[Federal Register Volume 77, Number 150 (Friday, August 3, 2012)]
[Rules and Regulations]
[Pages 46561-46600]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18278]



[[Page 46561]]

Vol. 77

Friday,

No. 150

August 3, 2012

Part II





Nuclear Regulatory Commission





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10 CFR Parts 2, 12, 51 et al.





Amendments to Adjudicatory Process Rules and Related Requirements; 
Final Rule

Federal Register / Vol. 77 , No. 150 / Friday, August 3, 2012 / Rules 
and Regulations

[[Page 46562]]


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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2, 12, 51, 54, and 61

[NRC-2008-0415]
RIN 3150-AI43


Amendments to Adjudicatory Process Rules and Related Requirements

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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

DATES: The effective date is September 4, 2012.

ADDRESSES: Please refer to Docket ID NRC-2008-0415 when contacting the 
NRC about the availability of information for this final rule. You may 
access information and comment submittals related to this final rule, 
which the NRC possesses and are publicly available, by any of the 
following methods:
     Federal Rulemaking Web Site: Go to http://www.regulations.gov and search for Docket ID NRC-2008-0415.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may access publicly available documents online in the NRC 
Library at http://www.nrc.gov/reading-rm/adams.html. To begin the 
search, select ``ADAMS Public Documents'' and then select ``Begin Web-
based ADAMS Search.'' For problems with ADAMS, please contact the NRC's 
Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-
4737, or by email to pdr.resource@nrc.gov. The ADAMS accession number 
for each document referenced in this document (if that document is 
available in ADAMS) is provided the first time that a document is 
referenced.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Tison Campbell, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone: 301-415-8579, email: tison.campbell@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Background
II. Effectiveness of the Final Rule
III. Responses to Public Comments
    A. Responses to Specific Requests for Comments
    B. Responses to Remaining Comments
IV. Discussion of Changes and Corrections of Errors
    A. Part 2--Title
    B. Subpart C--Sections 2.300 through 2.390
    C. Subpart G--Sections 2.700 through 2.713
    D. Subpart L--Sections 2.1200 through 2.1213
    E. Subpart M--Sections 2.1300 through 2.1331
    F. Subpart N--Sections 2.1400 through 2.1407
    G. Other Changes
V. Section-by-Section Analysis
    A. Introductory Provisions--Sections 2.1 through 2.8
    B. Subpart A--Sections 2.100 through 2.111
    C. Subpart C--Sections 2.300 through 2.390
    D. Subpart G--Sections 2.700 through 2.713
    E. Subpart H--Sections 2.800 through 2.819
    F. Subpart L--Sections 2.1200 through 2.1213
    G. Subpart M--Sections 2.1300 through 2.1331
    H. Subpart N--Sections 2.1400 through 2.1407
    I. Parts 12, 51, 54, and 61
VI. Plain Writing
VII. Voluntary Consensus Standards
VIII. Environmental Impact: Categorical Exclusion
IX. Paperwork Reduction Act Statement
X. Regulatory Analysis
XI. Regulatory Flexibility Act Certification
XII. Backfit Analysis
XIII. Congressional Review Act

I. Background

    In a final rulemaking published in the Federal Register on January 
14, 2004, 69 FR 2181 (2004 part 2 revisions), the NRC substantially 
modified its rules of practice governing agency adjudications--Title 10 
of the Code of Federal Regulations (10 CFR) Part 2. In the years that 
followed, the NRC concluded that further changes to its rules of 
practice and procedure were warranted.
    On February 28, 2011, the NRC proposed amendments to its rules of 
practice and procedure in 10 CFR Part 2. (76 FR 10781). After 
evaluating public comments on the proposed rule and making some 
modifications, the NRC is promulgating a final rule. These changes will 
promote fairness, efficiency, and openness in NRC adjudicatory 
proceedings. The final rule corrects errors and omissions that have 
been identified since the 2004 major revisions to the NRC's rules of 
practice.

II. Effectiveness of the Final Rule

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

III. Responses to Public Comments

    The public comment period for the proposed rule closed on May 16, 
2011. In response to the proposed rule, the NRC received three comment 
letters--one from an organization representing industry (Agencywide 
Documents Access and Management System (ADAMS) Accession No. 
ML11137A119), one from a public interest group that has participated in 
NRC proceedings (ADAMS Accession No. ML11137A118), and one from an 
individual with experience participating in NRC proceedings (ADAMS 
Accession No. ML11119A231). None of the commenters supported the rule 
exactly as proposed. One commenter suggested changes to the proposed 
rule, responded to the NRC's questions for public comments, commented 
on the NRC's proposed changes to part 2, and provided one comment that 
is outside the scope of this rulemaking. Another

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commenter suggested changes to the proposed rule, responded to some of 
the NRC's questions for public comment, commented on the NRC's proposed 
changes to part 2,and provided additional comments that are outside the 
scope of this rulemaking. The final commenter provided one comment that 
is outside the scope of this rulemaking. Copies of the comment letters 
with the NRC's comment identifiers (which are listed after each comment 
summary in this Federal Register notice) can be found in ADAMS at 
Accession No. ML12005A227.

A. Responses to Specific Requests for Comments

    In Section VI of the Supplementary Information section of the 
proposed rule, the NRC presented two issues for which it solicited 
stakeholder comments. The following paragraphs restate these issues, 
summarize the comments received from stakeholders, and present the 
NRC's resolution of the public comments.
1. Scope of Mandatory Disclosures
    Section 2.336 contains the general procedures governing disclosure 
of information before a hearing in contested NRC adjudicatory 
proceedings. Under current Sec.  2.336(b)(3), the NRC staff must 
disclose all documents supporting the staff's review of the application 
or proposed action that is the subject of the proceeding without regard 
to whether the documents are relevant to the parties' admitted 
contentions. In the proposed rule, the NRC solicited public comment on 
whether it should revise Sec.  2.336(b)(3) to limit the staff's 
mandatory disclosure obligations to documents that are relevant to the 
admitted contentions.
    After reviewing the public comments and considering the proposal to 
make changes to the scope of the staff's disclosure obligations, the 
NRC has decided to adopt a revised Sec.  2.336 that will limit the 
scope of the staff's mandatory disclosures to documents relevant to the 
admitted contentions. The NRC believes that this change will reduce the 
burden on both the NRC staff and other parties to NRC proceedings. This 
change will allow participants to focus on the issues in dispute 
instead of being forced to sort through thousands of pages of documents 
that are not relevant to the matters being adjudicated. The NRC staff 
will continue to provide documents to the public through public ADAMS, 
and nothing in this rulemaking affects the scope of the staff's ongoing 
record-retention and disclosure obligations outside the adjudicatory 
process. This change affects only the scope of the documents that must 
be included in the staff's mandatory disclosures in NRC proceedings.
    The NRC also requested comments on whether it should add a new 
requirement to the end of Sec.  2.336(d) to clarify that the duty of 
mandatory disclosure with respect to new information or documents 
relevant to an admitted contention ends when the presiding officer 
issues a decision resolving the contention or at a time specified by 
the presiding officer or the Commission. None of the commenters 
objected to this proposal. The NRC is adopting this change.
    (a) Would applying NRC staff disclosures under Sec.  2.336(b)(3) to 
documents related only to the admitted contentions aid parties other 
than the NRC staff by reducing the scope of documents that they receive 
and review through the mandatory disclosures?
    Comment: The commenter supports narrowing the staff's disclosure 
obligations and agrees that the staff's ``voluminous'' disclosures 
burden the other parties. The commenter believes that the NRC's 
proposal would ``aid parties other than the NRC Staff by reducing the 
scope of documents'' that must be reviewed. (NEI-Q1a)
    NRC Response: As previously discussed, the NRC has considered this 
issue and has decided to narrow the NRC staff's disclosure obligations. 
The NRC believes that limiting the staff's mandatory disclosures to 
only documents relevant to the admitted contentions will reduce the 
burden on both the NRC staff and the other parties to the proceeding. 
The NRC staff will have to produce fewer documents and the other 
parties will have to review fewer documents. Further, the documents 
provided to the parties by the NRC staff will be relevant to the 
admitted contentions, which will allow parties to focus on the disputed 
issues in the proceeding without having to review documents with no 
relevance to the admitted contentions.
    This change does not affect the NRC staff's continued obligation to 
provide documents to the public through public ADAMS, the NRC's 
official agency records system, outside the adjudicatory process. 
Additional information about using public ADAMS to find documents 
related to a specific licensing action or licensee is discussed in the 
NRC's response to the comments on Question 1(b).
    Comment: The NRC staff is not meeting its current disclosure 
obligations. Further, no documents are actually ``produced.'' Instead, 
the staff provides a list of ADAMS accession numbers that are supposed 
to (but sometimes don't) link to the documents. Staff could more 
effectively reduce the burdens of disclosure by implementing a more 
effective process and by more efficiently using computers and 
electronic documents. Staff should also better integrate public 
disclosure of all non-confidential and non-privileged documents into 
its routine work.
    If the scope of disclosures is reduced and if the staff continues 
its ``crabbed interpretation'' of its disclosure obligations, then 
public participants will have no choice but to file weekly Freedom of 
Information Act (FOIA) requests for all NRC staff documents. (Roisman-
Q1a)
    NRC Response: As previously discussed, the NRC has decided to adopt 
the proposal regarding the scope of the staff's disclosure obligations. 
Nothing in this proposal reduces the scope of the staff's obligations 
to disclose documents through public ADAMS outside the adjudicatory 
process. The NRC recently updated public ADAMS to make it easier for 
interested stakeholders to find NRC documents.
    Disclosure of documents through public ADAMS is not a new practice, 
and if parties believe that incorrect ADAMS references have been 
provided, they should contact the NRC staff to obtain a correct ADAMS 
reference or a copy of the document (if the ADAMS reference cannot be 
provided).
    (b) Is the broad disclosure obligation imposed on the NRC staff by 
current Sec.  2.336(b) warranted in light of (a) the other parties' 
more limited disclosure obligations and (b) the parties' ability to 
find these same documents in an ADAMS search?
    Comment: The commenter believes that the staff's broad disclosure 
obligations do not appear to be warranted because of the other parties' 
more limited obligations and the availability of documents through 
ADAMS. (NEI-Q1b)
    NRC Response: As discussed in the responses to the comments on 
Question 1(a), the NRC agrees with the commenter and has adopted the 
revised disclosure obligations in the final rule.
    Comment: The premise of this question is incorrect; the staff does 
not satisfy its disclosure obligations under Sec.  2.336(b). Further, 
ADAMS is neither comprehensive nor reliable; finding documents is 
laborious, and the search features in ADAMS are still inadequate. 
Members of the public are required to review hundreds of irrelevant 
documents to find what they're seeking. And the disclosure of documents

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through ADAMS is inconsistent: Documents suddenly appear in the system 
months or years after they were created. These problems make it 
``impossible to rely on ADAMS as a source of all relevant documents on 
any subject.'' Nor can parties rely upon the Electronic Hearing Docket, 
which is often incomplete. The NRC has not established procedures for 
when documents will be added to the Docket and which documents will be 
posted. Similarly, the staff's Hearing File is incomplete and limited 
to ADAMS accession numbers without any description of the documents 
that are being disclosed. The NRC's disclosures are in disarray and are 
neither comprehensive nor reliable, and, therefore, ``cannot be a 
substitute for full disclosure of documents in individual licensing 
proceedings by Staff.'' (Roisman-Q1b)
    NRC Response: Adopting this proposal will reduce the number of 
irrelevant documents that members of the public need to review to find 
what they're seeking. Public ADAMS is a search tool separate from the 
Electronic Hearing Docket. Public ADAMS contains the NRC's non-
sensitive official agency records. In contrast, the Electronic Hearing 
Docket contains only the non-sensitive adjudicatory filings, as well as 
the staff's non-privileged disclosures related to ongoing adjudicatory 
proceedings (i.e., under this final rule, those documents that are 
relevant to the admitted contentions or disputed issues in ongoing 
adjudicatory proceedings). All of the documents in the Electronic 
Hearing Docket are also in public ADAMS. Therefore, if a member of the 
public wants to search for a document that has been disclosed in an 
ongoing adjudicatory proceeding (i.e., a document that is relevant to 
an admitted contention or disputed issue in an ongoing adjudicatory 
proceeding), then that person can search for this document on the 
Electronic Hearing Docket or in public ADAMS. If a member of the public 
wants to find a document that might not have been included in the 
staff's disclosures in an ongoing adjudicatory proceeding, then that 
person should search in public ADAMS.
    Further, the NRC has recently updated public ADAMS and the 
Electronic Hearing Docket, which should make it easier for members of 
the public to find documents. The new public ADAMS is incorporated into 
the NRC's public Web site search, which allows the public to search for 
ADAMS documents from the NRC's homepage using simple Google-like 
searches. The new public ADAMS (available at http://wba.nrc.gov:8080/wba/) also allows the public to browse documents by release date and to 
perform simple and advanced searches. The advanced search engine in 
public ADAMS allows the public to search by docket or license number, 
which provides an easy way to limit queries to documents related to a 
specific facility or proceeding. The Electronic Hearing Docket's new 
interface allows the public to search all ongoing adjudicatory 
proceedings for adjudicatory documents, including the staff's public 
disclosures in these proceedings.
    (c) Would a shorter, more relevant privilege log aid parties to the 
proceeding?
    Comment: The commenter has no objection to the use of a shorter, 
more relevant privilege log. (NEI-Q1c)
    NRC Response: As discussed in the responses to Questions 1(a) and 
(b), the NRC agrees with the commenter and has adopted the revised 
disclosure obligations in the final rule. The reduced scope of NRC 
staff disclosures will result in shorter, more relevant privilege logs.
    Comment: This question is unclear. If the NRC is asking whether 
staff should withhold fewer documents, then the answer is yes. But if 
the NRC is asking whether the staff should withhold the same number of 
documents but include fewer of them on the privilege log, then the 
answer is no. And if the NRC is asking whether the staff should be 
given more discretion to decide what is relevant, then the answer is 
no, unless the staff can demonstrate that it is ``actually committed to 
full disclosure of all relevant documents.'' The NRC should provide 
improved privilege logs with more detailed descriptions of the 
documents being withheld. Further, the privilege logs in the Indian 
Point proceeding have not included the recipients of the privileged 
documents, which makes it difficult to determine if the privilege is 
valid (the initial disclosures did contain this information, but it has 
not been provided since).
    The NRC should consult with experts in discovery, such as law 
professors or the Sedona Conference, to develop a more efficient and 
effective process for disclosing documents. (Roisman-Q1c)
    NRC Response: The NRC disagrees with this comment. All non-
sensitive official NRC records pertinent to the application will remain 
available via public ADAMS. Shorter privilege logs are a natural result 
of limiting the scope of documents subject to disclosure under the 
mandatory disclosure provisions to those relevant to the admitted 
contentions. The final rule will not change anything about the content 
or scope of privilege logs; the ratio of documents disclosed to 
privileged documents should not change, and the total number of 
documents should be reduced.
    This rulemaking is not the proper forum to raise problems with the 
staff's disclosures in a specific proceeding. If a party has concerns 
about staff disclosures in a specific proceeding, those concerns should 
be raised with the presiding officer for that proceeding.
    (d) Would potential parties prefer to maintain the status quo?
    Comment: No. There are substantial problems with part 2. ``It needs 
to be changed in major ways.'' (Roisman-Q1d)
    NRC Response: This comment is outside the scope of this rulemaking. 
The purpose of this rulemaking is to correct errors and omissions in 
the NRC rules and to make changes that will promote fairness, 
efficiency, and openness in NRC proceedings. A wholesale change to part 
2 is not the intent of this rulemaking effort. The NRC may consider 
making other changes to part 2 in a future rulemaking.
    (e) Would limiting the mandatory disclosures of documents as 
described in Federal Rule of Civil Procedure 26(a)(1)(A)(ii) be the 
preferred option?
    Comment: The commenter believes that limiting the scope of the NRC 
staff's disclosure obligations to be consistent with the Federal Rules 
of Civil Procedure ``is the preferred alternative.'' Further, the 
commenter suggests that if the NRC makes this change, it should be 
applied to all parties to NRC proceedings. (NEI-Q1e)
    NRC Response: The NRC considered modifying its disclosure 
obligations for all proceedings to mirror the Federal Rules of Civil 
Procedure. But after considering this option, the NRC has decided not 
to adopt Federal-Rules-style discovery at this time. The scope of the 
change that would be required to adopt Federal-Rules-style discovery is 
too broad for a limited rulemaking like this one. The NRC may, however, 
consider adopting Federal-Rules-style discovery as part of a future 
comprehensive revision to part 2.
    Comment: No. The NRC should focus on implementing and enforcing the 
current obligations. An even better option would be a wholesale 
revision to the entire part 2 process to provide for increased public 
participation from the beginning of the process. This increased 
participation would solve much of the ``disclosure problem'' because 
public participants would be actively involved in the process from the 
beginning and documents would be routinely available to the public. 
Under this proposal, the

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disclosure obligations that track the Federal Rules would already have 
been satisfied by the time a hearing notice is issued. (Roisman-Q1e)
    NRC Response: As discussed in the previous comment responses, the 
NRC has decided to limit the scope of NRC staff disclosures to 
documents relevant to the admitted contentions. The primary purpose of 
this limited-scope rulemaking is to correct specified errors and 
omissions in the NRC rules based on the agency's experience in 
operating under the 2004 part 2 revisions. This rulemaking is not 
intended to be a wholesale revision to the NRC's adjudicatory rules of 
practice. The changes proposed in this comment go well beyond the 
intended scope of this rulemaking and would be more appropriate for a 
future major revision to part 2.
2. Alternative Approaches on Interlocutory Appeals
    The NRC requested public comments regarding possible amendments to 
Sec.  2.311. Section 2.311 provides requirements for the interlocutory 
review of rulings by a presiding officer granting or denying a hearing 
request or intervention petition, including requests or petitions filed 
after the deadline in Sec.  2.309(b). Current Sec.  2.311(c) allows the 
requestor or petitioner to appeal an order wholly denying an 
intervention petition or hearing request. Therefore, if the presiding 
officer grants the intervention petition and denies the admissibility 
of one or more proposed contentions, the petitioner may not appeal the 
denial of any proposed contentions until the presiding officer issues a 
final initial decision at the end of the proceeding. Conversely, any 
party other than the petitioner may immediately appeal the order on the 
grounds that the requestor or petitioner lacks standing or that all of 
the petitioner's proposed contentions were inadmissible. Although this 
basic scheme for interlocutory review of intervention petitions and 
hearing requests has been in place since 1972 (see 37 FR 28710; 
December 29, 1972), there have been some suggestions that a change to 
the current practice might be warranted either to provide earlier 
appellate review of contention admissibility or to discourage frivolous 
appeals. The NRC proposed two options for public comment: Option 1 
would have amended Sec.  2.311(c) and (d) to allow any party to appeal 
an order granting a hearing request or intervention petition, in whole 
or in part, within 25 days of the issuance of the order; and Option 2 
would have deleted Sec.  2.311(d)(1) to remove the right of parties 
other than the petitioner to appeal orders granting an intervention 
petition. The NRC requested comment on these options, possible rule 
language that would implement each option, and the resource 
implications of both options for all participants and for the 
Commission.
    After reviewing the two options and the one public comment received 
on this proposal, the NRC has decided not to modify its standards for 
interlocutory appeals. The one public comment received on this issue 
(from an industry group) did not support changing the appeals process. 
The lack of public comments on this issue suggests that there is not a 
clamor for a change in the standards for interlocutory appeals. Thus, 
while an argument can be made in support of a change, the NRC finds no 
compelling justification to change the current process.
    Comment: The commenter does not believe that any changes to the 
NRC's interlocutory review provisions are necessary. But if the NRC 
does change these provisions, the commenter would support Option 1. The 
commenter believes that the benefits of Option 1 might not outweigh the 
potential delays that could be caused by the increased workload for the 
Commission.
    Further, the commenter does not support Option 2 because Commission 
review of initial decisions on petitions to intervene is important to 
ensure timely and efficient hearings. The commenter believes that this 
option would result in a significant expansion of the number and type 
of contentions litigated before licensing boards. These additional 
contentions would be contrary to the NRC's goal of increasing the 
efficiency of the hearing process. This option would also remove the 
``harmonizing'' effect of Commission review, which corrects for the 
differences between licensing boards. (NEI-Q2)
    NRC Response: As previously discussed, the NRC agrees with the 
commenter and has decided not to change its interlocutory appeals 
standards.

B. Responses to Remaining Comments

Section 2.305--Service of Documents; Methods; Proof
    Comment: The commenter disagrees with the NRC's proposal to clarify 
that it is inadequate to include a certificate of service stating only 
that the document is being served through the NRC's E-Filing system; 
instead, the commenter believes that parties can include a certificate 
of service stating nothing more than that the document has been served 
through the E-Filing system. The submitting party cannot know whether 
the other parties' email addresses are correct or if the system has 
functioned properly. Therefore, the submitting party cannot state with 
confidence anything more than that the party uploaded the document to 
the E-Filing system. The NRC should, therefore, not require parties to 
attest to having performed service on the other parties when they have 
no control over whether the system is working correctly or contains the 
parties' up-to-date contact information. (NEI-1)
    NRC Response: The NRC has considered this issue and has decided to 
adopt a modified version of the commenter's proposal. After the 
effective date of this rule, parties will no longer be required to 
include names and contact information in certificates of service for 
documents served through only the NRC E-Filing system. If a document is 
served on participants through only the E-Filing system, then the 
certificate of service need only state that the document has been 
served through the E-Filing system. If the document is served on 
participants by only a method other than the E-Filing system, then the 
document must be accompanied by a certificate of service that includes 
the name, address, and method and date of service for the participants 
served. And if the document is served on some participants through the 
E-Filing system and other participants by another method of service, 
then the certificate of service must include a list of participants 
served through the E-filing system, and it must state the name, 
address, and method and date of service for all participants served by 
the other method of service. Further, the NRC notes that it retains a 
record of all of the parties and participants who receive a filing 
submitted through the E-Filing system.
Section 2.309--Hearing Requests, Petitions to Intervene, Requirements 
for Standing, and Contentions
    Comment: The commenter believes that the NRC should not eliminate 
the eight late-filed factors, especially not for late-filed hearing 
requests or intervention petitions. The commenter is concerned that 
simplifying the late-filed criteria could result in additional 
litigation of late-filed contentions, which could broaden the scope of 
a proceeding at a late date with no benefit to the development of a 
sound record. The simplified late-filed criteria could also result in 
the admission of additional contentions that duplicate the concerns of 
already-admitted

[[Page 46566]]

parties. The removal of the other late-filed criteria increases the 
likelihood that new requests or petitions would be granted late in the 
process. The current approach does not preclude the filing of new 
contentions, petitions, or requests, and would continue to allow the 
admission of legitimate late-filed contentions, requests, and 
petitions. (NEI-2)
    NRC Response: The NRC disagrees with the commenter. The commenter 
believes that the simplification of the standards for filings after the 
deadline to focus solely on good cause would depart from longstanding 
Commission practice and could lead to additional hearing requests, 
intervention petitions, and contentions being granted or admitted. In 
the final rule, a filing after the deadline may be granted only if the 
participant demonstrates good cause by satisfying the current three 
Sec.  2.309(f)(2) factors. As the NRC explained in the proposed rule, 
whether filings after the deadline are deemed to have met the current 
Sec.  2.309(c)(1) requirements has usually depended on the existence of 
good cause, not the other factors. The commenter has not supported its 
assertion that this revision could result in additional hearing 
requests, intervention petitions, and contentions being granted or 
admitted; the commenter does not identify any cases where a petitioner 
demonstrated good cause but its filing was denied based on the other 
factors. The NRC is adopting this change because it will allow 
participants in NRC proceedings to focus on the most relevant question 
with regard to whether a filing after the deadline will be granted--
whether the filing has demonstrated good cause by meeting the three 
factors from current Sec.  2.309(f)(2).
    Comment: The commenter believes that the proposed three-step 
``good-cause'' test could lead to the admission of many contentions 
that would be inadmissible under the current eight-factor late-filed 
test. At the very least, the NRC should clarify that where the agency 
uses old information in a new document (e.g., an NRC National 
Environmental Policy Act (NEPA) document that cites information from an 
applicant's environmental report), the ``old information'' in a new 
document cannot be used to satisfy the good-cause criteria. (NEI-3)
    NRC Response: The first part of this comment--whether many 
contentions inadmissible under the current rules would be admitted 
under the revised standards for filings after the deadline--is 
addressed in the previous comment response. As for the second part of 
this comment, the commenter is correct that in most cases where the NRC 
compiles or uses previously available information in a new document, 
the previously available information cannot be used as the basis for a 
new or amended contention filed after the deadline. This idea is 
captured in current Sec.  2.309(f)(2)(i), which this rulemaking moves 
to final Sec.  2.309(c)(1)(i).
    The Commission recently reinforced this point in Northern States 
Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), 
CLI-10-27, 71 NRC 481 (Sept. 30, 2010). In this decision, the 
Commission overruled an Atomic Safety and Licensing Board decision that 
admitted a contention based on previously available information (or 
``old information,'' using the commenter's terms) that was compiled for 
the first time in the Staff's Safety Evaluation Report (SER). The 
Commission stated that, had it upheld the Board's decision, the 
``ruling would effectively allow a petitioner or intervenor to delay 
filing a contention until a document becomes available that collects, 
summarizes and places into context the facts supporting that 
contention. To conclude otherwise would turn on its head the regulatory 
requirement that new contentions be based on `information * * * not 
previously available.' Further, such an interpretation is inconsistent 
with our longstanding policy that a petitioner has an `iron-clad 
obligation to examine the publicly available documentary material * * * 
with sufficient care to enable it to uncover any information that could 
serve as the foundation for a specific contention.' '' Id. at 496 
(internal citations, footnotes, and emphasis omitted).
    This Commission decision does not mean that all contentions based 
on previously available information are inadmissible; rather, this 
decision focuses on a document that ``collects, summarizes and places 
into context the facts [or previously available information] supporting 
[a] contention.'' Id. Where previously available information provides 
the basis for a new conclusion or analysis, such as in an NRC NEPA 
document, a participant might be able to construct a legitimate 
contention challenging the new conclusion or analysis without 
explicitly basing the contention on the previously available 
information. For example, an NRC NEPA document with a new conclusion 
based on previously available information not contained in the 
applicant's environmental report, such as information from a previously 
available, but unreferenced, study, might be a proper subject for a 
contention. Under final Sec.  2.309(c)(1), a contention that challenges 
a new NRC staff conclusion must, in addition to meeting the other Sec.  
2.309(c)(1) factors, still demonstrate that new information encompassed 
in the new conclusion is ``materially'' different from information that 
was previously available.
    Comment: The commenter agrees with the proposed revision, but 
believes that the revision should also not allow ``new contentions 
based on information that became available to the parties during the 
course of the NRC Staff's review.'' The commenter believes that this 
proposal will ensure that parties or potential parties raise issues in 
a timely fashion after the information first becomes available, instead 
of waiting for the staff to complete its review.
    The NRC should also clarify that the requirements in this section 
are in addition to the Sec.  2.309(c) criteria and also apply to NRC 
SERs. (NEI-4)
    NRC Response: This comment is outside the scope of this rulemaking. 
The NRC is making specific amendments to its adjudicatory procedures to 
update the standards for filings after the deadline, refine the 
mandatory disclosure process, and make other minor process improvements 
and corrections. The suggestions presented in this comment go well 
beyond the limited changes that are being made in this rulemaking and 
would likely result in further delay because a new proposed rule would 
have to be prepared before a final rule implementing these suggestions 
could be adopted. Many of the changes in this final rule are being 
adopted to correct problems identified within the current rules.
    The NRC included Sec.  2.309(c)(5) in the proposed rule to provide 
clarity to the participants about an issue that has caused confusion 
for both participants and presiding officers. After further reflection, 
the NRC has decided not to adopt this change as part of the final rule. 
Instead, the NRC has added a clarifying discussion to this Federal 
Register notice that should make it clear to the participants and 
presiding officers that the standards in final Sec.  2.309(c) apply to 
both environmental and safety contentions filed after the deadline in 
Sec.  2.309(b).
    Further, the NRC wants to make it clear to participants in its 
adjudicatory proceedings that when a draft or final NRC NEPA document 
contains information that was previously available and that is not 
significantly different from information in the applicant's 
environmental report, there is a presumption that the participant could 
have used that information to support a contention challenging the 
environmental report. Similarly, if

