[Title 10 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 1999 Edition]
[From the U.S. Government Publishing Office]
10
Energy
[[Page i]]
PARTS 1 TO 50
Revised as of January 1, 1999
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1999
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1999
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 10:
Chapter I--Nuclear Regulatory Commission 3
Finding Aids:
Material Approved for Incorporation by Reference........ 813
Table of CFR Titles and Chapters........................ 817
Alphabetical List of Agencies Appearing in the CFR...... 835
List of CFR Sections Affected........................... 845
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 10 CFR 1.1 refers
to title 10, part 1,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
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evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
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Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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citations for the regulations are referred to by volume number and page
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
[[Page vii]]
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
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For inquiries concerning CFR reference assistance, call 202-523-5227
or write to the Director, Office of the Federal Register, National
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ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
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site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 1999.
[[Page ix]]
THIS TITLE
Title 10--Energy is composed of four volumes. The parts in these
volumes are arranged in the following order: parts 1-50, 51-199, 200-499
and part 500-end. The first and second volumes containing parts 1-199
are comprised of chapter I-- Nuclear Regulatory Commission. The third
and fourth volumes containing part 200-end are comprised of chapters II,
III and X--Department of Energy, and chapter XVII--Defense Nuclear
Facilities Safety Board. The contents of these volumes represent all
current regulations codified under this title of the CFR as of January
1, 1999.
For this volume, Karen A. Thornton was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 10--ENERGY
(This book contains parts 1 to 50)
--------------------------------------------------------------------
Part
Chapter I--Nuclear Regulatory Commission.................... 1
[[Page 3]]
CHAPTER I--NUCLEAR REGULATORY COMMISSION
--------------------------------------------------------------------
Editorial Note: Chapter I--Nuclear Regulatory Commission is continued
in the volume containing 10 CFR parts 51 to 199.
Part Page
1 Statement of organization and general
information............................. 5
2 Rules of practice for domestic licensing
proceedings and issuance of orders...... 17
4 Nondiscrimination in Federally assisted
Commission programs..................... 142
7 Advisory committees......................... 174
8 Interpretations............................. 184
9 Public records.............................. 190
10 Criteria and procedures for determining
eligibility for access to restricted
data or national security information or
an employment clearance................. 221
11 Criteria and procedures for determining
eligibility for access to or control
over special nuclear material........... 234
12 Implementation of the Equal Access to
Justice Act in agency proceedings....... 241
13 Program fraud civil remedies................ 247
14 Administrative claims under Federal Tort
Claims Act.............................. 263
15 Debt collection procedures.................. 268
16 Salary offset procedures for collecting
debts owed by Federal employees to the
Federal government...................... 278
19 Notices, instructions and reports to
workers: inspection and investigations.. 283
20 Standards for protection against radiation.. 289
21 Reporting of defects and noncompliance...... 390
25 Access authorization for licensee personnel. 397
26 Fitness for duty programs................... 405
30 Rules of general applicability to domestic
licensing of byproduct material......... 430
31 General domestic licenses for byproduct
material................................ 468
[[Page 4]]
32 Specific domestic licenses to manufacture or
transfer certain items containing
byproduct material...................... 475
33 Specific domestic licenses of broad scope
for byproduct material.................. 505
34 Licenses for industrial radiography and
radiation safety requirements for
industrial radiographic operations...... 509
35 Medical use of byproduct material........... 527
36 Licenses and radiation safety requirements
for irradiators......................... 561
39 Licenses and radiation safety requirements
for well logging........................ 576
40 Domestic licensing of source material....... 587
50 Domestic licensing of production and
utilization facilities.................. 639
[[Page 5]]
PART 1--STATEMENT OF ORGANIZATION AND GENERAL INFORMATION--Table of Contents
Subpart A--Introduction
Sec.
1.1 Creation and authority.
1.3 Sources of additional information.
1.5 Location of principal offices and Regional Offices.
Subpart B--Headquarters
1.11 The Commission.
Inspector General
1.12 Office of the Inspector General.
Panels, Boards, and Committees
1.13 Advisory Committee on Reactor Safeguards.
1.15 Atomic Safety and Licensing Board Panel.
1.18 Advisory Committee on Nuclear Waste.
1.19 Other committees, boards, and panels.
Commission Staff
1.23 Office of the General Counsel.
1.24 Office of Commission Appellate Adjudication.
1.25 Office of the Secretary of the Commission.
1.26 [Reserved]
1.27 Office of Congressional Affairs.
1.28 Office of Public Affairs.
1.29 Office of International Programs.
Chief Information Officer
1.30 Office of the Chief Information Officer.
Chief Financial Officer
1.31 Office of the Chief Financial Officer.
Executive Director for Operations
1.32 Office of the Executive Director for Operations.
Staff Offices
1.33 Office of Enforcement.
1.34 Office of Administration.
1.35 Office for Analysis and Evaluation of Operational Data.
1.36 Office of Investigations.
1.37 Office of Small Business and Civil Rights.
1.38 [Reserved]
1.39 Office of Human Resources.
1.40 [Reserved]
1.41 Office of State Programs.
Program Offices
1.42 Office of Nuclear Material Safety and Safeguards.
1.43 Office of Nuclear Reactor Regulation.
1.45 Office of Nuclear Regulatory Research.
1.47 NRC Regional Offices.
Subpart C--NRC Seal and Flag
1.51 Description and custody of NRC seal.
1.53 Use of NRC seal or replicas.
1.55 Establishment of official NRC flag.
1.57 Use of NRC flag.
1.59 Report of violations.
Authority: Sec. 23, 161, 68 Stat. 925, 948, as amended (42 U.S.C.
2033, 2201); sec. 29, Pub. L. 85-256, 71 Stat. 579, Pub. L. 95-209, 91
Stat. 1483 (42 U.S.C. 2039); sec. 191, Pub. L. 87-615, 76 Stat. 409 (42
U.S.C. 2241); secs. 201, 203, 204, 205, 209, 88 Stat. 1242, 1244, 1245,
1246, 1248, as amended (42 U.S.C. 5841, 5843, 5844, 5845, 5849); 5
U.S.C. 552, 553; Reorganization Plan No. 1 of 1980, 45 FR 40561, June
16, 1980.
Source: 52 FR 31602, Aug. 21, 1987, unless otherwise noted.
Subpart A--Introduction
Sec. 1.1 Creation and authority.
(a) The Nuclear Regulatory Commission was established by the Energy
Reorganization Act of 1974, as amended, Pub. L. 93-438, 88 Stat. 1233
(42 U.S.C. 5801 et seq.). This Act abolished the Atomic Energy
Commission and, by section 201, transferred to the Nuclear Regulatory
Commission all the licensing and related regulatory functions assigned
to the Atomic Energy Commission by the Atomic Energy Act of 1954, as
amended, Pub. L. 83-703, 68 Stat. 919 (42 U.S.C. 2011 et seq.). These
functions included those of the Atomic Safety and Licensing Board Panel.
The Energy Reorganization Act became effective January 19, 1975 (E.O.
11834).
(b) As used in this part:
Commission means the five members of the Nuclear Regulatory
Commission or a quorum thereof sitting as a body, as provided by section
201 of the Energy Reorganization Act of 1974, as amended.
NRC means the Nuclear Regulatory Commission, the agency established
by title II of the Energy Reorganization Act of 1974, as amended,
comprising the members of the Commission and all offices, employees, and
representatives authorized to act in any case or matter.
[52 FR 31602, Aug. 21, 1987, as amended at 56 FR 29407, June 27, 1991]
[[Page 6]]
Sec. 1.3 Sources of additional information.
(a) A statement of the NRC's organization, policies, procedures,
assignments of responsibility, and delegations of authority is in the
Nuclear Regulatory Commission Manual and other elements of the NRC's
Management Directives System, including local directives issued by
Regional Offices. Letters/memoranda delegations of authority are also
issued from time to time that have not yet been incorporated into the
Manual, parts of which are republished periodically. Copies of the
Manual and other delegations of authority are available for public
inspection and copying for a fee at the NRC Public Document Room, 2120 L
Street, NW., Washington, DC, and at each of NRC's Regional Offices.
Information may also be obtained from the Office of Public Affairs or
from Public Affairs Officers at the Regional Offices. In addition, ``NRC
Functional Organization Charts'' (NUREG-0325) contains detailed
descriptions of the functional responsibilities of NRC's offices. It is
revised annually and is available for public inspection at the NRC
Public Document Room or for purchase from the Superintendent of
Documents, U.S. Government Printing Office, P.O. Box 37082, Washington,
DC 20013-7082; or from the National Technical Information Service,
Springfield, VA 22161.
(b) Commission meetings are open to the public, as provided by the
Government in the Sunshine Act, unless they fall within an exemption to
the Act's openness requirement and the Commission also has determined
that the public interest requires that those particular meetings be
closed. Information concerning Commission meetings may be obtained from
the Office of the Secretary.
