope and purpose.

    (a) Subpart A implements the provisions of the Freedom of 
Information Act, 5 U.S.C. 552, concerning the availability to the public 
of Nuclear Regulatory Commission records for inspection and copying.
    (b) Subpart B implements the provisions of the Privacy Act of 1974, 
5 U.S.C. 552a, concerning disclosure and availability of certain Nuclear 
Regulatory Commission records maintained on individuals.
    (c) Subpart C implements the provisions of the Government in the 
Sunshine Act, 5 U.S.C. 552b, concerning the opening of Commission 
meetings to public observation.
    (d) Subpart D describes procedures governing the production of 
agency records, information, or testimony in response to subpoenas or 
demands of courts or other judicial or quasi-judicial authorities in 
State and Federal proceedings.

[52 FR 49355, Dec. 31, 1987]



Sec.  9.3  Definitions.

    As used in this part:
    Commission means the Commission of five members or a quorum thereof 
sitting as a body, as provided by section 201 of the Energy 
Reorganization Act of 1974.
    Government agency means any executive department, military 
department, Government corporation, Government-controlled corporation, 
or other establishment in the executive branch of the Government 
(including the Executive Office of the President), or any independent 
regulatory agency.
    NRC means the Nuclear Regulatory Commission, established by the 
Energy Reorganization Act of 1974.
    NRC personnel means employees, consultants, and members of advisory 
boards, committees, and panels of the NRC; members of boards designated 
by

[[Page 211]]

the Commission to preside at adjudicatory proceedings; and officers or 
employees of Government agencies, including military personnel, assigned 
to duty at the NRC.
    Working days mean Monday through Friday, except legal holidays.

[52 FR 49355, Dec. 31, 1987]



Sec.  9.5  Interpretations.

    Except as specifically authorized by the Commission in writing, no 
interpretation of the meaning of the regulations in this part by an 
officer or employee of the Commission other than a written 
interpretation by the General Counsel will be recognized as binding upon 
the Commission.

[52 FR 49356, Dec. 31, 1987]



Sec.  9.6  Communications.

    Except as otherwise indicated, communications relating to this part 
shall be addressed to the Freedom of Information Act and Privacy Act 
Officer, may be sent to the NRC by mail addressed to the U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001; by hand delivery to 
the NRC's offices at 11555 Rockville Pike, Rockville, Maryland; or, 
where practicable, by electronic submission via facsimile to (301) 415-
5130 or e-mail to foia@nrc.gov. Electronic submissions must be made in a 
manner that enables the NRC to receive, read, authenticate, distribute, 
and archive the submission, and process and retrieve it a single page at 
a time. Detailed guidance on making electronic submissions can be 
obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/
eie.html, by calling (301) 415-6030, by e-mail to EIE@nrc.gov, or by 
writing the Office of Information Services, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001. The guidance discusses, among 
other topics, the formats the NRC can accept, the use of electronic 
signatures, and the treatment of nonpublic information.

[68 FR 58799, Oct. 10, 2003]



Sec.  9.8  Information collection requirements: OMB approval.

    (a) The Nuclear Regulatory Commission has submitted the information 
collection requirements contained in this part to the Office of 
Management and Budget (OMB) for approval as required by the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.). The NRC may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number. OMB 
has approved the information collection requirements contained in this 
part under control number 3150-0043.
    (b) The approved information collection requirements contained in 
this part appear in Sec. Sec.  9.23, 9.25, 9.28, 9.29, 9.40, 9.41, 9.53, 
9.54, 9.55, 9.65, 9.66, and 9.67.

[62 FR 52184, Oct. 6, 1997, as amended at 63 FR 2876, Jan. 20, 1998; 70 
FR 34306, June 14, 2005]



            Subpart A_Freedom of Information Act Regulations

    Source: 63 FR 2876, Jan. 20, 1998, unless otherwise noted.



Sec.  9.11  Scope of subpart.

    This subpart prescribes procedures for making NRC agency records 
available to the public for inspection and copying pursuant to the 
provisions of the Freedom of Information Act (5 U.S.C. 552) and provides 
notice of procedures for obtaining NRC records otherwise publicly 
available. This subpart does not affect the dissemination or 
distribution of NRC-originated, or NRC contractor-originated, 
information to the public under any other NRC public, technical, or 
other information program or policy.



Sec.  9.13  Definitions.

    Agency record means a record in the possession and control of the 
NRC that is associated with Government business. Agency record does not 
include records such as--
    (1) Publicly-available books, periodicals, or other publications 
that are owned or copyrighted by non-Federal sources;
    (2) Records solely in the possession and control of NRC contractors;
    (3) Personal records in possession of NRC personnel that have not 
been circulated, were not required to be created or retained by the NRC, 
and can

[[Page 212]]

be retained or discarded at the author's sole discretion, or records of 
a personal nature that are not associated with any Government business; 
or
    (4) Non-substantive information in logs or schedule books of the 
Chairman or Commissioners, uncirculated except for typing or recording 
purposes.
    Commercial-use request means a request made under Sec.  9.23(b) for 
a use or purpose that furthers the commercial, trade, or profit 
interests of the requester or the person on whose behalf the request is 
made.
    Direct costs mean the expenditures that an agency incurs in 
searching for and duplicating agency records. For a commercial-use 
request, direct costs include the expenditures involved in reviewing 
records to respond to the request. Direct costs include the salary of 
the employee category performing the work based on that basic rate of 
pay plus 16 percent of that rate to cover fringe benefits and the cost 
of operating duplicating machinery.
    Duplication means the process of making a copy of a record necessary 
to respond to a request made under Sec.  9.23. Copies may take the form 
of paper copy, microform, audio-visual materials, disk, magnetic tape, 
or machine readable documentation, among others.
    Educational institution means an institution that operates a program 
or programs of scholarly research. Educational institution refers to a 
preschool, a public or private elementary or secondary school, an 
institution of graduate higher education, an institution of 
undergraduate higher education, an institution of professional 
education, or an institution of vocational education.
    Freedom of Information Act and Privacy Act Officer means the NRC 
official designated to fulfill the responsibilities for implementing and 
administering the Freedom of Information Act and the Privacy Act as 
specifically designated under the regulations in this part.
    Noncommercial scientific institution means an institution that is 
not operated on a commercial basis, as the term ``commercial'' is 
referred to in the definition of ``commercial-use request,'' and is 
operated solely for the purpose of conducting scientific research, the 
results of which are not intended to promote any particular product or 
industry.
    Office, unless otherwise indicated, means all offices, boards, 
panels, and advisory committees of the NRC.
    Record means any information that would be an agency record subject 
to the requirements of the Freedom of Information Act when maintained by 
the NRC in any format, including an electronic format. Record also 
includes a book, paper, map, drawing, diagram, photograph, brochure, 
punch card, magnetic tape, paper tape, sound recording, pamphlet, slide, 
motion picture, or other documentary material regardless of form or 
characteristics. Record does not include an object or article such as a 
structure, furniture, a tangible exhibit or model, a vehicle, or piece 
of equipment.
    Representative of the news media means any person actively gathering 
news for an entity that is organized and operated to publish or 
broadcast news to the public. The term news means information that is 
about current events or that would be of current interest to the public. 
Examples of news media entities include television or radio stations 
broadcasting to the public at large, and publishers of periodicals (but 
only in those instances when they can qualify as disseminators of 
``news'') who make their products available for purchase or 
subscriptions by the general public.
    Review time means the period devoted to examining records retrieved 
in response to a request to determine whether they are exempt from 
disclosure in whole or in part. Review time also includes the period 
devoted to examining records to determine which Freedom of Information 
Act exemptions, if any, are applicable and identifying records, or 
portions thereof, to be disclosed.
    Search time means the period devoted to looking for agency records, 
either manually or by automated means, for the purpose of locating those 
records that are responsive to a request. This includes a page-by-page 
or line-by-line identification of responsive information within the 
records.
    Unusual circumstances mean--

[[Page 213]]

    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records demanded in a single 
request; or
    (3) The need for consultation, which will be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
NRC having substantial subject-matter interest therein.

[63 FR 2876, Jan. 20, 1998, as amended at 70 FR 34306, June 14, 2005]



Sec.  9.15  Availability of records.

    The NRC will make available for public inspection and copying any 
reasonably described agency record in the possession and control of the 
NRC under the provisions of this subpart, and upon request by any 
person. Records will be made available in any form or format requested 
by a person if the record is readily reproducible by NRC in that form or 
format. NRC will make reasonable efforts to maintain its records in 
forms or formats that are reproducible. NRC will make reasonable efforts 
to search for records in electronic form or format when requested, 
except when these efforts would significantly interfere with the 
operation of any of the NRC's automated information systems. Records 
that the NRC routinely makes publicly available are described in Sec.  
9.21. Procedures and conditions governing requests for records are set 
forth in Sec.  9.23.



Sec.  9.17  Agency records exempt from public disclosure.

    (a) The following types of agency records are exempt from public 
disclosure under Sec.  9.15:
    (1) Records--
    (i) That are specifically authorized under criteria established by 
an Executive Order to be kept secret in the interest of national defense 
or foreign policy, and
    (ii) That are in fact properly classified pursuant to such Executive 
Order;
    (2) Records related solely to the internal personnel rules and 
practices of the agency;
    (3) Records specifically exempted from disclosure by statute (other 
than 5 U.S.C. 552b), provided that the statute--
    (i) Requires that the matters be withheld from the public in a 
manner that leaves no discretion on the issue; or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person that are privileged or confidential;
    (5) Interagency or intra-agency memorandums or letters that would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files, the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of these law enforcement 
records or information--
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority, or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigation, or information furnished by a confidential 
source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions, if the

[[Page 214]]

disclosure could reasonably be expected to risk circumvention of the 
law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (8) Matters contained in or related to examination, operating, or 
condition reports prepared by, on behalf of, or for the use of any 
agency responsible for the regulation or supervision of financial 
institutions; or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (b) Nothing in this subpart authorizes withholding of information or 
limiting the availability of records to the public except as 
specifically provided in this part, nor is this subpart authority to 
withhold information from Congress.
    (c) Whenever a request is made that involves access to agency 
records described in paragraph (a)(7) of this section, the NRC may, 
during only the time as that circumstance continues, treat the records 
as not subject to the requirements of this subpart when--
    (1) The investigation or proceeding involves a possible violation of 
criminal law; and
    (2) There is reason to believe that--
    (i) The subject of the investigation or proceeding is not aware of 
its pendency; and
    (ii) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings.



Sec.  9.19  Segregation of exempt information and deletion of identifying 

details.

    (a) For records required to be made available under 5 U.S.C. 
552(a)(2), the NRC shall delete information that is exempt under one or 
more of the exemptions cited in Sec.  9.17. The amount of information 
deleted will be indicated on the released portion of the record, unless 
providing this indication would harm an interest protected by the 
exemption(s) under which the matter has been withheld.
    (b) In responding to a request for information submitted under Sec.  
9.23, in which it has been determined to withhold exempt information, 
the NRC shall segregate--
    (1) Information that is exempt from public disclosure under Sec.  
9.17(a) from nonexempt information; and
    (2) Factual information from advice, opinions, and recommendations 
in predecisional records unless the information is inextricably 
intertwined, or is contained in drafts, legal work products, and records 
covered by the lawyer-client privilege, or is otherwise exempt from 
disclosure.
    (c) In denying a request for records, in whole or in part, NRC will 
make a reasonable effort to estimate the volume of any information 
requested that is denied and provide the estimate to the person making 
the request, unless providing the estimate would harm an interest 
protected by the exemption(s) under which the information has been 
denied.
    (d) When entire records or portions thereof are denied and deletions 
are made from parts of the record by computer, the amount of information 
deleted will be indicated on the released portion of the record, unless 
providing this indication would harm an interest protected by the 
exemption(s) under which the matter has been denied.



Sec.  9.21  Publicly available records.

    (a) Single copies of NRC publications in the NUREG series, NRC 
Regulatory Guides, and Standard Review Plans can be ordered from the 
National Technical Information Service, 5285 Port Royal Road, 
Springfield, Virginia, 22161.
    (b) For the convenience of persons who may wish to inspect without 
charge, or purchase copies of a record or a limited category of records 
for a fee, publicly available records of the NRC's activities described 
in paragraph (c) of this section are also made available at the NRC Web 
site, http://www.nrc.gov, and/or at the Public Document Room located at 
One White Flint North, 11555 Rockville Pike (first floor), Rockville, 
Maryland 20852-2738, between 7:45 am and 4:15 pm on Monday through 
Friday except Federal holidays.
    (c) The following records of NRC activities are available for public 
inspection and copying:

[[Page 215]]

    (1) Final opinions including concurring and dissenting opinions as 
well as orders of the NRC issued as a result of adjudication of cases;
    (2) Statements of policy and interpretations that have been adopted 
by the NRC and have not been published in the Federal Register;
    (3) Nuclear Regulatory Commission rules and regulations;
    (4) Nuclear Regulatory Commission Manuals and instructions to NRC 
personnel that affect any member of the public;
    (5) Copies of records that have been released to a person under the 
FOIA that, because of the nature of their subject matter, the NRC 
determines have become or are likely to become the subject of subsequent 
requests for substantially the same records and a general index to those 
records; and
    (6) Individual indexes to publicly available records, including 
those records specified in paragraph (c) of this section, may be created 
by using the search features of the Agencywide Documents Access and 
Management System (ADAMS), located at the NRC Web site, http://
www.nrc.gov. This capability made it unnecessary for the NRC to continue 
publishing its monthly publication, Documents Made Publicly Available 
(NUREG-0540) after March 1999.
    (d) The published versions of the records made publicly available 
under paragraph (c)(1) of this section are available under the title, 
Nuclear Regulatory Issuances, NUREG-0750, for purchase through the 
National Technical Information Service.

[64 FR 48950, Sept. 9, 1999, as amended at 67 FR 67098, Nov. 4, 2002; 70 
FR 34306, June 14, 2005]



Sec.  9.23  Requests for records.

    (a)(1) A person may request access to records routinely made 
available by the NRC under Sec.  9.21 in person, by telephone, by e-
mail, facsimile, or U.S. mail from the NRC Public Document Room, One 
White Flint North, 11555 Rockville Pike (first floor), Rockville, 
Maryland 20852-2738.
    (i) Each record requested must be described in sufficient detail to 
enable the NRC Public Document Room staff to locate the record.
    (ii) To obtain copies of records expeditiously, a person may open an 
account with the NRC Public Document Room reproduction contractor. 
Payment for reproduction services will be made directly to the 
contractor.
    (2) [Reserved]
    (b) A person may request agency records by submitting a request 
authorized by 5 U.S.C. 552(a)(3) to the Freedom of Information Act and 
Privacy Act Officer by an appropriate method listed in Sec.  9.6 of this 
chapter. The request must be in writing and clearly state on the 
envelope and in the letter that it is a ``Freedom of Information Act 
request.'' The NRC does not consider a request as received until the 
date it is actually received by the Freedom of Information Act and 
Privacy Act Officer.
    (1) A Freedom of Information Act request covers only agency records 
that are in existence on the date the Freedom of Information Act and 
Privacy Act Officer receives the request. A request does not cover 
agency records destroyed or discarded before receipt of a request or 
which are created after the date of the request.
    (2) All Freedom of Information Act requests for copies of agency 
records must reasonably describe the agency records sought in sufficient 
detail to permit the NRC to identify the requested agency records. Where 
possible, the requester should provide specific information regarding 
dates, titles, docket numbers, file designations, and other information 
which may help identify the agency records. If a requested agency record 
is not described in sufficient detail to permit its identification, the 
Freedom of Information Act and Privacy Act Officer will contact the 
requester within 10 working days after receipt of the request and inform 
the requester of the additional information or clarification needed to 
process the request.
    (3) Upon receipt of a request made under paragraph (b) of this 
section, the NRC will provide written notification to the requester that 
indicates the request has been received, the name and telephone number 
of the NRC point of contact to find out the status of the request, and 
other pertinent matters regarding the processing of the request.