[[Page 46567]]

information becomes available during the staff's review that a 
participant could use as the basis for challenging the environmental 
report, the participant must file a timely request under Sec.  2.309 
for admission of a new or amended contention after the deadline and 
cannot await the issuance of the staff's NEPA analysis to initiate the 
challenge. However, a participant may file a contention based on a 
significant difference between the environmental report and the draft 
or final NRC NEPA document if the participant files a timely contention 
after the NRC NEPA document's issuance and the contention is based on 
new information that is materially different from previously available 
information; thus, the contention would satisfy the standards in final 
Sec.  2.309(c)(1) for new or amended contentions.
    Finally, the NRC disagrees with the commenter that proposed Sec.  
2.309(c)(5) or a similar standard should apply to SERs. It is well-
established in NRC case law that safety contentions must challenge the 
adequacy of the application, not the adequacy of the staff's review. 
See, e.g., Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 
Installation), CLI-01-12, 53 NRC 459, 472 (2001); Curators of the Univ. 
of Mo. (TRUMP-S Project), CLI-95-1, 41 NRC 71, 121 (1995). Generally, 
any information in the SER that could provide material support for a 
new contention is in the application (or the applicant's responses to 
requests for additional information), and is, thus, available prior to 
publication of the SER. Conversely, intervenors are expected to 
challenge the NRC's NEPA process, which means that contentions can 
challenge the adequacy of the staff's NEPA review. Section 2.309(f)(2) 
merely states that when possible, NEPA contentions must be based on the 
applicant's environmental report. Therefore, the rationale for allowing 
new or amended contentions filed after the deadline based on a 
significant difference between the environmental report and a draft or 
final NRC NEPA document does not apply to NRC SERs.
    Comment: The current process places undue focus on the procedural 
technicalities of Sec.  2.309(f), which destroys the public's ability 
to participate in the process. The proposed amendments do little to 
address the fundamental problems with part 2. The rules should be 
amended to allow public participation from the day the applicant starts 
the license application or license amendment process. The commenter 
provided proposed rule language to implement this suggestion. (Roisman-
1)
    NRC Response: This comment is outside the scope of this rulemaking. 
This rulemaking is not intended to be a wholesale revision to the NRC's 
adjudicatory rules of practice. The changes proposed in this comment go 
well beyond the intended scope of this rulemaking and would be more 
appropriate for a future major revision to part 2.
    Comment: The contention submission deadline should be extended 
until 30 days after the applicant and the NRC staff have completed 
their work on the application and its review. The commenter provided 
proposed rule language to implement this suggestion. (Roisman-2)
    NRC Response: This comment is outside the scope of this rulemaking. 
The purpose of this rulemaking is to correct errors and omissions in 
the NRC rules and to make changes that will promote fairness, 
efficiency, and openness in NRC proceedings. This rulemaking is not 
intended to be a wholesale revision to the NRC's adjudicatory rules of 
practice. The changes proposed in this comment go well beyond the 
intended scope of this rulemaking and would be more appropriate for a 
future major revision to part 2.
Section 2.323--Motions
    Comment: The time for filing motions in Sec.  2.323(a) should be 
changed to 30 days after the ``occurrence or circumstance from which 
the motion arises'' and Sec.  2.323(a) should be amended to clarify 
that this timing requirement applies to all motions. (Roisman-4)
    NRC Response: The first part of this comment is outside the scope 
of this rulemaking--the proposal to extend the timing for filing 
motions to 30 days, instead of 10 days, after the ``occurrence or 
circumstance from which the motion arises.'' This proposal is a 
substantial change, which should be subject to notice and comment. 
Because this proposal is outside the scope of this rulemaking and has 
not been subject to notice and comment, the NRC has decided not to make 
this change as part of this final rulemaking. The proposal might be 
considered as part of future revisions to part 2.
    The NRC agrees with the second part of this comment--that Sec.  
2.323(a) should be amended to clarify that the timing requirement 
applies to all motions. As previously stated, the purpose of this 
rulemaking is to correct errors and omissions in the NRC rules. The NRC 
is thus amending Sec.  2.323(a) to state that ``all motions,'' instead 
of ``a motion,'' must be made within ten days after the occurrence or 
circumstance from which the motion arises. However, because, in 
practice, Sec.  2.309(c) motions (e.g., motions for leave to file new 
or amended contentions) have not been subject to the motion 
requirements in Sec.  2.323, the NRC is amending Sec.  2.323 to clarify 
that these motions are not subject to the requirements of this section. 
For instance, the 10-day timing requirement in Sec.  2.323(a) does not 
apply to Sec.  2.309(c) motions, but rather final Sec.  2.309(c)(1) 
does.
Section 2.335--Consideration of Commission Rules and Regulations in 
Adjudicatory Proceedings
    Comment: The commenter believes that the NRC should expand the 
requirements in this section to adopt the four-part test from NRC case 
law for deciding whether to grant a waiver. See, e.g., Dominion Nuclear 
Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-
24, 62 NRC 551, 560 (2005):
    1. The rule's strict application would not serve the purposes for 
which it was adopted.
    2. The person seeking the waiver has alleged ``special 
circumstances'' that were not considered, either explicitly or by 
necessary implication, in the rulemaking proceeding leading to the 
rule.
    3. Those circumstances are ``unique'' to the facility rather than 
common to a large class of facilities.
    4. A waiver of the rule is necessary to reach a significant safety 
or environmental problem. (NEI-5)
    NRC Response: This comment is outside the scope of this rulemaking. 
The purpose of this rulemaking is to correct errors and omissions in 
the NRC rules and to make changes that will promote fairness, 
efficiency, and openness in NRC proceedings. Because this proposal is 
outside the scope of this rulemaking, the NRC has decided not to make 
this change as part of this final rulemaking. The proposal might be 
considered as part of future revisions to part 2.
Section 2.336--General Discovery
    Comment: The NRC needs to clarify the staff's discovery obligations 
in contested proceedings. This clarification should note that (1) the 
staff must comply with the disclosure obligations in Section 2.336(a) 
with respect to any contention where the staff is participating as a 
party; and (2) the staff must comply with its disclosure obligations 
under Sec.  2.336(b)(3) for all documents in its possession or 
possessed by staff experts or consultants that were reviewed or 
generated as part

[[Page 46568]]

of the analysis of the application. (Roisman-5)
    NRC Response: As discussed in the response to the comments on 
Question 1, the NRC has decided to limit the staff's mandatory 
disclosure obligations to documents that are relevant to the admitted 
contentions. Further, the NRC notes that, by its terms, Sec.  2.336(a) 
applies to ``all parties, other than the NRC staff.''
    Comment: The commenter agrees with the NRC's proposal to expand the 
14-day disclosure period in Sec.  2.336. But the commenter believes 
that a ``monthly'' update would be easier for the parties than the 
``30-day'' requirement in the proposed rule. (NEI-6)
    NRC Response: The NRC agrees with the commenter that a ``monthly'' 
disclosure makes more sense than a 30-day requirement. The NRC has 
therefore adopted a modified version of the commenter's suggestion. 
Under the final rule, parties will be required to produce monthly 
disclosures on a day determined by the presiding officer, unless the 
parties agree otherwise. Documents obtained, discovered, or generated 
in the two weeks before an update do not need to be included in that 
update, but must be included in the following disclosure update.
    Comment: The Commenter believes that the five-business-day cutoff 
for capturing documents for disclosure does not provide enough time for 
parties to complete their review of documents prior to disclosure. 
Instead of the five-business-day cutoff, the commenter suggests a time 
period for disclosures of ``15 days before the last disclosure update 
to 15 days before the filing of the update.'' (NEI-7)
    NRC Response: The NRC agrees with the commenter that more time 
might be needed to review documents prior to disclosure. As discussed 
in the response to the previous comment, the NRC is adopting a modified 
version of the commenter's suggestion.
Section 2.341--Review of Decisions and Actions of a Presiding Officer
    Comment: The commenter does not believe that the NRC has a 
``compelling rationale'' for expanding the time allowed for the 
Commission to act on a decision of a presiding officer or a petition 
for review. The commenter believes that 90 days is more appropriate 
than the 120 days proposed by the NRC because the Commission should be 
expected to act quickly if it has reason to review a presiding 
officer's decision on its own motion. (NEI-9)
    NRC Response: The NRC disagrees with the commenter. The 120 days in 
the proposed rule is a reasonable amount of time for Commission review. 
The 40-day time frame in current Sec.  2.341(a)(2) has necessitated 
extensions of time in most proceedings, as 30 days is provided for the 
briefing period (i.e., for petitions for review, answers, and reply 
briefs), which often leaves the Commission insufficient time for an 
effective review of the filings. A 120-day Commission review period 
provides for a reasonable time period to review the filings without the 
unintended consequence of frequent or lengthy extensions. As has always 
been the case, the Commission may act before the end of the 120-day 
review period if the review takes less time. The NRC has retained the 
120-day review period in the final rule.
    Comment: The commenter supports the NRC's proposal to add a 
``deemed denied'' provision to part 2, but believes that 120 days for 
Commission review is too long. Instead, the commenter believes that the 
Commission review period should be 90 days. (NEI-8)
    NRC Response: The NRC disagrees with the commenter. The 120 days in 
the proposed rule is a reasonable amount of time for Commission review. 
As a practical matter, the 30-day time frame in the prior deemed denied 
provision necessitated extensions of time in most proceedings, as 30 
days is provided for the briefing period (i.e., for petitions for 
review, answers, and reply briefs). A 120-day Commission review period 
allows sufficient time to review the filings at the outset, without the 
unintended consequence of frequently needing extensions. As noted in 
the proposed rule, the Commission may act before the end of the 120-day 
review period if the review takes less time. The NRC has retained the 
120-day review period in the final rule.
Section 2.704--Discovery-Required Disclosures
    Comment: The commenter does not support this proposed amendment 
because it would shorten the time to complete discovery-related 
disclosures, which would increase the burden on the parties. Further, 
the commenter believes that the additional discovery methods available 
in subpart G reduce the need for automatic disclosure supplements.
    If the NRC adopts these changes in the final rule, the commenter 
requests that the relevant time period for disclosures mirror that in 
the final Sec.  2.336 proposed by the commenter. (NEI-10)
    NRC Response: The NRC agrees with the commenter and has 
reconsidered its proposal to alter the deadline for initial disclosures 
under subpart G. After further consideration, the NRC has decided not 
to change the subpart G deadline for mandatory disclosures: Initial 
disclosures in subpart G proceedings are due 45 days after the issuance 
of a prehearing conference order following the initial prehearing 
conference specified in Sec.  2.329. The NRC has determined that 
shortening the time for initial disclosures would not result in greater 
efficiency in subpart G proceedings and could effectively reduce the 
flexibility that subpart G presently gives parties to develop a 
proposed discovery plan for their subpart G proceeding.
    The 45-day period in the current rule provides a deadline by which 
mandatory disclosures must be made should the parties not agree on a 
proposed discovery plan. Subpart G allows the parties to agree on 
changes to, among other things, the ``timing, form, or requirement for 
disclosures under Sec.  2.704, including a statement as to when 
disclosures under Sec.  2.704(a)(1) were made or will be made.'' See 10 
CFR 2.705(f)(1)(i). The parties must also confer and determine ``what 
changes should be made in the limitations on discovery imposed under 
these rules.'' 10 CFR 2.705(f)(1)(iii). The 45-day period in the rule 
provides a default deadline for initial disclosures should the parties 
not agree on a proposed discovery plan within the time frame specified 
in Sec.  2.705(f). Section 2.705(f) requires the parties to meet and 
develop a proposed discovery plan no more than 30 days after the 
issuance of a prehearing conference order and to submit to the 
presiding officer a written report outlining the plan within ten days 
of the meeting. Thus, the parties currently have up to 40 days from the 
issuance of a prehearing conference order to file an agreed-upon 
proposed discovery plan. Should the time period for mandatory 
disclosures be reduced from 45 days to 30 days, parties may be required 
to make their initial disclosures before the time by which subpart G 
permits them to file an agreed-upon proposed discovery plan for the 
proceeding.
    The NRC has also considered the commenter's concerns about 
mandatory disclosure supplements, and has decided to adopt modified 
disclosure update provisions in final Sec. Sec.  2.704 and 2.709. The 
final disclosure update provisions in Sec. Sec.  2.704 and 2.709 
parallel the schedule in Sec.  2.336(d). Final Sec. Sec.  2.704 and 
2.709, like final Sec.  2.336(d), require monthly disclosure updates on 
a date specified by the presiding officer, unless the parties agree to 
a different date or frequency. These sections allow

[[Page 46569]]

the parties to agree (e.g., in the proposed discovery plan) to change 
the date and frequency for disclosure updates. Thus, if the parties in 
a subpart G proceeding prefer the scheme used in current subpart G, 
they can agree to use the current process, under which parties are not 
required to do monthly updates on a specified date. If the parties 
don't want to be required to provide monthly disclosure updates, they 
can agree to a different update frequency. Regardless, the NRC expects 
that most disclosures will be up-to-date by the time pretrial 
disclosures are due under Sec.  2.704(c); Sec.  2.704(c)(2) requires 
pretrial disclosures to be made at least 30 days before commencement of 
the hearing at which the issue is to be presented, unless otherwise 
directed by the presiding officer or the Commission.
    The NRC is also amending Sec.  2.709(a)(6) to contain the same 45-
day period as in current Sec.  2.704(a)(3). In addition, the NRC is 
amending Sec.  2.336(b) to exclude all subpart G proceedings from the 
Sec.  2.336 disclosure provisions, which parallels the exclusion in 
Sec.  2.336(a).
Section 2.1205--Summary Disposition
    Comment: Part 2 currently contains separate language to describe 
the summary disposition process under subparts G and L. The regulations 
should be amended to provide one set of summary-disposition criteria 
for both subparts. (Roisman-3)
    NRC Response: The NRC agrees with the commenter and is modifying 
subpart L to mirror the requirements in subpart G. Affidavits will no 
longer be required with motions for summary disposition filed in 
subpart L proceedings. As discussed in the section-by-section analysis, 
the NRC strongly recommends that parties to NRC proceedings, 
particularly those conducted under subpart L, continue to include 
affidavits with their motions for summary disposition.
Section 2.1407--Appeal and Commission Review of Initial Decision
    Comment: The commenter does not believe that it's necessary to 
extend the time to file an appeal in subpart N proceedings because 
these proceedings are typically ``narrow, expedited proceedings.'' 
Alternatively, the commenter suggests that any extension be left to the 
discretion of the Commission. (NEI-11)
    NRC Response: The NRC disagrees with the comment. The additional 10 
days provided by the final rule will allow parties additional time to 
prepare more thoughtful, focused briefs, which will help the Commission 
to resolve appeals in a more timely manner. Further, the additional 10 
days will not result in excessive delays in the completion of licensing 
actions.
    Comment: The regulations should be amended to allow pleadings in 
support of motions only when the supporting pleading is making a new 
argument or point and only if the party filing the supporting pleading 
first attempts to have the proponent of the motion include its argument 
or point in the initial pleading. Similar changes should be made to 
``pleadings in opposition.'' (Roisman-6)
    NRC Response: This comment is outside the scope of this rulemaking. 
This rulemaking is not intended to be a wholesale revision to the NRC's 
adjudicatory rules of practice. The changes proposed in this comment go 
well beyond the intended scope of this rulemaking and would be more 
appropriate for a future major revision to part 2. Because this 
proposal is outside the scope of this rulemaking, the NRC has decided 
not to make this change as part of this final rulemaking.
Miscellaneous Comments
    Comment: One commenter submitted a law review article as part of 
his comment submission. The article argued that the NRC's current 
hearing process is neither efficient nor fair because the current 
regulations were intended to prevent or severely restrict the public's 
participation in the decision-making process. The article also proposed 
a number of steps that the NRC could take to address these problems and 
implement a more fair and efficient process: (1) The NRC staff should 
decline to accept license applications that are not complete in all 
material respects. Post-docketing amendments and NRC staff requests for 
additional information (RAI) would still be allowed, but should be 
reduced by this proposal. (2) The NRC should amend the regulations to 
require increased and earlier disclosures from the applicant. The 
application could be treated like a complaint in a lawsuit subject to 
Federal Rule of Civil Procedure 26(a)(1), which would result in the 
disclosure of all information in the applicant's possession or control 
that is relevant to the ``allegations contained in the application.'' 
(3) The NRC should allow potential intervenors 120 days after the 
disclosures described in step 2 to file contentions. Potential 
intervenors should be required to include a ``high degree of 
specificity'' in their proposed contentions. (4) Responses to the 
petition to intervene would be allowed to reference only facts or 
opinions from the original application and disclosures. (5) Parties on 
the same side of an issue (including the NRC staff and States) would be 
required to file a single brief. (6) Any license amendments or 
responses to requests for additional information would be required to 
be accompanied by all the disclosures that would have been included had 
the information been included with the original application. (7) If 
amendments or RAI responses are based on information that could have 
been included with the application and its disclosures, then the 
potential and current intervenors would be allowed another 120 days to 
file new or amended contentions or new petitions to intervene. (8) 
Amendments to the application would be subject to the same timeliness 
requirements as new or amended contentions. (9) Upon demonstration that 
full discovery is the best or most efficient way to obtain the needed 
information and that additional discovery or cross-examination is 
needed to fully develop the record, parties would be entitled to the 
``full panoply of discovery allowed in federal court.'' (10) Public 
parties (other than governmental entities) would be entitled to 
$150,000 ``technical assistance'' grants to pay for the assistance of 
experts. (Roisman-7)
    NRC Response: This comment is outside the scope of this rulemaking 
proceeding. The NRC is making specific amendments to its adjudicatory 
procedures to update the standards for filings after the deadline, 
refine the mandatory disclosure process, and make other minor process 
improvements and corrections. The suggestions presented in this article 
go well beyond the limited changes that are being made in this 
rulemaking and would require a complete rewrite of the NRC's 
adjudicatory procedures, which is not the purpose of this rulemaking 
effort.
    Implementing these wholesale changes to the NRC's adjudicatory 
procedures would result in further delay because a new proposed rule 
would have to be prepared before a final rule implementing these 
suggestions could be adopted. Many of the changes in this final 
rulemaking are being adopted to correct problems identified within the 
current rules. For example, in most proceedings, the parties negotiate 
around the 14-day disclosure requirement to provide additional time to 
prepare disclosure updates. This final rule addresses this problem and 
provides additional guidance to parties by providing for monthly 
disclosure updates that capture all of the documents produced or 
obtained two weeks before the deadline.

[[Page 46570]]

    The NRC may, however, consider these proposals when it next 
considers a comprehensive revision to its rules of practice and 
procedure--where these major changes would more appropriately be 
considered.
    Comment: The Commission's parallel rulemaking process for reactor 
design certifications, which separates design issues from the combined 
license (COL) hearings, violates Section 189a of the Atomic Energy Act 
and 10 CFR Part 52. The Commission should amend its regulations to 
require the design certification rulemaking to be complete before the 
start of the COL application process. Under the current process, the 
scope of issues that can be adjudicated in a license application 
hearing is limited, illogical, and unfair.
    The North Anna COL proceeding, where the applicant changed reactor 
designs after the hearing started, is an extreme example of this 
practice. The NRC is ``subverting the letter and intent'' of 10 CFR 
Part 52 and is depriving the public of its opportunity to review and 
comment on the licensing proceedings. Notice of the publication of the 
Design Control Document for the new design, which is effectively a new 
application, should have been published in the Federal Register. The 
publication of this notice should have triggered another opportunity 
for the public to intervene in the proceeding. Why has the Commission 
not published a notice of opportunity for hearing for this new 
application? (BREDL-1)
    NRC Response: This comment is outside the scope of this rulemaking. 
Specific adjudications, such as the North Anna COL proceeding, are 
outside the scope of this rulemaking. In addition, the wholesale change 
to the process requested by this commenter is outside of the scope of 
this rulemaking. The NRC is making specific amendments to its 
adjudicatory procedures to update the standards for filings after the 
deadline, refine the mandatory disclosure process, and make other minor 
process improvements and corrections. The Commission adopted the part 
52 licensing procedures in 1989 (54 FR 15372; April 18, 1989) and 
amended the procedures in 2007 (72 FR 49351; August 28, 2007). This 
update to the NRC's adjudicatory process is not intended to change the 
basic licensing framework established in the 1989 rulemaking.

IV. Discussion of Changes and Corrections of Errors

A. Part 2--Title

    The current title of 10 CFR Part 2, ``Rules of Practice for 
Domestic Licensing Proceedings and Issuance of Orders,'' does not 
accurately reflect the scope of part 2, nor does it track the language 
of the Administrative Procedure Act (APA). The NRC is adopting a new 
title for 10 CFR Part 2, ``Agency Rules of Practice and Procedure,'' 
which better reflects the scope of the subparts and mirrors the 
language of the APA.

 B. Subpart C--Sections 2.300 through 2.390

1. Section 2.305--Service of Documents; Methods; Proof
    Current Sec.  2.305(c)(4) refers to ``any paper,'' which could be 
interpreted to exclude electronic documents filed through the NRC's E-
Filing system. To eliminate this ambiguity, final Sec.  2.305(c)(4) 
will refer to ``each document,'' instead of ``any paper.'' The NRC has 
evaluated the public comments received on this issue and has decided to 
amend this section to allow participants to file limited certificates 
of service with documents filed through the E-Filing system. This 
limited certificate of service for documents served through only the E-
Filing system does not need to contain the names and addresses of the 
participants served; a simple statement that the document has been 
served through the E-Filing system is all that is required. Documents 
that are not filed through the E-Filing system must include a 
traditional certificate of service--complete with the names, addresses, 
and method and date of service for all participants served. And 
documents that are served through both the E-Filing system and another 
method of service must include both a list of participants served 
through the E-Filing system and the name, address, and method and date 
of service for anyone served by the other method.
    The NRC retains a record of all participants served through the E-
Filing system. Further, after a participant serves a document through 
the E-Filing system, the system sends to all served participants a 
notification email, which contains the names and email addresses of all 
the participants that were served the document through the E-Filing 
system. The NRC also encourages the presiding officer and all 
participants to keep a record of the attorneys and representatives of 
record for each party to the proceeding. This practice will allow 
parties to quickly identify the appropriate contact for other parties 
without having to search in the Electronic Hearing Docket or ADAMS.
    Further, the NRC notes that Sec.  2.304 requires that electronic 
documents be signed using a participant's digital certificate; in such 
circumstances, it is not necessary to submit an electronic copy of the 
document that includes a traditional signature.
    Current paragraph 2.305(g)(1) does not provide an address for 
service upon the NRC staff when a filing is not being made through the 
E-Filing system and no attorney representing the NRC staff has filed a 
notice of appearance in the proceeding. Final paragraph (g)(1) is 
amended to provide addresses to be used to accomplish service on the 
NRC staff when a filing is not being made through the E-Filing system 
and no attorney representing the NRC staff has filed a notice of 
appearance in the proceeding.
2. Section 2.309--Hearing Requests, Petitions to Intervene, 
Requirements for Standing, and Contentions
    Section 2.309 contains the generally applicable procedures for 
requesting hearings and submitting petitions to intervene in NRC 
proceedings, and sets forth the requirements for submitting contentions 
and establishing legal standing to participate in NRC proceedings. The 
NRC is making several changes to Sec.  2.309.
a. Section 2.309(b)--Timing
    After reviewing the proposed rule, which would have added a cross-
reference to the timing provision in Sec.  2.205 to Sec.  2.309(b)(5), 
the NRC realized that there are other sections in part 2 that impose 
different filing deadlines than those found in current Sec.  2.309(b). 
Current Sec.  2.309(b)(5) references orders issued under Sec.  2.202, 
but does not reference other sections that might impose different 
deadlines to file a request for a hearing, a demand for a hearing, or a 
petition to intervene. For example, Sec.  2.205 notices of violation, 
like Sec.  2.202 orders, provide ``twenty (20) days * * * or other time 
specified in the notice'' for individuals to file an answer. This 
provision does not match the 60 days allowed by Sec.  2.309(b), which 
could be interpreted as applying to Sec.  2.205 notices of violation. 
Because there are a number of provisions in part 2 that impose 
different filing deadlines, the NRC is removing Sec.  2.309(b)(5) and 
amending Sec.  2.309(b) to clarify that the more specific provisions of 
part 2, such as Sec. Sec.  2.103(b), 2.202, and 2.205, control when 
there is a discrepancy between the specific and general timing 
provisions.