(c) Information regarding the availability of NRC records under the
Freedom of Information Act and the Privacy Act of 1974 may be obtained
from the Information Management Division, Office of the Chief
Information Officer. NRC's regulations are published in the Federal
Register and codified in title 10, chapter I, of the Code of Federal
Regulations. They are also published in looseleaf form as ``NRC Rules
and Regulations,'' and available on a subscription basis from the
Superintendent of Documents, U.S. Government Printing Office, P.O. Box
37082, Washington, DC 20013-7082. Final opinions made in the
adjudication of cases are published in ``Nuclear Regulatory Commission
Issuances,'' and available on a subscription basis from the National
Technical Information Service, 5285 Port Royal Road, Springfield, VA
22161.
[52 FR 31602, Aug. 21, 1987, as amended at 53 FR 43419, Oct. 27, 1988;
53 FR 52993, Dec. 30, 1988; 54 FR 53313, Dec. 28, 1989; 57 FR 1639, Jan.
15, 1992; 63 FR 15740, Apr. 1, 1998]
Sec. 1.5 Location of principal offices and Regional Offices.
(a) The principal NRC offices are located in the Washington, DC,
area. Facilities for the service of process and papers are maintained
within the District of Columbia at 2120 L Street NW., and in the State
of Maryland at 11555 Rockville Pike, Rockville, Maryland 20852-2738. The
agency's official mailing address is U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001. The locations of NRC offices in the
Washington, DC area are as follows:
(1) Gelman Building, 2120 L Street NW., Washington, DC 20037.
(2) One White Flint North Building, 11555 Rockville Pike, Rockville,
Maryland 20852-2738.
(3) Two White Flint North Building, 11545 Rockville Pike, Rockville,
Maryland 20852-2738.
(b) The addresses of the NRC Regional Offices are as follows:
(1) Region I, USNRC, 475 Allendale Road, King of Prussia, PA 19406-
1415.
(2) Region II, USNRC, Atlanta Federal Center, 61 Forsyth Street,
SW., Suite 23T85, Atlanta, GA 30303.
(3) Region III, USNRC, 801 Warrenville Road, Lisle, IL 60532-4351.
(4) Region IV, USNRC, 611 Ryan Plaza Drive, Suite 400, Arlington, TX
76011-8064.
(5) USNRC Region IV Walnut Creek Field Office, 1450 Maria Lane,
Suite 300, Walnut Creek, CA 94596-5368.
[59 FR 63882, Dec. 12, 1994, as amended at 62 FR 22879, Apr. 28, 1997]
[[Page 7]]
Subpart B--Headquarters
Sec. 1.11 The Commission.
(a) The Nuclear Regulatory Commission, composed of five members, one
of whom is designated by the President as Chairman, is established
pursuant to section 201 of the Energy Reorganization Act of 1974, as
amended. The Chairman is the principal executive officer of the
Commission, and is responsible for the executive and administrative
functions with respect to appointment and supervision of personnel,
except as otherwise provided by the Energy Reorganization Act of 1974,
as amended, and Reorganizaton Plan No. 1 of 1980 (45 FR 40561);
distribution of business; use and expenditures of funds (except that the
function of revising budget estimates and purposes is reserved to the
Commission); and appointment, subject to approval of the Commission, of
heads of major administrative units under the Commission. The Chairman
is the official spokesman, as mandated by the Reorganization Plan No. 1
of 1980. The Chairman has ultimate authority for all NRC functions
pertaining to an emergency involving an NRC Licensee. The Chairman's
actions are governed by the general policies of the Commission.
(b) The Commission is responsible for licensing and regulating
nuclear facilities and materials and for conducting research in support
of the licensing and regulatory process, as mandated by the Atomic
Energy Act of 1954, as amended; the Energy Reorganization Act of 1974,
as amended; and the Nuclear Nonproliferation Act of 1978; and in
accordance with the National Environmental Policy Act of 1969, as
amended, and other applicable statutes. These responsibilities include
protecting public health and safety, protecting the environment,
protecting and safeguarding nuclear materials and nuclear power plants
in the interest of national security, and assuring conformity with
antitrust laws. Agency functions are performed through standards setting
and rulemaking; technical reviews and studies; conduct of public
hearings; issuance of authorizations, permits, and licenses; inspection,
investigation, and enforcement; evaluation of operating experience; and
confirmatory research. The Commission is composed of five members,
appointed by the President and confirmed by the Senate.
(c) The following staff units and officials report directly to the
Commission: Atomic Safety and Licensing Board Panel, Office of the
General Counsel, Office of the Secretary, Office of Commission Appellate
Adjudication, Office of International Programs, and other committees and
boards that are authorized or established specifically by the Act. The
Advisory Committee on Reactor Safeguards and the Advisory Committee on
Nuclear Waste also report directly to the Commission.
(d) The Offices of Congressional Affairs and Public Affairs report
directly to the Chairman.
[52 FR 31602, Aug. 21, 1987, as amended at 57 FR 1639, Jan. 15, 1992; 59
FR 63882, Dec. 12, 1994]
Inspector General
Sec. 1.12 Office of the Inspector General.
The Office of the Inspector General--
(a) Develops policies and standards that govern NRC's financial and
management audit program;
(b) Plans, directs, and executes the long-range, comprehensive audit
program;
(c) Conducts and reports on investigations and inquiries, as
necessary, to ascertain and verify the facts with regard to the
integrity of all NRC programs and operations;
(d) Investigates possible irregularities or alleged misconduct of
NRC employees and contractors;
(e) Refers suspected or alleged criminal violations concerning NRC
employees or contractors to the Department of Justice;
(f) Reviews existing and proposed legislation and regulations for
their impact on economy and efficiency in the administration of NRC's
programs and operations;
(g) Keeps the Commission and the Congress fully and currently
informed, by means of semiannual and other reports, about fraud, abuse,
and other serious deficiencies in NRC's programs and operations; and
(h) Maintains liaison with audit and inspector general organizations
and
[[Page 8]]
other law enforcement agencies in regard to all matters relating to the
promotion of economy and efficiency and the detection of fraud and abuse
in programs and operations.
[54 FR 53313, Dec. 28, 1989]
Panels, Boards, and Committees
Sec. 1.13 Advisory Committee on Reactor Safeguards.
The Advisory Committee on Reactor Safeguards (ACRS) was established
by section 29 of the Atomic Energy Act of 1954, as amended. Consisting
of a maximum of 15 members, it reviews and reports on safety studies and
applications for construction permits and facility operating licenses;
advises the Commission with regard to hazards of proposed or existing
reactor facilities and the adequacy of proposed reactor safety
standards; upon request of the Department of Energy (DOE), reviews and
advises with regard to the hazards of DOE nuclear activities and
facilities; reviews any generic issues or other matters referred to it
by the Commission for advice. The Committee, on its own initiative, may
conduct reviews of specific generic matters or nuclear facility safety-
related items. The ACRS conducts studies of reactor safety research and
submits reports thereon to the U.S. Congress and the NRC as appropriate.
Sec. 1.15 Atomic Safety and Licensing Board Panel.
The Atomic Safety and Licensing Board Panel, established pursuant to
section 191 of the Atomic Energy Act of 1954, as amended, conducts
hearings for the Commission and such other regulatory functions as the
Commission authorizes. The Panel is comprised of any number of
Administrative Judges (full-time and part-time), who may be lawyers,
physicists, engineers, and environmental scientists; and Administrative
Law Judges, who hear antitrust, civil penalty, and other cases and serve
as Atomic Safety and Licensing Board Chairmen. The Chief Administrative
Judge develops and applies procedures governing the activities of
Boards, Administrative Judges, and Administrative Law Judges and makes
appropriate recommendations to the Commission concerning the rules
governing the conduct of hearings. The Panel conducts all licensing and
other hearings as directed by the Commission primarily through
individual Atomic Safety and Licensing Boards composed of one or three
Administrative Judges. Those boards are appointed by either the
Commission or the Chief Administrative Judge.
Sec. 1.18 Advisory Committee on Nuclear Waste.
The Advisory Committee on Nuclear Waste (ACNW) provides advice to
the Commission on all aspects of nuclear waste management, as
appropriate, within the purview of NRC's regulatory responsibilities.
The primary emphasis of the ACNW is disposal but will also include other
aspects of nuclear waste management such as handling, processing,
transportation, storage, and safeguarding of nuclear wastes including
spent fuel, nuclear wastes mixed with other hazardous substances, and
uranium mill tailings. In performing its work, the committee examines
and reports on specific areas of concern referred to it by the
Commission or designated representatives of the Commission, and
undertakes studies and activities on its own initiative as appropriate
to carry out its responsibilities. The committee interacts with
representatives of NRC, other Federal agencies, state and local
governments, Indian Tribes, and private organizations, as appropriate,
to fulfill its responsibilities.