[[Page 216]]

    (4)(i) The NRC shall advise a requester that fees will be assessed 
if--
    (A) A request involves anticipated costs in excess of the minimum 
specified in Sec.  9.39; and
    (B) Search and duplication is not provided without charge under 
Sec.  9.39; or
    (C) The requester does not specifically state that the cost involved 
is acceptable or acceptable up to a specified limit.
    (ii) The NRC has discretion to discontinue processing a request made 
under this paragraph until--
    (A) A required advance payment has been received;
    (B) The requester has agreed to bear the estimated costs;
    (C) A determination has been made on a request for waiver or 
reduction of fees; or
    (D) The requester meets the requirements of Sec.  9.39.
    (c) If a requested agency record that has been reasonably described 
is located at a place other than at the NRC Web site, http://
www.nrc.gov, the NRC Public Document Room, or the NRC headquarters, the 
NRC may, at its discretion, make the record available for inspection and 
copying at either of the locations.
    (d) Except as provided in Sec.  9.39--
    (1) If the record requested under paragraph (b) of this section is a 
record available through the National Technical Information Service, the 
NRC shall refer the requester to the National Technical Information 
Service; and
    (2) If the requested record has been placed on the NRC Internet Web 
site, under Sec.  9.21, the NRC may inform the requester that the record 
is available at the NRC Web site, http://www.nrc.gov, and/or at the NRC 
Public Document Room, and that the record may be obtained in accordance 
with the procedures set forth in paragraph (a) of this section.
    (e) The Freedom of Information Act and Privacy Act Officer will 
promptly forward a Freedom of Information Act request made under 
paragraph (b) of this section for an agency record to the head of the 
office(s) primarily concerned with the records requested, as 
appropriate. The responsible office will conduct a search for the agency 
records responsive to the request and compile those agency records to be 
reviewed for initial disclosure determination and/or identify those that 
have already been made publicly available at the NRC Web site, http://
www.nrc.gov, and/or at the NRC Public Document Room.

[63 FR 2876, Jan. 20, 1998, as amended at 64 FR 48950, Sept. 9, 1999; 67 
FR 67098, Nov. 4, 2002; 68 FR 58800, Oct. 10, 2003; 70 FR 34306, June 
14, 2005]



Sec.  9.25  Initial disclosure determination.

    (a) Time for initial disclosure determination. The NRC will notify a 
requester within 20 working days of its determination. If the NRC cannot 
act upon the request within this period, the NRC will provide the 
requester with the reasons for the delay and provide a projected 
response date.
    (b) Extension of time limit in unusual circumstances. In unusual 
circumstances, the NRC may extend the time limit prescribed in paragraph 
(a) of this section by not more than 10 working days. The extension may 
be made by written or telephonic notice to the person making the request 
to explain the reasons for the extension and indicate the date on which 
a determination is expected to be made. ``Unusual circumstances'' is 
limited to one or more of the following reasons for delay:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (3) The need for consultation, which will be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
NRC having substantial subject-matter interest therein.
    (c) Exceptional circumstances. A requester may be notified in 
certain exceptional circumstances, when it appears that a request cannot 
be completed within the allowable time, and will be provided an 
opportunity to

[[Page 217]]

limit the scope of the request so that it may be processed in the time 
limit, or to agree to a reasonable alternative time frame for 
processing. For purposes of this paragraph, the term ``exceptional 
circumstances'' does not include delays that result from the normal 
predictable workload of FOIA requests or a failure by the NRC to 
exercise due diligence in processing the request. A requester's 
unwillingness to agree to reasonable modification of the request or an 
alternative time for processing the request may be considered as factors 
in determining whether exceptional circumstances exist and whether the 
agency exercised due diligence in responding to the request.
    (d) Multiple-Track processing. To ensure the most equitable 
treatment possible of all requesters, the NRC will process requests on a 
first-in, first-out basis, using multiple tracking systems based upon 
the estimated time it will take to process the request.
    (1) NRC uses a three-track system.
    (i) The first track is for requests of simple to moderate complexity 
that are expected to be completed within 20 working days.
    (ii) The second track is for requests involving ``unusual 
circumstances'' that are expected to take between 21-30 working days to 
complete (e.g. requests involving possible records from two or three 
offices and/or various types of files of moderate volume, of which, some 
are expected to be exempt)
    (iii) The third track is for requests that, because of their unusual 
volume or other complexity, are expected to take more than 30 working 
days to complete (e.g. requests involving several offices, regional 
offices, another agency's records, classified records requiring 
declassification review, records from businesses that are required to be 
referred to the submitter for their proprietary review prior to 
disclosure, records in large volumes which require detailed review 
because of the sensitive nature of the records such as investigative 
records or legal opinions and recordings of internal deliberations of 
agency staff).
    (2) Upon receipt of requests, NRC will notify requesters of the 
track in which the request has been placed for processing and the 
estimated time for completion. Should subsequent information 
substantially change the estimated time to process a request, the 
requester will be notified telephonically or in writing. A requester may 
modify the request to allow it to be processed faster or to reduce the 
cost of processing. Partial responses may be sent to requesters as 
documents are obtained by the FOIA office from the supplying offices.
    (e) Expedited processing. (1) NRC may place a person's request at 
the front of the queue for the appropriate track for that request upon 
receipt of a written request that clearly demonstrates a compelling need 
for expedited processing. For purposes of determining whether to grant 
expedited processing, the term compelling need means--
    (i) That a failure to obtain requested records on an expedited basis 
could reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) With respect to a request made by a person primarily engaged in 
disseminating information, urgency to inform the public concerning 
actual or alleged Federal Government activity.
    (2) A person requesting expedited processing must include a 
statement certifying the compelling need given to be true and correct to 
the best of his or her knowledge and belief. The certification 
requirement may be waived by the NRC as a matter of agency discretion.
    (3) The Freedom of Information Act and Privacy Act Officer will make 
the initial determination whether to grant or deny a request for 
expedited processing and will notify a requester within 10 calendar days 
after the request has been received whether expedited processing will be 
granted.
    (f) Disclosure review. The head of the responsible office shall 
review agency records located in a search under Sec.  9.23(b) to 
determine whether the agency records are exempt from disclosure under 
Sec.  9.17(a). If the head of the office determines that, although 
exempt, the disclosure of the agency records will not be contrary to the 
public interest and will not affect the rights of any person, the head 
of the office may authorize disclosure of the agency

[[Page 218]]

records. If the head of the office authorizes disclosure of the agency 
records, the head of the office will furnish the agency records to the 
Freedom of Information Act and Privacy Act Officer, who will notify the 
requester of the determination in the manner provided in Sec.  9.27.
    (g)(1) Initial disclosure determination on requests for records 
originated by, or located in the files of the Office of the Inspector 
General. If, as a result of the review specified in paragraph (f) of 
this section, the Assistant Inspector General for Investigations finds 
that agency records that are originated by or located in the Office of 
the Inspector General are exempt from disclosure and should be denied in 
whole or in part, and disclosure of the records is contrary to the 
public interest and will adversely affect the rights of any person, the 
Assistant Inspector General for Investigations will submit that finding 
to the Freedom of Information Act and Privacy Act Officer who will 
notify the requester of the determination in the manner provided in 
Sec.  9.27.
    (2) Initial disclosure determinations on requests for records 
originated by or transmitted to the Commission, or a Commissioner, or 
records originated by, or for which the Office of the Secretary or an 
Advisory Committee has primary responsibility. If, as a result of the 
review specified in paragraph (f) of this section, the Executive 
Assistant to the Secretary of the Commission finds that agency records 
originated by or transmitted to the Commission or a Commissioner, or 
records originated by, or for which the Office of the Secretary or an 
Advisory Committee has primary responsibility, are exempt from 
disclosure and should be denied in whole or in part, and disclosure of 
the records is contrary to the public interest and will adversely affect 
the rights of any person, the Executive Assistant to the Secretary of 
the Commission will submit that finding to the Freedom of Information 
Act and Privacy Act Officer who will notify the requester of the 
determination in the manner provided in Sec.  9.27.
    (3) Initial disclosure determination for records originated by, or 
for which the Office of the General Counsel has principal 
responsibility. If, as a result of the review specified in paragraph (f) 
of this section, the General Counsel finds that agency records that are 
originated by, or for which the Office of the General Counsel has 
primary responsibility, are exempt from disclosure and should be denied 
in whole or in part, and disclosure of the records is contrary to the 
public interest and will adversely affect the rights of any person, the 
General Counsel will submit that finding to the Freedom of Information 
Act and Privacy Act Officer who will notify the requester of the 
determination in the manner provided in Sec.  9.27.
    (h) Initial disclosure determinations on requests for records other 
than those for which the initial disclosure determination is made by the 
Assistant Inspector General for Investigations, the Executive Assistant 
to the Secretary of the Commission, or the General Counsel. If, as a 
result of the review specified in paragraph (f) of this section, the 
head of the responsible office finds that agency records other than 
those described in paragraph (g) of this section, that are originated 
by, or for which the office has primary responsibility, should be denied 
in whole or in part, the head of the office will submit that finding to 
the Freedom of Information Act and Privacy Act Officer, who will, in 
consultation with the Office of the General Counsel, make an independent 
determination whether the agency records should be denied in whole or in 
part. If the Freedom of Information Act and Privacy Act Officer 
determines that the agency records sought are exempt from disclosure and 
disclosure of the records is contrary to the public interest and will 
adversely affect the rights of any person, the Freedom of Information 
Act and Privacy Act Officer will notify the requester of the 
determination in the manner provided in Sec.  9.27.
    (i) Records and information originated by another Federal agency. If 
a requested record is located that was originated or contains 
information originated by another Federal Government agency, or deals 
with subject matter over which an agency other than the NRC has 
exclusive or primary responsibility, the NRC will promptly refer the 
record to that Federal Government agency for disposition or for guidance 
regarding disposition.

[[Page 219]]

    (j) If the NRC does not respond to a request within the 20 working-
day period, or within the extended periods described in paragraph (b) of 
this section, the requester may treat that delay as a denial of the 
request and immediately appeal as provided in Sec.  9.29(a) or sue in a 
Federal District Court as noted in Sec.  9.29(c).

[63 FR 2876, Jan. 20, 1998, as amended at 70 FR 34306, June 14, 2005]



Sec.  9.27  Form and content of responses.

    (a) When the NRC has located a requested agency record and has 
determined to disclose the agency record, the Freedom of Information Act 
and Privacy Act Officer will promptly furnish the agency record or 
notify the requester where and when the agency record will be available 
for inspection and copying. The NRC will also advise the requester of 
any applicable fees under Sec. Sec.  9.35 and 9.37. The NRC will 
routinely make copies of non-sensitive records disclosed in response to 
Freedom of Information Act requests publicly available through the 
Agencywide Document Access and Management System (ADAMS) located in the 
NRC's Electronic Reading Room that can be accessed via the NRC Web site 
at http://www.nrc.gov/NRC/reading-rm/adams.html. Records that contain 
information personal to the requester, involve matters that are not 
likely to be of public interest to anyone other than the requester or 
contain privileged or confidential information that should only be 
disclosed to the requester will not be made publicly available on the 
NRC Web site.
    (b) When the NRC denies access to a requested agency record or 
denies a request for expedited processing or for a waiver or reduction 
of fees, the Freedom of Information Act and Privacy Act Officer will 
notify the requester in writing. The denial will include as 
appropriate--
    (1) The reason for the denial;
    (2) A reference to the specific exemption under the Freedom of 
Information Act, or other appropriate reason, and the Commission's 
regulations authorizing the denial;
    (3) The name and title or position of each person responsible for 
the denial of the request, including the head of the office recommending 
denial of the record;
    (4) A statement stating why the request does not meet the 
requirements of Sec.  9.41 if the request is for a waiver or reduction 
of fees; and
    (5) A statement that the denial may be appealed within 30 calendar 
days from the date of the denial to the Executive Director for 
Operations, to the Secretary of the Commission, or to the Inspector 
General, as appropriate.
    (c) The Freedom of Information Act and Privacy Act Officer will 
maintain a copy of each letter granting or denying requested agency 
records, denying a request for expedited processing, or denying a 
request for a waiver or reduction of fees in accordance with the NRC 
Comprehensive Records Disposition Schedule.

[63 FR 2876, Jan. 20, 1998, as amended at 70 FR 34307, June 14, 2005]



Sec.  9.28  Predisclosure notification procedures for information containing 

trade secrets or confidential commercial or financial information.

    (a) Notice of opportunity to object to NRC's initial disclosure 
determination. Whenever NRC makes an initial determination that 
information should be disclosed in response to a Freedom of Information 
Act request or a Freedom of Information Act appeal which has been 
designated by the submitter as trade secrets or confidential commercial 
or financial information, or the NRC believes the information contains 
such trade secrets or confidential commercial or financial information, 
the NRC will give the submitter of the information written notice of 
NRC's initial determination, or NRC's need for information on which to 
base a determination, and an opportunity to object. The notice must 
describe the business information requested or include copies of the 
requested records or record portions containing the information.
    (b) Submitter objection to disclosure. The submitter will be allowed 
30 calendar days from date of the notice described in paragraph (a) of 
this section to object to disclosure, unless the Commission determines 
that a shorter period of time to respond is necessary in a particular 
instance. If a submitter

[[Page 220]]

has any objection to disclosure, the submitter must provide a detailed 
written statement. The statement must specify all grounds that support 
why the information is a trade secret or commercial or financial 
information that is privileged or confidential. If a submitter fails to 
respond to the notice within the time specified in the notice, the 
submitter will be considered to have no objection to disclosure of the 
information. Information provided by the submitter that is not received 
until after the date specified for response will not be considered 
unless that date is extended by the Freedom of Information Act and 
Privacy Act Officer upon request by the submitter.
    (c) Notice of final decision to disclose. The NRC shall consider a 
submitter's written statement and specific grounds for nondisclosure. If 
the NRC agrees to withhold the information from public disclosure, the 
NRC will inform the requester in the manner described in Sec.  9.27 of 
the agency decision to deny access to the requested information. 
Whenever the NRC denies the submitter's request for nondisclosure and 
decides to disclose the information, the NRC shall give the submitter 
written notice, which must include:
    (1) A statement of the reason(s) for the determination;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which will be 30 calendar days 
subsequent to the date of the notice, or less, as provided under 
paragraph (b) of this section, after which the information will be made 
available to the public.
    (d) Corresponding notice to requesters. When the NRC provides a 
submitter with notice and opportunity to object to disclosure under 
paragraph (b) of this section, the NRC shall also notify the 
requester(s). Whenever the NRC notifies a submitter of its final 
decision to disclose the requested information under paragraph (c) of 
this section, the NRC shall also notify the requester(s). When a 
submitter files a lawsuit seeking to prevent the disclosure of trade 
secrets or confidential commercial or financial information, the NRC 
shall notify the requester(s).
    (e) Notice to submitter of Freedom of Information Act lawsuit. 
Whenever a requester files a lawsuit seeking to compel disclosure of 
trade secrets or confidential commercial or financial information, the 
NRC shall promptly notify the submitter.

[70 FR 34307, June 14, 2005]



Sec.  9.29  Appeal from initial determination.