[[Page 46571]]

b. Sections 2.309(c) and (f)--Filings After the Deadline; Submission of 
Intervention Petition, Hearing Request, or Motion for Leave To File New 
or Amended Contentions
    Current Sec.  2.309(c)(1) contains eight balancing factors that 
determine whether to grant or admit ``nontimely'' hearing requests, 
intervention petitions, or contentions. These factors include the three 
factors for standing--also found at Sec.  2.309(d)(1)(ii) through 
(iv)--and the following five factors: good cause for the failure to 
file on time; the availability of other means to protect the 
requestor's or petitioner's interest; the extent to which the 
requestor's or petitioner's interest will be represented by other 
parties; the extent to which the requestor's or petitioner's interest 
will broaden the issues or delay the proceeding; and the extent to 
which the requestor's or petitioner's participation may reasonably be 
expected to assist in developing a sound record.
    In practice, whether a ``nontimely'' hearing request, intervention 
petition, or contention is granted or admitted usually depends on 
whether the participant has shown good cause. The ``good cause'' factor 
is given the most weight out of the current factors, and ``[i]f a 
petitioner cannot show good cause, then its demonstration on the other 
factors must be `compelling.''' Dominion Nuclear Conn., Inc. (Millstone 
Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 564-65 
(2005) (footnote with citation omitted). A showing that many of the 
other factors support granting the request or admitting the contention 
is rarely sufficient to overcome a lack of good cause. See, e.g., Tenn. 
Valley Auth. (Watts Bar Nuclear Plant, Unit 2), CLI-10-12, 71 NRC 319, 
323 (2010) (the Commission noted that ``it would be a rare case where 
we would excuse a non-timely petition absent good cause''); Private 
Fuel Storage (Independent Spent Fuel Storage Installation), LBP-00-28, 
52 NRC 226, 239-40 (2000). Good cause is not defined in the 
regulations, but has been defined by the NRC in case law as a showing 
that the petitioner ``not only * * * could not have filed within the 
time specified in the notice of opportunity for hearing, but also that 
it filed as soon as possible thereafter.'' Millstone, CLI-05-24, 62 NRC 
at 564-65.
    In addition, current Sec.  2.309(f)(2) identifies three factors to 
be considered in determining whether to admit a new or amended 
contention filed after the initial filing. These factors include 
whether the new or amended contention is based on information that was 
not previously available, whether the information that was not 
previously available is materially different from information that was 
previously available, and whether the new or amended contention has 
been submitted in a timely fashion after the availability of the new 
information.
    The similarity between Sec. Sec.  2.309(c)(1) and (f)(2) has 
created some confusion and resulted in differing approaches to 
evaluating filings filed after the deadline in Sec.  2.309(b). For 
example, in Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear 
Power Station), LBP-05-32, 62 NRC 813 (2005), an Atomic Safety and 
Licensing Board questioned whether it was necessary for new or amended 
contentions filed after the deadline to satisfy both Sec. Sec.  
2.309(c)(1) and (f)(2). However, in Florida Power & Light Co. (Calvert 
Cliffs Nuclear Power Plant, Units 1 and 2), CLI-06-21, 64 NRC 30, 33 
(2006), the Commission evaluated whether the intervenors met both the 
``stringent requirements for untimely filings (10 CFR 2.309(c)) and 
late-filed contentions (10 CFR 2.309(f)(2)).'' This rulemaking presents 
an opportunity to resolve any ambiguity in the application of these 
standards. Because good cause is the factor given the most weight, the 
Commission is focusing on this factor and clarifying the requirements 
as explained below.
    This final rule simplifies the requirements governing hearing 
requests, intervention petitions, and motions for leave to file new or 
amended contentions filed after the deadline in Sec.  2.309(b) by (1) 
referring to ``nontimely filings'' as ``filings after the deadline;'' 
(2) clarifying the applicability of Sec.  2.307 to certain filings 
(i.e., hearing requests, intervention petitions, and motions for leave 
to file new or amended contentions) that might be or are being filed 
after the deadline; (3) amending Sec.  2.309(c) to permit filings after 
the deadline only if the filing satisfies the three factors found in 
current Sec.  2.309(f)(2)(i) through (iii); (4) clarifying that the 
general requirements for motions in Sec.  2.323 do not apply to Sec.  
2.309(c) filings; and (5) adding clarifying information regarding the 
need to address interest and standing.
    As of this final rule, the NRC will no longer use the terms ``late-
filed'' or ``nontimely'' with regard to filings (i.e., hearing 
requests, intervention petitions, and motions for leave to file new or 
amended contentions) and will instead focus on whether the filing was 
filed before or after the deadline in Sec.  2.309(b). Therefore, the 
NRC will refer to contentions previously referred to as ``late-filed 
contentions'' as new or amended contentions filed after the deadline 
and ``late-filed'' hearing requests and intervention petitions as new 
hearing requests or new intervention petitions filed after the 
deadline. The current NRC case law using the terms ``late-filed'' or 
``nontimely'' continues to apply in ruling on filings after the 
deadline. The NRC will discontinue using the terms ``late-filed'' or 
``nontimely'' with regard to contentions for two reasons: (1) To avoid 
the potential negative implication created by these terms and instead 
to place emphasis on the fact-specific determination required by final 
Sec.  2.309(c)(1); and (2) to allow all the requirements for filings 
after the deadline (currently contained in Sec. Sec.  2.309(c) and 
2.309(f)(2)) to be combined into one place in the regulations (in final 
Sec.  2.309(c)(1)). The NRC is also making a conforming change to Sec.  
2.326(d) to replace the reference to nontimely filings with a reference 
to new or amended contentions filed after the deadline in Sec.  
2.309(b).
    Final Sec.  2.309(c) also clarifies that participants must file a 
motion for leave to file new or amended contentions after the deadline. 
Because a new petitioner is not a party to the proceeding, new hearing 
requests and new intervention petitions filed after the deadline do not 
need to be accompanied by or included in a motion for leave to file. 
The petitioner must, however, still show standing and demonstrate that 
it has satisfied the three factors in final Sec.  2.309(c)(1) before 
its contentions will be considered.
    The revisions to Sec.  2.309 do not affect participants' ability to 
request modifications to deadlines under Sec.  2.307, including the 
deadline in Sec.  2.309(b) for filing a hearing request, intervention 
petition, or new or amended contention. A participant may file such a 
request under Sec.  2.307 in advance of a deadline--for example, if the 
participant is unable to meet a deadline because of health issues--or 
shortly after a deadline--for example, if unanticipated events, such as 
a weather event or unexpected health issues, prevented the participant 
from filing for a reasonable period of time after the deadline. The NRC 
notes that ``good cause'' in Sec.  2.307 does not share the same 
definition that is used for ``good cause'' in final Sec.  2.309(c), so 
certain extraordinary circumstances such as a weather event or health 
issues might meet the definition of ``good cause'' in Sec.  2.307 (even 
though these circumstances would not satisfy the definition of ``good 
cause'' in final Sec.  2.309(c)). Final Sec.  2.309(c)(2) makes clear 
that participants should file such

[[Page 46572]]

requests for extending a filing deadline due to reasons not related to 
the substance of the filing under Sec.  2.307, not Sec.  2.309. It 
should be emphasized that the weather events and health issues 
described in this paragraph are examples that might satisfy the ``good 
cause'' standard in Sec.  2.307. The presiding officer will ultimately 
determine on a case-by-case basis whether a participant has 
demonstrated good cause for a Sec.  2.307 request to extend a filing 
deadline.
    After a Sec.  2.307 request to extend a filing deadline is granted, 
assuming the participant files by the new deadline (i.e., the extended 
date), the participant must only satisfy the requirements that would 
have applied had the participant filed by the original deadline (i.e., 
the deadline that was extended). In other words, if a participant is 
granted a Sec.  2.307 extension and files by the new deadline, the 
participant's filing is treated as if it were filed by the original 
deadline. Therefore, as an example, a participant would not need to 
satisfy final Sec.  2.309(c)(1) if the participant requested under 
Sec.  2.307 to extend the applicable deadline in Sec.  2.309(b), this 
request was granted, and the participant filed by the new deadline. The 
participant would not need to satisfy final Sec.  2.309(c)(1) under 
these circumstances because the participant's filing would be treated 
as if it were filed before the deadline in Sec.  2.309(b) and thus 
final Sec.  2.309(c)(1) would not be triggered. In contrast, a 
participant would need to satisfy final Sec.  2.309(c)(1) if the 
participant requested under Sec.  2.307 to extend a specific deadline 
and the participant filed by the new deadline. The participant would 
need to satisfy final Sec.  2.309(c)(1) under these circumstances 
because the Sec.  2.309(b) deadline would have passed with or without 
the Sec.  2.307 extension.
    Final Sec.  2.309(c) requires all filings after the deadline in 
Sec.  2.309(b) to satisfy the current Sec.  2.309(f)(2)(i)-(iii) 
factors. In the proposed rule, the NRC proposed making good cause the 
sole factor in Sec.  2.309(c) for filings after the deadline and 
adopting the three factors found in current Sec.  2.309(f)(2) as the 
standard for determining whether good cause exists under Sec.  
2.309(c). After further consideration, the NRC has decided that while 
the three factors from current Sec.  2.309(f)(2) will be the sole bases 
for deciding whether to consider filings after the deadline with 
respect to the substance of the filing; a clarification will be added 
to final Sec.  2.309(c)(2) to make it clear that requests to change the 
deadline itself should be made under Sec.  2.307.
    The change to current Sec.  2.309(c) and current Sec.  2.309(f)(2) 
simplifies the review of filings after the deadline. Assuming that a 
participant or party has demonstrated standing under Sec.  2.309(d), 
all of the standards for filings after the deadline are in final Sec.  
2.309(c). By eliminating the factors in current Sec.  2.309(c)(1)(v)-
(viii) and consolidating the standards for filings after the deadline 
in final Sec.  2.309(c), the final rule allows the parties, 
participants, and presiding officer to focus their resources on the 
most relevant questions with regard to whether a filing after the 
deadline will be considered--whether the filing meets the three factors 
from current Sec.  2.309(f)(2).
    Further, final Sec.  2.309(c)(2) clarifies that Sec.  2.323, which 
contains the general requirements for motions, does not apply to 
hearing requests, intervention petitions, or motions for leave to file 
new or amended contentions filed after the deadline in Sec.  2.309(b). 
Section 2.309 governs hearing requests, intervention petitions, and 
motions for leave to file new or amended contentions filed after the 
deadline. For example, the provisions in final Sec.  2.309(i) (not 
those in Sec.  2.323(c)) apply to answers (and replies to answers) to 
hearing requests, intervention petitions, and motions for leave to file 
new or amended contentions filed after the deadline.
    Final paragraph (c)(3) makes it clear that, apart from satisfying 
the current Sec.  2.309(f)(2) factors, a petitioner seeking admission 
to the proceeding after the deadline in Sec.  2.309(b) needs to satisfy 
the standing and contention admissibility requirements. Final paragraph 
(c)(4) applies to a participant or a party who seeks admission of a new 
or amended contention filed after the deadline, and who has already 
satisfied the standing requirements in Sec.  2.309(d).
    Final Sec.  2.309(f)(2) continues to clarify that all contentions 
must be based on the documents or other information available at the 
time the petition is filed. This section makes it clear that, if 
possible, participants must file environmental contentions arising 
under NEPA based on the applicant's environmental report. This section 
further clarifies that a petitioner or participant may file new or 
amended environmental contentions after the deadline in Sec.  2.309(b) 
(e.g., based on a draft or final NRC environmental impact statement, 
environmental assessment, or any supplements to these documents) if the 
contention complies with the requirements in final Sec.  2.309(c).
    As part of the proposed rule, the NRC included a new Sec.  
2.309(c)(5), which would have required (similar to the language in 
current Sec.  2.309(f)(2)) new or amended contentions challenging a 
draft or final NRC NEPA document to show that there is a significant 
difference between the applicant's environmental report and the NRC 
NEPA document. This proposed section would have treated the 
``significant difference'' language in current Sec.  2.309(f)(2) as an 
additional requirement, beyond the proposed Sec.  2.309(c) 
requirements, for environmental contentions filed after the deadline. 
After further consideration, the NRC has decided not to adopt proposed 
Sec.  2.309(c)(5) and instead is clarifying that the ``significant 
difference'' language in current Sec.  2.309(f)(2) is not a separate 
standard, but is captured by the three factors in final Sec.  
2.309(c)(1). Under the final rule, participants are still required to 
file their initial environmental contentions on the applicant's 
environmental report, even though the NRC staff's NEPA documents are 
the subject of the environmental portion of the hearing. New or amended 
environmental contentions filed after the deadline, like new or amended 
safety contentions filed after the deadline, need to satisfy the 
requirements in final Sec.  2.309(c). The NRC does not believe that 
there should be an additional requirement that must be satisfied for 
new or amended environmental contentions filed after the deadline.
    As previously specified in current Sec.  2.309(f)(2), participants 
may file a new or amended contention after the deadline in Sec.  
2.309(b) based on a draft or final NRC NEPA document if the participant 
demonstrates good cause by (1) showing that the information that is the 
subject of the new or amended contention was not previously available; 
(2) showing that there is information in the draft or final NRC NEPA 
document (i.e., environmental impact statement, environmental 
assessment, or any supplements to these documents) that differs 
significantly (i.e., is ``materially different'') from the information 
in the applicant's documents; and (3) filing the contention in a timely 
manner after the NRC NEPA document's issuance.
c. Section 2.309(d)--Standing
    Current Sec.  2.309(d) sets forth the standing requirements and 
also contains some requirements that do not generally relate to 
standing. To clarify and to better articulate the generally applicable 
standing requirements, the NRC is making several revisions to Sec.  
2.309(d). The general standing criteria in Sec.  2.309(d)(1) remain the 
same. Final Sec.  2.309(d)(2) adopts the requirements of the first 
sentence of current Sec.  2.309(d)(3), which requires the

[[Page 46573]]

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

    Where a State's constitution provides that both the Governor and 
another State official or State governmental body may represent the 
interests of the State in a proceeding, the Governor and the other 
State official/government body will be considered separate potential 
parties. Each must separately satisfy the relevant contention 
requirement, and each must designate its own representative (that 
is, the Governor must designate a single representative, and the 
State official must separately designate a representative).

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

    Final Sec.  2.309(h)(2) is based on the existing Sec.  
2.309(d)(2)(ii), which states that in any potential proceeding for a 
facility (the term ``facility'' is defined in Sec.  2.4) located within 
its boundaries, the State, local governmental body, or Federally-
recognized Indian Tribe seeking party status need not further establish 
its standing. As revised, final Sec. Sec.  2.309(h)(1) and (h)(2) 
delete the word ``affected'' from the phrase ``Federally-recognized 
Indian Tribe.'' The use of ``affected'' in this context is proper only 
in a high-level radioactive waste disposal proceeding. See 10 CFR 
2.1001 (definition of ``party'' includes an ``affected'' Indian Tribe 
as defined in section 2 of the Nuclear Waste Policy Act of 1982, as 
amended (42 U.S.C. Sec.  10101)). For the same reason, the NRC is 
removing ``affected'' from final Sec.  2.315(c) (regarding interested 
government participation) and from the definition of ``Participant'' 
added to Sec.  2.4 in the E-Filing Rule (August 28, 2007; 49139, 
49149). Current Sec.  2.309(d)(2)(iii) is redesignated as Sec.  
2.309(h)(3).
ii. Section 2.309(h) Moved to 2.309(i)--Answers to Hearing Requests, 
Intervention Petitions, and Motions for Leave To File New or Amended 
Contentions
    Current Sec.  2.309(h), which governs the filing of answers (and 
replies to answers) to hearing requests and petitions to intervene, is 
redesignated as Sec.  2.309(i) and is further revised. Current Sec.  
2.309(h)(1) refers to ``proffered contentions,'' has a preamble 
limiting paragraph (h) to filing deadlines for hearing requests and 
intervention petitions, and does not include a clear reference to new 
or amended contentions filed after the deadline in Sec.  2.309(b). The 
same deadlines should apply to answers (and replies to answers) to 
motions for leave to file new or amended contentions filed after the 
deadline in Sec.  2.309(b) as apply to answers (and replies to answers) 
to intervention petitions and hearing requests filed after the 
deadline. The NRC is therefore amending this section to include answers 
(and replies to answers) to motions for leave to file new or amended 
contentions after the deadline. Because this change covers filings 
after the deadline in Sec.  2.309(b), the reference to ``proffered 
contentions'' in final paragraph (i)(1) (current paragraph (h)(1)) is 
no longer necessary and is removed. The reference in current paragraph 
(h)(1) to ``paragraphs (a) through (g)'' is changed to ``paragraphs (a) 
through (h)'' due to the addition of new paragraph (h).
d. Section 2.309(i) Moved to New 2.309(j)--Decision on Request/Petition
    Current Sec.  2.309(i) is redesignated as Sec.  2.309(j). Final 
Sec.  2.309(j) contains a new citation reference made necessary by the 
new Sec.  2.309(h). Current Sec.  2.309(i) provides that the presiding 
officer will, in most cases, issue a decision on requests for hearing 
and petitions to intervene within 45 days after service of the request 
or petition, absent an extension of time from the Commission. Since 
this rule was introduced in 2004, however, presiding officers have not 
expressly sought extensions from the Commission; rather, the practice 
has been to issue a notice of the expected date that a decision will be 
issued. See, e.g., Notice (Expected Date for Decision on Hearing 
Requests) (Jan. 3, 2011) (unpublished) (ADAMS Accession No. 
ML110030120). Section 2.309(j) is therefore revised to reflect this 
practice. The revised rule also extends the time for action by the 
presiding officer, and provides that if the presiding officer cannot 
issue a decision on each hearing request or intervention petition 
within 45 days of the conclusion of the pre-hearing conference, the 
presiding officer shall issue a notice advising the Commission and the 
parties as to when the decision will issue. If no pre-hearing 
conference is conducted, the 45-day period begins after the filing of 
answers and replies under current Sec.  2.309.
3. Section 2.311--Interlocutory Review of Rulings on Requests for 
Hearings/Petitions To Intervene, Selection of Hearing Procedures, and 
Requests by Potential Parties for Access to Sensitive Unclassified Non-
Safeguards Information (SUNSI) and Safeguards Information (SGI)
    Current Sec.  2.311(b) allows parties to appeal orders of the 
presiding officer to the Commission concerning a request for hearing, 
petition to intervene, or a request to access SUNSI or SGI within ten 
days after the service of the order. Any party who opposes the appeal 
may file a brief in opposition within ten days after service of the 
appeal. Experience has demonstrated that the filing time provided under 
this section is unnecessarily short, and sometimes results in 
superficial appellate briefs. Most adjudicatory bodies allow 
substantially more time for litigants to frame appellate arguments and 
to perform the necessary research and analysis. Well-considered briefs 
enable the appellate body, here the Commission, to make faster and 
better-reasoned decisions. The NRC is therefore extending the time to 
file an appeal and a brief in opposition to an

[[Page 46574]]

appeal from ten to 25 days. The NRC does not expect the change in 
appeal deadlines to result in any delays in making licensing decisions. 
Some Commission appeals of presiding officer initial decisions are 
completed before there is a final decision on the proposed action, and 
thus would not affect the timing of the final agency action. For 
example, this could occur when an appeal on the contested portion of a 
reactor licensing hearing (part 52 COL or part 50 construction permit) 
is completed before the Commission holds the mandatory hearing. 
Further, the NRC believes that the increased time to develop higher 
quality briefs may assist in shortening the time for Commission review 
in situations where the timing of a final agency action might be 
affected by the appellate process.
4. Section 2.314--Appearance and Practice Before the Commission in 
Adjudicatory Proceedings
    Current paragraph 2.314(c)(3) allows anyone disciplined under Sec.  
2.314(c) to file an appeal with the Commission within ten days after 
issuance of the order. Experience since the 2004 revisions of part 2 
has demonstrated that ten days frequently is not adequate for parties 
to prepare quality appeals. The NRC is therefore extending the time to 
file an appeal of an order disciplining a party from ten to 25 days. 
The NRC believes that extending the time for appeals will result in 
higher-quality appeals.
5. Section 2.315--Participation by a Person Not a Party
    Current Sec.  2.315(c) allows interested State, local governmental 
bodies, and Federally-recognized Indian Tribes that have not been 
admitted as parties under Sec.  2.309 a reasonable opportunity to 
participate in hearings. The NRC is amending Sec.  2.315(c) to clarify 
that States, local governmental bodies, or Federally-recognized Indian 
Tribes that are allowed to participate in hearings take the proceeding 
as they find it, consistent with longstanding NRC case law. See, e.g., 
Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 
and 2), CLI-86-20, 24 NRC 518, 519 (1986); Pac. Gas & Elec. Co. (Diablo 
Canyon Nuclear Power Plant, Units 1 and 2), ALAB-600, 12 NRC 3, 8 
(1980).
6. Section 2.319--Power of the Presiding Officer
    Section 2.319(l) is updated to clarify the scope of the power of 
the presiding officer to refer rulings or certify questions to the 
Commission, consistent with the change to Sec.  2.323, discussed in the 
next section.
7. Section 2.323--Motions
    The NRC is amending Sec.  2.323(a) to clarify that Sec.  2.309(c) 
motions (e.g., motions for leave to file new or amended contentions 
filed after the deadline in Sec.  2.309(b)) are not subject to the 
requirements of this section. Section 2.309(b) motions are subject to 
the requirements in Sec.  2.309. For example, the 10-day timing 
requirement in Sec.  2.323(a) does not apply to motions for leave to 
file new or amended contentions filed after the deadline; instead, the 
presiding officer must make a fact-specific determination under final 
Sec.  2.309(c)(1) as to whether the participant had good cause for 
filing the motion after the deadline or whether the participant 
submitted the filing in a timely fashion after the information upon 
which the contention is based became available.
    The NRC is also amending Sec.  2.323(f) to clarify the criteria for 
referrals in this paragraph, and to make the referral criteria 
consistent with the Commission's standards for consideration of these 
referrals. The criterion on ``prompt decision * * * necessary to 
prevent detriment to the public interest or unusual delay or expense'' 
is removed. The second criterion on ``the decision or ruling involves a 
novel issue that merits Commission review'' is revised to make clear 
that (1) this criterion concerns the presiding officer's decision, and 
(2) the presiding officer's decision must raise or create ``significant 
and novel'' issues that may be either ``legal or policy'' in nature.
8. Section 2.335--Consideration of Commission Rules and Regulations in 
Adjudicatory Proceedings
    Section 2.335 details the procedures through which a challenge to 
the Commission's regulations may be raised as part of an adjudicatory 
proceeding. The current text of the rule limits these challenges to ``a 
party to an adjudicatory proceeding,'' which would seem to exclude 
petitioners from challenging the Commission's regulations. The 
Commission recognizes that challenges to the Commission's regulations 
are frequently contained in petitions to intervene and requests for 
hearing. Further, the Commission recognizes that petitioners may have a 
legitimate interest in raising such challenges before they are granted 
party status and that Atomic Safety and Licensing Boards have allowed 
petitioners to raise these concerns before being admitted as parties. 
See, e.g., Carolina Power & Light Co. (Shearon Harris Nuclear Power 
Plant, Unit 1), LBP-07-11, 66 NRC 41, 57-58 (2007).

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

Id. (citations omitted). The NRC is therefore amending this section to 
clarify that, in accordance with NRC practice, ``participants to an 
adjudicatory proceeding,'' not just parties, may seek a waiver or an 
exception for a particular proceeding.
9. Section 2.336--General Discovery
    Current Sec.  2.336(b) contains the NRC staff's mandatory 
disclosure obligations. For instance, under current Sec.  2.336(b)(3), 
the NRC staff must disclose all documents supporting the staff's review 
of the application or proposed action that is the subject of the 
proceeding without regard to whether the documents are relevant to the 
admitted contentions.
    The 2004 revision to part 2 imposed mandatory disclosure 
requirements on all parties that were intended to reduce the overall 
burden of discovery in NRC adjudicatory proceedings. The NRC is 
concerned that the overall burden of discovery in NRC proceedings has 
not actually been reduced. The NRC believes that the primary source of 
the burden stems from the NRC staff's disclosure of hundreds or 
thousands of documents that are not relevant to any admitted 
contention. Disclosure of voluminous material by the staff also burdens 
other parties to the proceeding with having to search through hundreds 
or thousands of irrelevant documents to find the material that is 
relevant to the admitted contentions (other parties' disclosures are 
already limited to documents relevant to the admitted contentions; the 
staff's disclosures are not).
    All parties also are required to produce privilege logs (a list of 
discoverable documents that are not being disclosed because the party 
asserts a privilege to protect the documents). Due to the large number 
of documents that are captured by the current regulations, the NRC 
staff must prepare a log of privileged documents,

[[Page 46575]]

most of which are completely irrelevant to the admitted contentions. 
Limiting the NRC staff's disclosure obligations to the admitted 
contentions will reduce the number of documents produced by the NRC 
staff, and also will provide the other parties to the proceeding with a 
list of relevant documents that were withheld, which will make it 
easier for the parties to identify any withheld documents that they may 
seek to obtain. This change also will align the scope of the NRC 
staff's disclosure obligations with those of the other parties to the 
proceeding. At the same time, the parties' opportunity to obtain 
publicly available documents will not be affected because these changes 
will not affect the scope of documents that will be available to 
parties and other members of the public through public ADAMS outside 
the adjudicatory process.
    The NRC is therefore amending Sec.  2.336(b) to limit the scope of 
the staff's mandatory disclosure obligations to documents relevant to 
the initially admitted contentions and admitted new or amended 
contentions filed after the deadline in Sec.  2.309(b). As a general 
matter, Sec.  2.336(b) applies to all documents meeting the description 
in that provision whenever they're created, whether that be before or 
after the submission of the application.
    Current Sec.  2.336(d) requires parties to update their mandatory 
disclosures every 14 days. Experience with adjudications since early 
2004 has demonstrated that the current disclosure provisions are much 
more burdensome for litigants than was initially anticipated. Part of 
the burden is the frequency of required updates to the mandatory 
disclosures. The NRC is therefore replacing the requirement to disclose 
information or documents within 14 days of discovery with a continuing 
duty to provide a monthly disclosure update. Final Sec.  2.336(d) 
directs the presiding officer to select a day during the month (e.g., 
the first day of the month or the first Thursday in the month) when 
disclosure updates will be due. Alternatively, the parties may agree to 
a different due date or frequency for the disclosure updates.
    Each disclosure update under final Sec.  2.336(d) includes 
documents subject to disclosure under this section that have not been 
disclosed in a prior update. Documents that are developed, obtained, or 
discovered during the two weeks before the due date are not required to 
be included in that update (but if they are not included in the first 
update after they are discovered, then they must be included in the 
next update).
    This change to Sec.  2.336(d) will reduce the burden and increase 
the usefulness of updated disclosures. The NRC is also adding a 
sentence to the end of Sec.  2.336(d), to clarify that the duty to 
update disclosures relevant to an admitted contention ends when the 
presiding officer issues a decision resolving the contention, or when 
otherwise specified by the presiding officer or the Commission.
10. Section 2.340--Initial Decision in Certain Contested Proceedings; 
Immediate Effectiveness of Initial Decisions; Issuance of 
Authorizations, Permits, and Licenses
    Current Sec. Sec.  2.340(a) and (b) currently imply that the 
presiding officer must reach a decision prior to the issuance of a 
license or license amendment, but this is not necessarily always the 
case. For operating licenses associated with production and utilization 
facilities, both the Atomic Energy Act and the NRC's regulations allow 
for the issuance of a license amendment upon a determination of ``no 
significant hazards consideration.'' See, e.g., 42 U.S.C. 2239, 10 CFR 
50.91. Further, 10 CFR Part 2 Subparts L and N allow the staff to act 
on certain applications prior to the completion of any contested 
hearing, assuming that all other relevant regulatory requirements are 
met. See 10 CFR 2.1202(a), 2.1210(c)(3), and 2.1403(a). The NRC is 
revising Sec.  2.340 to clarify that production and utilization 
facility applications for license amendment--to amend a construction 
permit, operating license, or renewed license--where the NRC has made a 
determination of no significant hazards consideration may be acted upon 
prior to the completion of a contested hearing. The NRC also revised 
Sec.  2.340 to clarify that the NRC may not act on the application 
until the presiding officer issues an initial decision in contested 
proceedings for the initial issuance or renewal of a construction 
permit, operating license, or renewed license, and in proceedings for 
the amendment of an operating or renewed license where the NRC has not 
made a determination of no significant hazards consideration. The NRC 
is also making conforming amendments to paragraphs (d) and (e) of this 
section to clarify that in proceedings involving a manufacturing 
license under 10 CFR Part 52 subpart C, and in proceedings not 
involving production and utilization facilities, the NRC staff--
provided it is able to make all of the necessary findings associated 
with the licensing action--may act on a license, permit, or license 
amendment prior to the completion of a contested hearing.
    Finally, this section is amended to clarify that the presiding 
officer may make findings of fact and conclusions of law on any matter 
not put into controversy by the parties, but only to the extent that 
the presiding officer determines that a serious safety, environmental, 
or common defense and security matter exists, and only to the extent 
that the Commission, upon a required referral by the presiding officer, 
approves an examination of and decision on the referred matters.
11. Section 2.341--Review of Decisions and Actions of a Presiding 
Officer
a. Section 2.341(a)--Time To Act on a Petition for Review
    Section 2.341(a)(2) currently provides the Commission with 40 days 
to act on a decision of a presiding officer or a petition for review. 
The current 40-day time frame has necessitated extensions of time in 
most proceedings, as 30 days is provided for the briefing period (i.e., 
for petitions for review, answers, and reply briefs), which often 
leaves the Commission insufficient time for an effective review of the 
filings. A 120-day Commission review period provides for a reasonable 
time period to review the filings without the unintended consequence of 
frequent or lengthy extensions. The NRC therefore is extending the time 
for Commission review from 40 days to 120 days. As has always been the 
case, the Commission may act before that time or extend that period as 
it deems necessary.
b. Section 2.341(b)--Petitions for Review
    Section 2.341 contains requirements pertaining to the review of 
decisions and actions of a presiding officer by the Commission. Current 
Sec.  2.341(b)(1) allows parties to file a petition for review of a 
full or partial initial decision by a presiding officer or any other 
decision or action by a presiding officer with respect to which a 
petition for review is authorized by this part. Under the current 
regulations, a petition for review must be filed with the Commission 
within 15 days of service of the decision. Similarly, current Sec.  
2.341(b)(3) allows other parties to file an answer supporting or 
opposing Commission review within ten days after service of a petition 
for review. And the petitioning party is allowed to file a reply brief 
within five days of service of any answer. Experience has demonstrated 
that the time allowed by the NRC's rules for petitions for review of a 
presiding officer's order (15 days) is unnecessarily short, and 
sometimes results in superficial appellate briefs.