[54 FR 53314, Dec. 28, 1989]
Sec. 1.19 Other committees, boards, and panels.
Under section 161a. of the Atomic Energy Act of 1954, as amended,
the Commission may establish advisory bodies to make recommendations to
it. Currently, four committees are in existence.
(a) The Advisory Committee on Medical Uses of Isotopes (ACMUI) was
established by the Atomic Energy Commission in July 1958. The ACMUI,
composed of physicians and scientists, considers medical questions
referred to it by the NRC staff and renders expert opinions regarding
medical uses of radioisotopes. The ACMUI also advises
[[Page 9]]
the NRC staff, as requested, on matters of policy regarding licensing of
medical uses of radioisotopes.
(b) The Advisory Committee for the Decontamination of Three Mile
Island, Unit 2, was established by the NRC in October 1980. Its purpose
is to obtain input and views from the residents of the Three Mile Island
area and afford Pennsylvania government officials an opportunity to
participate in the Commission's decisional process regarding cleanup for
Three Mile Island, Unit 2.
(c) The Nuclear Safety Research Review Committee (NSRRC) was
established by the NRC in February 1988 for the purpose of reporting to
the Commission through the Director of the Office of Nuclear Regulatory
Research on important management matters in the direction of the
Commission's nuclear safety research program. The committee activities
cover all aspects of nuclear safety research including, but not limited
to, accident management, plant aging, human factors and system
reliability, earth science, waste disposal and seismic and structural
engineering. In performing its activities, the committee evaluates and
reports on the conformance of the nuclear safety research program to the
NRC philosophy of nuclear regulatory research. The committee conducts
specialized studies when requested by the Commission or Director of the
Office of Nuclear Regulatory Research. The committee interacts with the
Office of Research management staff and selected contractors in private
industry, at national laboratories and universities.
(d) The Licensing Support System Advisory Review Panel (LSSARP) was
established by the Commission on October 3, 1989, pursuant to 10 CFR
2.1011(e) of the Commission's regulations. The LSSARP provides advice to
the Commission on the design, development, and operation of the
Licensing Support System (LSS), an electronic information management
system for use in the Commission's high-level radioactive waste (HLW)
licensing proceeding. Membership consists of those interests that will
be affected by the use of the LSS, and selected Federal agencies with
expertise in large-scale electronic information systems. The individual
representatives of these interests and agencies possess expertise in
management information science and in managing records of the
Commission's licensing process for the HLW repository.
[52 FR 31602, Aug. 21, 1987, as amended at 54 FR 53314, Dec. 28, 1989]
Commission Staff
Sec. 1.23 Office of the General Counsel.
The Office of the General Counsel, established pursuant to section
25 of the Atomic Energy Act of 1954, as amended--
(a) Directs matters of law and legal policy, providing opinions,
advice, and assistance to the agency with respect to all of its
activities;
(b) Reviews and prepares appropriate draft Commission decisions on
public petitions seeking direct Commission action and rulemaking
proceedings involving hearings, monitors cases pending before presiding
officers and reviews draft Commission decisions on Atomic Safety and
Licensing Board decisions and rulings;
(c) Provides interpretation of laws, regulations, and other sources
of authority;
(d) Reviews the legal form and content of proposed official actions;
(e) Prepares or concurs in all contractual documents, interagency
agreements, delegations of authority, regulations, orders, licenses, and
other legal documents and prepares legal interpretations thereof;
(f) Reviews and directs intellectual property (patent) work;
(g) Represents and protects the interests of the NRC in legal
matters and in court proceedings, and in relation to other government
agencies, administrative bodies, committees of Congress, foreign
governments, and members of the public; and
(h) Represents the NRC staff as a party in NRC administrative
hearings.
[52 FR 31602, Aug. 21, 1987, as amended at 56 FR 29407, June 27, 1991]
Sec. 1.24 Office of Commission Appellate Adjudication.
The Office of Commission Appellate Adjudication--
(a) Monitors cases pending before presiding officers;
[[Page 10]]
(b) Provides the Commission with an analysis of any adjudicatory
matter requiring a Commission decision (e.g., petitions for review,
certified questions, stay requests) including available options;
(c) Drafts any necessary decisions pursuant to the Commission's
guidance after presentation of options; and
(d) Consults with the Office of the General Counsel in identifying
the options to be presented to the Commission and in drafting the final
decision to be presented to the Commission.
[56 FR 29407, June 27, 1991]
Sec. 1.25 Office of the Secretary of the Commission.
The Office of the Secretary of the Commission--
(a) Provides general management services to support the Commission
and to implement Commission decisions; and advises and assists the
Commission and staff on the planning, scheduling, and conduct of
Commission business including preparation of internal procedures;
(b) Prepares the Commission's meeting agenda;
(c) Manages the Commission Staff Paper and COMSECY systems;
(d) Receives, processes, and controls Commission mail,
communications, and correspondence;
(e) Maintains the Commission's official records and acts as Freedom
of Information administrative coordinator for Commission records;
(f) Codifies Commission decisions in memoranda directing staff
action and monitors compliance;
(g) Receives, processes, and controls motions and pleadings filed
with the Commission; issues and serves adjudicatory orders on behalf of
the Commission; receives and distributes public comments in rulemaking
proceedings, issues proposed and final rules on behalf of the
Commission; maintains the official adjudicatory and rulemaking dockets
of the Commission; and exercises responsibilities delegated to the
Secretary in 10 CFR 2.702 and 2.772;
(h) Administers the NRC Historical Program;
(i) Integrates office automation initiatives into the Commission's
administrative system;
(j) Functions as the NRC Federal Advisory Committee Management
Officer; and
(k) Provides guidance and direction on the use of the NRC seal and
flag.
[52 FR 31602, Aug. 21, 1987, as amended at 63 FR 15741, Apr. 1, 1998]
Sec. 1.26 [Reserved]
Sec. 1.27 Office of Congressional Affairs.
The Office of Congressional Affairs--
(a) Advises the Chairman, the Commission, and NRC staff on all NRC
relations with Congress and the views of Congress toward NRC policies,
plans and activities;
(b) Maintains liaison with Congressional committees and members of
Congress on matters of interest to NRC;
(c) Serves as primary contact point for all NRC communications with
Congress;
(d) Coordinates NRC internal activities with Congress;
(e) Plans, develops, and manages NRC's legislative programs; and
(f) Monitors legislative proposals, bills, and hearings.
[57 FR 1639, Jan. 15, 1992]
Sec. 1.28 Office of Public Affairs.
The Office of Public Affairs--
(a) Develops policies, programs, and procedures for the Chairman's
approval for informing the public of NRC activities;
(b) Prepares, clears, and disseminates information to the public and
the news media concerning NRC policies, programs, and activities;
(c) Keeps NRC management informed on media coverage of activities of
interest to the agency;
(d) Plans, directs, and coordinates the activities of public
information staffs located at Regional Offices;
(e) Conducts a cooperative program with schools; and
(f) Carries out assigned activities in the area of consumer affairs.
[57 FR 1639, Jan. 15, 1992]
Sec. 1.29 Office of International Programs.
The Office of International Programs--
[[Page 11]]
(a) Advises the Chairman, the Commission, and NRC staff on
international issues;
(b) Recommends policies concerning nuclear exports and imports,
international safeguards, international physical security,
nonproliferation matters, and international cooperation and assistance
in nuclear safety and radiation protection;
(c) Plans, develops, and manages international nuclear safety
information exchange programs and coordinates international research
agreements;
(d) Obtains, evaluates, and uses pertinent information from other
NRC and U.S. Government offices in processing nuclear export and import
license applications;
(e) Establishes and maintains working relationships with individual
countries and international nuclear organizations, as well as other
involved U.S. Government agencies; and
(f) Assures that all international activities carried out by the
Commission and staff are well coordinated internally and Government-wide
and are consistent with NRC and U.S. policies.
[57 FR 1639, Jan. 15, 1992]
Chief Information Officer
Sec. 1.30 Office of the Chief Information Officer.
The Office of the Chief Information Officer--
(a) Plans, directs, and oversees the NRC's information resources,
including technology infrastructure and delivery of information
management services, to meet the mission and goals of the agency;
(b) Provides principal advice to the Chairman to ensure that
information technology (IT) is acquired and information resources across
the agency are managed in a manner consistent with Federal information
resources management (IRM) laws and regulations;
(c) Assists senior management in recognizing where information
technology can add value while improving NRC operations and service
delivery;
(d) Directs the implementation of a sound and integrated IT
architecture to achieve NRC's strategic and IRM goals;
(e) Monitors and evaluates the performance of information technology
and information management programs based on applicable performance
measures and assesses the adequacy of IRM skills of the agency;
(f) Provides guidance and oversight for the selection, control and
evaluation of information technology investments; and
(g) Provides oversight and quality assurance for the design and
operation of the Licensing Support System (LSS) services and for the
completeness and integrity of the LSS database, ensures that the LSS
meets the requirements of 10 CFR part 2, subpart J, concerning the use
of the LSS in the Commission's high-level waste licensing proceedings,
and provides technical oversight of DOE in the design, development, and
operation of the LSS.