    (a) A requester may appeal a notice of denial of a Freedom of 
Information Act request for access to agency records, denial of a 
request for waiver or reduction of fees, or denial of a request for 
expedited processing under this subpart within 30 calendar days of the 
date of the NRC's denial.
    (b) For agency records to which access is denied by the Assistant 
Inspector General for Investigations, the appeal must be in writing 
directed to the Inspector General and sent to the Freedom of Information 
Act and Privacy Act Officer by an appropriate method listed in Sec.  
9.6. The appeal should clearly state on the envelope and in the letter 
that it is an ``Appeal from Initial Freedom of Information Act 
Decision.'' The NRC does not consider an appeal received until the date 
it is actually received by the Freedom of Information Act and Privacy 
Act Officer. The Inspector General will make the NRC determination on 
the appeal within 20 working days after the receipt of the appeal. If 
the Inspector General denies an appeal of access to records, in whole or 
in part, the Inspector General will notify the requester of the denial, 
explaining the exemptions relied upon and how the exemptions apply to 
the agency records withheld. The notice will inform the requester that 
the denial is a final agency action and that judicial review is 
available in a district court of the United States in the district in 
which the requester resides or has a principal place of business, in 
which the agency records are situated, or in the District of Columbia.
    (c) For agency records to which access is denied by the Executive 
Assistant to the Secretary of the Commission, the General Counsel, or an 
office director reporting to the Commission, the appeal must be in 
writing directed to the Secretary of the Commission and sent to the 
Freedom of Information Act and Privacy Act Officer by an

[[Page 221]]

appropriate method listed in Sec.  9.6. The appeal should clearly state 
on the envelope and in the letter that it is an ``Appeal from Initial 
Freedom of Information Act Decision.'' The NRC does not consider an 
appeal received until the date it is actually received by the Freedom of 
Information Act and Privacy Act Officer. The Secretary of the Commission 
will make the NRC determination on the appeal within 20 working days 
after the receipt of the appeal. If the Secretary of the Commission 
denies an appeal of access to records, in whole or in part, the 
Secretary of the Commission will notify the requester of the denial, 
explaining the exemptions relied upon and how the exemptions apply to 
the agency records withheld. The notice will inform the requester that 
the denial is a final agency action and that judicial review is 
available in a district court of the United States in the district in 
which the requester resides or has a principal place of business, in 
which the agency records are situated, or in the District of Columbia.
    (d) For agency records to which access is denied by agency officials 
other than the Assistant Inspector General for Investigations, the 
Executive Assistant to the Secretary of the Commission, the General 
Counsel, or other office director reporting to the Commission, the 
appeal must be in writing directed to the Executive Director for 
Operations and sent to the Freedom of Information Act and Privacy Act 
Officer by an appropriate method listed in Sec.  9.6. The appeal should 
clearly state on the envelope and in the letter that it is an ``Appeal 
from Initial FOIA Decision.'' The NRC does not consider an appeal 
received until the date it is actually received by the Freedom of 
Information Act and Privacy Act Officer. The Executive Director for 
Operations or a Deputy Executive Director will make the NRC 
determination on the appeal within 20 working days after the receipt of 
the appeal. If the Executive Director for Operations or a Deputy 
Executive Director denies an appeal of access to records, in whole or in 
part, the Executive Director for Operations or a Deputy Executive 
Director, will notify the requester of the denial, explaining the 
exemptions relied upon and how the exemptions apply to the agency 
records withheld. The notice will inform the requester that the denial 
is a final agency action and that judicial review is available in a 
district court of the United States in the district in which the 
requester resides or has a principal place of business, in which the 
agency records are situated, or in the District of Columbia.
    (e) For the denial of a request for expedited processing the appeal 
must be in writing directed to the Executive Director for Operations and 
sent to the Freedom of Information Act and Privacy Act Officer by an 
appropriate method listed in Sec.  9.6. The appeal should clearly state 
on the envelope and in the letter that it is an ``Appeal from Initial 
FOIA Decision.'' The NRC does not consider an appeal received until the 
date it is actually received by the Freedom of Information Act and 
Privacy Act Officer. The NRC will make a determination on the appeal 
within 10 working days after the receipt of the appeal. If the Executive 
Director for Operations or a Deputy Executive Director denies an appeal 
for expedited processing, the Executive Director for Operations or a 
Deputy Executive Director, will notify the person making the request of 
the decision to sustain the denial, including a statement explaining why 
the request does not meet the requirements of Sec.  9.25(e)(1) and (2). 
The notice will inform the requester that the denial is a final agency 
action and that judicial review is available in a district court of the 
United States in the district in which the requester resides or has a 
principal place of business, in which the agency records are situated, 
or in the District of Columbia.
    (f) For denial of a waiver or reduction of fees for locating and 
reproducing agency records, the appeal must be in writing directed to 
the Executive Director for Operations and sent to the Freedom of 
Information Act and Privacy Act Officer by an appropriate method listed 
in Sec.  9.6. The appeal should clearly state on the envelope and in the 
letter that it is an ``Appeal from Initial FOIA Decision.'' The NRC does 
not consider an appeal received until the date it is actually received 
by the Freedom of Information Act and

[[Page 222]]

Privacy Act Officer. The NRC will make a determination on the appeal 
within 20 working days after the receipt of the appeal. If the Executive 
Director for Operations or a Deputy Executive Director denies an appeal 
of a waiver or reduction of fees for locating and reproducing agency 
records, the Executive Director for Operations or a Deputy Executive 
Director, will notify the person making the request of the decision to 
sustain the denial, including a statement explaining why the request 
does not meet the requirements of Sec.  9.41. The notice will inform the 
requester that the denial is a final agency action and that judicial 
review is available in a district court of the United States in the 
district in which the requester resides or has a principal place of 
business, in which the agency records are situated, or in the District 
of Columbia.
    (g) The Executive Director for Operations, a Deputy Executive 
Director, the Secretary of the Commission, or the Inspector General will 
furnish copies of all appeals and written determinations on appeals to 
the Freedom of Information Act and Privacy Act Officer.

[70 FR 34307, June 14, 2005]



Sec.  9.31  Extension of time for response.

    (a) In unusual circumstances defined in Sec.  9.13, the NRC may 
extend the time limits prescribed in Sec.  9.25 or Sec.  9.29 by not 
more than 10 working days. The extension may be made by written notice 
to the person making the request to explain the reasons for the 
extension and indicate the date on which a determination is expected to 
be dispatched.
    (b) An extension of the time limits prescribed in Sec. Sec.  9.25 
and 9.29 may not exceed a combined total of 10 working days per request, 
unless a requester has agreed to an alternative time frame as described 
in Sec.  9.25 (c).



Sec.  9.33  Search, review, and special service fees.

    (a) The NRC charges fees for--
    (1) Search, duplication, and review, when agency records are 
requested for commercial use;
    (2) Duplication of agency records provided in excess of 100 pages 
when agency records are not sought for commercial use and the request is 
made by an educational or noncommercial scientific institution, or a 
representative of the news media;
    (3) Search time that exceeds two hours and duplication of agency 
records of more than 100 pages for requests from all other categories of 
requesters not described in paragraphs (a)(1) and (a)(2) of this 
section;
    (4) The direct costs of searching for agency records. The NRC will 
assess fees even when no agency records are located as a result of the 
search or when agency records that are located as a result of the search 
are not disclosed; and
    (5) Computer searches which includes the cost of operating the 
Central Processing Unit for the portion of operating time that is 
directly attributable to searching for agency records plus the operator/
programmer salary apportionable to the search.
    (b) The NRC may charge requesters who request the following services 
for the direct costs of the service:
    (1) Certifying that records are true copies;
    (2) Sending records by special methods, such as express mail, 
package delivery service, courier, and other means other than first 
class mail; or
    (3) Producing or converting records to formats specified by a 
requester other than ordinary copying processes that are readily 
available in NRC.



Sec.  9.34  Assessment of interest and debt collection.

    (a) The NRC will assess interest on the fee amount billed starting 
on the 31st day following the day on which the billing was sent in 
accordance with NRC's regulations set out in Sec.  15.37 of this 
chapter. The rate of interest is prescribed in 31 U.S.C. 3717.
    (b) The NRC will use its debt collection procedures under part 15 of 
this chapter for any overdue fees.



Sec.  9.35  Duplication fees.

    (a)(1) The charges by the duplicating service contractor for the 
duplication of records made available under Sec.  9.21 at the NRC Public 
Document Room (PDR), One White Flint North, 11555 Rockville Pike, Room 
O-1F23, Rockville, Maryland, may be found on the

[[Page 223]]

NRC's Web site at http://www.nrc.gov/reading-rm/pdr/copy-service.html or 
by calling the PDR at 1-800-397-4209 or 301-415-4737, by e-mail 
pdr@nrc.gov and are as follows:
    (i) Paper-to-paper reproduction is $0.30 per page for standard size 
(up to and including 11 x 14 reduced). Pages 
11 x 17 are $0.30 per page. Pages larger than 
11 x 17, including engineering drawings, are $1.50 
per square foot.
    (ii) Pages larger than 11 x 17 are $1.50 per 
square foot.
    (iii) Microfiche-to-paper reproduction is $0.30 per page. Aperture 
card blowback to paper is $3.00 per square foot.
    (iv) Microfiche card duplication is $5.00 per card; CD-ROM 
duplication is $10.00 each.
    (v) The charges for Electronic Full Text (EFT) (ADAMS documents) 
copying are as follows:
    (A) Electronic Full Text (EFT) copying of ADAMS documents to paper 
(applies to images, OCR TIFF, and PDF text) is $0.30 per page.
    (B) EFT copying of ADAMS documents to CD-ROM is $5.00 per CD plus 
$0.15 per page.
    (C) CD-ROM-to-paper reproduction is $0.30 per page.
    (vi) Priority rates (rush processing) are as follows:
    (A) The priority rate offered for standard size paper-to-paper 
reproduction is $0.35, microfiche-to-paper reproduction is $0.40, EFT 
copying of ADAMS documents to paper and CD-ROM-to-paper production is 
$0.35 per page.
    (B) The priority rate for aperture cards is $3.50 per square foot. 
The priority rate for copying EFT to CD-ROM is $6.00 per CD-ROM plus 
$0.20 per page.
    (vii) Facsimile charges are $1.00 per page for local calls; $2.00 
per page for U.S. long distance calls, and $6.00 per page for foreign 
long distance calls, plus the regular per page copying charge.
    (2) A requester may submit mail-order requests for contractor 
duplication of NRC records made by writing to the NRC Public Document 
Room. The charges for mail-order duplication of records are the same as 
those set out in paragraph (a)(1) of this section, plus mailing or 
shipping charges.
    (3) A requester may open an account with the duplicating service 
contractor. A requester may obtain the name and address and billing 
policy of the contractor from the NRC Public Document Room.
    (4) Any change in the costs specified in this section will become 
effective immediately pending completion of the final rulemaking that 
amends this section to reflect the new charges. The Commission will post 
the charges that will be in effect for the interim period at the NRC 
Public Document Room. The Commission will publish a final rule in the 
Federal Register that includes the new charges within 15 working days 
from the beginning of the interim period.
    (b) The NRC will assess the following charges for copies of records 
to be duplicated by the NRC at locations other than the NRC Public 
Document Room located at One White Flint North, 11555 Rockville Pike 
(first floor), Rockville, Maryland.
    (1) Sizes up to 8\1/2\x14 inches made on office copying machines--
$0.20 per page of copy; and
    (2) The charge for duplicating records other than those specified in 
paragraphs (a) and (b) of this section is computed on the basis of NRC's 
direct costs.
    (c) In compliance with the Federal Advisory Committee Act, a 
requester may purchase copies of transcripts of testimony in NRC 
Advisory Committee proceedings, which are transcribed by a reporting 
firm under contract with the NRC directly from the reporting firm at the 
cost of reproduction as provided for in the contract with the reporting 
firm. A requester may also purchase transcripts from the NRC at the cost 
of reproduction as set out in paragraphs (a) and (b) of this section.
    (d) Copyrighted material may not be reproduced in violation of the 
copyright laws. Requesters will be given the citation to any copyrighted 
publication and advised to contact the NRC Public Document Room to 
arrange to view the publication.

[63 FR 2876, Jan. 20, 1998, as amended at 64 FR 48951, Sept. 9, 1999; 66 
FR 22907, May 7, 2001; 67 FR 67098, Nov. 4, 2002; 70 FR 34308, June 14, 
2005; 71 FR 54571, Sept. 18, 2006]

[[Page 224]]



Sec.  9.37  Fees for search and review of agency records by NRC personnel.

    The NRC will charge the following hourly rates for search and review 
of agency records by NRC personnel:
    (a) Clerical search and review at a salary rate that is equivalent 
to a GG-7/step 7, plus 16 percent fringe benefits;
    (b) Professional/managerial search and review at a salary rate that 
is equivalent to a GG-13/step 6, plus 16 percent fringe benefits; and
    (c) Senior executive or Commissioner search and review at a salary 
rate that is equivalent to an ES-4, plus 16 percent fringe benefits.



Sec.  9.39  Search and duplication provided without charge.

    (a) The NRC will search for agency records requested under Sec.  
9.23(b) without charges when agency records are not sought for 
commercial use and the records are requested by an educational or 
noncommercial scientific institution, or a representative of the news 
media.
    (b) The NRC will search for agency records requested under Sec.  
9.23(b) without charges for the first two hours of search for any 
request not sought for commercial use and not covered in paragraph (a) 
of this section.
    (c) The NRC will duplicate agency records requested under Sec.  
9.23(b) without charge for the first 100 pages of standard paper copies, 
or the equivalent cost of 100 pages of standard paper copies when 
providing the requester copies in microfiche or electronic form such as 
computer disks, if the requester is not a commercial use requester.
    (d) The NRC may not bill any requester for fees if the cost of 
collecting the fee would be equal to or greater than the fee itself.
    (e) The NRC may aggregate requests in determining search and 
duplication to be provided without charge as provided in paragraphs (a) 
and (b) of this section, if the NRC finds a requester or group of 
requesters acting in concert, has filed multiple requests that actually 
constitute a single request, and that the requests involve clearly-
related matters.



Sec.  9.40  Assessment of fees.

    (a) If the request is expected to require the NRC to assess fees in 
excess of $25 for search and/or duplication, the NRC will notify the 
requester that fees will be assessed unless the requester has indicated 
in advance his or her willingness to pay fees as high as estimated.
    (b) In the notification, the NRC will include the estimated cost of 
search fees and the nature of the search required and estimated cost of 
duplicating fees.
    (c) The NRC will encourage requesters to discuss with the NRC the 
possibility of narrowing the scope of the request with the goal of 
reducing the cost while retaining the requester's original objective.
    (d) If the fee is determined to be in excess of $250, the NRC will 
require an advance payment.
    (e) Unless a requester has agreed to pay the estimated fees or, as 
provided for in paragraph (d) of this section, the requester has paid an 
estimated fee in excess of $250, the NRC may not begin to process the 
request.
    (f) If the NRC receives a new request and determines that the 
requester has previously failed to pay a properly charged fee under the 
Freedom of Information Act to the NRC or other Federal agency within 30 
calendar days of receipt of the bill on a previous request, the NRC may 
refuse to accept the new request for processing until payment is made of 
the full amount owed on the prior request, plus any applicable interest 
assessed as provided in Sec.  9.34.
    (g) Within 10 working days of the receipt of NRC's notice that fees 
will be assessed, the requester will provide advance payment if 
required, notify the NRC in writing that the requester agrees to bear 
the estimated costs, or submit a request for a waiver or reduction of 
fees pursuant to Sec.  9.41.