[[Page 46576]]

Most adjudicatory bodies allow substantially more time for litigants to 
frame appellate arguments and to perform the necessary research and 
analysis. Well-considered briefs enable the appellate body, here the 
Commission, to make faster and better-reasoned decisions. The NRC is 
therefore extending the time to file a petition for review and an 
answer to the petition from 15 days and ten days to 25 days. The NRC is 
also extending the time to file a reply to an answer from five to ten 
days.
    The NRC does not expect the change in appeal deadlines to result in 
any unnecessary delays in making licensing decisions. Some Commission 
appeals of presiding officer initial decisions are completed before 
there is a final decision on the proposed action, and thus would not 
affect the timing of the final agency action. For example, this could 
occur when an appeal on the contested portion of a reactor licensing 
hearing (part 52 COL or part 50 construction permit) is completed 
before the Commission holds the mandatory hearing. Further, the NRC 
believes that the increased time to develop higher quality briefs may 
assist in shortening the time for Commission review in situations where 
the timing of a final agency action might be affected by the appellate 
process. Finally, even when a final presiding-officer decision 
approving a license comes before the Commission on a petition for 
review, the license can be issued immediately, notwithstanding the 
pendency of a petition for review. See 10 CFR 2.340(f), 2.341(e).
c. Section 2.341(c)--Petitions for Review Not Acted Upon Deemed Denied
    As stated in the 2004 part 2 revisions, Sec.  2.341 was intended to 
essentially restate the provisions of former Sec.  2.786 (see 69 FR 
2225; January 14, 2004). But the provisions of former Sec.  2.786(c), 
under which petitions for Commission review not acted upon were deemed 
denied, were inadvertently omitted from Sec.  2.341. Accordingly, the 
NRC is adding a new Sec.  2.341(c)(1); current Sec.  2.341(c)(1) is 
redesignated as Sec.  2.341(c)(2), and current Sec.  2.341(c)(2) is 
redesignated as Sec.  2.341(c)(3). Final Sec.  2.341(c)(1) adopts the 
deemed denied provisions of the former Sec.  2.786(c) with the 
exception of the 30-day time limit, which is extended to allow 120 days 
for Commission review. As a practical matter, the 30-day time frame 
necessitated extensions of time in most proceedings, as 30 days is 
provided for the briefing period (i.e., for petitions for review, 
answers, and reply briefs). A 120-day Commission review period allows 
sufficient time to review the filings at the outset, without the 
unintended consequence of frequently needing extensions. The NRC 
therefore is adopting the deemed denied provisions of former Sec.  
2.786 with a 120-day time limit as final Sec.  2.341(c)(1).
d. Section 2.341(f)--Standards for Atomic Safety and Licensing Board 
Certifications and Referrals
    The NRC is revising paragraph (f) of this section to address a 
perceived inconsistency in the standards for Atomic Safety and 
Licensing Board certifications and referrals to the Commission and 
Commission review of these issues. Current Sec.  2.323(f) allows a 
presiding officer to refer a ruling to the Commission if a 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. By contrast, current Sec.  2.341(f) 
states that referred or certified rulings ``will be reviewed'' by the 
Commission only if the referral or certification ``raises significant 
and novel legal or policy issues, and resolution of the issues would 
materially advance the orderly disposition of the proceeding'' 
(emphasis added). In essence, the current rules set forth different 
standards for presiding officers to apply when determining whether to 
certify a question or refer a ruling, from those that the Commission 
will use to determine whether it will accept review of a certified 
question or referred ruling. Further, this language has been 
interpreted to allow the Commission to accept referrals or 
certifications only if both standards in current Sec.  2.341(f) are 
met, even though current Sec.  2.323(f) allows a presiding officer to 
refer or certify a ruling if any of the criteria in current Sec.  
2.323(f) is met. Tenn. Valley Auth. (Bellefonte Nuclear Power Plant, 
Units 3 and 4), CLI-09-3, 69 NRC 68, 72 (2009). To remedy the 
inconsistency between the two regulations, as discussed with respect to 
Sec.  2.323(f), the standards for referral by the presiding officer are 
revised to parallel the standards the Commission will consider in 
determining whether to take review of a certified question or referred 
ruling. Final Sec.  2.341(f) provides the Commission with maximum 
flexibility by allowing, but not requiring, the Commission to review an 
issue if it raises significant legal or policy issues, or if resolution 
of the issue would materially advance the orderly disposition of the 
proceeding.
12. Section 2.346--Authority of the Secretary
    Current Sec.  2.346(j) authorizes the Secretary to ``[t]ake action 
on minor procedural matters.'' Section 2.346(j) has served an important 
function because the need for the Commission to issue orders and hold 
affirmation sessions to dispose of adjudicatory matters can sometimes 
result in undesirable delays in resolving minor matters before the 
Commission. Many of these minor matters, by their very nature, do not 
have the precedential or policy significance that reasonably warrants 
Commission attention. Thus, by delegating authority to the Secretary to 
decide certain minor matters that come before the Commission, Sec.  
2.346(j) has promoted efficiency in NRC adjudications.
    However, the rule's current language (i.e., ``take action on minor 
procedural matters'') could be read to suggest that the Secretary's 
authority includes a more limited set of matters than intended, as 
matters must be both ``minor'' and ``procedural'' to qualify. To 
clarify the regulation, in the proposed rule, the NRC proposed amending 
Sec.  2.346(j) to read as follows: ``[t]ake action on procedural and 
other minor matters.'' However, proposed Sec.  2.346(j) could suggest 
that all procedural matters--no matter their precedential or policy 
significance--are appropriate for resolution by the Secretary. Upon 
further consideration, the NRC has decided to revise proposed Sec.  
2.346(j) to avoid misleading interpretations, without altering its 
intended meaning. Final Sec.  2.346(j) thus reads: ``[t]ake action on 
other minor matters.'' This revision is designed to clearly authorize 
the range of minor matters that are appropriate for resolution by the 
Secretary.
    Under the final rule, the Secretary will have authority to decide 
``other minor matters'' (matters not covered by the other provisions in 
Sec.  2.346) that come before the Commission, whether procedural or 
otherwise. The question of whether a given matter is ``minor'' will 
depend upon the matter's precedential or policy significance. 
Accordingly, even a matter that might arguably not be considered minor 
from a purely procedural standpoint, such as an unopposed withdrawal of 
a construction and operating license application, may fall within the 
scope of final Sec.  2.346(j) because of its lack of precedential or 
policy significance. A number of recent orders issued by the Secretary 
informed the NRC's decision to adopt final Sec.  2.346(j):

[[Page 46577]]

     March 10, 2011 order in the Vermont Yankee license renewal 
case denying a petition to stay final Commission decisions in the case 
and provide an opportunity for a hearing on license renewal application 
amendments filed by the applicant after the close of the hearing 
record. The Secretary's order recognized the petition as effectively a 
petition to reopen the record and submit new or amended contentions 
filed after the deadline, with an associated stay request to allow time 
for these desired actions. Because the petition made no attempt to 
address the necessary criteria for either reopening the record or 
admitting new or amended contentions filed after the deadline, the 
Secretary's order denied the petition on the ground that it was 
procedurally defective on its face. See Order of the Secretary (Mar. 
10, 2011) (unpublished) (ADAMS Accession No. ML110691322).
     September 10, 2010 order in the GE-Hitachi uranium 
enrichment case designating an Office of Nuclear Security Incident 
Response (NSIR) employee to serve as an advisor to the licensing board 
pursuant to 10 CFR 2.904. See Order of the Secretary (Sept. 10, 2010) 
(unpublished) (ADAMS Accession No. ML102530358).
     March 30, 2010 order in the Comanche Peak combined license 
case granting a ``housekeeping stay'' of a licensing board order. The 
board order, which the NRC staff was appealing to the Commission, had 
(among other things) directed the staff to make certain disclosures to 
the intervenors. The staff had requested a stay of the board order's 
effectiveness pending the Commission's review of the staff's appeal, 
and the Secretary's ``housekeeping stay'' allowed the staff to hold off 
on making the disclosures--and thereby preserve the status quo ante--
until the Commission could act on the stay request. See Order of the 
Secretary (Mar. 30, 2010) (unpublished) (ADAMS Accession No. 
ML100890634).
     March 5, 2010 order in the Powertech uranium recovery 
matter denying a prospective petitioner's request that the Commission 
order the NRC staff to place three hard copies of the application 
materials (rather than two hard copies) in South Dakota reading rooms. 
See Order of the Secretary (Mar. 5, 2010) (unpublished) (ADAMS 
Accession No. ML100640426).
     September 11, 2009 order in the Pa'ina materials licensing 
proceeding extending the period of time for filing a petition for 
review of a licensing board order where a petition for reconsideration 
of that board order was still pending before the board. See Order of 
the Secretary (Sept. 11, 2009) (unpublished) (ADAMS Accession No. 
ML092540322).
     September 4, 2009 order in the South Texas combined 
license case tolling the running of the time for appealing licensing 
board contention admissibility decisions to the Commission, where the 
board had bifurcated its decision on an initial intervention petition, 
ruling on some of the contentions but not others, and where seven 
additional new or amended contentions filed after the deadline were 
also pending before the board. See Order of the Secretary (Sept. 4, 
2009) (unpublished) (ADAMS Accession No. ML092470592).
     April 27, 2009 order in the Comanche Peak combined license 
case, denying a petition seeking a Commission stay of the adjudication 
pending completion of the design certification rulemaking for the 
design being referenced in the application. The Secretary denied the 
petition on the ground that the Commission, in accord with a Commission 
policy expressed in its Final Policy Statement on the Conduct of New 
Reactor Licensing Proceedings, had recently denied comparable requests 
in two other recent cases (CLI-09-4--Fermi; CLI-08-15--Shearon Harris). 
See Order of the Secretary (Apr. 27, 2009) (unpublished) (ADAMS 
Accession No. ML091170518).
     September 11, 2008 order in the Shearon Harris combined 
license case denying a facially defective motion for reconsideration. 
NRC regulations require that leave to file a motion for reconsideration 
be obtained from the Commission before such a motion is filed, but the 
movant had neither sought nor obtained Commission leave to file the 
motion. In addition, NRC regulations require motions for 
reconsideration to address a compelling circumstance rendering the 
prior decision invalid, but the movant had simply restated its previous 
arguments and incorporated by reference its previous filings on the 
matter. See Order of the Secretary (Sept. 11, 2008) (unpublished) 
(ADAMS Accession No. ML082550620).
     February 13, 2008 order in the South Texas combined 
license case withdrawing the hearing notice in light of the staff's 
decision to suspend its review of portions of the application that the 
applicant was not yet prepared to support. This hearing notice 
withdrawal had the effect of indefinitely postponing the deadline for 
filing petitions to intervene in the case. See Order of the Secretary 
(Feb. 13, 2008) (unpublished) (ADAMS Accession No. ML080450208).
    There are a number of procedural matters that would not be 
considered minor, due to their precedential or policy significance, and 
thus would not fall within the Secretary's authority under final Sec.  
2.346(j). The following Commission decisions are examples of procedural 
matters that were not considered minor:
     January 24, 2011 order denying the request in a petition 
for rulemaking to suspend all license renewal proceedings where 
applications were submitted ten years in advance of license expiration, 
pending review of the petition for rulemaking. Resolving the suspension 
request required the Commission's analysis of the legal standard for 
suspending a proceeding. See Petition for Rulemaking to Amend 10 CFR 
54.17(c), CLI-11-01, 73 NRC ------ (Jan. 24, 2011) (slip op.).
     January 7, 2010, July 23, 2009, October 7, 2004, and 
January 30, 2004 notices of hearing and orders in the GE-Hitachi Global 
Laser Enrichment GLE Commercial Facility, AREVA Enrichment Services 
Eagle Rock Enrichment Facility, USEC American Centrifuge Plant, and 
Louisiana Energy Services National Enrichment Facility materials 
license proceedings. In these hearing notices, the Commission included 
not only case management direction, but also specific guidance to the 
licensing boards on certain non-minor matters. See GE-Hitachi Global 
Laser Enrichment (GLE Commercial Facility), CLI-10-04, 71 NRC 56 
(2010); AREVA Enrichment Servs. (Eagle Rock Enrichment Facility), CLI-
09-15, 70 NRC 1 (2009); USEC, Inc. (American Centrifuge Plant), CLI-04-
30, 60 NRC 426 (2004); La. Energy Servs., L.P. (National Enrichment 
Facility), CLI-04-3, 59 NRC 10 (2004).
     September 23, 2009 order in the Pa'ina materials license 
proceeding denying a request to transfer the case from the licensing 
board to the Commission. Resolving the transfer request required the 
Commission's own determination as to whether it, rather than the 
licensing board, would conduct the remainder of the proceeding. See 
Pa'ina Hawaii, LLC (Materials License Application), CLI-09-19, 70 NRC 
864 (2009).
     June 5, 2008 order in the High-Level Waste Repository 
proceeding denying a motion to disqualify a law firm from representing 
the applicant due to conflicts of interest. Resolving the motion to 
disqualify required Commission analysis on whether the claimed 
conflicts of interest jeopardized the NRC's statutory responsibility to 
protect public health and safety. See U.S. Dep't of Energy (High-Level 
Waste

[[Page 46578]]

Repository), CLI-08-11, 67 NRC 379 (2008).
    When exercising the authority delegated to issue orders under Sec.  
2.346(j), the Secretary provides the Commissioners' offices with a 
draft of the order (generally three business days before the 
Secretary's action on the order). Internal Commission Procedures at I-2 
(ADAMS Accession No. ML11269A125). This prior notification provides the 
Commission with an opportunity to issue the order itself if the 
Commission disagrees with the Secretary's determination that the matter 
at issue is ``minor.''
    In addition to amending Sec.  2.346(j) to clarify the Secretary's 
authority over minor matters, the NRC is removing the reference to 
Sec.  2.311 in Sec.  2.346(e). Moreover, there are no deadlines for 
Commission action on appeals under final Sec.  2.311.
13. Section 2.347--Ex Parte Communications
    Section 2.347 prohibits what are known as ex parte communications 
between persons outside the NRC and NRC adjudicatory personnel on 
matters relevant to the merits of an ongoing hearing; this section 
currently applies to Sec.  2.204 demands for information. Unlike the 
NRC actions subject to Sec. Sec.  2.104(a), 2.105(e)(2), 2.202(c), 
2.205(e), and 2.312 (which continue to be referenced in final 
Sec. Sec.  2.347(e)(1)(i) and (ii)), hearing rights do not attach to a 
demand for information because it is not an order; it is a pre-
enforcement document requesting information. (56 FR 40663, 40670, 
40682; August 15, 1991). The NRC is therefore amending the ex parte 
communication provisions in Sec. Sec.  2.347(e)(1)(i) and (ii) by 
deleting the two references to Sec.  2.204. Formerly, Sec.  2.204 
pertained to orders for modification of licenses and orders to show 
cause, and these orders did involve the right to a hearing. (50 FR 
38113; September 20, 1985). Thus, when the NRC promulgated Sec.  
2.780--the precursor to Sec.  2.347--in 1988, the references to Sec.  
2.204 were proper. But in 1991, the references became erroneous when 
the provisions for orders for modification of licenses were deleted and 
replaced by the Sec.  2.204 provisions regarding demands for 
information. Accordingly, the NRC is making conforming changes to 
Sec. Sec.  2.347(e)(1)(i) and (ii).
14. Section 2.348--Separation of Functions
    The separation of functions provisions in Sec.  2.348 prohibit 
certain communications between specified sets of NRC personnel on 
matters relevant to the merits of an ongoing adjudicatory hearing. 
Similar to the Sec.  2.347 amendment discussed in the previous section, 
the NRC is correcting the separation of functions provisions in 
Sec. Sec.  2.348(d)(1)(i) and (ii) by deleting the two references to 
Sec.  2.204. As previously explained, unlike the other specified NRC 
actions, hearing rights do not attach to a demand for information. When 
the NRC promulgated Sec.  2.781--the precursor to Sec.  2.348--in 1988, 
the references to Sec.  2.204 were proper. But the references became 
erroneous in 1991 for the reasons stated in the previous section with 
respect to Sec. Sec.  2.347(e)(1)(i) and (ii). Accordingly, the NRC is 
now making conforming changes to Sec. Sec.  2.348(d)(1)(i) and (ii).

C. Subpart G--Sections 2.700 Through 2.713

1. Section 2.704--Discovery--Required Disclosures
    Current Sec.  2.704(a) through (c) set forth the required 
disclosures that parties other than the NRC staff must make in formal 
NRC adjudications (proceedings conducted under subpart G of 10 CFR Part 
2).
    In the proposed rule, the NRC suggested an amendment to this 
section that would have changed the due date for initial disclosures in 
subpart G proceedings from 45 days after the issuance of a prehearing 
conference order following the initial prehearing conference to 30 days 
after the order granting a hearing. After further consideration, and 
review of the public comments on this proposal, the NRC has decided not 
to change the deadline for initial disclosures in subpart G 
proceedings. The NRC has determined that modifying the 45-day period 
would have limited the time available to the parties to develop a 
proposed discovery plan and could have resulted in situations where 
initial disclosures would be due before the due date for the parties to 
submit a proposed discovery plan to the presiding officer in subpart G 
proceedings.
    The NRC has, however, decided to adopt a modified disclosure update 
provision in final Sec.  2.704(a)(3), which is similar to the proposed 
rule and parallels the timing provisions in final Sec.  2.336(d). 
Current Sec.  2.704(e) requires a party that has made a disclosure 
under Sec.  2.704 to supplement its disclosures ``at appropriate 
intervals * * * within a reasonable time'' after the party learns that 
in some material respect the information disclosed was incomplete or 
incorrect (provided the additional or new information was not made 
available to other parties during the discovery process or in writing). 
Final Sec.  2.704(a)(3) directs the presiding officer to select a day 
during the month (e.g., the first day of the month or the first 
Thursday in the month) when disclosure updates will be due, but allows 
the parties to agree to a different due date or frequency for 
disclosure updates. Documents that are developed, obtained, or 
discovered during the two weeks before the due date are not required to 
be included in the update (but if they are not included in the first 
update after they're discovered, then they must be included in the next 
update). Final Sec.  2.704(e)(1) clarifies that supplemental 
disclosures must be made in accordance with the schedule established in 
final Sec.  2.704(a)(3).
    This change to Sec.  2.704 will reduce the burden and increase the 
usefulness of updated disclosures. The NRC is also adding a sentence to 
the end of Sec.  2.704, to clarify that a party's duty to update 
disclosures relevant to a disputed issue end when the presiding officer 
issues a decision resolving that disputed issue, or when otherwise 
specified by the presiding officer or the Commission.
2. Section 2.705--Discovery--Additional Methods
    Current Sec.  2.705(b)(2) allows the presiding officer to ``alter 
the limits in these rules on the number of depositions and 
interrogatories.'' But the rules do not limit the number of depositions 
or interrogatories. The NRC is therefore amending this section to allow 
the presiding officer to set reasonable limits on the number of 
interrogatories and depositions. This change removes the confusion in 
this section and improves the efficiency of NRC adjudicatory 
proceedings.
3. Sections 2.709--Discovery Against NRC Staff--and 2.336--General 
Discovery
a. Sections 2.709(a)(6)--Required Initial Disclosures in Enforcement 
Proceedings--and 2.336--General Discovery
    The NRC is amending the NRC staff's mandatory disclosure 
obligations for proceedings conducted under part 2 subpart G. Current 
Sec.  2.336(b) applies to NRC staff disclosures in subpart G 
proceedings, while Sec.  2.336(a) (discovery for parties other than the 
NRC staff) does not apply to any proceeding conducted under subpart G. 
Section 2.336(b) requires initial disclosures to be made in NRC 
proceedings within 30 days of the issuance of the order granting a 
hearing request or intervention petition. Because subpart G (final 
Sec. Sec.  2.704 and 2.709) requires initial

[[Page 46579]]

disclosures to be made within 45 days of the issuance of the prehearing 
conference order following the initial prehearing conference (not 
within 30 days of the order granting a hearing), the NRC is amending 
Sec.  2.336(b) to remove subpart G proceedings from the general 
discovery requirements in that paragraph. This exclusion in final Sec.  
2.336(b) parallels the exclusion in current Sec.  2.336(a).
    A corresponding amendment is being made to Sec.  2.709 to specify 
the NRC staff's disclosure obligations in a subpart G proceeding, 
including the 45-day period for initial disclosures. The new section--
final Sec.  2.709(a)(6)--parallels the initial document disclosure 
requirements in Sec. Sec.  2.704(a)(2) and (a)(3) for parties other 
than the NRC staff. Mirroring the language in Sec.  2.704(a)(2), final 
Sec.  2.709(a)(6)(i) requires the staff to disclose all NRC staff 
documents, data compilations, or other tangible things in possession, 
custody, or control of the NRC staff that are relevant to the disputed 
issues alleged with particularity in the pleadings, unless the NRC 
staff asserts a claim of privilege or protected status over the 
document, data compilation, or other tangible thing. The NRC notes that 
the references to ``pleadings'' in this section and other sections of 
part 2 include answers to orders, petitions to intervene, and requests 
for hearing. Although parties other than the NRC staff are also 
required by Sec.  2.704(a)(1) to identify individuals likely to have 
discoverable information relevant to disputed issues, the NRC considers 
a similar disclosure requirement for the NRC staff to be unnecessary. 
The discoverable portions of any pertinent Office of Investigations 
report or related inspection report should identify many of the 
individuals likely to have discoverable information relevant to 
disputed issues. Final Sec.  2.709(a)(6)(i) also requires that if a 
claim of privilege or protected status is made by the NRC staff for any 
documents, a list of these documents must be provided with sufficient 
information for assessing the claim of privilege or protected status.
    Final Sec.  2.709(a)(6)(ii) requires the NRC staff to provide 
monthly disclosure updates. Final Sec.  2.709(a)(6)(ii) directs the 
presiding officer to select a day during the month (e.g., the first day 
of the month or the first Thursday in the month) when disclosure 
updates will be due. Alternatively, the parties may agree to a 
different due date or frequency for the disclosure updates. Documents 
that are developed, obtained, or discovered during the two weeks before 
the due date are not required to be included in that update. But if 
they are not included in the first update after they're discovered, 
then they must be included in the next update.
    This change to Sec.  2.709 will reduce the burden and increase the 
usefulness of updated disclosures. The NRC is also adding a sentence to 
the end of Sec.  2.709, to clarify that the duty to update disclosures 
relevant to a disputed issue ends when the presiding officer issues a 
decision resolving that disputed issue, or when otherwise specified by 
the presiding officer or the Commission.
b. Section 2.709(a)(7)--Form and Type of NRC Staff Disclosures
    Section 2.709(a)(7) specifies the manner in which the NRC staff may 
disclose information in subpart G proceedings. For publicly available 
documents, data compilations, or other tangible things, the NRC staff 
meets its duty to disclose such information to the other parties and 
the presiding officer by identifying the location, the title, and a 
page reference to the subject information. If the publicly available 
documents, data compilations, or other tangible things can be accessed 
at either the NRC Web site, http://www.nrc.gov, or at the NRC Public 
Document Room, the staff will provide the parties and the presiding 
officer with any citations necessary to access this information. This 
paragraph parallels Sec.  2.704(a)(2) for disclosures by parties other 
than the NRC Staff.