[63 FR 15741, Apr. 1, 1998]
Chief Financial Officer
Sec. 1.31 Office of the Chief Financial Officer.
The Office of the Chief Financial Officer--
(a) Oversees all financial management activities relating to NRC's
programs and operations and provides advice to the Chairman on financial
management matters;
(b) Develops and transmits the NRC's budget estimates to the Office
of Management and Budget (OMB) and Congress;
(c) Establishes financial management policy including accounting
principles and standards for the agency and provides policy guidance to
senior managers on the budget and all other financial management
activities;
(d) Provides an agencywide management control program for financial
and program managers that establishes internal control processes and
provides for timely corrective actions regarding material weaknesses
that are disclosed to comply with the Federal Manager's Financial
Integrity Act of 1982;
(e) Develops and manages an agencywide planning, budgeting, and
performance management process;
(f) Develops and maintains an integrated agency accounting and
financial
[[Page 12]]
management system, including an accounting system, and financial
reporting and internal controls;
(g) Directs, manages, and provides policy guidance and oversight of
agency financial management personnel activities and operations;
(h) Prepares and transmits an annual financial management report to
the Chairman and the Director, Office of Management and Budget,
including an audited financial statement;
(i) Monitors the financial execution of NRC's budget in relation to
actual expenditures, controls the use of NRC funds to ensure that they
are expended in accordance with applicable laws and financial management
principles, and prepares and submits to the Chairman timely cost and
performance reports;
(j) Establishes, maintains, and oversees the implementation of
license fee polices and regulations; and
(k) Reviews, on a periodic basis, fees and other charges imposed by
NRC for services provided and makes recommendations for revising those
charges, as appropriate.
[63 FR 15741, Apr. 1, 1998]
Executive Director for Operations
Sec. 1.32 Office of the Executive Director for Operations.
(a) The Executive Director for Operations (EDO) reports for all
matters to the Chairman, and is subject to the supervision and direction
of the Chairman as provided in Reorganization Plan No. 1 of 1980.
(b) The EDO supervises and coordinates policy development and
operational activities in the following line offices; the Office of
Nuclear Reactor Regulation, the Office of Nuclear Material Safety and
Safeguards, the Office of Nuclear Regulatory Research, and the NRC
Regional Offices; and the following staff offices: The Office of
Enforcement, the Office of Administration, the Office of Investigations,
the Office for Analysis and Evaluation of Operational Data, the Office
of Small Business and Civil Rights, the Office of Human Resources, the
Office of State Programs, and other organizational units as shall be
assigned by the Commission. The EDO is also responsible for
implementation of the Commission's policy directives pertaining to these
offices.
(c) The EDO exercises powers and functions delegated to the EDO
under the Reorganization Plan No. 1 of 1980, this chapter, or otherwise
by the Commission or Chairman, as appropriate. The EDO has the authority
to perform any function that may be performed by an office director
reporting to the EDO.
[54 FR 53314, Dec. 28, 1989, as amended at 59 FR 63882, Dec. 12, 1994.
Redesignated and amended at 63 FR 15741, Apr. 1, 1998]
Staff Offices
Sec. 1.33 Office of Enforcement.
The Office of Enforcement--
(a) Develops policies and programs for enforcement of NRC
requirements;
(b) Manages major enforcement actions; and
(c) Assesses the effectiveness and uniformity of Regional
enforcement actions.
[63 FR 15741, Apr. 1, 1998]
Sec. 1.34 Office of Administration.
The Office of Administration--
(a) Develops and implements agencywide contracting policies and
procedures;
(b) Develops policies and procedures and manages the operation and
maintenance of NRC offices, facilities, and equipment;
(c) Plans, develops, establishes, and administers policies,
standards, and procedures for the overall NRC security program; and
(d) Develops and implements policies and procedures for the review
and publication of NRC rulemakings, and ensures compliance with the
Regulatory Flexibility Act and the Small Business Regulatory Enforcement
Fairness Act, manages the NRC management directives program, and
provides translations services.
[63 FR 15741, Apr. 1, 1998]
Sec. 1.35 Office for Analysis and Evaluation of Operational Data.
The Office for Analysis and Evaluation of Operational Data--
(a) Analyzes and evaluates operational safety data associated with
NRC-licensed activities to identify
[[Page 13]]
safety issues that require NRC or industry action;
(b) Provides timely feedback of findings and evaluations to NRC
staff, licensees, Congress, the public, and organizations, as
appropriate;
(c) Identifies NRC needs for operational data and related technical
information and provides the NRC focal point for coordination of generic
operational safety data and systems with the industry and other
agencies;
(d) Develops and manages the NRC program for response to incidents
and emergencies, including the timely notification of events to NRR,
NMSS, and the Regions, as appropriate;
(e) Develops and provides appropriate technical training for NRC
staff;
(f) Develops and manages the agency program for reactor performance
indicators;
(g) Develops and directs the agency program for diagnostic
evaluations and for investigation of significant operational incidents;
(h) Manages and conducts the support functions for the Committee to
Review Generic Requirements (CRGR) in a manner that is consistent with
CRGR charter; and
(i) Ensures the administrative processes and functions specified in
the CRGR charter are implemented in a thorough and timely manner.
Sec. 1.36 Office of Investigations.
The Office of Investigations (OI)--
(a) Conducts investigations of licensees, applicants, their
contractors or vendors, including the investigation of all allegations
of wrongdoing by other than NRC employees and contractors;
(b) Maintains current awareness of inquiries and inspections by
other NRC offices to identify the need for formal investigations;
(c) Makes appropriate referrals to the Department of Justice;
(d) Maintains liaison with other agencies and organizations to
ensure the timely exchange of information of mutual interest; and
(e) Issues subpoenas where necessary or appropriate for the conduct
of investigations.
[54 FR 53315, Dec. 28, 1989]
Sec. 1.37 Office of Small Business and Civil Rights.
The Office of Small Business and Civil Rights--
(a) Develops and implements an effective small and disadvantaged
business program in accordance with the Small Business Act, as amended,
and plans and implements NRC policies and programs relating to equal
employment oppportunity and civil rights matters as required by the
Equal Employment Opportunity Commission (EEOC) and the Office of
Personnel Management (OPM);
(b) Ensures that appropriate consideration is given to Labor Surplus
Area firms and Women Business Enterprises, and conducts an outreach
program aimed at contractors desiring to do business with NRC;
(c) Maintains liaison with other Government agencies and trade
associations;
(d) Coordinates efforts with the Director, Division of Contracts,
and Directors of other affected offices;
(e) Develops and recommends for approval by the Executive Director
for Operations, NRC policy providing for equal employment opportunity in
all aspects of Federal personnel practice;
(f) Develops, monitors, and evaluates the agency's equal employment
opportunity efforts and affirmative action programs to ensure compliance
with NRC policy;
(g) Serves as the principal contact with local and national public
and private organizations to facilitate the NRC equal opportunity
program; and
(h) Coordinates all efforts pertaining to small and disadvantaged
business utilization and equal employment opportunity with Office
Directors and Regional Administrators.
[52 FR 31602, Aug. 21, 1987, as amended at 59 FR 63882, Dec. 12, 1994]
Sec. 1.38 [Reserved]
Sec. 1.39 Office of Human Resources.
The Office of Human Resources--
(a) Plans and implements NRC policies, programs, and services to
provide for the effective organization, utilization, and development of
the agency's human resources;
[[Page 14]]
(b) Provides labor relations and personnel policy guidance and
supporting services to NRC managers and employees;
(c) Provides training, benefits administration, and counseling
services for NRC employees;
(d) Collects, analyzes, and provides data on the characteristics,
allocation, utilization, and retention of NRC's workforce;
(e) Provides staffing advice and services to NRC managers and
employees; and
(f) Provides executive resources management and organizational and
managerial development services to the NRC.
[52 FR 31602, Aug. 21, 1987, as amended at 63 FR 15742, Apr. 1, 1998]
Sec. 1.40 [Reserved]
Sec. 1.41 Office of State Programs.