[63 FR 2876, Jan. 20, 1998, as amended at 70 FR 34308, June 14, 2005]

[[Page 225]]



Sec.  9.41  Requests for waiver or reduction of fees.

    (a)(1) The NRC will collect fees for searching for, reviewing, and 
duplicating agency records, except as provided in Sec.  9.39, unless a 
requester submits a request in writing for a waiver or reduction of 
fees. To ensure that there will be no delay in the processing of Freedom 
of Information Act requests, the request for a waiver or reduction of 
fees should be included in the initial Freedom of Information Act 
request letter.
    (2) Each request for a waiver or reduction of fees should be 
addressed to the Office of Information Services, and sent using an 
appropriate method listed in Sec.  9.6.
    (b) A person requesting the NRC to waive or reduce search, review, 
or duplication fees will--
    (1) Describe the purpose for which the requester intends to use the 
requested information;
    (2) Explain the extent to which the requester will extract and 
analyze the substantive content of the agency record;
    (3) Describe the nature of the specific activity or research in 
which the agency records will be used and the specific qualifications 
the requester possesses to utilize information for the intended use in 
such a way that it will contribute to public understanding;
    (4) Describe the likely impact on the public's understanding of the 
subject as compared to the level of public understanding of the subject 
before disclosure;
    (5) Describe the size and nature of the public to whose 
understanding a contribution will be made;
    (6) Describe the intended means of dissemination to the general 
public;
    (7) Indicate if public access to information will be provided free 
of charge or provided for an access fee or publication fee; and
    (8) Describe any commercial or private interest the requester or any 
other party has in the agency records sought.
    (c) The NRC will waive or reduce fees, without further specific 
information from the requester if, from information provided with the 
request for agency records made under Sec.  9.23(b), it can determine 
that disclosure of the information in the agency records is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the Federal 
Government and is not primarily in the commercial interest of the 
requester.
    (d) In making a determination regarding a request for a waiver or 
reduction of fees, the NRC will consider the following factors:
    (1) How the subject of the requested agency records concerns the 
operations or activities of the Federal Government;
    (2) How the disclosure of the information is likely to contribute 
significantly to public understanding of Federal Government operations 
or activities;
    (3) The extent to which, the requester has a commercial interest 
that would be furthered by the disclosure of the requested agency 
records; and whether that commercial interest exceeds the public 
interest in disclosure.
    (e) The Freedom of Information Act and Privacy Act Officer will make 
an initial determination whether a request for a waiver or reduction of 
fees meets the requirements of this section. The Freedom of Information 
Act and Privacy Act Officer will inform requesters whenever their 
request for a waiver or reduction of fees is denied and will inform them 
of their appeal rights under Sec.  9.29.

[63 FR 2876, Jan. 20, 1998, as amended at 68 FR 58800, Oct. 10, 2003]



Sec.  9.43  Processing requests for a waiver or reduction of fees.

    (a) Within 20 working days after receipt of a request for access to 
agency records for which the NRC agrees to waive fees under Sec.  9.39 
(a) through (d) or Sec.  9.41(c), the NRC will respond to the request as 
provided in Sec.  9.25.
    (b) In making a request for a waiver or reduction of fees, a 
requester shall provide the information required by Sec.  9.41(b).
    (c) After receipt of a request for the waiver or reduction of fees 
made in accordance with Sec.  9.41, the NRC will either waive or reduce 
the fees and notify the requester of the NRC's intent to provide the 
agency records promptly

[[Page 226]]

or deny the request and provide a statement to the requester explaining 
why the request does not meet the requirements of Sec.  9.41(b).
    (d) As provided in Sec.  9.29, a requester may appeal a denial of a 
request to waive or reduce fees to the Executive Director for 
Operations. The appeal must be submitted within 30 calendar days from 
the date of the notice.

[63 FR 2876, Jan. 20, 1998, as amended at 70 FR 34308, June 14, 2005]



Sec.  9.45  Annual report to the Attorney General of the United States.

    (a) On or before February 1 of each year, the NRC will submit a 
report covering the preceding fiscal year to the Attorney General of the 
United States which shall include--
    (1) The number of determinations made by the NRC to deny requests 
for records made to the NRC under this part and the reasons for each 
determination;
    (2) The number of appeals made by persons under Sec.  9.29, the 
results of the appeals, and the reason for the action taken on each 
appeal that results in a denial of information;
    (3) A complete list of all statutes that the NRC relied upon to 
withhold information under subsection (b)(3) of 5 U.S.C. 552, a 
description of whether a court has upheld the decision of the NRC to 
withhold information under each such statute, and a concise description 
of the scope of any information withheld;
    (4) The number of requests for records pending before the NRC as of 
September 30 of the preceding year, and the median number of days that 
such requests had been pending before the agency as of that date;
    (5) The number of requests for records received by the NRC and the 
number of requests that the NRC processed;
    (6) The median number of days taken to process different types of 
requests;
    (7) The total amount of fees collected by the NRC for processing 
requests;
    (8) The number of full-time staff of the NRC devoted to processing 
requests under the FOIA and the total amount expended for processing 
these requests.
    (b) The NRC will make a copy of the most recent report available to 
the public at the NRC Web site, http://www.nrc.gov.

[63 FR 2876, Jan. 20, 1998; 63 FR 12988, Mar. 17, 1998, as amended at 64 
FR 48951, Sept. 9, 1999]



                    Subpart B_Privacy Act Regulations

    Source: 40 FR 44484, Sept. 26, 1975, unless otherwise noted.



Sec.  9.50  Scope of subpart.

    This subpart implements the provisions of section 3 of the Privacy 
Act of 1974, Pub. L. 93-579, 5 U.S.C. 552a, with respect to (a) the 
procedures by which individuals may determine the existence of, seek 
access to and request correction of NRC records concerning themselves, 
and (b) the requirements applicable to NRC personnel with respect to the 
use and dissemination of such records. The regulations in this subpart 
apply to all records which are retrievable from a system of records 
under the control of the Nuclear Regulatory Commission by the use of an 
individual's name or of an identifying number, symbol, or other 
identifying particular assigned to such individual. Except where 
specifically provided otherwise, this subpart applies to all NRC records 
maintained on individuals whether they predate or postdate September 27, 
1975.



Sec.  9.51  Definitions.

    As used in this subpart:
    (a) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (b) The term maintain includes maintain, collect, use or 
disseminate.
    (c) Record means any item, collection or grouping of information 
about an individual that is maintained by the NRC, including, but not 
limited to, his education, financial transactions, medical history, 
employment history or criminal history, and that contains the 
individual's name, or the identifying number, symbol or other 
identifying particular assigned to the individual, such as a finger or 
voice print or a photograph.
    (d) System manager means the NRC official responsible for 
maintaining a system of records.

[[Page 227]]

    (e) Systems of records means a group of records under the control of 
the NRC from which information is retrieved by the name of an individual 
or by an identifying number, symbol, or other identifying particular 
assigned to an individual.
    (f) Statistical record means a record in a system of records 
maintained for statistical research or reporting purposes only and not 
used in whole or in part in making any determination about an 
identifiable individual, except as provided by the Census Act, 13 U.S.C. 
8.
    (g) Routine use means, with respect to the disclosure of a record, 
the use of such record for a purpose which is compatible with the 
purpose for which it was collected, as described in a notice published 
in the Federal Register.

Procedures Applicable to Requests by Individuals for Information, Access 
              or Amendment of Records Maintained About Them

                        presentation of requests



Sec.  9.52  Types of requests.

    (a) Individuals may make the following requests respecting records 
about themselves maintained by NRC in a system of records subject to the 
provisions of the Privacy Act of 1974:
    (1) Request a determination whether a record about the individual is 
contained in a system of records.
    (2) Request access to a record about the individual. Access requests 
may include requests to review the record and to have a copy made of all 
or any portion thereof in a form comprehensible to the individual.
    (3) Request correction or amendment of a record about the 
individual.
    (b) Requests for accounting of disclosures. Individuals may, at any 
time, request an accounting by NRC of disclosures to any other person or 
Government agency of any record about themselves contained in a system 
of records controlled by NRC, except the following: (1) Disclosures made 
pursuant to the Freedom of Information Act, 5 U.S.C. 552; (2) 
disclosures made within the Nuclear Regulatory Commission; (3) 
disclosures made to another Government agency or instrumentality for an 
authorized law enforcement activity pursuant to 5 U.S.C. 552a(b)(7); (4) 
disclosures expressly exempted by NRC regulations from the requirements 
of 5 U.S.C. 552a(c)(3) pursuant to 5 U.S.C. 552a (j)(2) and (k).

[40 FR 44484, Sept. 26, 1975, as amended at 60 FR 63900, Dec. 13, 1995]



Sec.  9.53  Requests; how and where presented.

    (a) Requests may be made in person or in writing. Assistance 
regarding equests or other matters relating to the Privacy Act of 1974 
may be obtained by writing to the Freedom of Information Act and Privacy 
Act Officer, by an appropriate method listed in Sec.  9.6. Requests 
relating to records in multiple systems of records should be made to the 
same Officer. That Officer shall assist the requestor in identifying his 
request more precisely and shall be responsible for forwarding the 
request to the appropriate system manager.
    (b) All written requests must be made to the Freedom of Information 
Act and Privacy Act Officer, U.S. Nuclear Regulatory Commission, and 
sent by an appropriate method listed in Sec.  9.6, and should clearly 
state on the envelope and in the letter, as appropriate: ``Privacy Act 
Request,'' ``Privacy Act Disclosure Accounting Request,'' ``Privacy Act 
Correction Request.'' The NRC does not consider a request received until 
the date it is actually received by the Freedom of Information Act and 
Privacy Act Officer.
    (c) Requests may be made in person during official hours at the U.S. 
Nuclear Regulatory Commission office where the record is located, as 
listed in the ``Notice of System of Records'' for the system in which 
the record is contained.

[40 FR 44484, Sept. 26, 1975, as amended at 41 FR 20645, May 20, 1976; 
52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 63 FR 15743, 
Apr. 1, 1998; 68 FR 58800, Oct. 10, 2003; 70 FR 34308, June 14, 2005]



Sec.  9.54  Verification of identity of individuals making requests.

    (a) Identification requirements in paragraphs (a) (1) and (2) of 
this section are applicable to any individual who makes requests 
respecting records about himself, except that no verification of 
identity shall be required if the records requested are

[[Page 228]]

available to the public under the provisions of the Freedom of 
Information Act. With respect to certain sensitive records, additional 
requirements for verification of identity stated in the appropriate 
published ``Notice of System of Records'' may be imposed.
    (1) Written requests. An individual making a written request 
respecting a record about himself may establish his identity by a 
signature, address, date of birth, employee identification number, if 
any, and one other item of identification such as a copy of a driver's 
license or other document.
    (2) Requests in person. An individual making a request in person 
respecting a record about himself may establish his identity by the 
presentation of a single document bearing a photograph (such as a 
passport or identification badge) or by the presentation of two items of 
identification which do not bear a photograph but do bear a name, 
address and signature (such, as a driver's license or credit card).
    (b) Inability to provide requisite documentation of identity. An 
individual making a request in person or in writing respecting a record 
about himself who cannot provide the necessary documentation of identity 
may provide a notarized statement, swearing or affirming to his identity 
and to the fact that he understands that penalties for false statements 
may be imposed pursuant to 18 U.S.C. 1001, and that penalties for 
obtaining a record concerning an individual under false pretenses may be 
imposed pursuant to 5 U.S.C. 552a(i)(3). Forms for such notarized 
statements may be obtained on request from the Freedom of Information 
Act and Privacy Act Officer, and sent by an appropriate method listed in 
Sec.  9.6.
    (c) Verification of parentage or guardianship. In addition to 
establishing the identity of the minor, or other individual he 
represents as required in paragraph (a) of this section, the parent or 
legal guardian of a minor or of an individual judicially determined to 
be incompetent shall establish his status as parent or guardian by 
furnishing a copy of a birth certificate of the minor showing parentage 
or a copy of a court order establishing guardianship.

[40 FR 44484, Sept. 26, 1975, as amended at 52 FR 31609, Aug. 21, 1987; 
54 FR 53316, Dec. 28, 1989; 63 FR 15743, Apr. 1, 1998; 68 FR 58800, Oct. 
10, 2003; 70 FR 34309, June 14, 2005]



Sec.  9.55  Specification of records.

    (a)(1) Requests relating to records shall, insofar as practicable, 
specify the nature of the record sought, the approximate dates covered 
by the record, the system of records in which the record is thought to 
be included and the system manager having custody of the record system 
as shown in the annual compilation, ``Notices of Records Systems'', 
published by the General Services Administration. Requests shall, in 
addition, comply with any additional specification requirements 
contained in the published ``Notice of System of Records'' for that 
system.
    (2) Requests for correction or amendment of records shall, in 
addition, specify the particular record involved, state the nature of 
the correction or amendment sought and furnish justification for the 
correction or amendment.
    (b) Requests which do not contain information sufficient to identify 
the record requested will be returned promptly to the requestor, with a 
notice indicating what information is lacking. Individuals making 
requests in person will be informed of any deficiency in the 
specification of records at the time the request is made. Individuals 
making requests in writing will be notified of any such deficiency when 
their request is acknowledged.



Sec.  9.56  Accompanying persons.

    An individual requesting access to records about himself may be 
accompanied by another individual of his own choosing. Both the 
individual requesting access and the individual accompanying him shall 
sign the required form indicating that the Nuclear Regulatory Commission 
is authorized to discuss the contents of the subject record in the 
presence of both individuals.

[[Page 229]]

                 nrc procedures for processing requests



Sec.  9.60  Acknowledgement of requests.

    (a) Written requests by individuals to verify the existence of, 
obtain access to or correct or amend records about themselves maintained 
by NRC in a system of records subject to the provisions of the Privacy 
Act of 1974, shall be acknowledged in writing by the Freedom of 
Information Act and Privacy Act Officer within ten working days after 
date of actual receipt. The acknowledgement shall advise the requestor 
if any additional information is needed to process the request. Wherever 
practicable, the acknowledgement shall notify the individual whether his 
request to obtain access to the record or to correct or amend the record 
has been granted or denied.
    (b) When an individual requests access to records or permission to 
correct or amend records in person, every effort will be made to make an 
immediate determination as to whether access or correction or amendment 
should be granted. If an immediate determination cannot be made, the 
request will be processed in the same manner as a written request. 
Records will be made available for immediate inspection whenever 
possible.

[40 FR 44484, Sept. 26, 1975, as amended at 53 FR 17689, May 18, 1988; 
54 FR 53316, Dec. 28, 1989; 63 FR 15743, Apr. 1, 1998]



Sec.  9.61  Procedures for processing requests for records exempt in whole or 

in part.