D. Subpart L--Sections 2.1200 Through 2.1213

1. Subpart L--Title
    Part 2 subpart L contains the adjudicatory procedures that the NRC 
uses to conduct most of its licensing proceedings. The procedures in 
subpart L were substantially revised in 2004 (69 FR 2182; January 14, 
2004), and are intended to be used with the generally applicable 
provisions in subpart C. Under the provisions of part 2 as revised in 
2004, a hearing conducted under subpart L meets the APA requirements 
for an ``on the record'' or ``formal'' hearing. Citizens Awareness 
Network, Inc. v. NRC, 391 F.3d 338, 351 (1st Cir. 2004). Subpart L 
hearings are therefore ``formal,'' even though the NRC provides more 
formal adjudicatory procedures under subpart G. The NRC inadvertently 
failed to change the title of subpart L in 2004. To eliminate any 
confusion caused by the current title of subpart L, the NRC is revising 
the title of subpart L to ``Simplified Hearing Procedures for NRC 
Adjudications.'' The revised title reflects that these proceedings are 
less formal than the formal part 2 subpart G hearings, but are still 
formal ``on the record'' hearings under the APA, and not ``informal'' 
hearings as might be inferred from the current title.
2. Section 2.1202--Authority and Role of NRC Staff
    Section 2.1202 pertains to the authority and role of the NRC staff 
in less formal hearings. The introductory text of current Sec.  
2.1202(a) could be erroneously interpreted as suggesting that the staff 
is required to advise the presiding officer on the merits of contested 
matters. The NRC is therefore revising Sec.  2.1202(a) to require that 
in subpart L proceedings, the staff's notice to parties regarding 
relevant staff licensing actions must include an explanation of why the 
public health and safety is protected and why the action is in accord 
with the common defense and security, despite the ``pendency of the 
contested matter before the presiding officer.''
    A conforming change to the introductory text of Sec.  2.1403(a) is 
also being made to require the NRC staff to provide this explanation 
when the same situation arises in subpart N proceedings.
3. Sections 2.1205 and 2.710--Summary Disposition; Motions for Summary 
Disposition; Authority of the Presiding Officer To Dispose of Certain 
Issues on the Pleadings
    The summary-disposition motion requirements in subpart L (current 
Sec.  2.1205) do not require the inclusion of a statement of material 
facts--an inadvertent omission during the 2004 part 2 revisions. Before 
the 2004 amendments to 10 CFR Part 2, the NRC's requirements governing 
motions for summary disposition required these motions to be 
accompanied by a ``separate, short and concise statement of material 
facts as to which the moving party contends that there is no genuine 
issue to be heard.'' Final Sec.  2.1205 restores the requirement for a 
statement of material facts for which the moving party contends that 
there is no genuine issue. This section does not include the 
requirement for a ``separate'' statement of material facts in dispute, 
as the rule already requires that the statement be ``attached'' to the 
motion. The NRC is making a conforming change to Sec.  2.710 to remove 
the word ``separate,'' which makes Sec. Sec.  2.710 and 2.1205 
identical in this regard
    Further, the NRC received public comments asking for the removal of 
the affidavit requirement from Sec.  2.1205 to make the affidavit 
requirements consistent for motions for summary disposition under 
subparts G and L.

[[Page 46580]]

After considering the public comments, the NRC has decided to remove 
the affidavit requirement from Sec.  2.1205. Despite the removal of 
this affidavit requirement, the NRC strongly recommends that parties to 
NRC proceedings, particularly those conducted under subpart L, continue 
to include affidavits with their motions for summary disposition.
4. Section 2.1209--Findings of Fact and Conclusions of Law
    Section 2.712(c) specifies the format for proposed findings of fact 
and conclusions of law in subpart G proceedings, but a similar format 
provision does not exist in subpart L. The NRC, therefore, is amending 
Sec.  2.1209 by adding the format requirements now contained in Sec.  
2.712(c). These format requirements will aid presiding officers in 
subpart L proceedings by ensuring that proposed findings of fact and 
conclusions of law clearly and precisely communicate the parties' 
positions on the material issues in the proceeding, with citations to 
the factual record.
4. Section 2.1210--Initial Decision and Its Effect
    In 2007, the NRC removed Sec.  2.1211 from its regulations (72 FR 
49483; August 28, 2007). Paragraph 2.1210(d) contains a reference to 
this section, and should have been amended as part of the 2007 
rulemaking. The NRC is therefore amending this section to remove the 
reference to Sec.  2.1211.
5. Section 2.1213--No Significant Hazards Consideration Determinations 
Not Subject to Stay Provisions
    The NRC is adding a new paragraph (f) to Sec.  2.1213. Final 
paragraph (f) excludes, from the stay provisions, matters limited to 
whether a no significant hazards consideration determination for a 
power reactor license amendment was proper. No significant hazards 
consideration determinations may be made in license amendment 
proceedings for production or utilization facilities that are subject 
to the 10 CFR Part 50 requirements; challenges to these determinations 
are not allowed in accordance with 10 CFR 50.58(b)(6). Excluding no 
significant hazards consideration determinations from the stay 
provisions also is consistent with federal case law holding that these 
findings, which are not appealable to the Commission, are final agency 
actions. Ctr. for Nuclear Responsibility, Inc. v. NRC, 586 F. Supp. 
579, 580-81 (D.D.C. 1984).

E. Subpart M--Sections 2.1300 Through 2.1331

    The following changes are being made to subpart M of 10 CFR Part 2, 
which sets forth the procedures that are applicable to hearings on 
license transfer applications.
1. Sections 2.1300 and 2.1304--Provisions Governing Hearing Procedures 
for Subpart M Hearings
    Current Sec.  2.1300 states that the provisions of subpart M, 
together with subpart C, govern all adjudicatory proceedings on license 
transfers, but current Sec.  2.1304 states that the procedures in 
subpart M ``will constitute the exclusive basis for hearings on license 
transfer applications.'' Current Sec.  2.1304, part of the original 
subpart M, was effectively replaced by current Sec.  2.1300 in the 2004 
part 2 revisions, and could have been removed as part of that 
rulemaking. The NRC is now removing Sec.  2.1304 and amending Sec.  
2.1300 to clarify that in subpart M hearings on license transfers, both 
the generally applicable intervention provisions in subpart C and the 
specific subpart M hearing procedures govern.
2. Section 2.1316--Authority and Role of NRC Staff
    Section 2.1316(c) provides the procedures for the NRC staff to 
participate as a party in subpart M hearings. The NRC is updating these 
procedures to mirror the requirements of Sec.  2.1202(b)(2) and (3), 
which set forth the NRC staff's authority and role in subpart L 
hearings. Final Sec.  2.1316(c)(1) requires the NRC staff--within 15 
days of the issuance of the order granting requests for hearing or 
petitions to intervene and admitting contentions--to notify the 
presiding officer and the parties whether it desires to participate as 
a party in the proceeding. If the staff decides to participate as a 
party, its notice will identify the contentions on which it will 
participate as a party. If the NRC staff later desires to be a party, 
the NRC staff would notify the presiding officer and the parties, and 
identify the contentions on which it wished to participate as a party, 
and would make the disclosures required by Sec.  2.336(b)(3) through 
(5) unless accompanied by an affidavit explaining why the disclosures 
cannot be provided to the parties with the notice. Once the NRC staff 
chooses to participate as a party in a subpart M license transfer 
proceeding, it would have all the rights and responsibilities of a 
party with respect to the admitted contention or matter in controversy 
on which the staff chose to participate. As with Sec.  2.1202, ``the 
NRC staff must take the proceeding in whatever posture the hearing may 
be at the time that it chooses to participate as a party.'' (69 FR 
2228; January 14, 2004).
3. Section 2.1321--Participation and Schedule for Submission in a 
Hearing Consisting of Written Comments
    Current Sec.  2.1321 contains a typographical error in paragraph 
(b). The NRC is amending this paragraph to correct the typographical 
error.

F. Subpart N--Sections 2.1400 Through 2.1407

Section 2.1407--Appeal and Commission Review of Initial Decision
    Current Sec.  2.1407(a)(1) allows parties to appeal orders of the 
presiding officer to the Commission within 15 days after the service of 
the order. Similarly, current Sec.  2.1407(a)(3) allows parties 
opposing an appeal to file a brief in opposition within 15 days of the 
filing of the appeal. Experience has demonstrated that the time allowed 
by the NRC's rules for appeals from a presiding officer's order is 
unnecessarily short, and sometimes results in superficial appellate 
briefs. Most adjudicatory bodies allow substantially more time for 
litigants to frame appellate arguments and to perform the necessary 
research and analysis. Well-considered briefs enable the appellate 
body, here the Commission, to make faster and better-reasoned 
decisions. The NRC is therefore extending the time to file an appeal 
and a brief in opposition to an appeal from 15 to 25 days. The NRC does 
not expect the proposed change in appeal deadlines to result in any 
delays in making licensing decisions. Some Commission appeals of 
presiding officer initial decisions are completed before there is a 
final decision on the proposed action, and thus would not affect the 
timing of the final agency action. For example, this could occur when 
an appeal on the contested portion of a reactor licensing hearing (part 
52 COL or part 50 construction permit) is completed before the 
Commission holds the mandatory hearing. Further, the NRC believes that 
the increased time to develop higher quality briefs may assist in 
shortening the time for Commission review in situations where the 
timing of a final agency action might be affected by the appellate 
process.

G. Other Changes

1. Section 2.4--Definitions
    The current definition of ``Participant'' applies to an 
``individual or organization,'' and does not explicitly

[[Page 46581]]

apply to governmental entities that have petitioned to intervene in a 
proceeding. The NRC is correcting this definition by adding a 
parenthetical reference to ``individual or organization,'' so that it 
reads: ``individual or organization (including governmental 
entities).''
    The current definition of ``NRC personnel'' in Sec.  2.4 contains 
outdated references to Sec. Sec.  2.336 and 2.1018. The revision of 
``NRC personnel'' updates this definition by removing references to 
Sec. Sec.  2.336 and 2.1018, neither of which references the term ``NRC 
personnel.''
2. Section 2.101--Filing of Application
    In 2005, Sec.  2.101 was amended to remove paragraph (e) and 
redesignate paragraphs (f) and (g) as paragraphs (e) and (f). (70 FR 
61887; October 27, 2005). The internal references to paragraph (g) were 
not updated to reflect the new paragraph designations. References in 
this section to Sec.  2.101(g) are being corrected to reference Sec.  
2.101(f). There are no references to former Sec.  2.101(f) in this 
section.
    In 2007, the NRC revised Sec.  2.101 by adding a new paragraph 
(a)(9) and reserving paragraphs (a)(6)-(8). As part of this revision, 
the NRC should have moved paragraph (a-1) to follow paragraph (a)(9). 
(72 FR 57415; October 9, 2007). Because the current placement of 
paragraph (a-1) could cause confusion, the NRC is moving paragraph (a-
1) to follow paragraph (a)(9). This change does not alter the meaning 
or intent of this regulation.
3. Section 2.105--Notice of Proposed Action
    The NRC is making three changes to Sec.  2.105: (1) The 
introductory text of paragraph (a) is revised by inserting a reference 
to the NRC's Web site; (2) the introductory text of paragraph (b) is 
revised to clarify that the referenced notice pertains to one published 
in the Federal Register; and (3) the introductory text of paragraph (d) 
is corrected to reference Sec.  2.309(b).
4. Section 2.802--Petition for Rulemaking
    Section 2.802(d), in accordance with the new definition of 
``Participant'' in final Sec.  2.4 and the amendment to the procedures 
for challenging the NRC's regulations in final Sec.  2.335, is amended 
to replace the word ``party'' with ``participant.''
5. Corrections of Other Outdated and Incorrect References
    In 2008, the NRC amended its regulations to reflect the 
reorganization of the Office of Nuclear Materials Safety and Safeguards 
and the creation of the Office of Federal and State Materials and 
Environmental Management Programs. (73 FR 5709; January 31, 2008). As 
part of these amendments, the NRC made a number of changes to part 2, 
but these changes were incomplete. The NRC is therefore amending 
Sec. Sec.  2.101(a)(3) and (4), 2.106(a), 2.106(d), 2.107(c), 2.108(a), 
2.108(b), 2.108(c), 2.318(b), 2.337(g)(1), (2), and (3), and 2.811(c) 
to include references to the Office of Federal and State Materials and 
Environmental Management Programs or to the Director of the Office of 
Federal and State Materials and Environmental Management Programs, or 
to replace references to the Office of Nuclear Materials Safety and 
Safeguards with references to the Office of Federal and State Materials 
and Environmental Management Programs, as appropriate.
    In 2007, the NRC amended Sec.  2.104 and removed and consolidated a 
number of paragraphs, including the redesignation of paragraph (e) as 
paragraph (c). (72 FR 49472; August 28, 2007). The NRC did not correct 
all of the cross-references to former paragraph (e), which should have 
been updated to reference current paragraph (c). The NRC is therefore 
amending Sec. Sec.  2.103(a), 2.106(a), (c), and (d), and 61.25(c) to 
provide the correct reference to Sec.  2.104(c) instead of the former 
Sec.  2.104(e).
    Current Sec.  51.102(c) contains an outdated reference to ``Subpart 
G of Part 2.'' The reference is corrected to refer generally to part 2. 
Also, the reference to the former Atomic Safety and Licensing Appeal 
Board is removed from current Sec.  51.102.
    Current Sec. Sec.  51.4, 51.34, 51.109(f), and 51.125 contain 
outdated references to the former Appeal Board, which are being removed 
from these sections.
6. Section 12.308--Agency Review
    Current Sec.  12.308(a) contains an outdated reference to Sec.  
2.786, which was redesignated as Sec.  2.341 in 2004. The NRC is 
replacing the now incorrect reference to Sec.  2.786 with the correct 
reference to Sec.  2.341. This section also references the 40-day 
review period in current Sec.  2.341, which the NRC is increasing to 
120 days in this rulemaking. To avoid any inconsistencies between the 
time for Commission review in final Sec.  2.341 and Sec.  12.308, the 
NRC is expanding the review period in Sec.  12.308 from 40 to 120 days.
7. Section 54.27--Hearings
    Current Sec.  54.27 (pertaining to license renewal hearings for 
nuclear power reactors) contains an outdated reference to a 30-day 
period to request a hearing. As discussed in the 2004 part 2 revisions, 
the time in which to request a hearing under Sec.  2.309(b) was 
extended to 60 days from the date a notice of opportunity for hearing 
is published (either in the Federal Register or on the NRC's Web site). 
(January 4, 2004; 69 FR 2200). Final Sec.  54.27 is corrected to 
reflect the proper 60-day period to request a hearing, and a reference 
to Sec.  2.309 is added. Final Sec.  54.27 retains the provision that 
in the absence of any hearing requests, a renewed operating license may 
be issued without a hearing upon 30-day notice and publication in the 
Federal Register.
8. Part 2--Rules of Practice for Domestic Licensing Proceedings and 
Issuance of Orders
    Throughout part 2, the terms ``Presiding Officer'' and ``presiding 
officer'' are used interchangeably, but with different capitalization, 
unlike part 51, which uses the term ``presiding officer'' uniformly 
without capitalization. The NRC is changing all references to the term 
``Presiding Officer'' to ``presiding officer'' to make part 2 
consistent with part 51.

V. Section-by-Section Analysis

A. Introductory Provisions--Sections 2.1 Through 2.8

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

[[Page 46582]]

participant status, but have not yet been granted or denied such status 
by the presiding officer, are considered only a Sec.  2.4 participant 
until their Sec.  2.315(c) request is approved. This section also 
removes incorrect references to Sec. Sec.  2.336 and 2.1018 in the 
definition of NRC personnel.

B. Subpart A--Sections 2.100 Through 2.111

1. Section 2.101--Filing of Application
    This section is amended to move paragraph (a-1) to follow paragraph 
(a)(9) and to correct typographical errors in paragraphs (a)(3) and 
(a)(4), and incorrect references to Sec.  2.101(g), which should 
reference Sec.  2.101(f). These changes do not alter the meaning or 
intent of this regulation.
2. Section 2.103--Action on Applications for Byproduct, Source, Special 
Nuclear Material, Facility and Operator Licenses
    This section is amended to correct an outdated reference to Sec.  
2.104(e), which should reference Sec.  2.104(c). This change does not 
alter the meaning or intent of this regulation.
3. Section 2.105--Notice of Proposed Action
    This section is updated to include a reference to the NRC's Web 
site. Paragraph (b) of this section is updated to clarify that the 
referenced ``notice'' is one that is published in the Federal Register, 
and paragraph (d) is amended to include a reference to the time period 
in Sec.  2.309(b).
4. Section 2.106--Notice of Issuance
    Paragraph (a) is amended to add a reference to the Director, Office 
of Federal and State Materials and Environmental Management Programs. 
Paragraph (d) is amended to replace the reference to the Director, 
Office of Nuclear Material Safety and Safeguards, with a reference to 
the Director, Office of Federal and State Materials and Environmental 
Management Programs.
    Paragraphs (a), (c), and (d) are amended to correct an outdated 
reference to Sec.  2.104(e), which should reference Sec.  2.104(c). 
This change does not alter the meaning or intent of these paragraphs.
5. Section 2.107--Withdrawal of Application
    Paragraph (c) is amended to add a reference to the Director, Office 
of Federal and State Materials and Environmental Management Programs.
6. Section 2.108--Denial of Application for Failure To Supply 
Information
    Paragraphs (a), (b), and (c) are amended to add references to the 
Director, Office of Federal and State Materials and Environmental 
Management Programs.

C. Subpart C--Sections 2.300 Through 2.390

1. Section 2.305--Service of Documents; Methods; Proof
    Section 2.305, which currently requires any paper served in an NRC 
proceeding to include a signed certificate of service, is amended to 
clarify that filings not submitted through the E-Filing system must 
include a signed certificate of service that provides the name, 
address, and method and date of service for every participant served 
with the document. Final Sec.  2.305 provides that if a document is 
submitted through only the E-Filing system, then its certificate of 
service must state only that the document was submitted through the E-
Filing system. If the document is served through both the E-Filing 
system and some other method of service, then its certificate of 
service must include both a list of participants served through the E-
Filing system and the name, address, and method and date of service for 
all participants served through the other method.
    Under Sec.  2.304(d)(1), persons submitting electronic documents to 
the NRC through the E-Filing system do not need to physically sign 
their documents; signature with a participant's digital ID certificate 
satisfies the requirement that a document be signed.
    Section 2.305(g)(1), which does not currently provide an address 
for service upon the NRC staff when a filing is not being made through 
the E-Filing system and no attorney representing the NRC staff has 
filed a notice of appearance, is updated to provide participants with 
an address to use in these circumstances.
2. Section 2.309--Hearing Requests, Petitions To Intervene, 
Requirements for Standing, and Contentions
a. Section 2.309(b)--Timing
    The NRC is removing Sec.  2.309(b)(5) and amending Sec.  2.309(b) 
to clarify that the more specific timing provisions of part 2, such as 
Sec. Sec.  2.103(b), 2.202, and 2.205, control when there is a 
discrepancy between a more specific timing provision and the general 
timing provisions in Sec.  2.309(b).
b. Section 2.309(c) and (f)--Filings After the Deadline; Submission of 
Intervention Petition, Hearing Request, or Motion for Leave To File New 
or Amended Contentions
    Section 2.309(c) is updated to consolidate the requirements for 
filings after the deadline and to clarify the intent of the 
regulations. Final Sec.  2.309(c) incorporates the current Sec.  
2.309(f)(2)(i) through (iii) factors into final Sec.  2.309(c)(1)(i) 
through (iii). Final Sec.  2.309(c)(1) requires that a filing after the 
deadline (i.e., an intervention petition, hearing request, or motion 
for leave to file new or amended contentions filed after the deadline) 
must demonstrate that the three final Sec.  2.309(c)(1)(i)-(iii) 
factors have been met. Meeting the final Sec.  2.309(c)(1)(i)-(iii) 
factors demonstrates the existence of good cause justifying the filing 
after the deadline in Sec.  2.309(b).
    Final Sec.  2.309(c)(1)(i) is met if the participant demonstrates 
that the information upon which the new or amended contention is based 
was not previously available. Final Sec.  2.309(c)(1)(ii) is satisfied 
if the information that supports the filing after the deadline (and was 
not previously available) is materially different from previously 
available information. And final Sec.  2.309(c)(1)(iii) is satisfied if 
a participant submits this filing in a timely fashion based on the 
availability of the subsequent information.
    Final Sec.  2.309(c)(2) clarifies that changes to a deadline based 
on good cause considerations not related to the substance of the 
filings continue to be governed by Sec.  2.307, and that Sec.  2.323, 
which contains the general requirements for motions, does not apply to 
hearing requests, intervention petitions, or motions for leave to file 
new or amended contentions filed after the deadline in Sec.  2.309(b).
    Final Sec.  2.309(c)(3) clarifies that a hearing request or 
intervention petition filed after the deadline must specify at least 
one contention if the petitioner seeks admission as a party, and 
requires a petitioner to meet the standing and contention admissibility 
requirements in Sec. Sec.  2.309(d) and (f); a petitioner who has 
already satisfied the Sec.  2.309(d) standing requirements does not 
have to do so again (as specified in final Sec.  2.309(c)(4)).
    Final Sec.  2.309(c)(4) requires that any new or amended 
contentions filed by a party or participant after the deadline must 
meet the admissibility requirements in Sec.  2.309(f), and clarifies 
that a party or participant who has already demonstrated standing does 
not

[[Page 46583]]

need to address the standing requirements in Sec.  2.309(d) again.
    Final Sec.  2.309(f)(2) continues to require that all contentions 
be based on the documents available at the time when the petition is 
filed. Final Sec.  2.309(f)(2) clarifies that environmental contentions 
must be based on the applicant's environmental report, but new or 
amended environmental contentions may be filed after the deadline in 
Sec.  2.309(b) in accordance with the requirements in final Sec.  
2.309(c) (e.g., based on a draft or final NRC environmental impact 
statement, environmental assessment, or any supplements to these 
documents).
c. Section 2.309(h)--Requirements Applicable to States, Local 
Governmental Bodies, and Federally-Recognized Indian Tribes Seeking 
Party Status
    Current paragraphs (d)(2)(i) and (ii) apply only to ``affected'' 
Federally-recognized Indian Tribes, which is proper only in the context 
of a high-level radioactive waste disposal proceeding. Final Sec.  
2.309(h), which is the current Sec.  2.309(d)(2), is revised to clarify 
that, in the case of Sec.  2.309(h)(1) and (2), any Federally-
recognized Indian Tribe that wishes to participate in any potential 
proceeding for a facility located within its boundaries does not need 
to further establish its standing. Final Sec.  2.309(h)(3), which is 
the current Sec.  2.309(d)(2)(iii), applies only to a high-level waste 
disposal proceeding and retains the references to affected Federally-
recognized Indian Tribes; the references in this section mirror the 
language used in the Sec.  2.1001 definition of Party.
d. Section 2.309(i)--Answers to Hearing Requests, Intervention 
Petitions, and Motions for Leave To File New or Amended Contentions
    Current Sec.  2.309(h) is redesignated as Sec.  2.309(i) and is 
amended to clarify that it includes answers (and replies to answers) to 
intervention petitions and hearing requests filed after the deadline in 
Sec.  2.309(b). Further, the reference to ``proffered contentions'' in 
paragraph (i)(1) is amended to reference ``motions for leave to file 
new or amended contentions'' because contentions filed before the 
deadline will be part of an intervention petition or hearing request. 
Finally, cross references to other paragraphs in Sec.  2.309 are 
updated to reflect the addition of new paragraph (h).
e. Section 2.309(j)--Decision on Request/Petition
    Current Sec.  2.309(i) is redesignated as Sec.  2.309(j) and is 
updated to reflect new Sec.  2.309(h). Further, this section is revised 
to require a presiding officer to advise the Commission and the parties 
if a decision on a hearing request or intervention petition cannot be 
issued within 45 days of the conclusion of the pre-hearing conference. 
The presiding officer's notification must also notify the parties when 
a decision will be issued.
3. Section 2.311--Interlocutory Review of Rulings on Requests for 
Hearings/Petitions To Intervene, Selection of Hearing Procedures, and 
Requests by Potential Parties for Access to Sensitive Unclassified Non-
Safeguards Information and Safeguards Information
    Final Sec.  2.311(b) extends the time to file an appeal and a brief 
in opposition to an appeal from ten to 25 days.
4. Section 2.314--Appearance and Practice Before the Commission in 
Adjudicatory Proceedings
    Final Sec.  2.314(c)(3) extends the time to file an appeal to an 
order disciplining a party from ten to 25 days.
5. Section 2.315--Participation by a Person Not a Party
    Final Sec.  2.315(c) clarifies that interested States, local 
government bodies, and Federally-recognized tribes, who are not parties 
admitted to a hearing under Sec.  2.309 and who seek to participate in 
the hearing, must take the proceeding as they find it. Consistent with 
NRC case law, these participants (under final Sec.  2.315(c)) cannot 
raise issues related to contentions or issues that were resolved prior 
to their entry as participants in the proceeding--if a State, local 
governmental body, or Federally-recognized Indian Tribe chooses to 
participate in a proceeding late in the process, their participation is 
subject to any orders already issued and should not interfere with the 
schedule established for the proceeding.
6. Section 2.318--Commencement and Termination of Jurisdiction of 
Presiding Officer
    Paragraph (b) is amended to add a reference to the Director, Office 
of Federal and State Materials and Environmental Management Programs
7. Section 2.319--Power of the Presiding Officer
    Final Sec.  2.319(r) reincorporates former Sec.  2.1014(h) without 
any changes to the original language or intent. This section requires 
that an admitted contention that constitutes pure issues of law, as 
determined by the presiding officer, must be decided on the basis of 
briefs or oral argument.
8. Section 2.323--Motions
    Final Sec.  2.323(a) is amended to clarify that Sec.  2.309(c) 
motions are not subject to the requirements of Sec.  2.323.
    Final Sec.  2.323(f) allows the presiding officer to independently, 
or in response to a petition from a party, certify questions or refer 
rulings to the Commission if the issue satisfies one of the two Sec.  
2.323(f)(1) criteria. In each case, the presiding officer would make 
the initial determination as to whether the issue or petition raises 
significant and novel legal or policy issues, or if prompt decision by 
the Commission is necessary to materially advance the orderly 
disposition of the proceeding.
9. Section 2.326--Motions to Reopen
    Final Sec.  2.326(d) is updated to replace a reference to 
``nontimely contentions'' with a reference to ``new or amended 
contentions filed after the deadline in Sec.  2.309(b).'' As previously 
discussed, the NRC is no longer using the term ``nontimely 
contentions,'' which has been replaced with the term ``new or amended 
contentions filed after the deadline in Sec.  2.309(b).''
10. Section 2.335--Consideration of Commission Rules and Regulations in 
Adjudicatory Proceedings
    Current Sec.  2.335 limits the requests for waivers or exceptions 
from NRC regulations to parties to a proceeding. Final Sec.  2.335 
clarifies that participants to an adjudicatory proceeding, including 
petitioners, may seek a waiver or exception from the NRC's regulations 
for a particular proceeding. This change adopts the NRC's practice of 
allowing petitions to intervene and requests for hearing to contain 
Sec.  2.335 requests for waivers or exceptions from the NRC's 
regulations.
11. Section 2.336--General Discovery
    This section is amended to change the scope of the NRC staff's 
disclosure obligations in Sec.  2.336(b). The disclosure obligations in 
final Sec.  2.336(b) mirror those in Sec.  2.336(a), which do not apply 
to proceedings conducted under subparts G and J and are limited to 
documents related to the admitted contentions. The NRC is therefore 
amending Sec.  2.336(b)(1) through (4) to limit the documents that must 
be disclosed to those ``that are relevant to the admitted 
contentions.''
    This section is amended to require the filing of monthly mandatory 
disclosure updates, with the disclosure due date to be selected by the 
presiding officer;