The Office of State Programs--
(a) Plans and directs NRC's program of cooperation and liaison with
States, local governments, interstate and Indian Tribe organizations;
and coordinates liaison with other Federal Agencies;
(b) Participates in formulation of policies involving NRC/State
cooperation and liaison;
(c) Develops and directs administrative and contractual programs for
coordinating and integrating Federal and State regulatory activities;
(d) Maintains liaison between NRC and State, interstate, regional,
Indian Tribe, and quasi-governmental organizations on regulatory
matters;
(e) Promotes NRC visibility and performs general liaison with other
Federal Agencies, and keeps NRC management informed of significant
developments at other Federal Agencies which affect the NRC;
(f) Monitors nuclear-related State legislative activities;
(g) Directs regulatory activities of State Liaison and State
Agreement Officers located in Regional Offices;
(h) Participates in policy matters on State Public Utility
Commissions (PUCs);
(i) Administers the State Agreements program in a partnership
arrangement with the States;
(j) Develops staff policy and procedures and implementation of the
State Agreements program under the provisions of section 274b of the
Atomic Energy Act, as amended;
(k) Provides oversight of program of periodic routine reviews of
Agreement State programs to determine their adequacy and compatibility
as required by section 274j of the Act and other periodic reviews that
may be performed to maintain a current level of knowledge of the status
of the Agreement State programs;
(l) Provides training to the States as provided by section 274i of
the Act and also to NRC staff and staff of the U.S. Navy and U.S. Air
Force;
(m) Provides technical assistance to Agreement States;
(n) Maintains an exchange of information with the States;
(o) Conducts negotiations with States expressing an interest in
seeking a section 274b Agreement;
(p) Supports, consistent with Commission directives, State efforts
to improve regulatory control for radiation safety over radioactive
materials not covered by the Act; and
(q) Serves as the NRC liaison to the Conference of Radiation Control
Program Directors, Inc. (CRCPD) and coordinates NRC technical support of
CRCPD committees.
[57 FR 1639, Jan. 15, 1992, as amended at 59 FR 5519, Feb. 7, 1994]
Program Offices
Sec. 1.42 Office of Nuclear Material Safety and Safeguards.
(a) The Office of Nuclear Material Safety and Safeguards is
responsible for protecting the public health and safety, the common
defense and security, and the environment by licensing, inspection, and
environmental impact assessment for all nuclear facilities and
activities, and for the import and export of special nuclear material.
(b) The Office responsibilities include--
(1) Development and promulgation of regulations;
(2) Development and implementation of NRC policy for the regulation
of activities involving safety, quality, approval, and inspection of the
use and
[[Page 15]]
handling of nuclear and other radioactive materials, such as uranium
activities;
(3) Fuel fabrication and fuel development;
(4) Medical, industrial, academic, and commercial uses of
radioactive isotopes;
(5) Safeguards activities;
(6) Transportation of nuclear materials, including certification of
transport containers;
(7) Out-of-reactor spent fuel storage;
(8) Safe management and disposal of low-level and high-level
radioactive wastes;
(9) Planning and direction of program for financial assurance of
NMSS licensees; and
(10) Management of the decommissioning of facilities and sites when
their licensed functions are over.
(c) Safeguards responsibilities include--
(1) Development of overall agency policy;
(2) Monitoring and assessment of the threat environment, including
liaison with intelligence agencies, as appropriate; and
(3) Those licensing and review activities appropriate to deter and
protect against threats of radiological sabotage and threats of theft or
diversion of special nuclear material at fuel facilities and during
transport.
(d) The Office identifies and takes action to control safety and
safeguards issues for activities under its responsibility, including
consulting and coordinating with international, Federal, State, and
local agencies, as appropriate.
[52 FR 31602, Aug. 21, 1987. Redesignated at 57 FR 1639, Jan. 15, 1992,
as amended at 63 FR 69544, Dec. 17, 1998]
Sec. 1.43 Office of Nuclear Reactor Regulation.
The Office of Nuclear Reactor Regulation--
(a) Develops, promulgates and implements regulations and develops
and implements policies, programs, and procedures for all aspects of
licensing, inspection, and safeguarding of--
(1) Manufacturing, production, and utilization facilities, except
for those concerning fuel reprocessing plants and isotopic enrichment
plants;
(2) Receipt, possession, and ownership of source, byproduct, and
special nuclear material used or produced at facilities licensed under
10 CFR part 50;
(3) Operators of such facilities;
(4) Emergency preparedness at such facilities; and
(5) Contractors and suppliers of such facilities.
(b) Identifies and takes action regarding conditions and licensee
performance that may adversely affect public health and safety, the
environment, or the safeguarding of nuclear reactor facilities;
(c) Assesses and recommends or takes action regarding incidents or
accidents;
(d) Provides special assistance as required in matters involving
reactor facilities exempt from licensing;
(e) Provides guidance and implementation direction to Regional
Offices on reactor licensing, inspection, and safeguards programs
assigned to the Region, and appraises Regional program performance in
terms of effectiveness and uniformity;
(f) Performs other functions required for implementation of the
reactor licensing, inspection, and safeguards programs;
(g) Performs management of the NRC allegation program; and
(h) Performs review and evaluation related to regulated facilities
insurance, indemnity, and antitrust matters.
[52 FR 31602, Aug. 21, 1987, as amended at 63 FR 69544, Dec. 17, 1998]
Sec. 1.45 Office of Nuclear Regulatory Research.
The Office of Nuclear Regulatory Research--
(a) Plans, recommends, and implements programs of nuclear regulatory
research, standards development, and resolution of generic safety issues
for nuclear power plants and other facilities regulated by the NRC;
(b) Coordinates research activities within and outside the agency
including appointment of staff to committees and conferences; and
[[Page 16]]
(c) Coordinates NRC participation in international standards-related
activities and national volunteer standards efforts, including
appointment of staff to committees.
[52 FR 31602, Aug. 21, 1987, as amended at 63 FR 69544, Dec. 17, 1998]
Sec. 1.47 NRC Regional Offices.
Each Regional Administrator executes established NRC policies and
assigned programs relating to inspection, enforcement, licensing, State
agreements, State liaison, and emergency response within Regional
boundaries set out in Sec. 1.5(b) of this part.
Subpart C--NRC Seal and Flag
Sec. 1.51 Description and custody of NRC seal.
(a) Pursuant to section 201(a) of the Energy Reorganization Act of
1974, the Nuclear Regulatory Commission, has adopted an official seal.
Its description is as follows: An American bald eagle (similar to that
on the Great Seal of the United States of America) of brown and tan with
claws and beak of yellow, behind a shield of red, white, and blue,
clutching a cluster of thirteen arrows in its left claw and a green
olive branch in its right claw, positioned on a field of white, with the
words ``United States Nuclear Regulatory Commission'' in dark blue
encircling the eagle. The eagle represents the United States of America
and its interests.
(b) The Official Seal of the Nuclear Regulatory Commission is
illustrated as follows:
[GRAPHIC] [TIFF OMITTED] TC02OC91.055
(c) The Secretary of the Commission is responsible for custody of
the impression seals and of replica (plaque) seals.
Sec. 1.53 Use of NRC seal or replicas.
(a) The use of the seal or replicas is restricted to the following:
(1) NRC letterhead stationery;
(2) NRC award certificates and medals;
(3) Security credentials and employee identification cards;
(4) NRC documents, including agreements with States, interagency or
governmental agreements, foreign patent applications, certifications,
special reports to the President and Congress and, at the discretion of
the Secretary of the Commission, such other documents as the Secretary
finds appropriate;
(5) Plaques--the design of the seal may be incorporated in plaques
for display at NRC facilities in locations such as auditoriums,
presentation rooms, lobbies, offices of senior officials, on the fronts
of buildings, and other places designated by the Secretary;
(6) The NRC flag (which incorporates the design of the seal);
(7) Official films prepared by or for the NRC, if deemed appropriate
by the Director of Governmental and Public Affairs;
(8) Official NRC publications that represent an achievement or
mission of NRC as a whole, or that are cosponsored by NRC and other
Government departments or agencies; and
(9) Any other uses as the Secretary of the Commission finds
appropriate.
(b) Any person who uses the official seal in a manner other than as
permitted by this section shall be subject to the provisions of 18
U.S.C. 1017, which provides penalties for the fraudulent or wrongful use
of an official seal, and to other provisions of law as applicable.
Sec. 1.55 Establishment of official NRC flag.
The official flag is based on the design of the NRC seal. It is 50
inches by 66 inches in size with a 38-inch diameter seal incorporated in
the center of a dark blue field with a gold fringe.
[[Page 17]]
Sec. 1.57 Use of NRC flag.
(a) The use of the flag is restricted to the following:
(1) On or in front of NRC installations;
(2) At NRC ceremonies;
(3) At conferences involving official NRC participation (including
permanent display in NRC conference rooms);
(4) At Governmental or public appearances of NRC executives;
(5) In private offices of senior officials; or
(6) As the Secretary of the Commission otherwise authorizes.
(b) The NRC flag must only be displayed together with the U.S. flag.
When they are both displayed on a speaker's platform, the U.S. flag must
occupy the position of honor and be placed at the speaker's right as he
or she faces the audience, and the NRC flag must be placed at the
speaker's left.
Sec. 1.59 Report of violations.