    (a) When an individual requests information concerning the existence 
of, or access to, records about himself which have been compiled in 
reasonable anticipation of a civil action or proceeding in either a 
court or before an administrative tribunal, the NRC shall advise the 
individual only that no record available to him pursuant to the Privacy 
Act of 1974 has been identified.
    (b) General exemptions. Generally, 5 U.S.C. 552a(j)(2) allows the 
exemption of any system of records within the NRC from any part of 
section 552a except subsections (b), (c) (1) and (2), (e)(4) (A) through 
(F), (e) (6), (7), (9), (10), and (11), and (i) of the act if the system 
of records is maintained by an NRC component that performs as one of its 
principal functions any activity pertaining to the enforcement of 
criminal laws, including police efforts to prevent, control, or reduce 
crimes, or to apprehend criminals, and consists of--
    (1) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders and consisting only of 
identifying data and notations of arrests, the nature and disposition of 
criminal charges, sentencing, confinement, release and parole, and 
probation status;
    (2) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or
    (3) Reports identifiable to an individual compiled at any stage of 
the process of enforcement of the criminal laws from arrest or 
indictment through release from supervision.
    (c) Specific exemptions under 5 U.S.C. 552a(k). Individual requests 
for access to records which have been exempted from access under the 
provisions of 5 U.S.C. 552a(k) shall be processed as follows:
    (1) Information classified under criteria established by an 
Executive Order to be kept secret in the interest of national defense or 
foreign policy, and exempted under 5 U.S.C. 552a(k)(1). (i) Requested 
information classified by NRC will be reviewed by the responsible 
official of the NRC to determine whether it continues to warrant 
classification under criteria established by an Executive Order to be 
kept secret in the interest of national defense or foreign policy.
    (ii) Information which no longer warrants classification under these 
criteria shall be declassified and made available to the individual. If 
the requested information has been classified by another agency, the 
responsible official of the NRC will request the classifying agency to 
review the information to ascertain if classification is still 
warranted. If the information continues to warrant classification, the 
individual shall be advised that the information sought is classified, 
that it has been reviewed and continues to warrant classification, and 
that it has been

[[Page 230]]

exempted from access pursuant to 5 U.S.C. 552a(k)(1).
    (2) Investigatory material compiled for law enforcement purposes 
exempted pursuant to 5 U.S.C. 552a(k)(2). Requests shall be responded to 
in the manner provided in paragraph (a) of this section unless a review 
of the information indicates that the information has been used or is 
being used to deny the individual any right, privilege or benefit for 
which he is eligible or to which he would otherwise be entitled under 
Federal law. In that event, the individual shall be advised of the 
existence of the information and shall be provided the information 
except to the extent it would reveal the identity of a confidential 
source. Information that would reveal the identity of a confidential 
source shall be extracted or summarized in a manner which protects the 
source and the summary or extract shall be provided to the requesting 
individual.
    (3) Material within a system of records required by statute to be 
maintained and used solely as statistical records and exempted pursuant 
to 5 U.S.C. 552a(k)(4). The exempted information requested will be 
reviewed by the responsible official of the NRC to determine whether it 
continues to warrant exemption. Information which no longer warrants 
exemption shall be made available to the individual. If the information 
continues to warrant exemption, the individual shall be advised that the 
information sought is exempt from disclosure, that it has been reviewed 
and continues to warrant exemption, and that it has been exempted from 
access pursuant to 5 U.S.C. 552a(k)(4).
    (4) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, Federal contracts, or access to classified 
information and exempted pursuant to 5 U.S.C. 552a(k)(5). Information 
exempted pursuant to 5 U.S.C. 552a(k)(5) shall be made available to an 
individual upon request except to the extent that the information would 
reveal the identity of a confidential source. Material that would reveal 
the identity of a confidential source shall be extracted or summarized 
in a manner which protects the source and the summary or extract shall 
be provided to the requesting individual.
    (5) Testing or examination material exempted pursuant to 5 U.S.C. 
552a(k)(6). Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service which has been exempted pursuant to 5 U.S.C. 552a(k)(6) shall 
not be made available to an individual if disclosure would compromise 
the objectivity or fairness of the testing or examination process but 
may be made available if no possibility of such compromise exists.

[40 FR 44484, Sept. 26, 1975, as amended at 44 FR 50804, Aug. 30, 1979; 
50 FR 50284, Dec. 10, 1985; 60 FR 63900, Dec. 13, 1995; 70 FR 34309, 
June 14, 2005]



Sec.  9.62  Records under control of another Government agency.

    Requests received by NRC pertaining to records under the control of 
another Government agency will be returned to the requester with the 
name of the controlling Government agency, if known, within ten working 
days after receipt by the NRC.

[70 FR 34309, June 14, 2005]

                       determinations and appeals



Sec.  9.65  Access determinations; appeals.

    (a) Initial determinations. For agency records located in the Office 
of the Inspector General, the Assistant Inspector General for 
Investigations shall determine whether access to the record is available 
under the Privacy Act. For all other agency records, the Freedom of 
Information Act and Privacy Act Officer with the advice of the system 
manager having control of the record to which access is requested, shall 
determine whether access to the record is available under the Privacy 
Act. The Freedom of Information Act and Privacy Act Officer shall notify 
the requesting individual in person or in writing of the determination. 
Unless the request presents unusual difficulties or involves extensive 
numbers of records, individuals shall be notified of determinations to 
grant or deny access within 30 working days after receipt of the 
request.
    (1) Notices granting access shall inform the individual when and 
where

[[Page 231]]

the requested record may be seen, how copies may be obtained, and of any 
fees or anticipated charges which may be incurred pursuant to Sec.  9.85 
of this subpart.
    (2) Notices denying access must state the reasons for the denial, 
and advise the individual that the denial may be appealed to the 
Inspector General, for agency records located in the Office of Inspector 
General, or the Executive Director for Operations, for all other agency 
records, in accordance with the procedures set forth in this section.
    (b) Appeals from denials of access. If an individual has been denied 
access to a record the individual may request a final review and 
determination of that individual's request by the Inspector General or 
the Executive Director for Operations, as appropriate. A request for 
final review of an initial determination must be filed within 60 
calendar days of the receipt of the initial determination. For agency 
records denied by the Assistant Inspector General for Investigations, 
the appeal must be in writing directed to the Inspector General and sent 
to the Freedom of Information Act and Privacy Act Officer by an 
appropriate method listed in Sec.  9.6. For agency records denied by the 
Freedom of Information Act and Privacy Act Officer, the appeal must be 
in writing directed to the Executive Director for Operations and sent to 
the Freedom of Information Act and Privacy Act Officer by an appropriate 
method listed in Sec.  9.6. The appeal should clearly state on the 
envelope and in the letter ``Privacy Act Appeal-Denial of Access.'' The 
NRC does not consider an appeal received until the date it is actually 
received by the Freedom of Information Act and Privacy Act Officer.
    (c) Final determinations. (1) The Inspector General, or the 
Executive Director for Operations or the EDO's designee, shall make a 
final determination within 30 working days of the receipt of the request 
for final review, unless the time is extended for good cause shown such 
as the need to obtain additional information, the volume of records 
involved, or the complexity of the issue. The extension of time may not 
exceed 30 additional working days. The requester shall be advised in 
advance of any extension of time and of the reasons therefor.
    (2) If the Inspector General, or the Executive Director for 
Operations or the EDO's designee, determines that access was properly 
denied because the information requested has been exempted from 
disclosure, the Inspector General, or the Executive Director for 
Operations or the EDO's designee shall undertake a review of the 
exemption to determine whether the information should continue to be 
exempt from disclosure. The Inspector General, or the Executive Director 
for Operations or the EDO's designee, shall notify the individual in 
writing of the final agency determination to grant or deny the request 
for access. Notices denying access must state the reasons therefor and 
must advise the individual of his/her right to judicial review pursuant 
to 5 U.S.C. 552a(g).

[40 FR 44484, Sept. 26, 1975, as amended at 41 FR 20645, May 20, 1976; 
41 FR 25997, June 24, 1976; 52 FR 31609, Aug. 21, 1987; 54 FR 53316, 
Dec. 28, 1989; 55 FR 33647, Aug. 17, 1990; 63 FR 15743, Apr. 1, 1998; 68 
FR 58800, Oct. 10, 2003; 70 FR 34309, June 14, 2005]



Sec.  9.66  Determinations authorizing or denying correction of records; 

appeals.

    (a) Initial determinations. (1) For agency records located in the 
Office of the Inspector General, the Assistant Inspector General for 
Investigations shall determine whether to authorize or refuse correction 
or amendment of a record. For all other agency records, the Freedom of 
Information Act and Privacy Act Officer with the advice of the system 
manager having control of the record, shall determine whether to 
authorize or refuse correction or amendment of a record. The Freedom of 
Information Act and Privacy Act Officer shall notify the requesting 
individual. Unless the request presents unusual difficulties or involves 
extensive numbers of records, individuals must be notified of 
determinations to authorize or refuse correction or amendment of a 
record within 30 working days after receipt of the request. In making 
this determination, the NRC official shall be guided by the following 
standards:

[[Page 232]]

    (i) Records shall contain only such information about an individual 
as is relevant and necessary to accomplish an NRC function required to 
be accomplished by statute or by executive order of the President;
    (ii) Records used by NRC in making any determination about any 
individual shall be as accurate, relevant, current, and complete as is 
reasonably necessary to assure fairness to the individual in the 
determination;
    (iii) No record shall describe how any individual has exercised 
rights guaranteed by the First Amendment unless such record is expressly 
authorized by statute or by the individual about whom the record is 
maintained, or is pertinent to and within the scope of an authorized law 
enforcement activity.
    (2) For agency records located in the Office of Inspector General, 
if correction or amendment of a record is authorized, the Assistant 
Inspector General for Investigations shall correct or amend the record. 
For all other agency records, the Freedom of Information Act and Privacy 
Act Officer shall correct or amend the record. The Freedom of 
Information Act and Privacy Act Officer shall notify the requesting 
individual in writing that the correction or amendment has been made and 
provide the individual with a courtesy copy of the corrected record.
    (3) If correction or amendment of a record is refused, the Freedom 
of Information Act and Privacy Act Officer shall notify the requesting 
individual in writing of the refusal and the reasons therefor, and shall 
advise the individual that the refusal may be appealed to the Inspector 
General or the Executive Director for Operations, as appropriate, in 
accordance with the procedures set forth in this section.
    (b) Appeals from initial adverse determinations. If an individual's 
request to amend or correct a record has been denied, in whole or in 
part, the individual may appeal that action and request a final review 
and determination of that individual's request by the Inspector General 
or the Executive Director for Operations, as appropriate. An appeal of 
an initial determination must be filed within 60 calendar days of the 
receipt of the initial determination. For agency records denied by the 
Assistant Inspector General for Investigations, the appeal must be in 
writing directed to the Inspector General and sent to the Freedom of 
Information Act and Privacy Act Officer by an appropriate method listed 
in Sec.  9.6. For agency records denied by the Freedom of Information 
Act and Privacy Act Officer the appeal must be in writing directed to 
the Executive Director for Operations and sent to the Freedom of 
Information Act and Privacy Act Officer by an appropriate method listed 
in Sec.  9.6. The appeal should clearly state on the envelope and in the 
letter ``Privacy Act Correction Appeal.'' The NRC does not consider an 
appeal received until the date it is actually received by the Freedom of 
Information Act and Privacy Act Officer. Requests for final review must 
set forth the specific item of information sought to be corrected or 
amended and should include, where appropriate, records supporting the 
correction or amendment.
    (c) Final determinations. (1) The Inspector General, for agency 
records located in the Office of the Inspector General, or the Executive 
Director for Operations or the EDO's designee, for all other agency 
records, shall make a final agency determination within 30 working days 
of receipt of the request for final review, unless the time is extended 
for good cause shown such as the need to obtain additional information, 
the volume of records involved, or the complexity of the issue. The 
extension of time may not exceed 30 additional working days. The 
requester shall be advised in advance of any extension of time and of 
the reasons therefor.
    (2) For agency records located in the Office of the Inspector 
General, if the Inspector General makes a final determination that an 
amendment or correction of the record is warranted on the facts, the 
Inspector General or the IG's designee, shall correct or amend the 
record pursuant to the procedures in Sec.  9.66(a)(2). For all other 
agency records, if the Executive Director for Operations, or the EDO's 
designee, makes a final determination that an amendment or correction of 
the record is warranted on the facts, the EDO or the EDO's designee, 
shall notify the

[[Page 233]]

Freedom of Information Act and Privacy Act Officer to correct or amend 
the record to the procedures in Sec.  9.66(a)(2).
    (3) If the Inspector General, or the Executive Director for 
Operations or the EDO's designee, makes a final determination that an 
amendment or correction of the record is not warranted on the facts, the 
individual shall be notified in writing of the refusal to authorize 
correction or amendment of the record in whole or in part, and of the 
reasons therefor, and the individual shall be advised of his/her right 
to provide a ``Statement of Disagreement'' for the record and of his/her 
right to judicial review pursuant to 5 U.S.C. 552a(g).

[40 FR 44484, Sept. 26, 1975, as amended at 41 FR 20645, May 20, 1976; 
41 FR 25997, June 24, 1976; 52 FR 31609, Aug. 21, 1987; 54 FR 53316, 
Dec. 28, 1989; 55 FR 33647, Aug. 17, 1990; 63 FR 15743, Apr. 1, 1998; 68 
FR 58800, Oct. 10, 2003; 70 FR 34309, June 14, 2005]



Sec.  9.67  Statements of disagreement.

    (a) Written ``Statements of Disagreement'' may be furnished by the 
individual within 30 calendar days of the date of receipt of the final 
adverse determination of the Inspector General or the Executive Director 
for Operations. ``Statements of Disagreement'' directed to the Executive 
Director for Operations must be sent to the Freedom of Information Act 
and Privacy Act Officer by an appropriate method listed in Sec.  9.6, 
and should be clearly marked on the statement and on the envelope, 
``Privacy Act Statement of Disagreement.'' ``Statements of 
Disagreement'' directed to the Inspector General must be sent to the 
Freedom of Information Act and Privacy Officer by an appropriate method 
listed in Sec.  9.6, and should be clearly marked on the statement and 
on the envelope ``Privacy Act Statement of Disagreement''.
    (b) The Inspector General or the Executive Director for Operations, 
or their designees, as appropriate, are responsible for ensuring that: 
(1) The ``Statement of Disagreement'' is included in the system or 
systems of records in which the disputed item of information is 
maintained; and (2) the original record is marked to indicate the 
information disputed, the existence of a ``Statement of Disagreement'' 
and the location of the ``Statement of Disagreement'' within the system 
of records.

[55 FR 33848, Aug. 17, 1990, as amended at 68 FR 58800, Oct. 10, 2003; 
70 FR 34309, June 14, 2005]



Sec.  9.68  NRC statement of explanation.

    The Inspector General, or the Executive Director for Operations or 
the EDO's designee, may if deemed appropriate, prepare a concise 
statement of the reasons why the requested amendments or corrections 
were not made. Any NRC ``Statement of Explanation'' must be included in 
the system of records in the same manner as the ``Statement of 
Disagreement''. Courtesy copies of the NRC statement and of the notation 
of the dispute as marked on the original record must be furnished to the 
individual who requested correction or amendment of the record.

[55 FR 33648, Aug. 17, 1990]



Sec.  9.69  Notices of correction or dispute.

    (a) When a record has been corrected upon request or when a 
``Statement of Disagreement'' has been filed, the Freedom of Information 
Act and Privacy Act Officer shall, within 30 working days thereof, 
advise all prior recipients of the affected record whose identity can be 
determined pursuant to an accounting of disclosures required by the 
Privacy Act or any other accounting previously made, of the correction 
or of the filing of the ``Statement of Disagreement''.
    (b) Any disclosure of disputed information occurring after a 
``Statement of Disagreement'' has been filed shall clearly identify the 
specific information disputed and be accompanied by a copy of the 
``Statement of Disagreement'' and a copy of any NRC ``Statement of 
Explanation''.

[40 FR 44484, Sept. 26, 1975, as amended at 52 FR 31609, Aug. 21, 1987; 
54 FR 53316, Dec. 28, 1989; 63 FR 15743, Apr. 1, 1998]

[[Page 234]]

            disclosure to others of records about individuals



Sec.  9.80  Disclosure of record to persons other than the individual to whom 

it pertains.