[[Page 46584]]

though, the parties to a proceeding may agree to a different due date 
or disclosure frequency. These updates include all disclosable 
documents and information not included in a prior update. Documents and 
information that are discovered, obtained, or developed in the two 
weeks prior to a disclosure update may be included in the next update. 
Parties not disclosing any documents are expected to file an update 
informing the presiding officer and the other parties that the party is 
disclosing no documents that month. The duty to update disclosures 
relevant to an admitted contention ends when the presiding officer 
issues a decision resolving the contention, or as specified by the 
presiding officer or the Commission.
12. Section 2.337--Evidence at a Hearing
    Paragraph (g) is amended to add references to the Director, Office 
of Federal and State Materials and Environmental Management Programs.
13. Section 2.340--Initial Decision in Certain Contested Proceedings; 
Immediate Effectiveness of Initial Decisions; Issuance of 
Authorizations, Permits, and Licenses
    Final Sec.  2.340 clarifies that in some circumstances, the NRC may 
act on a license, renewed license, or license amendment prior to the 
completion of any contested hearing. Paragraphs (a) and (b) concern 
construction and operating licenses, renewed licenses, combined 
licenses, and amendments to these licenses. These paragraphs are 
amended to clarify that, in the case of a license amendment involving a 
power reactor, the NRC may complete action on the amendment request 
without waiting for the presiding officer's initial decision once the 
NRC makes a determination that the amendment involves no significant 
hazards consideration. In proceedings for the initial issuance or 
renewal of a construction permit, operating license, or renewed 
license, and proceedings for the amendment of an operating or renewed 
license where the NRC has not made a determination of no significant 
hazards consideration, these paragraphs are amended to clarify that the 
NRC may not act on the application until the presiding officer issues 
an initial decision in the contested proceeding.
    Paragraph (c), which deals with initial decisions under 10 CFR 
52.103(g), is amended to clarify that the presiding officer may make 
findings of fact and conclusions of law on the matters put into 
controversy by the parties, and any matter designated by the Commission 
to be decided by the presiding officer. Further, the amended paragraph 
clarifies that matters not put into controversy by the parties shall be 
referred to the Commission for its consideration. The Commission could, 
in its discretion, treat any of these referred matters as a request for 
action under Sec.  2.206 and would process the matter in accordance 
with Sec.  52.103(f).
    Paragraphs (d) and (e), which concern manufacturing licenses under 
10 CFR Part 52 and proceedings not involving production or utilization 
facilities, are amended to clarify that the NRC will issue, deny, or 
condition any permit, license, or amendment in accordance with a 
presiding officer's initial decision. These paragraphs are also amended 
to clarify that the NRC may issue a license amendment before a 
presiding officer's initial decision becomes effective.
    This revision clarifies that in all cases, the presiding officer is 
limited to matters placed into controversy by the parties, and serious 
matters not put into controversy by the parties that concern safety, 
common defense and security, or the environment that the Commission has 
approved for review upon the presiding officer's referral of the 
matter.
    Finally, paragraph (f) is amended to correct an inadvertent 
omission in the 2004 part 2 revisions. Final Sec.  2.340(f) now 
includes a decision directing the issuance of a renewed license under 
part 54 in the list of initial decisions that are immediately effective 
upon issuance unless the presiding officer finds that good cause has 
been shown by a party why the initial decision should not become 
immediately effective.
14. Section 2.341--Review of Decisions and Actions of a Presiding 
Officer
a. Extension of Time To File a Petition for Review, Answer, and Reply
    Final Sec.  2.341(b) extends the time to file a petition for review 
and an answer to a petition from 15 to 25 days, and extends the time to 
file a reply to an answer from five to ten days.
b. Petitions for Commission Review Not Acted Upon Deemed Denied
    Final Sec.  2.341 reincorporates the ``deemed denied'' provision of 
former Sec.  2.786(c), with an additional 90 days for Commission review 
before petitions for review are deemed denied. The additional 90 days 
would allow the Commission 120 days of review time before a petition 
for review is deemed denied.
    Similarly, the time for the Commission to act on a decision of a 
presiding officer or a petition for review is expanded to 120 days to 
bring this section into alignment with the new timeline in final Sec.  
2.341(c)(1).
c. Interlocutory Review
    Final Sec.  2.341(f) allows, but does not require, the Commission 
to review certifications or referrals that meet any of the standards in 
this paragraph.
15. Section 2.346--Authority of the Secretary
    This section clarifies the Secretary's authority under Sec.  
2.346(j). For matters that fall within Sec.  2.346(j), the Secretary 
may decide them without further Commission action, thus avoiding the 
need for formal Commission orders and affirmation sessions. Under 
current Sec.  2.346(j), the Secretary's authority covers ``minor 
procedural matters.'' To clarify the broader intent of this rule, the 
NRC proposed replacing ``minor procedural matters'' with ``procedural 
and other minor matters.'' After further consideration, the NRC has 
decided to adopt a modified version of the proposed rule, which will 
now authorize the Secretary to take action on ``other minor matters'' 
(not covered by the other provisions in Sec.  2.346). The final rule 
retains the same meaning as the proposed rule, but avoids any 
misleading impressions that the proposed rule might have created. Also, 
the reference to Sec.  2.311 is removed from Sec.  2.346(e) because 
appeals under Sec.  2.311 do not have deadlines for Commission action.
16. Sections 2.347 and 2.348--Ex Parte Communications; Separation of 
Functions
    These sections currently reference Sec.  2.204 demands for 
information, which are not orders and do not entail hearing rights. 
Because demands for information are not adjudicatory matters, the 
restrictions on ex parte communications and the separation-of-functions 
limitations do not apply. The references to Sec.  2.204 are removed 
from both sections.

D. Subpart G--Sections 2.700 Through 2.713

1. Section 2.704--Discovery--Required Disclosures
    This section, which continues to require initial disclosures to be 
made within 45 days after the issuance of a prehearing conference order 
following the initial prehearing conference, is amended to require the 
filing of monthly mandatory disclosure updates on a date specified by 
the presiding officer, though the parties to a proceeding may agree to 
a different due

[[Page 46585]]

date or disclosure frequency. These disclosure updates include all 
disclosable documents not included in a prior update. Documents that 
are discovered, obtained, or developed in the two weeks prior to a 
disclosure update may be included in the next update. Parties not 
disclosing any documents are expected to file an update informing the 
presiding officer and the other parties that the party is disclosing no 
documents for the period covered by that update. The duty to update 
disclosures relevant to a disputed issue ends when the presiding 
officer issues a decision resolving that disputed issue, or as 
specified by the presiding officer or the Commission.
    The NRC is also updating Sec.  2.704(e)(1) to clarify that a 
party's disclosures must be supplemented in accordance with the 
schedule in final Sec.  2.704(a)(3).
2. Section 2.705--Discovery--Additional Methods
    This section, which currently states that the ``presiding officer 
may alter the limits * * * on the number of depositions and 
interrogatories,'' is amended to remove any implication created by the 
word ``alter'' that these rules impose a limit on the number of 
depositions and interrogatories; the rules do not impose any such 
limitation. Instead, the final rule clarifies that the presiding 
officer ``may set limits on the number of depositions and 
interrogatories.''
3. Section 2.709--Discovery Against NRC Staff
a. Section 2.709(a)(6)--Initial Disclosures
    This new paragraph requires the NRC staff to provide initial 
disclosures within 45 days after the issuance of a prehearing 
conference order following the initial prehearing conference. The NRC 
staff disclosures include all NRC staff documents relevant to disputed 
issues alleged with particularity in the proceedings (except for those 
documents, data compilations, or other tangible things, for which there 
is a claim of privilege or protected status), including any Office of 
Investigations Report and supporting Exhibits, and any Office of 
Enforcement documents regarding the order. The staff is also required 
to file a monthly disclosure update, with the disclosure due date to be 
selected by the presiding officer; however, the parties to a proceeding 
may agree to a different due date or disclosure frequency. These 
disclosure updates include all disclosable documents not included in a 
prior update. Documents that are discovered, obtained, or developed in 
the two weeks prior to a disclosure update may be included in the next 
update. Parties not disclosing any documents are expected to file an 
update informing the presiding officer and the other parties that that 
party is disclosing no documents for the period covered by that update. 
The duty to update disclosures relevant to a disputed issue ends when 
the presiding officer issues a decision resolving that disputed issue, 
or as specified by the presiding officer or the Commission. The staff 
is also required to provide, with initial disclosures and disclosure 
updates, a privilege log that lists the withheld documents and includes 
sufficient information to assess the claim of privilege or protected 
status. These requirements parallel the final Sec.  2.704 requirements 
for parties other than the NRC staff.
4. Section 2.710--Motions for Summary Disposition
    This section is amended to conform to the amendments to final Sec.  
2.1205, which requires parties to attach a statement of material facts 
to a motion for summary disposition. This change has no effect on the 
current practice of including a statement of material facts with a 
motion; it clarifies that the statement needs to be attached to the 
motion and does not have to be ``separate.''

E. Subpart H--Sections 2.800 Through 2.819

1. Section 2.802--Petition for Rulemaking
    This section currently allows petitioners for a rulemaking to 
request the suspension of an adjudicatory proceeding to which they are 
a party. This section is amended to allow any petitioner for a 
rulemaking that is a participant in a proceeding (as defined by Sec.  
2.4) to request suspension of that proceeding.
2. Section 2.811--Filing of Standard Design Certification Application; 
Required Copies
    Paragraph (c) is amended to add a reference to the Director, Office 
of Federal and State Materials and Environmental Management Programs.

F. Subpart L--Sections 2.1200 Through 2.1213

1. Section 2.1202--Authority and Role of NRC Staff
    This section currently requires the NRC staff to include its 
position on the matters in controversy when it notifies the presiding 
officer of its decision on a licensing action, which could be 
incorrectly interpreted as requiring the staff to advise the presiding 
officer on the merits of the contested matters. This amended section 
clarifies the authority and role of the NRC staff in less formal 
hearings; staff notices regarding licensing actions have to include an 
explanation of why the public health and safety is protected and why 
the action is in accord with the common defense and security, despite 
the ``pendency of the contested matter before the presiding officer.''
2. Section 2.1205--Summary Disposition
    This section is amended to remove the requirement that parties 
submit an affidavit with motions for summary disposition, which makes 
the affidavit requirements in final Sec.  2.1205 consistent with the 
requirements in Sec.  2.710. Despite the removal of this affidavit 
requirement, the NRC strongly recommends that parties to NRC 
proceedings, particularly those conducted under subpart L, continue to 
include affidavits with their motions for summary disposition.
3. Section 2.1209--Findings of Fact and Conclusions of Law
    This section currently does not specify the formatting requirements 
for findings of fact and conclusions of law. Final Sec.  2.1209 
incorporates the Sec.  2.712(c) formatting requirements for findings of 
fact and conclusions of law to ensure that proposed findings of fact 
and conclusions of law clearly and precisely communicate the parties' 
positions on the material issues in the proceeding, with exact 
citations to the factual record.
4. Section 2.1210--Initial Decision and Its Effect.
    Paragraph (d) of this section is amended to remove a reference to a 
regulation that no longer exists; this change does not alter the 
meaning or intent of this regulation.
5. Section 2.1213--Application for a Stay
    Current Sec.  2.1213 does not exclude, from the stay provisions, 
matters limited to whether a ``no significant hazards consideration'' 
determination for a power reactor license amendment was proper. Section 
50.58(b)(6) prohibits challenges to these determinations; section 
2.1213 is therefore amended to exclude, from the stay provisions, 
matters limited to whether a no significant hazards consideration 
determination was proper.

[[Page 46586]]

G. Subpart M--Sections 2.1300 Through 2.1331

1. Section 2.1300--Scope of Subpart M
    The NRC is removing Sec.  2.1304 and amending Sec.  2.1300 to 
clarify that the generally applicable intervention provisions in 
subpart C and the specific provisions in subpart M govern in subpart M 
proceedings.
2. Section 2.1304--Hearing Procedures
    The NRC is removing Sec.  2.1304 and amending Sec.  2.1300 to 
clarify that the generally applicable intervention provisions in 
subpart C and the specific provisions in subpart M govern in subpart M 
proceedings.
3. Section 2.1316--Authority and Role of NRC Staff
    This section currently allows the NRC staff to submit a simple 
notification at any point in the proceeding to become a party. The NRC 
is adopting the requirements in Sec.  2.1202(b)(2) and (3) that require 
the NRC staff, within 15 days of the issuance of the order granting 
requests for hearing or petitions to intervene and admitting 
contentions, to notify the presiding officer and the parties whether it 
desires to participate as a party in the proceeding. The staff's notice 
must identify the contentions on which it will participate as a party; 
the staff can join the proceeding at a later stage by providing notice 
to the presiding officer, identifying the contentions on which it 
wishes to participate as a party, and making the disclosures required 
by final Sec.  2.336(b)(3) through (5).
4. Section 2.1321--Participation and Schedule for Submission in a 
Hearing Consisting of Written Comments
    The second sentence of paragraph (b) is amended to correct a 
typographical error; this change does not alter the meaning or intent 
of this regulation.

H. Subpart N--Sections 2.1400 Through 2.1407

1. Section 2.1403--Authority and Role of the NRC Staff
    This section, which is essentially identical to Sec.  2.1202, is 
amended to mirror the changes made to that section.
    This section is also updated to correct the reference to Sec.  
2.101(f)(8), which should reference Sec.  2.101(e)(8); this change does 
not alter the meaning or intent of this regulation.
2. Section 2.1407--Appeal and Commission Review of Initial Decision
    Proposed Sec.  2.1407(a) extends the time to file an appeal and an 
answer to an appeal from 15 to 25 days.

I. Parts 12, 51, 54, and 61

1. Section 12.308--Agency Review
    This section is amended to expand the time for the Commission to 
review an initial decision on a fee application, either at the request 
of the applicant, the NRC counsel, or on its own initiative, to 120 
days, which aligns this section with the new timeline in final Sec.  
2.341(c)(1).
    This section is also amended to correct an outdated reference to 
Sec.  2.786, which should reference Sec.  2.341. This change does not 
alter the meaning or intent of this regulation.
2. Section 51.4--Definitions
    This section is amended to remove an outdated reference to the 
former Atomic Safety and Licensing Appeal Board in the definition of 
NRC Staff. This change does not alter the meaning or intent of this 
regulation.
3. Section 51.34--Preparation of Finding of No Significant Impact
    This section is amended to remove outdated references to ``Subpart 
G of Part 2'' and to the former Atomic Safety and Licensing Appeal 
Board. These changes do not alter the meaning or intent of this 
regulation.
4. Section 51.102--Requirement to Provide a Record of Decision; 
Preparation
    This section is amended to remove outdated references to ``Subpart 
G of Part 2'' and to the former Atomic Safety and Licensing Appeal 
Board. These changes do not alter the meaning or intent of this 
regulation.
5. Section 51.109--Public Hearings in Proceedings for Issuance of 
Materials Licensed With Respect to a Geologic Repository
    This section is amended to remove an outdated reference to the 
former Atomic Safety and Licensing Appeal Board. This change does not 
alter the meaning or intent of this regulation.
6. Section 51.125--Responsible Official
    This section is amended to remove outdated references to ``Subpart 
G of Part 2'' and to the former Atomic Safety and Licensing Appeal 
Board. These changes do not alter the meaning or intent of this 
regulation.
7. Section 54.27--Hearings
    This section replaces an outdated reference to a 30-day period to 
request a hearing with a reference to the correct 60-day period to 
request a hearing. This section retains the provision that in the 
absence of any hearing requests, a renewed operating license may be 
issued without a hearing upon 30-day notice published in the Federal 
Register.
8. Section 61.25--Changes
    This section is amended to correct an outdated reference to Sec.  
2.104(e), which should reference Sec.  2.104(c). This change does not 
alter the meaning or intent of this regulation.

VI. Plain Writing

    The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal 
agencies to write documents in a clear, concise, and well-organized 
manner. The NRC has written this document to be consistent with the 
Plain Writing Act as well as the Presidential Memorandum, ``Plain 
Language in Government Writing,'' published June 10, 1998 (63 FR 
31883).

VII. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, 
Public Law 104-113, requires that Federal agencies use technical 
standards that are developed by voluntary, private sector, consensus 
standards bodies unless using such a standard is inconsistent with 
applicable law or is otherwise impractical. In this rule, the NRC is 
approving changes to its procedures for the conduct of hearings in 10 
CFR Part 2. This action does not constitute the establishment of a 
government-unique standard as defined in Office of Management and 
Budget (OMB) Circular A-119 (1998).

VIII. Environmental Impact: Categorical Exclusion

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

IX. Paperwork Reduction Act Statement

    This rule does not contain any information collection requirements 
and, therefore, is not subject to the requirements of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Public Protection Notification

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

[[Page 46587]]

X. Regulatory Analysis

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

XI. Regulatory Flexibility Act Certification

    In accordance with the Regulatory Flexibility Act, as amended, 5 
U.S.C. 605(b), the NRC certifies that this rule will not have a 
significant economic impact on a substantial number of small entities. 
This rule applies in the context of NRC adjudicatory proceedings 
concerning nuclear reactors or nuclear materials. Reactor licensees are 
large organizations that do not fall within the definition of a small 
business found in Section 3 of the Small Business Act, 15 U.S.C. 632, 
within the small business standards set forth in 13 CFR Part 121, or 
within the size standards established by the NRC (10 CFR 2.810). Based 
upon the historically low number of requests for hearings involving 
materials licensees, it is not expected that this rule will have any 
significant economic impact on a substantial number of small 
businesses.

XII. Backfit Analysis

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

XIII. Congressional Review Act

    This rule is not a major rule under the Congressional Review Act of 
1996.

List of Subjects

10 CFR Part 2

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

10 CFR Part 12

    Adversary adjudications, Award, Equal Access to Justice Act, Final 
disposition, Net worth, Party.

10 CFR Part 51

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

10 CFR Part 54

    Administrative practice and procedure, Age-related degradation, 
Backfitting, Classified information, Criminal penalties, Environmental 
protection, Nuclear power plants and reactors, Reporting and 
recordkeeping requirements.

10 CFR Part 61

    Criminal penalties, Low-level waste, Nuclear materials, Reporting 
and recordkeeping requirements, Waste treatment and disposal.

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting 
the following amendments to 10 CFR Parts 2, 12, 51, 54, and 61.

PART 2--AGENCY RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 2 continues to read as follows:

    Authority: Atomic Energy Act secs.161, 181, 191 (42 U.S.C. 2201, 
2231, 2241); Energy Reorganization Act sec. 201 (42 U.S.C. 5841); 5 
U.S.C. 552; Government Paperwork Elimination Act sec. 1704 (44 
U.S.C. 3504 note).
    Section 2.101 also issued under Atomic Energy Act secs. 53, 62, 
63, 81, 103, 104 (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 
2135); Nuclear Waste Policy Act sec. 114(f) (42 U.S.C. 10143(f)); 
National Environmental Policy Act sec. 102 (42 U.S.C. 4332); Energy 
Reorganization Act sec. 301 (42 U.S.C. 5871).
    Sections 2.102, 2.103, 2.104, 2.105, 2.321 also issued under 
Atomic Energy Act secs. 102, 103, 104, 105, 183i, 189 (42 U.S.C. 
2132, 2133, 2134, 2135, 2233, 2239). Sections 2.200-2.206 also 
issued under Atomic Energy Act secs. 161, 186, 234 (42 U.S.C. 2201 
(b), (i), (o), 2236, 2282); sec. 206 (42 U.S.C. 5846). Section 
2.205(j) also issued under Pub. L. 101-410, as amended by section 
3100(s), Pub. L. 104-134 (28 U.S.C. 2461 note). Subpart C also 
issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Section 
2.301 also issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.712 
also issued under 5 U.S.C. 557. Section 2.340 also issued under 
Nuclear Waste Policy Act secs. 135, 141, Pub. L. 97-425, 96 Stat. 
2232, 2241 (42 U.S.C. 10155, 10161). Section 2.390 also issued under 
5 U.S.C. 552. Sections 2.600-2.606 also issued under sec. 102 (42 
U.S.C. 4332). Sections 2.800 and 2.808 also issued under 5 U.S.C. 
553. Section 2.809 also issued under 5 U.S.C. 553; Atomic Energy Act 
sec. 29 (42 U.S.C. 2039). Subpart K also issued under Atomic Energy 
Act sec. 189 (42 U.S.C. 2239); Nuclear Waste Policy Act sec. 134 (42 
U.S.C. 10154). Subpart L also issued under Atomic Energy Act sec. 
189 (42 U.S.C. 2239). Subpart M also issued under Atomic Energy Act 
sec. 184, 189 (42 U.S.C. 2234, 2239). Subpart N also issued under 
Atomic Energy Act sec. 189 (42 U.S.C. 2239).

0
2. The heading for part 2 is revised to read as set forth above.

0
3. In part 2, remove the phrase ``Presiding Officer'' wherever it 
appears and add in its place the phrase ``presiding officer''.

0
4. In Sec.  2.4, paragraph (2) of the definition of ``NRC personnel'' 
and the definition of ``Participant'' are revised to read as follows:


Sec.  2.4  Definitions.

* * * * *
    NRC personnel means:
* * * * *
    (2) For the purpose of Sec. Sec.  2.702 and 2.709 only, persons 
acting in the capacity of consultants to the Commission, regardless of 
the form of the contractual arrangements under which such persons act 
as consultants to the Commission; and
* * * * *
    Participant means an individual or organization (including a 
governmental entity) that has petitioned to intervene in a proceeding 
or requested a hearing but that has not yet been granted party status 
by an Atomic Safety and

[[Page 46588]]

Licensing Board or other presiding officer. Participant also means a 
party to a proceeding and any interested State, local governmental 
body, or Federally-recognized Indian Tribe that seeks to participate in 
a proceeding under Sec.  2.315(c). For the purpose of service of 
documents, the NRC staff is considered a participant even if not 
participating as a party.
* * * * *

0
5. In Sec.  2.101, paragraph (a-1) is moved to follow paragraph (a)(9) 
and republished, and paragraphs (a)(3) introductory text, (a)(4), (b), 
(d), (f)(2)(i)(D), (f)(2)(ii), and (f)(5) are revised to read as 
follows:


Sec.  2.101  Filing of application.