In order to ensure adherence to the authorized uses of the NRC seal
and flag as provided in this subpart, a report of each suspected
violation of this subpart, or any questionable use of the NRC seal or
flag, should be submitted to the Secretary of the Commission.
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS--Table of Contents
Sec.
2.1 Scope.
2.2 Subparts.
2.3 Resolution of conflict.
2.4 Definitions.
2.8 Information collection requirements: OMB approval.
Subpart A--Procedure for Issuance, Amendment, Transfer, or Renewal of a
License
2.100 Scope of subpart.
2.101 Filing of application.
2.102 Administrative review of application.
2.103 Action on applications for byproduct, source, special nuclear
material, and operator licenses.
Hearing on Application--How Initiated
2.104 Notice of hearing.
2.105 Notice of proposed action.
2.106 Notice of issuance.
2.107 Withdrawal of application.
2.108 Denial of application for failure to supply information.
2.109 Effect of timely renewal application.
2.110 Filing and administrative action on submittals for design review
or early review of site suitability issues.
2.111 Prohibition of sex discrimination.
Subpart B--Procedure for Imposing Requirements by Order, or for
Modification, Suspension, or Revocation of a License, or for Imposing
Civil Penalties
2.200 Scope of subpart.
2.201 Notice of violation.
2.202 Orders.
2.203 Settlement and compromise.
2.204 Demand for information.
2.205 Civil penalties.
2.206 Requests for action under this subpart.
Subpart C [Reserved]
Subpart D--Additional Procedures Applicable to Proceedings for the
Issuance of Licenses To Construct or Operate Nuclear Power Plants of
Duplicate Design at Multiple Sites
2.400 Scope of subpart.
2.401 Notice of hearing on applications pursuant to appendix N of part
52 for construction permits.
2.402 Separate hearings on separate issues; consolidation of
proceedings.
2.403 Notice of proposed action on applications for operating licenses
pursuant to appendix N of part 52.
2.404 Hearings on applications for operating licenses pursuant to
appendix N of part 52.
2.405 Initial decisions in consolidated hearings.
2.406 Finality of decisions on separate issues.
2.407 Applicability of other sections.
Subpart E--Additional Procedures Applicable to Proceedings for the
Issuance of Licenses To Manufacture Nuclear Power Reactors To Be
Operated at Sites Not Identified in the License Application and Related
Licensing Proceedings
2.500 Scope of subpart.
2.501 Notice of hearing on application pursuant to appendix M of part
52 for a license to manufacture nuclear power reactors.
[[Page 18]]
2.502 Notice of hearing on application for a permit to construct a
nuclear power reactor manufactured pursuant to a Commission
license issued pursuant to appendix M of part 52 of this
chapter at the site at which the reactor is to be operated.
2.503 Finality of decision on separate issues.
2.504 Applicability of other sections.
Subpart F--Additional Procedures Applicable to Early Partial Decisions
on Site Suitability Issues in Connection With an Application for a
Permit To Construct Certain Utilization Facilities
2.600 Scope of subpart.
2.601 Applicability of other sections.
2.602 Filing fees.
2.603 Acceptance and docketing of application for early review of site
suitability issues.
2.604 Notice of hearing on application for early review of site
suitability issues.
2.605 Additional considerations.
2.606 Partial decisions on site suitability issues.
Subpart G--Rules of General Applicability
2.700 Scope of subpart.
2.700a Exceptions.
2.701 Filing of documents.
2.702 Docket.
2.703 Notice of hearing.
2.704 Designation of presiding officer, disqualification,
unavailability.
2.705 Answer.
2.706 Reply.
2.707 Default.
2.708 Formal requirements for documents.
2.709 Acceptance for filing.
2.710 Computation of time.
2.711 Extension and reduction of time limits.
2.712 Service of papers, methods, proof.
2.713 Appearance and practice before the Commission in adjudicatory
proceedings.
2.714 Intervention.
2.714a Petitions for review of certain rulings on petitions for leave
to intervene and/or requests for hearing.
2.715 Participation by a person not a party.
2.715a Consolidation of parties in construction permit or operating
license proceedings.
2.716 Consolidation of proceedings.
2.717 Commencement and termination of jurisdiction of presiding
officer.
2.718 Power of presiding officer.
2.719 [Reserved]
2.720 Subpoenas.
2.721 Atomic safety and licensing boards.
2.722 Special assistants to the presiding officer.
Motions
2.730 Motions.
2.731 Order of procedure.
2.732 Burden of proof.
2.733 Examination by experts.
2.734 Motions to reopen.
Depositions and Written Interrogatories; Discovery; Admission; Evidence
2.740 General provisions governing discovery.
2.740a Depositions upon oral examination and upon written
interrogatories.
2.740b Interrogatories to parties.
2.741 Production of documents and things and entry upon land for
inspection and other purposes.
2.742 Admissions.
2.743 Evidence.
2.744 Production of NRC records and documents.
Summary Disposition on Pleadings
2.749 Authority of presiding officer to dispose of certain issues on
the pleadings.
Hearings
2.750 Official reporter; transcript.
2.751 Hearings to be public.
2.751a Special prehearing conference in construction permit and
operating license proceedings.
2.752 Prehearing conference.
2.753 Stipulations.
2.754 Proposed findings and conclusions.
2.755 Oral argument before presiding officer.
2.756 Informal procedures.
2.757 Authority of presiding officer to regulate procedure in a
hearing.
2.758 Consideration of Commission rules and regulations in adjudicatory
proceedings.
2.759 Settlement in initial licensing proceedings.
Initial Decision and Commission Review
2.760 Initial decision and its effect.
2.760a Initial decision in contested proceedings on applications for
facility operating licenses.
2.761 Expedited decisional procedure.
2.761a Separate hearings and decisions.
2.763 Oral argument.
2.764 Immediate effectiveness of initial decision directing issuance or
amendment of construction permit or operating license.
2.765 Immediate effectiveness of initial decision directing issuance or
amendment of licenses under part 61 of this chapter.
Final Decision
2.770 Final decision.
2.771 Petition for reconsideration.
2.772 Authority of the Secretary to rule on procedural matters.
[[Page 19]]
Restricted Communications
2.780 Ex parte communications.
2.781 Separation of functions.
2.786 Review of decisions and actions of a presiding officer.
2.788 Stays of decisions of presiding officers pending review.
Availability of Official Records
2.790 Public inspections, exemptions, requests for withholding.
Subpart H--Rulemaking
2.800 Scope of rulemaking.
2.801 Initiation of rulemaking.
2.802 Petition for rulemaking.
2.803 Determination of petition.
2.804 Notice of proposed rulemaking.
2.805 Participation by interested persons.
2.806 Commission action.
2.807 Effective date.
2.808 Authority of the Secretary to rule on procedural matters.
2.809 Participation by the Advisory Committee on Reactor Safeguards.
2.810 NRC size standards.
Subpart I--Special Procedures Applicable to Adjudicatory Proceedings
Involving Restricted Data and/or National Security Information
2.900 Purpose.
2.901 Scope.
2.902 Definitions.
2.903 Protection of restricted data and national security information.
2.904 Classification assistance.
2.905 Access to restricted data and national security information for
parties; security clearances.
2.906 Obligation of parties to avoid introduction of restricted data or
national security information.
2.907 Notice of intent to introduce restricted data or national
security information.
2.908 Contents of notice of intent to introduce restricted data or
other national security information.
2.909 Rearrangement or suspension of proceedings.
2.910 Unclassified statements required.
2.911 Admissibility of restricted data or other national security
information.
2.912 Weight to be attached to classified evidence.
2.913 Review of Restricted Data or other National Security Information
received in evidence.
Subpart J--Procedures Applicable to Proceedings for the Issuance of
Licenses for the Receipt of High-Level Radioactive Waste at a Geologic
Repository
2.1000 Scope of subpart.
2.1001 Definitions.
2.1002 [Reserved]
2.1003 Availability of material.
2.1004 Amendments and additions.
2.1005 Exclusions.
2.1006 Privilege.
2.1007 Access.
2.1008 [Reserved]
2.1009 Procedures.
2.1010 Pre-License Application Presiding Officer.
2.1011 Management of electronic information.
2.1012 Compliance.
2.1013 Use of the electronic docket during the proceeding.
2.1014 Intervention.
2.1015 Appeals.
2.1016 Motions.
2.1017 Computation of time.
2.1018 Discovery.
2.1019 Depositions.
2.1020 Entry upon land for inspection.
2.1021 First prehearing conference.
2.1022 Second prehearing conference.
2.1023 Immediate effectiveness.
2.1025 Authority of the Presiding Officer to dispose of certain issues
on the pleadings.