    (a) NRC Commissioners and NRC personnel shall not disclose any 
record which is contained in a system of records maintained by NRC by 
any means of communication to any person, or to another Government 
agency, except pursuant to a written request by, or with the prior 
written consent of, the individual to whom the record pertains, unless 
disclosure of the record is:
    (1) To NRC Commissioners and NRC personnel who have a need for the 
record in the performance of their duties;
    (2) Required under 5 U.S.C. 552;
    (3) For a routine use published in the Federal Register;
    (4) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
Title 13 of the United States Code;
    (5) To a recipient who has provided the agency with advance adequate 
written assurance that the record will be used solely as a statistical 
research or reporting record and the record is transferred in a form 
that is not individually identifiable. The advance written statement of 
assurance shall (i) state the purpose for which the record is requested, 
and (ii) certify that the record will be used only for statistical 
purposes. Prior to release for statistical purposes in accordance with 
the provisions of this paragraph, the record shall be stripped of all 
personally identifying information and reviewed to ensure that the 
identity of any individual cannot reasonably be determined by combining 
two or more statistical records;
    (6) To the National Archives and Records Administration as a record 
that has sufficient historical or other value to warrant its continued 
preservation by the United States Government, or to the Archivist of the 
United States or designee for evaluation to determine whether the record 
has such value;
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the NRC specifying the particular portion of the 
record desired and the law enforcement activity for which the record is 
sought. A record may be disclosed to a law enforcement agency at the 
initiative of the NRC if criminal conduct is suspected, provided that 
such disclosure has been established as a routine use by publication in 
the Federal Register, and the instance of misconduct is directly related 
to the purpose for which the record is maintained;
    (8) To any person upon a showing of compelling circumstances 
affecting the health or safety of any individual;
    (9) To either House of Congress or, to the extent of matter within 
its jurisdiction, to any committee or subcommittee thereof or to any 
joint committee of the Congress or to any subcommittee of such joint 
committee;
    (10) To the Comptroller General, or any authorized representatives, 
in the course of the performance of the duties of the General Accounting 
Office;
    (11) Pursuant to the order of a court of competent jurisdiction; or
    (12) To a consumer reporting agency in accordance with 31 U.S.C. 
3711(f).
    (b) [Reserved]

[40 FR 44484, Sept. 26, 1975, as amended at 60 FR 63900, Dec. 13, 1995]



Sec.  9.81  Notices of subpoenas.

    When records concerning an individual are subpoenaed or otherwise 
disclosed pursuant to court order, the NRC officer or employee served 
with the subpoena shall be responsible for assuring that the individual 
is notified of the disclosure within five days after such subpoena or 
other order becomes a matter of public record. The notice shall be 
mailed to the last known address of the individual and shall contain the 
following information: (a) The date the subpoena is returnable; (b) the 
court in which it is returnable; (c) the name and number of the case or 
proceeding; and (d) the nature of the information sought.

[[Page 235]]



Sec.  9.82  Notices of emergency disclosures.

    When information concerning an individual has been disclosed to any 
person under compelling circumstances affecting health or safety, the 
NRC officer or employee who made or authorized the disclosure shall 
notify the individual at his last known address within five days of the 
disclosure. The notice shall contain the following information: (a) The 
nature of the information disclosed; (b) the person or agency to whom 
the information was disclosed; (c) the date of the disclosure; and (d) 
the compelling circumstances justifying the disclosure.

                                  fees



Sec.  9.85  Fees.

    Fees shall not be charged for search or review of records requested 
under this subpart or for making copies or extracts of records to make 
them available for review, although fees may be charged for additional 
copies. Fees established under 31 U.S.C. 483c and 5 U.S.C. 552a(f)(5) 
shall be charged according to the schedule contained in Sec.  9.35 for 
actual copies of records disclosed under the Freedom of Information Act 
from Privacy Act Systems of Records.

[70 FR 34309, June 14, 2005]

                               enforcement



Sec.  9.90  Violations.

    (a) An injunction or other court order may be obtained pursuant to 5 
U.S.C. 552a(g) (1-3) to compel NRC to permit an individual to review, 
amend or copy a record pertaining to him, or to be accompanied by 
someone of his own choosing when he reviews his record. A court order 
may be obtained for the payment of a civil penalty imposed pursuant to 5 
U.S.C. 552a(g)(4) if NRC intentionally or willfully fails to maintain a 
record accurately, or fails to comply with any provision of 5 U.S.C. 
552a, or any provision of this subpart, if such failure results in an 
adverse determination or has an adverse effect on an individual. Court 
costs and attorney's fees may be awarded in civil actions.
    (b) Any officer or employee of NRC who willfully maintains a system 
of records without meeting the notice requirements of 5 U.S.C. 
552a(e)(4), or who willfully discloses information knowing such 
disclosure to be prohibited by 5 U.S.C. 552a or by any rules or 
regulations issued thereunder, may be guilty of a criminal misdemeanor 
and upon conviction may be fined up to $5000. Any person who knowingly 
and willfully requests or obtains any record concerning an individual 
from NRC under false pretenses may be convicted of a criminal 
misdemeanor and upon conviction may be fined up to $5,000.

                               exemptions



Sec.  9.95  Specific exemptions.

    Exemptions applicable to Privacy Act Systems of Records are stated 
in each Privacy Act System of Records Notice which is published in the 
Federal Register and is available at the NRC Web site, http://
www.nrc.gov.

[70 FR 34309, June 14, 2005]



          Subpart C_Government in the Sunshine Act Regulations

    Source: 42 FR 12877, Mar. 7, 1977, unless otherwise noted.



Sec.  9.100  Scope of subpart.

    This subpart prescribes procedures pursuant to which NRC meetings 
shall be open to public observation pursuant to the provisions of 5 
U.S.C. 552b. This subpart does not affect the procedures pursuant to 
which NRC records are made available to the public for inspection and 
copying which remain governed by subpart A, except that the exemptions 
set forth in Sec.  9.104(a) shall govern in the case of any request made 
pursuant to Sec.  9.23 to copy or inspect the transcripts, recordings, 
or minutes described in Sec.  9.108. Access to records considered at NRC 
meetings shall continue to be governed by subpart A of this part.

[52 FR 49362, Dec. 31, 1987]



Sec.  9.101  Definitions.

    As used in this subpart:
    (a) Commission means the collegial body of five Commissioners or a

[[Page 236]]

quorum thereof as provided by section 201 of the Energy Reorganization 
Act of 1974, or any subdivision of that collegial body authorized to act 
on its behalf, and shall not mean any body not composed of members of 
that collegial body.
    (b) Commissioner means an individual who is a member of the 
Commission.
    (c) Meeting means the deliberations of at least a quorum of 
Commissioners where such deliberations determine or result in the joint 
conduct or disposition of official Commission business, that is, where 
discussions are sufficiently focused on discrete proposals or issues as 
to cause or to be likely to cause the individual participating members 
to form reasonably firm positions regarding matters pending or likely to 
arise before the agency. Deliberations required or permitted by 
Sec. Sec.  9.105, 9.106, or 9.108(c) do not constitute ``meetings'' 
within this definition.
    (d) Closed meeting means a meeting of the Commission closed to 
public observation as provided by Sec.  9.104.
    (e) Open meeting means a meeting of the Commission open to public 
observation pursuant to this subpart.
    (f) Secretary means the Secretary to the Commission.
    (g) General Counsel means the General Counsel of the commission as 
provided by section 25(b) of the Atomic Energy Act of 1954 and section 
201(f) of the Energy Reorganization Act of 1974, and, until such time as 
the offices of that officer are in the same location as those of the 
Commission, any member of his office specially designated in writing by 
him pursuant to this subsection to carry out his responsibilities under 
this subpart.

[42 FR 12877, Mar. 7, 1977, as amended at 50 FR 20891, May 21, 1985]



Sec.  9.102  General requirement.

    Commissioners shall not jointly conduct or dispose of Commission 
business in Commission meetings other than in accordance with this 
subpart. Except as provided in Sec.  9.104, every portion of every 
meeting of the Commission shall be open to public observation.



Sec.  9.103  General provisions.

    The Secretary shall ensure that all open Commission meetings are 
held in a location such that there is reasonable space and adequate 
visibility and acoustics, for public observation. No additional right to 
participate in Commission meetings is granted to any person by this 
subpart. An open meeting is not part of the formal or informal record of 
decision of the matters discussed therein except as otherwise required 
by law. Statements of views or expressions of opinion made by 
Commissioners or NRC employees at open meetings are not intended to 
represent final determinations or beliefs. Such statements may not be 
pleaded, cited, or relied upon before the Commission or in any 
proceeding under part 2 of these regulations (10 CFR part 2) except as 
the Commission may direct. Members of the public attending open 
Commission meetings may use small electronic sound recorders to record 
the meeting, but the use of other electronic recording equipment and 
cameras requires the advance written approval of the Secretary.

[42 FR 12877, Mar. 7, 1977, as amended at 43 FR 13055, Mar. 29, 1978; 43 
FR 37421, Aug. 23, 1978]



Sec.  9.104  Closed meetings.

    (a) Except where the Commission finds that the public interest 
requires otherwise, Commission meetings shall be closed, and the 
requirements of Sec. Sec.  9.105 and 9.107 shall not apply to any 
information pertaining to such meeting otherwise required by this 
subpart to be disclosed to the public, where the Commission determines 
in accordance with the procedures of Sec.  9.105 that opening such 
meetings or portions thereof or disclosing such information, is likely 
to:
    (1) Disclose matters that are (i) specifically authorized under 
criteria established by an Executive order to be kept secret in the 
interests of national defense or foreign policy, and (ii) in fact 
properly classified pursuant to such Executive order;
    (2) Relate solely to the internal personnel rules and practices of 
the Commission;

[[Page 237]]

    (3) Disclose matters specifically exempted from disclosure by 
statute (other than 5 U.S.C. 552) provided that such statute (i) 
requires that the matters be withheld from the public in such a manner 
as to leave no discretion on the issue, or (ii) establishes particular 
criteria for withholding or refers to particular types of matters to be 
withheld;
    (4) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential, including such 
information as defined in Sec.  2.790(d) of this title;
    (5) Involve accusing any person of a crime, imposing a civil penalty 
on any person pursuant to 42 U.S.C. 2282 or 42 U.S.C. 5846, or any 
revocation of any license pursuant to 42 U.S.C. sec. 2236, or formally 
censuring any person;
    (6) Disclose information of a personal nature where such disclosure 
would constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose investigatory reports compiled for law enforcement 
purposes, including specifically enforcement of the Atomic Energy Act of 
l1954, as amended, 42 U.S.C. 2011 et seq., and the Energy Reorganization 
Act of 1974, as amended, 42 U.S.C. 5801 et seq., or information which if 
written would be contained in such records, but only to the extent that 
the production of such records or information would: (i) Interfere with 
enforcement proceedings, (ii) deprive a person of a right to a fair 
trial or an impartial adjudication, (iii) constitute an unwarranted 
invasion of personal privacy, (iv) disclose the identity of a 
confidential source and, in the case of a record compiled by a criminal 
law enforcement authority in the course of a criminal investigation, or 
by an agency conducting a lawful national security intelligence 
investigation, confidential information furnished only by the 
confidential source, (v) disclose investigative techniques and 
procedures, or (vi) endanger the life or physical safety of law 
enforcement personnel;
    (8) [Reserved]
    (9) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed 
Commission action, except that this subparagraph shall not apply in any 
instance where the Commission has already disclosed to the public the 
content or nature of its proposed action, or where the Commission is 
required to make such disclosure on its own initative prior to taking 
final action on such proposal; or
    (10) Specifically concern the Commission's issuance of a subpoena, 
or the Commission's participation in a civil action or proceeding or an 
action or proceeding before a state or federal administrative agency, an 
action in a foreign court or international tribunal, or an arbitration, 
or the initiation, conduct or disposition by the Commission of a 
particular case of formal agency adjudication pursuant to 5 U.S.C. 554 
or otherwise involving a determination on the record after an 
opportunity for a hearing pursuant to part 2 or similar provisions.
    (b) Examples of situations in which Commission action may be deemed 
to be significantly frustrated are: (1) If opening any Commission 
meeting or negotiations would be likely to disclose information provided 
or requests made to the Commission in confidence by persons outside the 
Commission and which would not have been provided or made otherwise; (2) 
if opening a meeting or disclosing any information would reveal legal or 
other policy advice, public knowledge of which could substantially 
affect the outcome or conduct of pending or reasonably anticipated 
litigation or negotiations; or (3) if opening any meeting or disclosing 
any information would reveal information requested by or testimony or 
proposals to be given to other agencies of government, including the 
Congress and the Executive Branch before the requesting agency would 
receive the information, testimony or proposals. The examples in the 
above sentence are for illustrative purposes only and are not intended 
to be exhaustive.



Sec.  9.105  Commission procedures.

    (a) Action under Sec.  9.104 shall be taken only when a majority of 
the entire membership of the Commission votes to take such action. A 
separate vote of the Commissioners shall be taken with respect to each 
Commission meeting a

[[Page 238]]

portion or portions of which are proposed to be closed to the public 
pursuant to Sec.  9.104, or which respect to any information which is 
proposed to be withheld under Sec.  9.105(c). A single vote may be taken 
with respect to a series of meetings, a portion or portions of which are 
proposed to be closed to the public, or with respect to any information 
concerning such series of meetings, so long as each meeting in such 
series involves the same particular matters and is scheduled to be held 
no more than thirty days after the initial meeting in such series. The 
vote of each Commissioner participating in such vote shall be recorded 
and no proxies shall be allowed.
    (b) Within one day of any vote taken pursuant to paragraph (a) of 
this section, Sec.  9.106(a), or Sec.  9.108(c), the Secretary shall 
make publicly available at the NRC Web site, http://www.nrc.gov, a 
written copy of such vote reflecting the vote of each member on the 
question. If a portion of a meeting is to be closed to the public, the 
Secretary shall, within one day of the vote taken pursuant to paragraph 
(a) of this section or Sec.  9.106(a), make publicly available at the 
NRC Web site, http://www.nrc.gov, a full written explanation of its 
action closing the portion together with a list of all persons expected 
to attend the meeting and their affiliation.
    (c) The notices and lists required by paragraph (b) of this section 
to be made public may be withheld from the public to the extent that the 
Commission determines that such information itself would be protected 
against disclosure by Sec.  9.104(a). Any such determination shall be 
made independently of the Commission's determination pursuant to 
paragraph (a) of this section to close a meeting, but in accordance with 
the procedure of that subsection. Any such determination, including a 
written explanation for the action and the specific provision or 
provisions of Sec.  9.104(a) relied upon, must be made publicly 
available to the extent permitted by the circumstances.

[42 FR 12877, Mar. 7, 1977, as amended at 64 FR 48951, Sept. 9, 1999]



Sec.  9.106  Persons affected and motions for reconsideration.

    (a) Whenever any person whose interests may be directly affected by 
a portion of a meeting requests that the Commission close such portion 
to the public for any of the reasons referred to in paragraphs (a) (5), 
(6), or (7) of Sec.  9.104, the Commission, upon request of any one 
Commissioner, shall vote by recorded vote whether to close such meeting.
    (b) Any person may petition the Commission to reconsider its action 
under Sec.  9.105(a) or paragraph (a) of this section by filing a 
petition for reconsideration with the Commission within seven days after 
the date of such action and before the meeting in question is held.
    (c) A petition for reconsideration filed pursuant to paragraph (b) 
of this section shall state specifically the grounds on which the 
Commission action is claimed to be erroneous, and shall set forth, if 
appropriate, the public interest in the closing or opening of the 
meeting. The filing of such a petition shall not act to stay the 
effectiveness of the Commission action or to postpone or delay the 
meeting in question unless the Commission orders otherwise.