    (a) * * *
    (3) If the Director, Office of Nuclear Reactor Regulation, 
Director, Office of New Reactors, Director, Office of Federal and State 
Materials and Environmental Management Programs, or Director, Office of 
Nuclear Material Safety and Safeguards, as appropriate, 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:
* * * * *
    (4) The tendered application for a construction permit, operating 
license, early site permit, standard design approval, combined license, 
or manufacturing license will be formally docketed upon receipt by the 
Director, Office of New Reactors, Director, Office of Nuclear Reactor 
Regulation, Director, Office of Federal and State Materials and 
Environmental Management Programs, or Director, Office 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, Office of New Reactors, Director, 
Office of Nuclear Reactor Regulation, Director, Office of Federal and 
State Materials and Environmental Management Programs, or Director, 
Office of Nuclear Material Safety and Safeguards, as appropriate. 
Within 10 days after docketing, the applicant shall submit to the 
Director, Office of New Reactors, Director, Office of Nuclear Reactor 
Regulation, Director, Office of Federal and State Materials and 
Environmental Management Programs, or Director, Office 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, Office of New Reactors, Director, Office of Nuclear Reactor 
Regulation, Director, Office of Federal and State Materials and 
Environmental Management Programs, or Director, Office 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, Office of New 
Reactors, Director, Office of Nuclear Reactor Regulation, Director, 
Office of Federal and State Materials and Environmental Management 
Programs, or Director, Office 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.
* * * * *
    (9) * * *
    (a-1) Early consideration of site suitability issues. An applicant 
for a construction permit under part 50 of this chapter or a combined 
license under part 52 of this chapter 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 of this part on issues of site suitability within the 
purview of the applicable provisions of parts 50, 51, 52, and 100 of 
this chapter.
    (1) Construction permit. The applicant for the construction permit 
may submit the information required of applicants by the provisions of 
this chapter in three parts:
    (i) 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:
    (A) 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,
    (B) 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
    (C) 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).
    (ii) 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.
    (iii) 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.
    (iv) 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 6 months or follow by no more than 6 months the 
submittal of the information required for part two.
    (2) Combined license under part 52. An applicant for a combined 
license under part 52 of this chapter may submit the information 
required of applicants by the provisions of this chapter in three 
parts:
    (i) Part one shall include or be accompanied by any information 
required by Sec. Sec.  52.79(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:
    (A) Proposed findings on the issues of site suitability on which 
the applicant

[[Page 46589]]

has requested review and a statement of the bases or the reasons for 
those findings;
    (B) 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, 52, and 100; and
    (C) Information concerning the applicant's site selection process 
and long-range plans for ultimate development of the site required by 
Sec.  2.621(b)(1).
    (ii) Part two shall include or be accompanied by the remaining 
information required by Sec. Sec.  50.30(f), 50.33, and 52.79(a)(1) of 
this chapter.
    (iii) Part three shall include the remaining information required 
by Sec. Sec.  52.79 and 52.80 of this chapter.
    (iv) 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 6 months or follow by no more than 6 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, which must comply with 
paragraph (f) of this section, shall serve a copy of the application 
and environmental report, as appropriate, on the chief executive of the 
municipality in which the activity is to be conducted or, if the 
activity is not to be conducted within a municipality on the chief 
executive of the county, and serve a notice of availability of the 
application or environmental report on the chief executives of the 
municipalities or counties which have been identified in the 
application or environmental report as the location of all or part of 
the alternative sites, containing the docket number of the application; 
a brief description of the proposed site and facility; the location of 
the site and facility as primarily proposed and alternatively listed; 
the name, address, telephone number, and 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, Office of Nuclear 
Material Safety and Safeguards or Director, Office of Federal and State 
Materials and Environmental Management Programs, as appropriate, an 
affidavit that service of the notice of availability of the application 
or environmental report has been completed along with a list of names 
and addresses of those executives upon whom the notice was served.
* * * * *
    (d) The Director, Office of Nuclear Reactor Regulation, Director, 
Office of New Reactors, Director, Office of Federal and State Materials 
and Environmental Management Programs, or Director, Office of Nuclear 
Material Safety and Safeguards, as appropriate, will give notice of the 
docketing of the public health and safety, common defense and security, 
and environmental parts of an application for a license for a facility 
or for receipt of waste radioactive material from other persons for the 
purpose of commercial disposal by the waste disposal licensee, except 
that for applications pursuant to part 61 of this chapter, paragraph 
(f) of this section applies to the Governor or other appropriate 
official of the State in which the facility is to be located or the 
activity is to be conducted and will publish in the Federal Register a 
notice of docketing of the application, which states the purpose of the 
application and specifies the location at which the proposed activity 
would be conducted.
* * * * *
    (f) * * *
    (2) * * *
    (i) * * *
    (D) Serve a notice of availability of the application and 
environmental report on the chief executives or governing bodies of the 
municipalities or counties which have been identified in the 
application and environmental report as the location of all or part of 
the alternative sites if copies are not distributed under paragraph 
(f)(2)(i)(C) of this section to the executives or bodies.
    (ii) All distributed copies shall be completely assembled documents 
identified by docket number. However, subsequently distributed 
amendments may include revised pages to previous submittals and, in 
these cases, the recipients will be responsible for inserting the 
revised pages. In complying with the requirements of paragraph (f) of 
this section the applicant may not make public distribution of those 
parts of the application subject to Sec.  2.390(d).
* * * * *
    (5) The Director, Office of Nuclear Material Safety and Safeguards 
or Director, Office of Federal and State Materials and Environmental 
Management Programs, as appropriate, will cause to be published in the 
Federal Register a notice of docketing which identifies the State and 
location of the proposed waste disposal facility and will give notice 
of docketing to the governor of that State and other officials listed 
in paragraph (f)(3) of this section and will, in a reasonable period 
thereafter, publish in the Federal Register a notice under Sec.  2.105 
offering an opportunity to request a hearing to the applicant and other 
potentially affected persons.

0
6. In Sec.  2.103, paragraph (a) is revised to read as follows:


Sec.  2.103  Action on applications for byproduct, source, special 
nuclear material, facility and operator licenses.

    (a) If the Director, Office of Nuclear Reactor Regulation, 
Director, Office of New Reactors, Director, Office of Federal and State 
Materials and Environmental Management Programs, or Director, Office of 
Nuclear Material Safety and Safeguards, as appropriate, 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 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, 
Office of Nuclear Reactor Regulation, Director, Office of New Reactors, 
Director, Office of Nuclear Material Safety and Safeguards, or 
Director, Office of Federal and State Materials and Environmental 
Management Programs, as appropriate, will inform the State, Tribal and 
local officials specified in Sec.  2.104(c) of the issuance of the 
license. For notice of issuance requirements for licenses

[[Page 46590]]

issued under part 61 of this chapter, see Sec.  2.106(d).
* * * * *
0
7. In Sec.  2.105, the introductory text of paragraphs (a), (b), and 
(d) are revised to read as follows:


Sec.  2.105  Notice of proposed action.

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

0
8. In Sec.  2.106, paragraphs (a) introductory text, (c), and (d) are 
revised to read as follows:


Sec.  2.106  Notice of issuance.

    (a) The Director, Office of New Reactors, Director, Office of 
Nuclear Reactor Regulation, Director, Office of Federal and State 
Materials and Environmental Management Programs, or Director, Office of 
Nuclear Material Safety and Safeguards, as appropriate, will inform the 
State and local officials specified in Sec.  2.104(c) and publish a 
document in the Federal Register announcing the issuance of:
* * * * *
    (c) The Director of Nuclear Material Safety and Safeguards will 
also cause to be published in the Federal Register notice of, and will 
inform the State, local, and Tribal officials specified in Sec.  
2.104(c) 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, Office of Federal and State Materials and 
Environmental Management Programs 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(c) 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.

0
9. In Sec.  2.107, paragraph (c) is revised to read as follows:


Sec.  2.107  Withdrawal of application.

* * * * *
    (c) The Director, Office of Nuclear Reactor Regulation, Director, 
Office of New Reactors, Director, Office of Federal and State Materials 
and Environmental Management Programs or Director, Office of Nuclear 
Material Safety and Safeguards, as appropriate, will 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.

0
10. Section 2.108 is revised to read as follows:


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

    (a) The Director, Office of Nuclear Reactor Regulation, Director, 
Office of New Reactors, Director, Office of Federal and State Materials 
and Environmental Management Programs, or Director, Office of Nuclear 
Material Safety and Safeguards, as appropriate, 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, Office of Nuclear Reactor Regulation, Director, 
Office of New Reactors, Director, Office of Federal and State Materials 
and Environmental Management Programs, or Director, Office of Nuclear 
Material Safety and Safeguards, as appropriate, will cause to be 
published in the Federal Register a notice of denial when notice of 
receipt of the application has previously been published, but notice of 
hearing has not 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, Office of Nuclear Reactor Regulation, 
Director, Office of New Reactors, Director, Office of Federal and State 
Materials and Environmental Management Programs, or Director, Office of 
Nuclear Material Safety and Safeguards, as appropriate, under paragraph 
(a) of this section.

0
11. In Sec.  2.305, the heading and paragraphs (c)(4) and (g)(1) are 
revised to read as follows:


Sec.  2.305  Service of documents, methods, proof.

* * * * *
    (c) * * *
    (4) Each document served (as may be required by law, rule, or order 
of the presiding officer) upon a participant to the proceeding must be 
accompanied by a signed certificate of service.
    (i) If a document is served on participants through only the E-
filing system, then the certificate of service must state that the 
document has been filed through the E-Filing system.
    (ii) If a document is served on participants by only a method other 
than the E-Filing system, then the certificate of service must state 
the name, address, and method and date of service for all participants 
served.
    (iii) If a document is served on some participants through the E-
Filing system and other participants by another method of service, then 
the certificate of service must include a list of participants served 
through the E-filing system, and it must state the name, address, and 
method and date of service for all participants served by the other 
method of service.
* * * * *
    (g) * * *
    (1) Service shall be made upon the NRC staff of all documents 
required to be filed with participants and the presiding officer in all 
proceedings, including those proceedings where the NRC staff informs 
the presiding officer of its determination not to participate as a 
party. Service upon the NRC staff shall be by the same or equivalent 
method as service upon the Office of the Secretary and the presiding 
officer, e.g., electronically, personal delivery or courier, express 
mail, or expedited delivery service. If no attorney representing the 
NRC Staff has filed a notice of appearance in the proceeding and 
service is not being made through the E-Filing System, service will be 
made using the following addresses, as

[[Page 46591]]

applicable: by delivery to the Associate General Counsel for Hearings, 
Enforcement & Administration, One White Flint North, 11555 Rockville 
Pike, Rockville MD 20852-0001; by mail addressed to the Associate 
General Counsel for Hearings, Enforcement & Administration, U.S. 
Nuclear Regulatory Commission, Washington DC 20555-0001; by email to 
OgcMailCenter.Resource@nrc.gov; or by facsimile to 301-415-3725.
* * * * *

0
12. In Sec.  2.309:
0
a. Paragraphs (b) introductory text, (c), (d)(2), (d)(3), and (f)(2) 
are revised,
0
b. Paragraphs (h) and (i) are redesignated as paragraphs (i) and (j), 
and revised;
0
c. A new paragraph (h) is added; and
0
d. Paragraph (b)(5) is removed.
    The revisions and addition read as follows:


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

* * * * *
    (b) Timing. Unless specified elsewhere in this chapter or otherwise 
provided by the Commission, the request or petition and the list of 
contentions must be filed as follows:
* * * * *
    (c) Filings after the deadline; submission of hearing request, 
intervention petition, or motion for leave to file new or amended 
contentions--(1) Determination by presiding officer. Hearing requests, 
intervention petitions, and motions for leave to file new or amended 
contentions filed after the deadline in paragraph (b) of this section 
will not be entertained absent a determination by the presiding officer 
that a participant has demonstrated good cause by showing that:
    (i) The information upon which the filing is based was not 
previously available;
    (ii) The information upon which the filing is based is materially 
different from information previously available; and
    (iii) The filing has been submitted in a timely fashion based on 
the availability of the subsequent information.
    (2) Applicability of Sec. Sec.  2.307 and 2.323. (i) Section 2.307 
applies to requests to change a filing deadline (requested before or 
after that deadline has passed) based on reasons not related to the 
substance of the filing.
    (ii) Section 2.323 does not apply to hearing requests, intervention 
petitions, or motions for leave to file new or amended contentions 
filed after the deadline in paragraph (b) of this section.
    (3) New petitioner. A hearing request or intervention petition 
filed after the deadline in paragraph (b) of this section must include 
a specification of contentions if the petitioner seeks admission as a 
party, and must also demonstrate that the petitioner meets the 
applicable standing and contention admissibility requirements in 
paragraphs (d) and (f) of this section.
    (4) Party or participant. A new or amended contention filed by a 
party or participant to the proceeding must also meet the applicable 
contention admissibility requirements in paragraph (f) of this section. 
If the party or participant has already satisfied the requirements for 
standing under paragraph (d) of this section in the same proceeding in 
which the new or amended contentions are filed, it does not need to do 
so again.
* * * * *
    (d) * * *
    (2) Rulings. In ruling on a request for hearing or petition for 
leave to intervene, the Commission, the presiding officer, or the 
Atomic Safety and Licensing Board designated to rule on such requests 
must determine, among other things, whether the petitioner has an 
interest affected by the proceeding considering the factors enumerated 
in paragraph (d)(1) of this section.
    (3) Standing in enforcement proceedings. In enforcement 
proceedings, the licensee or other person against whom the action is 
taken shall have standing.
* * * * *
    (f) * * *
    (2) Contentions must be based on documents or other information 
available at the time the petition is to be filed, such as the 
application, supporting safety analysis report, environmental report or 
other supporting document filed by an applicant or licensee, or 
otherwise available to a petitioner. On issues arising under the 
National Environmental Policy Act, participants shall file contentions 
based on the applicant's environmental report. Participants may file 
new or amended environmental contentions after the deadline in 
paragraph (b) of this section (e.g., based on a draft or final NRC 
environmental impact statement, environmental assessment, or any 
supplements to these documents) if the contention complies with the 
requirements in paragraph (c) of this section.
* * * * *
    (h) Requirements applicable to States, local governmental bodies, 
and Federally-recognized Indian Tribes seeking party status. (1) If a 
State, local governmental body (county, municipality or other 
subdivision), or Federally-recognized Indian Tribe seeks to participate 
as a party in a proceeding, it must submit a request for hearing or a 
petition to intervene containing at least one admissible contention, 
and must designate a single representative for the hearing. If a 
request for hearing or petition to intervene is granted, the 
Commission, the presiding officer or the Atomic Safety and Licensing 
Board ruling on the request will admit as a party to the proceeding a 
single designated representative of the State, a single designated 
representative for each local governmental body (county, municipality 
or other subdivision), and a single designated representative for each 
Federally-recognized Indian Tribe. Where a State's constitution 
provides that both the Governor and another State official or State 
governmental body may represent the interests of the State in a 
proceeding, the Governor and the other State official/government body 
will be considered separate participants.
    (2) If the proceeding pertains to a production or utilization 
facility (as defined in Sec.  50.2 of this chapter) located within the 
boundaries of the State, local governmental body, or Federally-
recognized Indian Tribe seeking to participate as a party, no further 
demonstration of standing is required. If the production or utilization 
facility is not located within the boundaries of the State, local 
governmental body, or Federally-recognized Indian Tribe seeking to 
participate as a party, the State, local governmental body, or 
Federally-recognized Indian Tribe also must demonstrate standing.
    (3) In any proceeding on an application for a construction 
authorization for a high-level radioactive waste repository at a 
geologic repository operations area under parts 60 or 63 of this 
chapter, or an application for a license to receive and possess high-
level radioactive waste at a geologic repository operations area under 
parts 60 or 63 of this chapter, the Commission shall permit 
intervention by the State and local governmental body (county, 
municipality or other subdivision) in which such an area is located and 
by any affected Federally-recognized Indian Tribe as defined in parts 
60 or 63 of this chapter if the requirements of paragraph (f) of this 
section are satisfied with respect to at least one contention. All 
other petitions for intervention in any such proceeding must be 
reviewed under the provisions

[[Page 46592]]

of paragraphs (a) through (f) of this section.
    (i) Answers to hearing requests, intervention petitions, and 
motions for leave to file new or amended contentions filed after the 
deadline. Unless otherwise specified by the Commission, the presiding 
officer, or the Atomic Safety and Licensing Board designated to rule on 
the request, petition, or motion--
    (1) The applicant/licensee, the NRC staff, and other parties to a 
proceeding may file an answer to a hearing request, intervention 
petition, or motion for leave to file amended or new contentions filed 
after the deadline in Sec.  2.309(b) within 25 days after service of 
the request, petition, or motion. Answers should address, at a minimum, 
the factors set forth in paragraphs (a) through (h) of this section 
insofar as these sections apply to the filing that is the subject of 
the answer.
    (2) Except in a proceeding under Sec.  52.103 of this chapter, the 
participant who filed the hearing request, intervention petition, or 
motion for leave to file new or amended contentions after the deadline 
may file a reply to any answer. The reply must be filed within 7 days 
after service of that answer.
    (3) No other written answers or replies will be entertained.
    (j) Decision on request/petition. (1) In all proceedings other than 
a proceeding under Sec.  52.103 of this chapter, the presiding officer 
shall issue a decision on each request for hearing or petition to 
intervene within 45 days of the conclusion of the initial pre-hearing 
conference or, if no pre-hearing conference is conducted, within 45 
days after the filing of answers and replies under paragraph (i) of 
this section. With respect to a request to admit amended or new 
contentions, the presiding officer shall issue a decision on each such 
request within 45 days of the conclusion of any pre-hearing conference 
that may be conducted regarding the proposed amended or new contentions 
or, if no pre-hearing conference is conducted, within 45 days after the 
filing of answers and replies, if any. In the event the presiding 
officer cannot issue a decision within 45 days, the presiding officer 
shall issue a notice advising the Commission and the parties, and the 
notice shall include the expected date of when the decision will issue.
    (2) The Commission, acting as the presiding officer, shall 
expeditiously grant or deny the request for hearing in a proceeding 
under Sec.  52.103 of this chapter. The Commission's decision may not 
be the subject of any appeal under Sec.  2.311.

0
13. In Sec.  2.311, paragraph (b) is revised to read as follows:


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

* * * * *
    (b) These appeals must be made as specified by the provisions of 
this section, within 25 days after the service of the order. The appeal 
must be initiated by the filing of a notice of appeal and accompanying 
supporting brief. Any party who opposes the appeal may file a brief in 
opposition to the appeal within 25 days after service of the appeal. 
The supporting brief and any answer must conform to the requirements of 
Sec.  2.341(c)(2). No other appeals from rulings on requests for 
hearing are allowed.
* * * * *

0
14. In Sec.  2.314, paragraph (c)(3) is revised to read as follows:


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

* * * * *
    (c) * * *
    (3) Anyone disciplined under this section may file an appeal with 
the Commission within 25 days after issuance of the order. The appeal 
must be in writing and state concisely, with supporting argument, why 
the appellant believes the order was erroneous, either as a matter of 
fact or law. The Commission shall consider each appeal on the merits, 
including appeals in cases in which the suspension period has already 
run. If necessary for a full and fair consideration of the facts, the 
Commission may conduct further evidentiary hearings, or may refer the 
matter to another presiding officer for development of a record. In the 
latter event, unless the Commission provides specific directions to the 
presiding officer, that officer shall determine the procedure to be 
followed and who shall present evidence, subject to applicable 
provisions of law. The hearing must begin as soon as possible. In the 
case of an attorney, if no appeal is taken of a suspension, or, if the 
suspension is upheld at the conclusion of the appeal, the presiding 
officer, or the Commission, as appropriate, shall notify the State 
bar(s) to which the attorney is admitted. The notification must include 
copies of the order of suspension, and, if an appeal was taken, briefs 
of the parties, and the decision of the Commission.
* * * * *

0
15. In Sec.  2.315, paragraph (c) is revised to read as follows:


Sec.  2.315  Participation by a person not a party.

* * * * *
    (c) The presiding officer will afford an interested State, local 
governmental body (county, municipality or other subdivision), and 
Federally-recognized Indian Tribe that has not been admitted as a party 
under Sec.  2.309, a reasonable opportunity to participate in a 
hearing. The participation of any State, local governmental body, or 
Federally-recognized Indian Tribe shall be limited to unresolved issues 
and contentions, and issues and contentions that are raised after the 
State, local governmental body, or Federally-recognized Indian Tribe 
becomes a participant. Each State, local governmental body, and 
Federally-recognized Indian Tribe shall, in its request to participate 
in a hearing, designate a single representative for the hearing. The 
representative shall be permitted to introduce evidence, interrogate 
witnesses where cross examination by the parties is permitted, advise 
the Commission without requiring the representative to take a position 
with respect to the issue, file proposed findings in those proceedings 
where findings are permitted, and petition for review by the Commission 
under Sec.  2.341 with respect to the admitted contentions. The 
representative shall identify those contentions on which they will 
participate in advance of any hearing held.
* * * * *

0
16. In Sec.  2.318, paragraph (b) is revised to read as follows:


Sec.  2.318  Commencement and termination of jurisdiction of presiding 
officer.

* * * * *
    (b) The Director, Office of Nuclear Reactor Regulation, Director, 
Office of New Reactors, the Director, Office of Federal and State 
Materials and Environmental Management Programs, or the Director, 
Office of Nuclear Material Safety and Safeguards, as appropriate, may 
issue an order and take any otherwise proper administrative action with 
respect to a licensee who is a party to a pending proceeding. Any order 
related to the subject matter of the pending proceeding may be modified 
by the presiding officer as appropriate for the purpose of the 
proceeding.

0
17. In Sec.  2.319, paragraph (l) is revised, paragraph (r) is 
redesignated as paragraph (s), and a new paragraph (r) is added to read 
as follows:

[[Page 46593]]

Sec.  2.319  Power of the presiding officer.

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

0
18. In Sec.  2.323, paragraphs (a) and (f) are revised to read as 
follows:


Sec.  2.323  Motions.

    (a) Scope and general requirements--(1) Applicability to Sec.  
2.309(c). Section 2.309 motions for new or amended contentions filed 
after the deadline in Sec.  2.309(b) are not subject to the 
requirements of this section. For the purposes of this section the term 
``all motions'' includes any motion except Sec.  2.309 motions for new 
or amended contentions filed after the deadline.
    (2) Presentation and disposition. All motions must be addressed to 
the Commission or other designated presiding officer. All motions 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.
* * * * *
    (f) Referral and certifications to the Commission. (1) If, in the 
judgment of the presiding officer, the presiding officer's decision 
raises significant and novel legal or policy issues, or prompt decision 
by the Commission is necessary to materially advance the orderly 
disposition of the proceeding, then the presiding officer may promptly 
refer the ruling to the Commission. This standard also applies to 
matters certified to the Commission. The presiding officer shall notify 
the parties of the referral or certification either by announcement on-
the-record or by written notice if the hearing is not in session.
    (2) A party may petition the presiding officer to certify a 
question to the Commission for early review. The presiding officer 
shall apply the criteria in Sec.  2.341(f)(1) in determining whether to 
grant the petition for certification. No motion for reconsideration of 
the presiding officer's ruling on a petition for certification will be 
entertained.
* * * * *

0
19. In Sec.  2.326, paragraph (d) is revised to read as follows:


Sec.  2.326  Motions to reopen.

* * * * *
    (d) A motion to reopen that relates to a contention not previously 
in controversy among the parties must also satisfy the Sec.  2.309(c) 
requirements for new or amended contentions filed after the deadline in 
Sec.  2.309(b).

0
20. In Sec.  2.335, paragraphs (b), (c), and (e) are revised to read as 
follows:


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

* * * * *
    (b) A participant to an adjudicatory proceeding subject to this 
part may petition that the application of a specified Commission rule 
or regulation or any provision thereof, of the type described in 
paragraph (a) of this section, be waived or an exception be made for 
the particular proceeding. The sole ground for petition of waiver or 
exception is that special circumstances with respect to the subject 
matter of the particular proceeding are such that the application of 
the rule or regulation (or a provision of it) would not serve the 
purposes for which the rule or regulation was adopted. The petition 
must be accompanied by an affidavit that identifies the specific aspect 
or aspects of the subject matter of the proceeding as to which the 
application of the rule or regulation (or provision of it) would not 
serve the purposes for which the rule or regulation was adopted. The 
affidavit must state with particularity the special circumstances 
alleged to justify the waiver or exception requested. Any other 
participant may file a response by counter-affidavit or otherwise.
    (c) If, on the basis of the petition, affidavit, and any response 
permitted under paragraph (b) of this section, the presiding officer 
determines that the petitioning participant has not made a prima facie 
showing that the application of the specific Commission rule or 
regulation (or provision thereof) to a particular aspect or aspects of 
the subject matter of the proceeding would not serve the purposes for 
which the rule or regulation was adopted and that application of the 
rule or regulation should be waived or an exception granted, no 
evidence may be received on that matter and no discovery, cross 
examination, or argument directed to the matter will be permitted, and 
the presiding officer may not further consider the matter.
* * * * *
    (e) Whether or not the procedure in paragraph (b) of this section 
is available, a participant to an initial or renewal licensing 
proceeding may file a petition for rulemaking under Sec.  2.802.

0
21. In Sec.  2.336, paragraphs (b) introductory text, (b)(1) through 
(4), and (d) are revised to read as follows:


Sec.  2.336  General discovery.

* * * * *
    (b) 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, 
the NRC staff must, within 30 days of the issuance of the order 
granting a request for hearing or petition to intervene and without 
further order or request from any party, disclose or provide to the 
extent available (but excluding those documents for which there is a 
claim of privilege or protected status):
    (1) The application (if applicable) and applicant or licensee 
requests that are relevant to the admitted contentions and are 
associated with the application or proposed action that is the subject 
of the proceeding;
    (2) NRC correspondence with the applicant or licensee that is 
relevant to the admitted contentions and 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) that both support 
the NRC staff's review of the application or proposed action that is 
the subject of the proceeding and are relevant to the admitted 
contentions;
    (4) Any NRC staff documents that both represent the NRC staff's 
determination on the application or proposal that is the subject of the 
proceeding and are relevant to the admitted contentions; and
* * * * *
    (d) The duty of disclosure under this section is continuing. 
Parties must update their disclosures every month after initial 
disclosures on a due date selected by the presiding officer in the 
order admitting contentions, unless the parties agree upon a different 
due date or frequency. The disclosure update shall be limited to 
documents subject to disclosure under this section and does not need to 
include documents that are developed, obtained, or discovered during 
the two weeks before the due date. Disclosure updates shall include any 
documents subject to disclosure that were not included in any previous 
disclosure update. The duty to update

[[Page 46594]]

disclosures relevant to an admitted contention ends when the presiding 
officer issues a decision resolving the contention, or at such other 
time as may be specified by the presiding officer or the Commission.
* * * * *

0
22. In Sec.  2.337, paragraphs (g)(1), (g)(2), and (g)(3) are revised 
to read as follows:


Sec.  2.337  Evidence at a hearing.

* * * * *
    (g) * * *
    (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, Office of Nuclear Reactor 
Regulation, Director, Office of New Reactors, Director, Office of 
Federal and State Materials and Environmental Management Programs, or 
Director, Office of Nuclear Material Safety and Safeguards, as 
appropriate, 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 or contested matter prepared in advance of the 
completion of the safety evaluation;
    (iii) Any NRC staff statement of position on the contention or 
contested matter provided to the presiding officer 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, Office of Nuclear Reactor Regulation, Director, Office 
of New Reactors, Director, Office of Federal and State Materials and 
Environmental Management Programs, or Director, Office of Nuclear 
Material Safety and Safeguards, as appropriate, or his or her designee 
if there is any, but only if there are admitted contentions or 
contested 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 or contested matter prepared in advance of the 
completion of the safety evaluation;
    (iii) Any NRC staff statement of position on the contention or 
contested 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, Office of Nuclear Reactor Regulation, Director, Office 
of New Reactors, Director, Office of Federal and State Materials and 
Environmental Management Programs, or Director, Office of Nuclear 
Material Safety and Safeguards, as appropriate, or his or her designee 
if there is any, but only if there are admitted contentions or 
contested matters with respect to the adequacy of the environmental 
impact statement or environmental assessment.