2.1026 Schedule.
2.1027 Sua Sponte.
Subpart K--Hybrid Hearing Procedures for Expansion of Spent Nuclear Fuel
Storage Capacity at Civilian Nuclear Power Reactors
2.1101 Purpose.
2.1103 Scope.
2.1105 Definitions.
2.1107 Notice of proposed action.
2.1109 Requests for oral argument.
2.1111 Discovery.
2.1113 Oral argument.
2.1115 Designation of issues for adjudicatory hearing.
2.1117 Applicability of other sections.
Subpart L--Informal Hearing Procedures for Adjudications in Materials
and Operator Licensing Proceedings
2.1201 Scope of subpart.
2.1203 Docket; filing; service.
2.1205 Request for a hearing; petition for leave to intervene.
2.1207 Designation of presiding officer.
2.1209 Power of presiding officer.
2.1211 Participation by a person not a party.
2.1213 Role of the NRC staff.
[[Page 20]]
2.1215 Appearance and practice.
Hearings
2.1231 Hearing file; prohibition on discovery.
2.1233 Written presentations; written questions.
2.1235 Oral presentations; oral questions.
2.1237 Motions; burden of proof.
2.1239 Consideration of Commission rules and regulations in informal
adjudications.
2.1241 Settlement of proceedings.
Initial Decision, Commission Review, and Final Decision
2.1251 Initial decision and its effect.
2.1253 Petitions for review of initial decisions.
2.1259 Final decision; petition for reconsideration.
2.1261 Authority of the Secretary to rule on procedural matters.
2.1263 Stays of NRC staff licensing actions or of decisions of a
presiding officer, or the Commission, pending hearing or
review.
Subpart M--Public Notification, Availability of Documents and Records,
Hearing Requests and Procedures for Hearings on License Transfer
Applications.
2.1300 Scope of subpart M.
2.1301 Public notice of receipt of a license transfer application.
2.1302 Notice of withdrawal of an application.
2.1303 Availability of documents in the Public Document Room.
2.1304 Hearing procedures.
2.1305 Written comments.
2.1306 Hearing request or intervention petition.
2.1307 Answers and replies.
2.1308 Commission action on a hearing request or intervention petition.
2.1309 Notice of oral hearing.
2.1310 Notice of hearing consisting of written comments.
2.1311 Conditions in a notice or order.
2.1312 Authority of the Secretary.
2.1313 Filing and service.
2.1314 Computation of time.
2.1315 Generic determination regarding license amendments to reflect
transfers.
2.1316 Authority and role of NRC staff.
2.1317 Hearing docket.
2.1318 Acceptance of hearing documents.
2.1319 Presiding Officer.
2.1320 Responsibility and power of the Presiding Officer in an oral
hearing.
2.1321 Participation and schedule for submissions in a hearing
consisting of written comments.
2.1322 Participation and schedule for submissions in an oral hearing.
2.1323 Presentation of testimony in an oral hearing.
2.1324 Appearance in an oral hearing.
2.1325 Motions and requests.
2.1326 Burden of proof.
2.1327 Application for a stay of the effectiveness of NRC staff action
on license transfer.
2.1328 Default.
2.1329 Waiver of a rule or regulation.
2.1330 Reporter and transcript for an oral hearing.
2.1331 Commission action.
Appendix A to Part 2--Statement of General Policy and Procedure: Conduct
of Proceedings for the Issuance of Construction Permits and
Operating Licenses for Production and Utilization Facilities
for Which a Hearing Is Required Under Section 189a of the
Atomic Energy Act of 1954, as Amended
Appendixes B-C to Part 2 [Reserved]
Appendix D to Part 2--Schedule for the Proceeding on Application for a
License To Receive and Possess High-Level Radioactive Waste at
a Geologic Repository Operations Area
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.
2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 409 (42
U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5
U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105,
68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073,
2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f); Pub. L. 97-425, 96
Stat. 2213, as amended (42 U.S.C. 10143(f)); sec. 102, Pub. L. 91-190,
83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42
U.S.C. 5871). Section 2.102, 2.103, 2.104, 2.105, 2.721 also issued
under secs. 102, 103, 104, 105, 183i, 189, 68 Stat. 936, 937, 938, 954,
955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section
2.105 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239).
Sections 2.200-2.206 also issued under secs. 161 b, i, o, 182, 186, 234,
68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201 (b),
(i), (o), 2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Sections
2.205(j) also issued under Pub. L. 101-410, 104 Stat. 90, as amended by
section 3100(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461
note). Section 2.600-2.606 also issued under sec. 102, Pub. L. 91-190,
83 Stat. 853, as amended (42 U.S.C. 4332). Section 2.700a, 2.719 also
issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also
issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 135,
141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42
U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued
under 5 U.S.C. 553, Section 2.809 also issued under 5
[[Page 21]]
U.S.C. 553, and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42
U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42
U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154).
Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239).
Subpart M also issued under sec. 184 (42 U.S.C. 2234) and sec. 189, 68
Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L.
91-560, 84 Stat. 1473 (42 U.S.C. 2135).
Source: 27 FR 377, Jan. 13, 1962, unless otherwise noted.
Editorial Note: At 63 FR 71736, Dec. 30, 1998, part 2 was amended,
effective Jan. 29, 1999. The superseded text of the revised, amended,
and removed sections remaining in effect until Jan. 29, 1999, appears in
the January 1, 1998, revision of title 10, parts 1-50.
Sec. 2.1 Scope.
This part governs the conduct of all proceedings, other than export
and import licensing proceedings described in part 110, under the Atomic
Energy Act of 1954, as amended, and the Energy Reorganization Act of
1974, for--
(a) Granting, suspending, revoking, amending, or taking other action
with respect to any license, construction permit, or application to
transfer a license;
(b) Issuing orders and demands for information to persons subject to
the Commission's jurisdiction, including licensees and persons not
licensed by the Commission;
(c) Imposing civil penalties under section 234 of the Act; and
(d) Public rulemaking.
[56 FR 40684, Aug. 15, 1991]
Sec. 2.2 Subparts.
Each subpart other than subpart G sets forth special rules
applicable to the type of proceeding described in the first section of
that subpart. Subpart G sets forth general rules applicable to all types
of proceedings except rule making, and should be read in conjunction
with the subpart governing a particular proceeding. Subpart I sets forth
special procedures to be followed in proceedings in order to safeguard
and prevent disclosure of Restricted Data.
Sec. 2.3 Resolution of conflict.
In any conflict between a general rule in subpart G of this part and
a special rule in another subpart or other part of this chapter
applicable to a particular type of proceeding, the special rule governs.
[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10152, Sept. 17, 1963]
Sec. 2.4 Definitions.
As used in this part,
ACRS means the Advisory Committee on Reactor Safeguards established
by the Act.
Act means the Atomic Energy Act of 1954, as amended (68 Stat. 919).
Adjudication means the process for the formulation of an order for
the final disposition of the whole or any part of any proceeding subject
to this part, other than rule making.
Administrative Law Judge means an individual appointed pursuant to
section 11 of the Administrative Procedure Act to conduct proceedings
subject to this part.
Commission means the Commission of five members or a quorum thereof
sitting as a body, as provided by section 201 of the Energy
Reorganization Act of 1974 (88 Stat. 1242), or any officer to whom has
been delegated authority pursuant to section 161n of the Act.
Commission adjudicatory employee means--
(1) The Commissioners and members of their personal staffs;
(2) The employees of the Office of Commission Appellate
Adjudication;
(3) The members of the Atomic Safety and Licensing Board Panel and
staff assistants to the Panel;
(4) A presiding officer appointed under Sec. 2.704, including an
administrative law judge, and staff assistants to a presiding officer;
(5) Special assistants (as defined in Sec. 2.772);
(6) The General Counsel, the Solicitor, the Deputy General Counsel
for Licensing and Regulation, and employees of the Office of the General
Counsel under the supervision of the Solicitor or the Deputy General
Counsel for Licensing and Regulation;
(7) The Secretary and employees of the Office of the Secretary; and
(8) Any other Commission officer or employee who is appointed by the
Commission, the Secretary, or the General Counsel to participate or
advise in the
[[Page 22]]
Commission's consideration of an initial or final decision in a
proceeding. Any other Commission officer or employee who, as permitted
by Sec. 2.781, participates or advises in the Commission's consideration
of an initial or final decision in a proceeding must be appointed as a
Commission adjudicatory employee under this paragraph and the parties to
the proceeding must be given written notice of the appointment.
Contested proceeding means (1) a proceeding in which there is a
controversy between the staff of the Commission and the applicant for a
license concerning the issuance of the license or any of the terms or
conditions thereof or (2) a proceeding in which a petition for leave to
intervene in opposition to an application for a license has been granted
or is pending before the Commission.