Sec.  9.107  Public announcement of Commission meetings.

    (a) In the case of each meeting, the Secretary shall make public 
announcement, at least one week before the meeting, of the time, place, 
and subject matter of the meeting, whether it is to be open or closed to 
the public, and the name and phone number of the official designated by 
the Commission to respond to requests for information about the meeting. 
Such announcement shall be made unless a majority of the members of the 
Commission determines by a recorded vote that Commission business 
requires that such meeting be called at an earlier date, in which case 
the Secretary shall make public announcement of the time, place and 
subject matter of such meeting, and whether open or closed to the 
public, at the earliest practical time.
    (b) The time or place of a meeting may be changed following the 
public announcement required by paragraph

[[Page 239]]

(a) of this section only if the Secretary publicly announces such 
changes at the earliest practicable time. The subject matter of as 
meeting, or the determination of the Commission to open or close a 
meeting, or portion of a meeting, to the public, may be changed 
following the public announcement required by this subsection only if: 
(1) A majority of the entire membership of the Commission determines by 
a recorded vote that Commission business so requires and that no earlier 
announcement of the change was possible, and (2) the Secretary publicly 
announces such change and the vote of each member upon such change at 
the earliest practicable time.
    (c) Immediately following each public announcement required by this 
section, notice of the time, place, and subject matter of a meeting, 
whether the meeting is open or closed, any change in one of the 
preceding, and the name and phone number of the official designated by 
the Commission to respond to requests for information about the meeting, 
shall also be submitted for publication in the Federal Register.
    (d) The public announcement required by paragraph (a) of this 
section shall consist of the Secretary:
    (1) Publicly posting a copy of the document at the NRC Web site, 
http://www.nrc.gov and, to the extent appropriate under the 
circumstances;
    (2) Mailing a copy to all persons whose names are on a mailing list 
maintained for this purpose;
    (3) Submitting a copy for possible publication to at least two 
newspapers of general circulation in the Washington, DC metropolitan 
area;
    (4) Any other means which the Secretary believes will serve to 
further inform any persons who might be interested.
    (e) Action under the second sentence of paragraph (a) or (b) of this 
section shall be taken only when the Commission finds that the public 
interest in prompt Commission action or the need to protect the common 
defense or security or to protect the public health or safety overrides 
the public interest in having full prior notice of Commission meetings.

[42 FR 12877, Mar. 7, 1977, as amended at 53 FR 43420, Oct. 27, 1988; 64 
FR 48951, Sept. 9, 1999]



Sec.  9.108  Certification, transcripts, recordings and minutes.

    (a) For every meeting closed pursuant to paragraphs (a) (1) through 
(10) of Sec.  9.104 and for every determination pursuant to Sec.  
9.105(c), the General Counsel shall publicly certify at the time of the 
public announcement of the meeting, or if there is no public 
announcement at the earliest practical time, that, in his or her 
opinion, the meeting may be closed to the public and shall state each 
relevant exemptive provision unless the Commission votes pursuant to 
Sec.  9.105(c) that such certification is protected against disclosure 
by Sec.  9.104(a). A copy of such certification, together with a 
statement from the presiding officer of the meeting setting forth the 
time and place of the meeting, and the persons present, shall be 
retained by the Commission. The Commission shall maintain a complete 
transcript or electronic recording adequate to record fully the 
proceedings of each meeting, or portion of a meeting closed to the 
public, except that in the case of a meeting, or portion of a meeting, 
closed to the public pursuant to paragraph (c)(10) of Sec.  9.104, the 
Commission shall maintain such a transcript, or recording or a set of 
minutes. Such minutes shall fully and clearly describe all matters 
discussed and shall provide a full and accurate summary of any actions 
taken, and the reasons therefor, including a description of each of the 
views expressed on any item and the record of any rollcall vote 
(reflecting the vote of each Commissioner on the question). All 
documents considered in connection with any action shall be identified 
in such minutes.
    (b) The Commission shall make promptly available to the public at 
the NRC Web site, http://www.nrc.gov, the transcript, electronic 
recording, or minutes (as required by paragraph (a) of this section) of 
the discussion of any item on the agenda, or of any item of the 
testimony of any witness received at the meeting, except for such item 
or items of such discussion or testimony

[[Page 240]]

as the Commission determines pursuant to paragraph (c) of this section 
to contain information which may be withheld under Sec.  9.104 or Sec.  
9.105(c). Copies of such transcript, or minutes, or a transcription of 
such recording disclosing the identity of each speaker, shall be 
furnished to any person upon payment of the actual cost of duplication 
or transcription as provided in Sec.  9.14. The Secretary shall maintain 
a complete verbatim copy of the transcript, a complete copy of the 
minutes, or a complete electronic recording of each meeting, or portion 
of a meeting, closed to the public, for a period of at least two years 
after such meeting, or until one year after the conclusion of any 
Commission proceeding with respect to which the meeting or portion was 
held, whichever occurs later.
    (c) In the case of any meeting closed pursuant to Sec.  9.104, the 
Secretary of the Commission, upon the advice of the General Counsel and 
after consultation with the Commission, shall determine which, if any, 
portions of the electronic recording, transcript or minutes and which, 
if any, items of information withheld pursuant to Sec.  9.105(c) contain 
information which should be withheld pursuant to Sec.  9.104, in the 
event that a request for the recording, transcript, or minutes is 
received within the period during which the recording, transcript, or 
minutes must be retained, under paragraph (b) of this section.
    (d) If at some later time the Commission determines that there is no 
further justification for withholding any transcript, recording or other 
item of information from the public which has previously been withheld, 
then such information shall be made available.

[42 FR 12877, Mar. 7, 1977, as amended at 50 FR 20891, May 21, 1985; 64 
FR 48951, Sept. 9, 1999]



Sec.  9.109  Report to Congress.

    The Secretary shall annually report to the Congress regarding the 
Commission's compliance with the Government in the Sunshine Act, 
including a tabulation of the total number of open meetings, the total 
number of closed meetings, the reasons for closing such meetings and a 
description of any litigation brought against the Commission pursuant to 
the Government in the Sunshine Act, including any cost assessed against 
the Commission in such litigation (whether or not paid by the 
Commission).



 Subpart D_Production or Disclosure in Response to Subpoenas or Demands 
                     of Courts or Other Authorities

    Source: 50 FR 37645, Sept. 17, 1985, unless otherwise noted.



Sec.  9.200  Scope of subpart.

    (a) This subpart sets forth the procedures to be followed when a 
subpoena, order, or other demand (hereinafter referred to as a 
``demand'') for the production of NRC records or disclosure of NRC 
information, including testimony regarding such records, is issued by a 
court or other judicial or quasi-judicial authority in a proceeding, 
excluding Federal grand jury proceedings, to which the NRC is not a 
party. Information and documents subject to this subpart include:
    (1) Any material contained in the files of the NRC;
    (2) Any information relating to material contained in the files of 
the NRC.
    (b) For purposes of this subpart, the term ``employee of the NRC'' 
includes all NRC personnel as that term is defined in Sec.  9.3 of this 
part, including NRC contractors.
    (c) This subpart is intended to provide instructions regarding the 
internal operations of the NRC and is not intended, and does not, and 
may not, be relied upon to create any right or benefit, substantive or 
procedural, enforceable at law by a party against the NRC.

[50 FR 37645, Sept. 17, 1985, as amended at 52 FR 49362, Dec. 31, 1987]



Sec.  9.201  Production or disclosure prohibited unless approved by 

appropriate NRC official.

    No employee of the NRC shall, in response to a demand of a court or 
other judicial or quasi-judicial authority, produce any material 
contained in the files of the NRC or disclose, through testimony or 
other means, any information relating to material contained in the files 
of the NRC, or disclose any

[[Page 241]]

information or produce any material acquired as part of the performance 
of that employee's official duties or official status without prior 
approval of the appropriate NRC official. When the demand is for 
material contained in the files of the Office of the Inspector General 
or for information acquired by an employee of that Office, the Inspector 
General is the appropriate NRC official. In all other cases, the General 
Counsel is the appropriate NRC official.

[55 FR 33648, Aug. 17, 1990]



Sec.  9.202  Procedure in the event of a demand for production or disclosure.

    (a) Prior to or simultaneous with a demand upon an employee of the 
NRC for the production of material or the disclosure of information 
described in Sec.  9.200, the party seeking production or disclosure 
shall serve the General Counsel of the NRC with an affidavit or 
statement as described in paragraphs (b) (1) and (2) of this section. 
Except for employees in the Office of Inspector General, whenever a 
demand is made upon an employee of the NRC for the production of 
material or the disclosure of information described in Sec.  9.200, that 
employee shall immediately notify the General Counsel. If the demand is 
made upon a regional NRC employee, that employee shall immediately 
notify the Regional Counsel who, in turn, shall immediately request 
instructions from the General Counsel. If the demand is made upon an 
employee in the Office of Inspector General, that employee shall 
immediately notify the Inspector General. The Inspector General shall 
immediately provide a copy of the demand to the General Counsel, and as 
deemed necessary, consult with the General Counsel.
    (b)(1) If oral testimony is sought by the demand, a summary of the 
testimony desired must be furnished to the General Counsel by a detailed 
affidavit or, if that is not feasible, a detailed statement by the party 
seeking the testimony or the party's attorney. This requirement may be 
waived by the General Counsel in appropriate circumstances.
    (2) The General Counsel may request a plan from the party seeking 
discovery of all demands then reasonably foreseeable, including but not 
limited to, names of all NRC personnel from whom discovery is or will be 
sought, areas of inquiry, length of time away from duty involved, and 
identification of documents to be used in each deposition, where 
appropriate.
    (c) The Inspector General or the General Counsel will notify the 
employee and such other persons, as circumstances may warrant, of the 
decision on the matter.

[50 FR 37645, Sept. 17, 1985, as amended at 55 FR 33648, Aug. 17, 1990]



Sec.  9.203  Procedure where response to demand is required prior to receiving 

instructions.

    If a response to the demand is required before the instructions from 
the Inspector General or the General Counsel are received, a U.S. 
attorney or NRC attorney designated for the purpose shall appear with 
the employee of the NRC upon whom the demand has been made, and shall 
furnish the court or other authority with a copy of the regulations 
contained in this subpart and inform the court or other authority that 
the demand has been, or is being, as the case may be, referred for the 
prompt consideration of the appropriate NRC official and shall 
respectfully request the court or authority to stay the demand pending 
receipt of the requested instructions. In the event that an immediate 
demand for production or disclosure is made in circumstances which would 
preclude the proper designation or appearance of a U.S. or NRC attorney 
on the employee's behalf, the employee shall respectfully request the 
demanding authority for sufficient time to obtain advice of counsel.

[55 FR 33649, Aug. 17, 1990]



Sec.  9.204  Procedure in the event of an adverse ruling.

    If the court or other judicial or quasi-judicial authority declines 
to stay the effect of the demand in response to a request made in 
accordance with Sec.  9.203 pending receipt of instructions, or if the 
court or other authority rules that the demand must be complied with 
irrespective of instructions not to produce the material or disclose the 
information sought, the employee

[[Page 242]]

upon whom the demand has been made shall respectfully decline to comply 
with the demand, citing these regulations and United States ex rel. 
Touhy v. Ragen, 340 U.S. 462 (1951).



PART 10_CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO 

RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE--

Table of Contents




                      Subpart A_General Provisions

Sec.
10.1 Purpose.
10.2 Scope.
10.3 [Reserved]
10.4 Policy.
10.5 Definitions.

Subpart B_Criteria for Determining Eligibility for Access to Restricted 
    Data or National Security Information or an Employment Clearance

10.10 Application of the criteria.
10.11 Criteria.
10.12 Interview and other investigation.

                          Subpart C_Procedures

10.20 Purpose of the procedures.
10.21 Suspension of access authorization and/or employment clearance.
10.22 Notice to individual.
10.23 Failure of individual to request a hearing.
10.24 Procedures for hearing and review.
10.25 NRC Hearing Counsel.
10.26 Appointment of Hearing Examiner.
10.27 Prehearing proceedings.
10.28 Conduct of hearing.
10.29 Recommendation of the Hearing Examiner.
10.30 New evidence.
10.31 Actions on the recommendations.
10.32 Recommendation of the NRC Personnel Security Review Panel.
10.33 Action by the Deputy Executive Director for Information Services 
          and Administration and Chief Information Officer.
10.34 Action by the Commission.
10.35 Reconsideration of cases.

                         Subpart D_Miscellaneous

10.36 Terminations.
10.37 Attorney representation.
10.38 Certifications.

    Authority: Secs. 145, 161, 68 Stat. 942, 948, as amended (42 U.S.C. 
2165, 2201); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); E.O. 
10450, 3 CFR parts 1949--1953 COMP., p. 936, as amended; E.O. 10865, 3 
CFR 1959-1963 COMP., p. 398, as amended; 3 CFR Table 4.; E.O. 12968, 3 
CFR 1995 COMP., p.396.

    Source: 47 FR 38676, Sept. 2, 1982, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 10 appear at 70 FR 
30897, May 31, 2005.



                      Subpart A_General Provisions



Sec.  10.1  Purpose.

    (a) This part establishes the criteria, procedures, and methods for 
resolving questions concerning:
    (1) The eligibility of individuals who are employed by or applicants 
for employment with NRC contractors, agents, and licensees of the NRC, 
individuals who are NRC employees or applicants for NRC employment, and 
other persons designated by the Deputy Executive Director for 
Information Services and Administration and Chief Information Officer of 
the NRC, for access to Restricted Data pursuant to the Atomic Energy Act 
of 1954, as amended, and the Energy Reorganization Act of 1974, or for 
access to national security information; and
    (2) The eligibility of NRC employees, or the eligibility of 
applicants for employment with the NRC, for employment clearance.
    (b) This part is published to implement the Atomic Energy Act of 
1954, as amended, the Energy Reorganization Act of 1974, as amended, 
Executive Order 10865, 25 FR 1583 (February 24, 1960) Executive Order 
10450, 18 FR 2489 (April 27, 1954), and Executive Order 12968, 60 FR 
40245 (August 2, 1995).

[64 FR 15641, Apr. 1, 1999]



Sec.  10.2  Scope.

    The criteria and procedures in this part shall be used in 
determining eligibility for NRC access authorization and/or employment 
clearance involving:
    (a) Employees (including consultants) of contractors and agents of 
the Nuclear Regulatory Commission and applicants for employment;
    (b) Licensees of the NRC and their employees (including consultants) 
and applicants for employment;

[[Page 243]]

    (c) NRC employees (including consultants) and applicants for 
employment; and
    (d) Any other person designated by the Deputy Executive Director for 
Information Services and Administration and Chief Information Officer of 
the Nuclear Regulatory Commission.

[47 FR 38676, Sept. 2, 1982, as amended at 64 FR 15641, Apr. 1, 1999]



Sec.  10.3  [Reserved]



Sec.  10.4  Policy.

    It is the policy of the Nuclear Regulatory Commission to carry out 
its responsibility for the security of the nuclear energy program in a 
manner consistent with traditional American concepts of justice. To this 
end, the Commission has established criteria for determining eligibility 
for access authorization and/or employment clearance and will afford 
those individuals described in Sec.  10.2 the opportunity for 
administrative review of questions concerning their eligibility for 
access authorization and/or employment clearance.



Sec.  10.5  Definitions.