0
23. Section 2.340 is revised to read as follows:


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

    (a) Initial decision--production or utilization facility operating 
license. (1) Matters in controversy; presiding officer consideration of 
matters not put in controversy by parties. In any initial decision in a 
contested proceeding on an application for an operating license or 
renewed license (including an amendment to or renewal of an operating 
license or renewed license) for a production or utilization facility, 
the presiding officer shall make findings of fact and conclusions of 
law on the matters put into controversy by the parties and any matter 
designated by the Commission to be decided by the presiding officer. 
The presiding officer shall also make findings of fact and conclusions 
of law on any matter not put into controversy by the parties, but only 
to the extent that the presiding officer determines that a serious 
safety, environmental, or common defense and security matter exists, 
and the Commission approves of an examination of and decision on the 
matter upon its referral by the presiding officer under, inter alia, 
the provisions of Sec. Sec.  2.323 and 2.341.
    (2) Presiding officer initial decision and issuance of permit or 
license.
    (i) In a contested proceeding for the initial issuance or renewal 
of a construction permit, operating license, or renewed license, or the 
amendment of an operating or renewed license where the NRC has not made 
a determination of no significant hazards consideration, the 
Commission, the Director, Office of Nuclear Reactor Regulation, or the 
Director, Office of New Reactors, as appropriate, after making the 
requisite findings, shall issue, deny, or appropriately condition the 
permit or license in accordance with the presiding officer's initial 
decision once that decision becomes effective.
    (ii) In a contested proceeding for the amendment of a construction 
permit, operating license, or renewed license where the NRC has made a 
determination of no significant hazards consideration, the Commission, 
the Director, Office of Nuclear Reactor Regulation, or the Director, 
Office of New Reactors, as appropriate (appropriate official), after 
making the requisite findings and complying with any applicable 
provisions of Sec.  2.1202(a) or Sec.  2.1403(a), may issue the 
amendment before the presiding officer's initial decision becomes 
effective. Once the presiding officer's initial decision becomes 
effective, the appropriate official shall take action with respect to 
that amendment in accordance with the initial decision. If the 
presiding officer's initial decision becomes effective before the 
appropriate official issues the amendment, then the appropriate 
official, after making the requisite findings, shall issue, deny, or 
appropriately condition the amendment in accordance with the presiding 
officer's initial decision.
    (b) Initial decision--combined license under 10 CFR part 52. (1) 
Matters in controversy; presiding officer consideration of matters not 
put in controversy by parties. In any initial decision in a contested 
proceeding on an application for a combined license under part 52 of 
this chapter (including an amendment to or renewal of combined 
license), the presiding officer shall make findings of fact and 
conclusions of law on the matters put into controversy by the parties 
and any matter designated by the Commission to be decided by the 
presiding officer. The presiding officer shall also make findings of 
fact and conclusions of law on any matter not put into controversy by 
the parties, but only to the extent that the presiding officer 
determines that a serious safety, environmental, or

[[Page 46595]]

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

[[Page 46596]]

Management Programs, as appropriate, shall issue, deny, or 
appropriately condition the permit, license, or amendment in accordance 
with the presiding officer's initial decision.
    (f) Immediate effectiveness of certain presiding officer decisions. 
A presiding officer's initial decision directing the issuance or 
amendment of a limited work authorization under Sec.  50.10 of this 
chapter, an early site permit under subpart A of part 52 of this 
chapter, a construction permit or construction authorization under part 
50 of this chapter, an operating license under part 50 of this chapter, 
a combined license under subpart C of part 52 of this chapter, a 
manufacturing license under subpart F of part 52 of this chapter, a 
renewed license under part 54, or a license under part 72 of this 
chapter to store spent fuel in an independent spent fuel storage 
facility (ISFSI) or a monitored retrievable storage installation (MRS), 
an initial decision directing issuance of a license under part 61 of 
this chapter, or an initial decision under Sec.  52.103(g) of this 
chapter that acceptance criteria in a combined license have been met, 
is immediately effective upon issuance unless the presiding officer 
finds that good cause has been shown by a party why the initial 
decision should not become immediately effective.
    (g)-(h) [Reserved]
    (i) Issuance of authorizations, permits, and licenses--production 
and utilization facilities. The Commission, the Director, Office of New 
Reactors, or the Director, Office of Nuclear Reactor Regulation, as 
appropriate, shall issue a limited work authorization under Sec.  50.10 
of this chapter, an early site permit under subpart A of part 52 of 
this chapter, a construction permit or construction authorization under 
part 50 of this chapter, an operating license under part 50 of this 
chapter, a combined license under subpart C of part 52 of this chapter, 
or a manufacturing license under subpart F of part 52 of this chapter 
within 10 days from the date of issuance of the initial decision:
    (1) If the Commission or the appropriate Director has made all 
findings necessary for issuance of the authorization, permit or 
license, not within the scope of the initial decision of the presiding 
officer; and
    (2) Notwithstanding the pendency of a petition for reconsideration 
under Sec.  2.345, a petition for review under Sec.  2.341, or a motion 
for stay under Sec.  2.342, or the filing of a petition under Sec.  
2.206.
    (j) Issuance of finding on acceptance criteria under 10 CFR 52.103. 
The Commission, the Director, Office of New Reactors, or the Director, 
Office of Nuclear Reactor Regulation, as appropriate, shall make the 
finding under Sec.  52.103(g) of this chapter that acceptance criteria 
in a combined license are met within 10 days from the date of the 
presiding officer's initial decision:
    (1) If the Commission or the appropriate director is otherwise able 
to make the finding under Sec.  52.103(g) of this chapter that the 
prescribed acceptance criteria are met for those acceptance criteria 
not within the scope of the initial decision of the presiding officer;
    (2) If the presiding officer's initial decision--with respect to 
contentions that the prescribed acceptance criteria have not been met--
finds that those acceptance criteria have been met, and the Commission 
or the appropriate director thereafter is able to make the finding that 
those acceptance criteria are met;
    (3) If the presiding officer's initial decision--with respect to 
contentions that the prescribed acceptance criteria will not be met--
finds that those acceptance criteria will be met, and the Commission or 
the appropriate director thereafter is able to make the finding that 
those acceptance criteria are met; and
    (4) Notwithstanding the pendency of a petition for reconsideration 
under Sec.  2.345, a petition for review under Sec.  2.341, or a motion 
for stay under Sec.  2.342, or the filing of a petition under Sec.  
2.206.
    (k) Issuance of other licenses. The Commission, the Director, 
Office of Nuclear Material Safety and Safeguards, or the Director, 
Office of Federal and State Materials and Environmental Management 
Programs, as appropriate, shall issue a license, including a license 
under part 72 of this chapter to store spent fuel in either an 
independent spent fuel storage facility (ISFSI) located away from a 
reactor site or at a monitored retrievable storage installation (MRS), 
within 10 days from the date of issuance of the initial decision:
    (1) If the Commission or the appropriate Director has made all 
findings necessary for issuance of the license, not within the scope of 
the initial decision of the presiding officer; and
    (2) Notwithstanding the pendency of a petition for reconsideration 
under Sec.  2.345, a petition for review under Sec.  2.341, or a motion 
for stay under Sec.  2.342, or the filing of a petition under Sec.  
2.206.

0
24. In Sec.  2.341, paragraphs (a), (b)(1), (b)(3), (c), and (f)(1) are 
revised to read as follows:


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

    (a)(1) Review of decisions and actions of a presiding officer are 
treated under this section; provided, however, that no party may 
request further Commission review of a Commission determination to 
allow a period of interim operation under Sec.  52.103(c) of this 
chapter. This section does not apply to appeals under Sec.  2.311 or to 
appeals in the high-level waste proceeding, which are governed by Sec.  
2.1015.
    (2) Within 120 days after the date of a decision or action by a 
presiding officer, or within 120 days after a petition for review of 
the decision or action has been served under paragraph (b) of this 
section, whichever is greater, the Commission may review the decision 
or action on its own motion, unless the Commission, in its discretion, 
extends the time for its review.
    (b)(1) Within 25 days after service of a full or partial initial 
decision by a presiding officer, and within 25 days after service of 
any other decision or action by a presiding officer with respect to 
which a petition for review is authorized by this part, a party may 
file a petition for review with the Commission on the grounds specified 
in paragraph (b)(4) of this section. Unless otherwise authorized by 
law, a party to an NRC proceeding must file a petition for Commission 
review before seeking judicial review of an agency action.
* * * * *
    (3) Any other party to the proceeding may, within 25 days after 
service of a petition for review, file an answer supporting or opposing 
Commission review. This answer may not be longer than 25 pages and 
should concisely address the matters in paragraph (b)(2) of this 
section to the extent appropriate. The petitioning party may file a 
reply brief within 10 days of service of any answer. This reply brief 
may not be longer than 5 pages.
* * * * *
    (c)(1) If within 120 days after the filing of a petition for review 
the Commission does not grant the petition, in whole or in part, the 
petition is deemed to be denied, unless the Commission, in its 
discretion, extends the time for its consideration of the petition and 
any answers to the petition.
    (2) If a petition for review is granted, the Commission may issue 
an order specifying the issues to be reviewed and designating the 
parties to the review proceeding. The Commission may, in its

[[Page 46597]]

discretion, decide the matter on the basis of the petition for review 
or it may specify whether any briefs may be filed.
    (3) Unless the Commission orders otherwise, any briefs on review 
may not exceed 30 pages in length, exclusive of pages containing the 
table of contents, table of citations, and any addendum containing 
appropriate exhibits, statutes, or regulations. A brief in excess of 10 
pages must contain a table of contents with page references and a table 
of cases (alphabetically arranged), cited statutes, regulations, and 
other authorities, with references to the pages of the brief where they 
are cited.
* * * * *
    (f) * * *
    (1) A ruling referred or question certified to the Commission under 
Sec. Sec.  2.319(l) or 2.323(f) may be reviewed if the certification or 
referral raises significant and novel legal or policy issues, or 
resolution of the issues would materially advance the orderly 
disposition of the proceeding.
* * * * *

0
25. In Sec.  2.346, paragraphs (e) and (j) are revised to read as 
follows:


Sec.  2.346  Authority of the Secretary.

* * * * *
    (e) Extend the time for the Commission to grant review on its own 
motion under Sec.  2.341;
* * * * *
    (j) Take action on other minor matters.

0
26. In Sec.  2.347, paragraphs (e)(1)(i) and (e)(1)(ii) are revised to 
read as follows:


Sec.  2.347  Ex parte communications.

* * * * *
    (e)(1) * * *
    (i) When a notice of hearing or other comparable order is issued in 
accordance with Sec. Sec.  2.104(a), 2.105(e)(2), 2.202(c), 2.205(e), 
or 2.312; or
    (ii) Whenever the interested person or Commission adjudicatory 
employee responsible for the communication has knowledge that a notice 
of hearing or other comparable order will be issued in accordance with 
Sec. Sec.  2.104(a), 2.105(e)(2), 2.202(c), 2.205(e), or 2.312.
* * * * *

0
27. In Sec.  2.348, paragraphs (d)(1)(i) and (d)(1)(ii) are revised to 
read as follows:


Sec.  2.348  Separation of functions.

* * * * *
    (d)(1) * * *
    (i) When a notice of hearing or other comparable order is issued in 
accordance with Sec. Sec.  2.104(a), 2.105(e)(2), 2.202(c), 2.205(e), 
or 2.312; or
    (ii) Whenever an NRC officer or employee who is or has reasonable 
cause to believe he or she will be engaged in the performance of an 
investigative or litigating function or a Commission adjudicatory 
employee has knowledge that a notice of hearing or other comparable 
order will be issued in accordance with Sec. Sec.  2.104(a), 
2.105(e)(2), 2.202(c), 2.205(e), or 2.312.
* * * * *

0
28. In Sec.  2.704, paragraphs (a)(3) and (e)(1) are revised to read as 
follows:


Sec.  2.704  Discovery-required disclosures.

    (a) * * *
    (3) Unless otherwise stipulated by the parties or directed by order 
of the presiding officer, these disclosures must be made within 45 days 
after the issuance of a prehearing conference order following the 
initial prehearing conference specified in Sec.  2.329. A party must 
make its initial disclosures based on the information then reasonably 
available to it. A party is not excused from making its disclosures 
because it has not fully completed its investigation of the case, 
because it challenges the sufficiency of another party's disclosures, 
or because another party has not made its disclosures. The duty of 
disclosure under this section is continuing. A disclosure update must 
be made every month after initial disclosures on a due date selected by 
the presiding officer, unless the parties agree upon a different due 
date or frequency. The disclosure update shall be limited to documents 
subject to disclosure under this section and does not need to include 
documents that are developed, obtained, or discovered during the two 
weeks before the due date. Disclosure updates shall include any 
documents subject to disclosure that were not included in any previous 
disclosure update. The duty to update disclosures relevant to a 
disputed issue ends when the presiding officer issues a decision 
resolving that disputed issue, or at such other time as may be 
specified by the presiding officer or the Commission.
* * * * *
    (e) * * *
    (1) When a party learns that in some material respect the 
information disclosed under paragraph (a) of this section is incomplete 
or incorrect, and if additional or corrective information has not 
otherwise been made known to the other parties during the discovery 
process or in writing, a party shall supplement its disclosures in 
accordance with the disclosure update schedule in paragraph (a)(3) of 
this section.
* * * * *

0
29. In Sec.  2.705, paragraph (b)(2) introductory text is revised to 
read as follows:


Sec.  2.705  Discovery-additional methods.

* * * * *
    (b) * * *
    (2) Upon his or her own initiative after reasonable notice or in 
response to a motion filed under paragraph (c) of this section, the 
presiding officer may set limits on the number of depositions and 
interrogatories, and may also limit the length of depositions under 
Sec.  2.706 and the number of requests under Sec. Sec.  2.707 and 
2.708. The presiding officer shall limit the frequency or extent of use 
of the discovery methods otherwise permitted under these rules if he or 
she determines that:
* * * * *

0
30. In Sec.  2.709, paragraphs (a)(6) and (a)(7) are added to read as 
follows:


Sec.  2.709  Discovery against NRC staff.

    (a)* * *
    (6)(i) The NRC staff shall, except to the extent otherwise 
stipulated or directed by order of the presiding officer or the 
Commission, provide to the other parties within 45 days after the 
issuance of a prehearing conference order following the initial 
prehearing conference specified in Sec.  2.329 and without awaiting a 
discovery request:
    (A) Except for those documents, data compilations, or other 
tangible things for which there is a claim of privilege or protected 
status, all NRC staff documents, data compilations, or other tangible 
things in possession, custody, or control of the NRC staff that are 
relevant to disputed issues alleged with particularity in the 
pleadings, including any Office of Investigations report and supporting 
exhibits, and any Office of Enforcement documents, data compilations, 
or other tangible things regarding the order. When any document, data 
compilation, or other tangible thing that must be disclosed is publicly 
available from another source, such as the NRC Web site, http://www.nrc.gov, 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; and
    (B) A list of all documents, data compilations, or other tangible 
things otherwise responsive to paragraph (a)(6)(i)(A) of this section 
for which a claim of privilege or protected status is being made, 
together with sufficient information for assessing the claim of 
privilege or protected status of the documents.
    (ii) The duty of disclosure under this section is continuing. A 
disclosure

[[Page 46598]]

update must be made every month after initial disclosures on a due date 
selected by the presiding officer, unless the parties agree upon a 
different due date or frequency. The disclosure update shall be limited 
to documents subject to disclosure under this section and does not need 
to include documents that are developed, obtained, or discovered during 
the two weeks before the due date. Disclosure updates shall include any 
documents subject to disclosure that were not included in any previous 
disclosure update. The duty to update disclosures relevant to a 
disputed issue ends when the presiding officer issues a decision 
resolving that dispute issue, or at such other time as may be specified 
by the presiding officer or the Commission.
    (7) When any document, data compilation, or other tangible thing 
that must be disclosed is publicly available from another source, such 
as at the NRC Web site, http://www.nrc.gov, and/or the NRC Public 
Document Room, a sufficient disclosure would identify the location 
(including the ADAMS accession number, when available), the title and a 
page reference to the relevant document, data compilation, or tangible 
thing.
* * * * *

0
31. In Sec.  2.710, paragraph (a) is revised to read as follows:


Sec.  2.710  Motions for summary disposition.

    (a) Any party to a proceeding may move, with or without supporting 
affidavits, for a decision by the presiding officer in that party's 
favor as to all or any part of the matters involved in the proceeding. 
Summary disposition motions must be filed no later than 20 days after 
the close of discovery. The moving party shall attach to the motion a 
short and concise statement of the material facts as to which the 
moving party contends that there is no genuine issue to be heard. Any 
other party may serve an answer supporting or opposing the motion, with 
or without affidavits, within 20 days after service of the motion. The 
party shall attach to any answer opposing the motion a short and 
concise statement of the material facts as to which it is contended 
there exists a genuine issue to be heard. All material facts set forth 
in the statement required to be served by the moving party will be 
considered to be admitted unless controverted by the statement required 
to be served by the opposing party. The opposing party may, within 10 
days after service, respond in writing to new facts and arguments 
presented in any statement filed in support of the motion. No further 
supporting statements or responses to the motion will be entertained.
* * * * *

0
32. In Sec.  2.802, paragraph (d) is revised to read as follows:


Sec.  2.802  Petition for rulemaking.

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

0
33. In Sec.  2.811, paragraph (c) is revised to read as follows:


Sec.  2.811  Filing of standard design certification application; 
required copies.

* * * * *
    (c) Capability to provide additional copies. The applicant shall 
maintain the capability to generate additional copies of the general 
information and the safety analysis report, or part thereof or 
amendment thereto, for subsequent distribution in accordance with the 
written instructions of the Director, Office of New Reactors, the 
Director, Office of Nuclear Reactor Regulation, the Director, Office of 
Federal and State Materials and Environmental Management Programs, or 
the Director, Office of Nuclear Material Safety and Safeguards, as 
appropriate.
* * * * *

Subpart L--Simplified Hearing Procedures for NRC Adjudications

0
34. The heading of subpart L is revised to read as set forth above:

0
35. In Sec.  2.1202, the introductory text of paragraph (a) is revised 
to read as follows:


Sec.  2.1202  Authority and role of NRC staff.

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

0
36. In Sec.  2.1205, paragraph (a) is revised to read as follows:


Sec.  2.1205  Summary disposition.

    (a) Unless the presiding officer or the Commission directs 
otherwise, motions for summary disposition may be submitted to the 
presiding officer by any party no later than 45 days before the 
commencement of hearing. The motions must be in writing and must 
include a written explanation of the basis of the motion. The moving 
party must attach a short and concise statement of material facts for 
which the moving party contends that there is no genuine issue to be 
heard. 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.
* * * * *

0
37. Section 2.1209 is revised to read as follows:


Sec.  2.1209  Findings of fact and conclusions of law.

    Each party shall file written post-hearing proposed findings of 
fact and conclusions of law on the contentions addressed in an oral 
hearing under Sec.  2.1207 or a written hearing under Sec.  2.1208 
within 30 days of the close of the hearing or at such other time as the 
presiding officer directs. Proposed findings of fact and conclusions of 
law must conform to the format requirements in Sec.  2.712(c).

0
38. In Sec.  2.1210, paragraph (d) is revised to read as follows:


Sec.  2.1210  Initial decision and its effect.

* * * * *
    (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 as otherwise provided by 
this part (e.g., Sec.  2.340) or by the Commission in special 
circumstances.
* * * * *

0
39. In Sec.  2.1213, paragraph (f) is added to read as follows:


Sec.  2.1213  Application for a stay.

* * * * *
    (f) Stays are not available on matters limited to whether a no 
significant hazards consideration determination was proper in 
proceedings on power reactor license amendments.

0
40. Section 2.1300 is revised to read as follows:

[[Page 46599]]

Sec.  2.1300  Scope of subpart M.

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


Sec.  2.1304  [Removed]

0
41. Section 2.1304 is removed.

0
42. In Sec.  2.1316, paragraph (c) is revised to read as follows:


Sec.  2.1316  Authority and role of NRC staff.

* * * * *
    (c)(1) Within 15 days of the issuance of the order granting 
requests for hearing/petitions to intervene and admitting contentions, 
the NRC staff must notify the presiding officer and the parties whether 
it desires to participate as a party, and identify the contentions on 
which it wishes to participate as a party. If the NRC staff desires to 
be a party thereafter, the NRC staff must notify the presiding officer 
and the parties, and identify the contentions on which it wishes to 
participate as a party, and make the disclosures required by Sec.  
2.336(b)(3) through (b)(5) unless accompanied by an affidavit 
explaining why the disclosures cannot be provided to the parties with 
the notice.
    (2) Once the NRC staff chooses to participate as a party, it will 
have all the rights and responsibilities of a party with respect to the 
admitted contention/matter in controversy on which the staff chooses to 
participate.

0
43. In Sec.  2.1321, paragraph (b) is revised to read as follows:


Sec.  2.1321  Participation and schedule for submission in a hearing 
consisting of written comments.

* * * * *
    (b) Written responses, rebuttal testimony with supporting 
affidavits directed to the initial statements and 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 be 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.
* * * * *

0
44. In Sec.  2.1403, the introductory text of paragraph (a) is revised 
to read as follows:


Sec.  2.1403  Authority and role of the NRC staff.

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

0
45. In Sec.  2.1407, paragraphs (a)(1) and (a)(3) are revised to read 
as follows:


Sec.  2.1407  Appeal and Commission review of initial decision.

    (a)(1) Within 25 days after service of a written initial decision, 
a party may file a written appeal seeking the Commission's review on 
the grounds specified in paragraph (b) of this section. Unless 
otherwise authorized by law, a party must file an appeal with the 
Commission before seeking judicial review.
* * * * *
    (3) Any other party to the proceeding may, within 25 days after 
service of the appeal, file an answer supporting or opposing the 
appeal. The answer may not be longer than 20 pages and should concisely 
address the matters specified in paragraph (a)(2) of this section. The 
appellant does not have a right to reply. Unless it directs additional 
filings or oral arguments, the Commission will decide the appeal on the 
basis of the filings permitted by this paragraph.
* * * * *

PART 12--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN 
AGENCY PROCEEDINGS

0
46. The authority citation for part 12 continues to read as follows:

    Authority:  Equal Access to Justice Act sec. 203(a)(1) (5 U.S.C. 
504 (c)(1)).


0
47. In Sec.  12.308, paragraphs (a), (b)(1), and (b)(2) are revised to 
read as follows:


Sec.  12.308  Agency review.

    (a) Either the applicant or the NRC counsel may seek review of the 
initial decision on the fee application, or the Commission may decide 
to review the decision on its own initiative, in accordance with the 
Commission's review procedures set out in 10 CFR 2.341. The filing of a 
petition for review is mandatory for a party to exhaust its 
administrative remedies before seeking judicial review. If neither the 
applicant nor NRC counsel seeks review and the Commission does not take 
review on its own initiative, the initial decision on the application 
shall become a final decision of the NRC 120 days after it is issued.
    (b) * * *
    (1) The expiration of the 120 day period provided in paragraph (a) 
of this section; or
    (2) If within the 120 day period provided in paragraph (a) of this 
section the Commission elects to review the decision, the Commission's 
issuance of a final decision on review of the initial decision.
* * * * *

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

0
48. The authority citation for part 51 continues to read as follows:

     Authority:  Atomic Energy Act sec. 161, 1701 (42 U.S.C. 2201, 
2297f); Energy Reorganization Act secs. 201, 202, 211 (42 U.S.C. 
5841, 5842, 5851); Government Paperwork Elimination Act sec. 1704 
(44 U.S.C. 3504 note). Subpart A also issued under National 
Environmental Policy Act secs. 102, 104, 105 (42 U.S.C. 4332, 4334, 
4335); Pub. L. 95-604, Title II, 92 Stat. 3033-3041; Atomic Energy 
Act sec. 193 (42 U.S.C. 2243). Sections 51.20, 51.30, 51.60, 51.80. 
and 51.97 also issued under Nuclear Waste Policy Act secs. 135, 141, 
148 (42 U.S.C. 10155, 10161, 10168). Section 51.22 also issued under 
Atomic Energy Act sec. 274 (42 U.S.C. 2021) and under Nuclear Waste 
Policy Act sec. 121 (42 U.S.C. 10141). Sections 51.43, 51.67, and 
51.109 also issued under Nuclear Waste Policy Act sec. 114(f) (42 
U.S.C. 10134(f)).


0
49. In Sec.  51.4, the definition of NRC staff is revised to read as 
follows:

[[Page 46600]]

Sec.  51.4  Definitions.

* * * * *
    NRC staff means any NRC officer or employee or his/her authorized 
representative, except a Commissioner, a member of a Commissioner's 
immediate staff, an Atomic Safety and Licensing Board, a presiding 
officer, an administrative judge, an administrative law judge, or any 
other officer or employee of the Commission who performs adjudicatory 
functions.
* * * * *

0
50. In Sec.  51.34, paragraph (b) is revised to read as follows:


Sec.  51.34  Preparation of finding of no significant impact.

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

0
51. In Sec.  51.102, paragraph (c) is revised to read as follows:


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

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

0
52. In Sec.  51.109, paragraph (f) is revised to read as follows:


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

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

0
53. Section 51.125 is revised to read as follows:


Sec.  51.125  Responsible official.

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

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

0
54. The authority citation for part 54 continues to read as follows:

    Authority:  Atomic Energy Act secs. 102, 103, 104, 161, 181, 
182, 183, 186, 189, 223, 234 (42 U.S.C. 2132, 2133, 2134, 2135, 
2201, 2231, 2232, 2233, 2236, 2239, 2273, 2282); Energy 
Reorganization Act secs 201, 202, 206 (42 U.S.C. 5841, 5842); 
Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 
note).
    Section 54.17 also issued under E.O.12829, 3 CFR, 1993 Comp., 
p.570; E.O. 13526, as amended, 3 CFR, 1995 Comp., p. 333; E.O. 
12968, 3 CFR, 1995 Comp., p.391.


0
55. Section 54.27 is revised to read as follows:


Sec.  54.27  Hearings.

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

PART 61--LICENSING REQUIREMENTS FOR LAND DISPOSAL OF RADIOACTIVE 
WASTE

0
56. The authority citation for part 61 continues to read as follows:

    Authority:  Atomic Energy Act secs. 53, 57, 62, 63, 65, 81, 161, 
181, 182, 183, 223, 234 (42 U.S.C. 2073, 2077, 2092, 2093, 2095, 
2111, 2201, 2231, 2232, 2233, 2273, 2282); Energy Reorganization Act 
secs. 201, 202, 206 (42 U.S.C. 5841, 5842, 5846), sec. 211, Pub. L. 
95-601, sec. 10, as amended by Pub. L. 102-486, sec. 2902 (42 U.S.C. 
5851). Pub. L. 95-601, sec. 10, 14, 92 Stat. 2951, 2953 (42 U.S.C. 
2021a, 5851); Government Paperwork Elimination Act sec. 1704 (44 
U.S.C. 3504 note); Energy Policy Act of 2005, sec. 651(e), Pub. L. 
109-58, 119 Stat. 806-810 (42 U.S.C. 2014, 2021, 2021b, 2111).

0
57. In Sec.  61.25, paragraph (c) is revised to read as follows:


Sec.  61.25  Changes.

* * * * *
    (c) The Commission shall provide a copy of the notices of 
opportunity for hearing provided in paragraph (a)(1) of this section to 
State and local officials or tribal governing bodies specified in Sec.  
2.104(c) of this chapter.


    Dated at Rockville, Maryland this 20th day of July 2012.

    For the Nuclear Regulatory Commission.
Kenneth R. Hart,
Acting Secretary of the Commission.
[FR Doc. 2012-18278 Filed 8-2-12; 8:45 am]
BILLING CODE 7590-01-P