    Access authorization means an administrative determination that an 
individual (including a consultant) who is employed by or an applicant 
for employment with the NRC, NRC contractors, agents, and licensees of 
the NRC, or other person designated by the Deputy Executive Director for 
Information Services and Administration and Chief Information Officer, 
is eligible for a security clearance for access to Restricted Data or 
National Security Information.
    Commission means the Nuclear Regulatory Commission of five members 
or a quorum thereof sitting as a body, as provided by section 201 of the 
Energy Reorganization Act of 1974, or its designee.
    Eligible or Eligibility means both initial eligibility and continued 
eligibility of an individual for access authorization and/or employment 
clearance.
    Employment Clearance means an administrative determination that an 
individual (including a consultant) who is an NRC employee or applicant 
for NRC employment and other persons designated by the Deputy Executive 
Director for Information Services and Administration and Chief 
Information Officer of the NRC is eligible for employment or continued 
employment pursuant to subsection 145(b) of the Atomic Energy Act of 
1954, as amended.
    Hearing Counsel means an NRC attorney assigned by the General 
Counsel to prepare and administer hearings in accordance with this part.
    Hearing Examiner means a qualified attorney appointed by the 
Director, Office of Administration, to conduct a hearing in accordance 
with this part.
    National Security Information means information that has been 
determined pursuant to Executive Order 12958 or any predecessor order to 
require protection against unauthorized disclosure and that is so 
designated.
    NRC Personnel Security Review Panel means an appeal panel appointed 
by the Deputy Executive Director for Information Services and 
Administration and Chief Information Officer and consisting of three 
members, two of whom shall be selected from outside the security field. 
One member of the Panel shall be designated as Chairman.
    Personnel Security Review Examiners are persons designated by the 
Executive Director for Operations to conduct a review of the record in 
accordance with this part.
    Restricted Data means all data concerning design, manufacture, or 
utilization of atomic weapons, the production of special nuclear 
material, or the use of special nuclear material in the production of 
energy, but shall not include data declassified or removed from the 
Restricted Data category pursuant to section 142 of the Atomic Energy 
Act of 1954, as amended.

[47 FR 38676, Sept. 2, 1982, as amended at 51 FR 35999, Oct. 8, 1986; 52 
FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 64 FR 15641, Apr. 
1, 1999]

[[Page 244]]



Subpart B_Criteria for Determining Eligibility for Access to Restricted 
    Data or National Security Information or an Employment Clearance



Sec.  10.10  Application of the criteria.

    (a) The decision as to access authorization and/or employment 
clearance is a comprehensive, common-sense judgment, made after 
consideration of all the information, favorable or unfavorable, relevant 
to whether the granting of access authorization and/or employment 
clearance would not endanger the common defense and security and would 
be clearly consistent with the national interest.
    (b) The criteria in Sec.  10.11 set forth a number of the types of 
derogatory information used to assist in making determinations of 
eligibility for access authorization and/or employment clearance. These 
criteria are not exhaustive but contain the principal types of 
derogatory information which create a question as to the individual's 
eligibility for access authorization and/or employment clearance. While 
there must necessarily be adherence to such criteria, the NRC is not 
limited to them, nor precluded from exercising its judgment that 
information or facts in a case under its cognizance are derogatory 
although at variance with, or outside the scope of, the stated 
categories. These criteria are subject to continuing review and may be 
revised from time to time as experience and circumstances may make 
desirable.
    (c) When the reports of investigation of an individual contain 
information reasonably tending to establish the truth of one or more of 
the items in the criteria, such information shall be regarded as 
derogatory and shall create a question as to the individual's 
eligibility for access authorization and/or employment clearance. A 
question concerning the eligibility of an individual for access 
authorization and/or employment clearance shall be resolved in 
accordance with the procedures set forth in Sec.  10.20 et seq.
    (d) In resolving a question concerning the eligibility or continued 
eligibility of an individual for access authorization and/or employment 
clearance, the following principles shall be applied by the Director, 
Division of Facilities and Security, Hearing Examiners, and the NRC 
Personnel Security Review Panel:
    (1) Information reasonably tending to establish the truth of one or 
more of the items in the criteria shall be the basis for recommending 
denial or revocation of access authorization and/or employment clearance 
unless evidence to support faith in the individual's reliability and 
trust-worthiness is affirmatively shown.
    (2) When deemed material to the deliberations, the extent of the 
activity, conduct, or condition, the period in which they occurred or 
existed, the length of time which has since elapsed, and the attitude 
and convictions of the individual shall be considered in determining 
whether the recommendation will be adverse or favorable.

[47 FR 38676, Sept. 2, 1982, as amended at 64 FR 15641, Apr. 1, 1999]



Sec.  10.11  Criteria.

    (a) The criteria for determining eligibility for access 
authorization and/or employment clearance shall relate, but not be 
limited, to the following where an individual:
    (1) Committed, attempted to commit, aided, or abetted another who 
committed or attempted to commit any act of sabotage, espionage, 
treason, sedition, or terrorism.
    (2) Publicly or privately advocated actions that may be inimical to 
the interest of the United States, or publicly or privately advocated 
the use of force or violence to overthrow the Government of the United 
States or the alteration of the form of government of the United States 
by unconstitutional means.
    (3) Knowingly established or continued a sympathetic association 
with a saboteur, spy, traitor, seditionist, anarchist, terrorist, or 
revolutionist, or with an espionage agent or other secret agent or 
representative of a foreign nation whose interests may be inimical to 
the interests of the United States, or with any person who advocates the 
use of force or violence to overthrow the Government of the United 
States or the alteration of the form of government of the United States 
by unconstitutional means.

[[Page 245]]

    (4) Joined or engaged in any activity knowingly in sympathy with or 
in support of any foreign or domestic organization, association, 
movement, group, or combination of persons which unlawfully advocates or 
practices the commission of acts of force or violence to prevent others 
from exercising their rights under the Constitution or laws of the 
United States or any State or any subdivisions thereof by unlawful 
means, or which advocate the use of force and violence to overthrow the 
Government of the United States or the alteration of the form of 
government of the United States by unconstitutional means. (Ordinarily, 
criteria (3) and (4) will not include chance or casual meetings or 
contacts limited to normal business or official relations.)
    (5) Deliberately misrepresented, falsified or omitted relevant and 
material facts from or in a personnel security questionnaire, a personal 
qualifications statement, a personnel security interview, or any other 
information submitted pursuant this part.
    (6) Willfully violated or disregarded security regulations or was 
grossly negligent with respect thereto to a degree which could endanger 
the common defense and security; or by intention or gross carelessness 
disclosed Restricted Data or national security information to any person 
not authorized to receive it.
    (7) Has any illness or mental condition which in the opinion of 
competent medical authority may cause significant defect in the judgment 
or reliability of the individual.
    (8) Has been convicted of crimes indicating habitual criminal 
tendencies.
    (9) Has been convicted of a crime, or has a background, where the 
facts, circumstances, or conduct are of a nature indicating poor 
judgment, unreliabilty, or untrustworthiness.
    (10) Is a user of alcohol habitually and to excess, or has been such 
without adequate evidence of rehabilitation.
    (11) Has been, or is, a user of a drug or other substance listed in 
the schedules of Controlled Substances established pursuant to the 
Controlled Substances Act of 1970 (such as amphetamines, barbiturates, 
narcotics, etc.), except as prescribed or administered by a physician 
licensed to dispense drugs in the practice of medicine, without adequate 
evidence of rehabilitation.
    (12) Refused, without satisfactory explanation, to answer questions 
before a congressional committee, Federal or state court, or Federal 
administrative body including the NRC regarding charges relevant to the 
individual's eligibility for access authorization and/or employment 
clearance.
    (13) Engaged in any other conduct or is subject to any other 
circumstances which tend to show that the individual is not reliable or 
trustworthy, or which furnishes reason to believe that the individual 
may be subject to coercion, influence, or pressures which may cause the 
individual to act contrary to the national interest.



Sec.  10.12  Interview and other investigation.

    (a) The Director, Division of Facilities and Security, Office of 
Administration, may authorize the granting of access authorization and/
or employment clearance on the basis of the information in the 
possession of the NRC or may authorize an interview with the individual, 
if the individual consents to be interviewed, or other investigation as 
the Director deems appropriate. On the basis of this interview and/or an 
investigation, the Director may authorize the granting of access 
authorization and/or employment clearance.
    (b) The individual may elect on constitutional or other grounds not 
to participate in an interview or other investigation; however, such 
refusal or failure to furnish or authorize the furnishing of relevant 
and material information is deemed to be derogatory information pursuant 
to Sec.  10.11(a) (5) and (12).
    (c) If the Director, Division of Facilities and Security, cannot 
make a favorable finding regarding the eligibility of an individual for 
access authorization and/or employment clearance, the question of the 
individual's eligibility must be resolved in accordance with the 
procedures set forth in Sec.  10.20 et seq.

[47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31609, Aug. 21, 1987; 
54 FR 53316, Dec. 28, 1989; 64 FR 15642, Apr. 1, 1999]

[[Page 246]]



                          Subpart C_Procedures



Sec.  10.20  Purpose of the procedures.

    These procedures establish methods for the conduct of hearings and 
administrative review of questions concerning an individual's 
eligibility for an access authorization and/or an employment clearance 
pursuant to the Atomic Energy Act of 1954, as amended, and Executive 
Orders 10450, 10865, and 12968 when a resolution favorable to the 
individual cannot be made on the basis of the interview or other 
investigation.

[64 FR 15642, Apr. 1, 1999]



Sec.  10.21  Suspension of access authorization and/or employment clearance.

    In those cases where information is received which raises a question 
concerning the continued eligibility of an individual for an access 
authorization and/or an employment clearance, the Director, Division of 
Facilities and Security, through the Director, Office of Administration, 
shall forward to the Deputy Executive Director for Information Services 
and Administration and Chief Information Officer or other Deputy 
Executive Director, his or her recommendation as to whether the 
individual's access authorization and/or employment clearance should be 
suspended pending the final determination resulting from the operation 
of the procedures provided in this part. In making this recommendation 
the Director, Division of Facilities and Security, shall consider 
factors such as the seriousness of the derogatory information developed, 
the degree of access of the individual to classified information, and 
the individual's opportunity by reason of his or her position to commit 
acts adversely affecting the national security. An individual's access 
authorization and/or employment clearance may not be suspended except by 
the direction of the Executive Director for Operations, Deputy Executive 
Director for Information Services and Administration and Chief 
Information Officer or other Deputy Executive Director.

[64 FR 15642, Apr. 1, 1999]



Sec.  10.22  Notice to individual.

    A notification letter, prepared by the Division of Facilities and 
Security, approved by the Office of the General Counsel, and signed by 
the Director, Office of Administration, must be presented to each 
individual whose eligibility for an access authorization and/or an 
employment clearance is in question. Where practicable, the letter will 
be presented to the individual in person. The letter will be accompanied 
by a copy of this part and must state:
    (a) That reliable information in the possession of the NRC has 
created a substantial doubt concerning the individual's eligibility for 
an access authorization and/or an employment clearance;
    (b) The information that creates a substantial doubt regarding the 
individual's eligibility for an access authorization and/or an 
employment clearance, that must be as comprehensive and detailed as the 
national security interests and other applicable law permit;
    (c) That the individual has the right to be represented by counsel 
or other representative at their own expense;
    (d) That the individual may request within 20 days of the date of 
the notification letter, any documents, records and reports which form 
the basis for the question of their eligibility for an access 
authorization and/or an employment clearance. The individual will be 
provided within 30 days all such documents, records and reports to the 
extent they are unclassified and do not reveal a confidential source. 
The individual may also request the entire investigative file, which 
will be promptly provided, as permitted by the national security 
interests and other applicable law;
    (e) That unless the individual files with the Director, Office of 
Administration, a written request for a hearing within 20 days of the 
individual's receipt of the notification letter or 20 days after receipt 
of the information provided in response to a request made under 
paragraph (d) of this section, whichever is later, the Director, 
Division of Facilities and Security, through the Director, Office of 
Administration, will submit a recommendation as to

[[Page 247]]

the final action to the Deputy Executive Director for Information 
Services and Administration and Chief Information Officer on the basis 
of the information in the possession of the NRC;
    (f) That if the individual files a written request for a hearing 
with the Director, Office of Administration, the individual shall file 
with that request a written answer under oath or affirmation that admits 
or denies specifically each allegation and each supporting fact 
contained in the notification letter. A general denial is not sufficient 
to controvert a specific allegation. If the individual is without 
knowledge, he or she shall so state and that statement will operate as a 
denial. The answer must also state any additional facts and information 
that the individual desires to have considered in explanation or 
mitigation of allegations in the notification letter. Failure to 
specifically deny or explain or deny knowledge of any allegation or 
supporting fact will be deemed an admission that the allegation or fact 
is true.
    (g) That if the individual does not want to exercise his or her 
right to a hearing, but does want to submit an answer to the allegations 
in the notification letter, the individual may do so by filing with the 
Director, Office of Administration, within 20 days of receipt of the 
notification letter or 20 days after receipt of the information provided 
in response to a request made under paragraph (d) of this section, 
whichever is later, a written answer in accordance with the requirements 
of paragraph (f) of this section;
    (h) That the procedures in Sec.  10.24 et seq. will apply to any 
hearing and review.

[64 FR 15642, Apr. 1, 1999]



Sec.  10.23  Failure of individual to request a hearing.

    (a) In the event the individual fails to file a timely written 
request for a hearing pursuant to Sec.  10.22, a recommendation as to 
the final action to be taken will be made by the Director, Division of 
Facilities and Security, through the Director, Office of Administration, 
to the Deputy Executive Director for Information Services and 
Administration and Chief Information Officer on the basis of the 
information in the possession of the NRC, including any answer filed by 
the individual.
    (b) The Director, Office of Administration, may for good cause 
shown, at the request of the individual, extend the time for filing a 
written request for a hearing or for filing a written answer to the 
matters contained in the notification letter.

[47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31609, Aug. 21, 1987; 
54 FR 53316, Dec. 28, 1989; 64 FR 15642, Apr. 1, 1999]



Sec.  10.24  Procedures for hearing and review.

    (a) Upon receipt of a timely filed request for a hearing and answer 
complying with the requirements set forth in Sec.  10.22, the Director, 
Office of Administration, shall forthwith appoint a Hearing Examiner, 
and the General Counsel shall forthwith assign an NRC attorney to act as 
Hearing Counsel. The Director, Office of Administration, shall promptly 
notify the individual of the identity of the Hearing Examiner and 
proposed hearing date, which shall be selected with due regard for the 
convenience of the parties and their representatives.
    (b) Within 72 hours of being notified of the identity of the Hearing 
Examiner, the individual may request that the Hearing Examiner be 
disqualified for cause by filing with the Director, Office of 
Administration, a written statement of the individual's reasons for 
seeking disqualification. The time for filing the request may be 
extended by the Director, Office of Administration, for good cause 
shown. If the Director, Office of Administration, grants the request the 
procedures of paragraph (a) of this section and this paragraph shall be 
followed just as though there had been no prior appointment.
    (c) The individual shall have the right to appear at the hearing 
before the Hearing Examiner, to be represented by counsel or other 
representative, to introduce documentary or other evidence, and to call, 
examine, and cross-examine witnesses, subject to the provisions and 
limitations set forth in this part.

[47 FR 38676, Sept. 2, 1982, as amended at 51 FR 35999, Oct. 8, 1986; 52 
FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989]

[[Page 248]]



Sec.  10.25  NRC Hearing Counsel.

    (a) Hearing Counsel assigned pursuant to Sec.  10.24 will, before 
the scheduling of the hearing, review the information in the case and 
will request the presence of witnesses and the production of documents 
and other physical evidence relied upon by the Director, Division of 
Facilities and Security, in making a finding that a question exists