Department means the Department of Energy established by the
Department of Energy Organization Act (Pub. L. 95-91, 91 Stat. 565 42
U.S.C. 7101 et seq.) to the extent that the Department, or its duly
authorized representatives, exercises functions formerly vested in the
U.S. Atomic Energy Commission, its Chairman, members, officers and
components and transferred to the U.S. Energy Research and Development
Administration and to the Administrator thereof pursuant to sections 104
(b), (c) and (d) of the Energy Reorganization Act of 1974 (Pub. L. 93-
438, 88 Stat. 1233 at 1237, 42 U.S.C. 5814) and retransferred to the
Secretary of Energy pursuant to section 301(a) of the Department of
Energy Organization Act (Pub. L. 95-91, 91 Stat. 565 at 577-578, 42
U.S.C. 7151).
Electric utility means any entity that generates or distributes
electricity and which recovers the costs of this electricity, either
directly or indirectly through rates established by the entity itself or
by a separate regulatory authority. Investor-owned utilities including
generation or distribution subsidiaries, public utility districts,
municipalities, rural electric cooperatives, and State and Federal
agencies, including associations of any of the foregoing, are included
within the meaning of ``electric utility.''
Ex parte communication means an oral or written communication not on
the public record with respect to which reasonable prior notice to all
parties is not given.
Facility means a production facility or a utilization facility as
defined in Sec. 50.2 of this chapter.
Investigative or litigating function means--
(1) Personal participation in planning, conducting, or supervising
an investigation; or
(2) Personal participation in planning, developing, or presenting,
or in supervising the planning, development or presentation of
testimony, argument, or strategy in a proceeding.
License means a license, including a renewed license, or
construction permit issued by the Commission.
Licensee means a person who is authorized to conduct activities
under a license, including a renewed license, or construction permit
issued by the Commission.
NRC personnel means:
(1) NRC employees;
(2) For the purpose of Secs. 2.720, 2.740, and 2.1018 only, persons
acting in the capacity of consultants to the Commission, regardless of
the form of the contractual arrangements under which such persons act as
consultants to the Commission; and
(3) Members of advisory boards, committees, and panels of the NRC;
members of boards designated by the Commission to preside at
adjudicatory proceedings; and officers or employees of Government
agencies, including military personnel, assigned to duty at the NRC.
NRC records and documents means any book, paper, map, photograph,
brochure, punch card, magnetic tape, paper tape, sound recording,
pamphlet, slide, motion picture, or other documentary material
regardless of form or characteristics, made by, in the possession of, or
under the control of the NRC pursuant to Federal law or in connection
with the transaction of public business as evidence of NRC organization,
functions, policies, decisions, procedures, operations, programs or
other activities. ``NRC records and documents'' do not include objects
or articles such as structures, furniture, tangible exhibits or models,
or vehicles and equipment.
[[Page 23]]
Person means (1) any individual, corporation, partnership, firm,
association, trust, estate, public or private institution, group,
government agency other than the Commission or the Department, except
that the Department shall be considered a person with respect to those
facilities of the Department specified in section 202 of the Energy
Reorganization Act of 1974 (88 Stat. 1244),\4\ any State or any
political subdivision of, or any political entity within a State, any
foreign government or nation or any political subdivision of any such
government or nation, or other entity; and (2) any legal successor,
representative, agent, or agency of the foregoing.
---------------------------------------------------------------------------
\4\The Department facilities specified in section 202 are:
(1) Demonstration Liquid Metal Fast Breeder reactors when operated
as part of the power generation facilities of an electric utility
system, or when operated in any other manner for the purpose of
demonstrating the suitability for commercial application of such a
reactor.
(2) Other demonstration nuclear reactors, except those in existence
on January 19, 1975, when operated as part of the power generation
facilities of an electric utility system, or when operated in any other
manner for the purpose of demonstrating the suitability for commercial
application of such a reactor.
(3) Facilities used primarily for the receipt and storage of high-
level radioactive wastes resulting from licensed activities.
(4) Retrievable Surface Storage Facilities and other facilities
authorized for the express purpose of subsequent long-term storage of
high-level radioactive waste generated by the Administration, which are
not used for, or are part of, research and development activities.
---------------------------------------------------------------------------
Public Document Room means the place at 2120 L Street, NW.,
Washington, DC, at which public records of the Commission will
ordinarily be made available for inspection.
Secretary means the Secretary to the Commission.
Except as redefined in this section, words and phrases which are
defined in the Act and in this chapter have the same meaning when used
in this part.
[27 FR 377, Jan. 13, 1962]
Editorial Note: For Federal Register citations affecting Sec. 2.4,
see the List of Sections Affected in the Finding Aids section of this
volume.
Sec. 2.8 Information collection requirements: OMB approval.
This part contains no information collection requirements and
therefore is not subject to requirements of the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.).
[61 FR 43408, Aug. 22, 1996]
Subpart A--Procedure for Issuance, Amendment, Transfer, or Renewal of a
License
Sec. 2.100 Scope of subpart.
This subpart prescribes the procedures for issuance of a license;
amendment of a license at the request of the licensee; and transfer and
renewal of alicense.
Sec. 2.101 Filing of application.
(a)(1) An application for a license, a license transfer, or an
amendment to a license shall be filed with the Director of the Office of
Nuclear Reactor Regulation or Director of the Office of Nuclear Material
Safety and Safeguards, as prescribed by the applicable provisions of
this chapter. A prospective applicant may confer informally with the NRC
staff prior to the filing of an application.
(2) Each application for a license for a facility or for receipt of
waste radioactive material from other persons for the purpose of
commercial disposal by the waste disposal licensee will be assigned a
docket number. However, to allow a determination as to whether an
application for a construction permit or operating license for a
production or utilization facility is complete and acceptable for
docketing, it will be initially treated as a tendered application after
it is received and a copy of the tendered application will be available
for public inspection in the Commission's Public Document Room, 2120 L
Street, NW., Washington, DC. Generally, that determination will be made
within a period of thirty (30) days. However, in selected construction
permit applications, the Commission may decide to determine
acceptability on the basis of the technical adequacy of the application
as well as its completeness. In such cases, the Commission, pursuant to
Sec. 2.104(a), will direct
[[Page 24]]
that the notice of hearing be issued as soon as practicable after the
application has been tendered, and the determination of acceptability
will generally be made within a period of sixty (60) days. For docketing
and other requirements for applications pursuant to part 61 of this
chapter, see paragraph (g) of this section.
(3) If the Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, determines that
a tendered application for a construction permit or operating license
for a production or utilization facility, and/or any environmental
report required pursuant to subpart A of part 51 of this chapter, or
part thereof as provided in paragraphs (a)(5) or (a-1) of this section
are complete and acceptable for docketing, a docket number will be
assigned to the application or part thereof, and the applicant will be
notified of the determination. With respect to the tendered application
and/or environmental report or part thereof that is acceptable for
docketing, the applicant will be requested to:
(i) Submit to the Director of Nuclear Reactor Regulation or Director
of Nuclear Material Safety and Safeguards, as appropriate, such
additional copies as the regulations in part 50 and subpart A of part 51
require;
(ii) Serve a copy on the chief executive of the municipality in
which the facility is to be located or, if the facility is not to be
located within a municipality, on the chief executive of the county, and
serve a notice of availability of the application or environmental
report on the chief executives of the municipalities or counties which
have been identified in the application or environmental report as the
location of all or part of the alternative sites, containing the
following information: Docket number of the application, a brief
description of the proposed site and facility; the location of the site
and facility as primarily proposed and alternatively listed; the name,
address, and telephone number 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 (a)(3)(ii) the applicant should not
make public distribution of those parts of the application subject to
Sec. 2.790(d). The applicant shall submit to the Director of Nuclear
Reactor Regulation an affidavit that service of the notice of
availability of the application or environmental report has been
completed along with a list of names and addresses of those executives
upon whom the notice was served; and
(iii) Make direct distribution of additional copies to Federal,
State, and local officials in accordance with the requirements of this
chapter and written instructions furnished to the applicant by the
Director of Nuclear Reactor Regulation or Director of Nuclear Material
Safety and Safeguards, as appropriate. Such written instructions will be
furnished as soon as practicable after all or any part of the
application, or environmental report, is tendered. The copies submitted
to the Director of Nuclear Reactor Regulation or Director of Nuclear
Material Safety and Safeguards, as appropriate, and distributed by the
applicant shall be completely assembled documents, identified by docket
number. Subsequently distributed amendments to applications, however,
may include revised pages to previous submittals and, in such cases, the
recipients will be responsible for inserting the revised pages.
(4) The tendered application for a construction permit or operating
license for a production or utilization facility will be formally
docketed upon receipt by the Director of Nuclear Reactor Regulation or
Director of Nuclear Material Safety and Safeguards, as appropriate, of
the required additional copies. Distribution of the additional copies
shall be deemed to be complete as of the time the copies are deposited
in the mail or with a carrier prepaid for delivery to the designated
[[Page 25]]
addresses. The date of docketing shall be the date when the required
copies are received by the Director of Nuclear Reactor Regulation or
Director of Nuclear Material Safety and Safeguards, as appropriate.
Within ten (10) days after docketing the applicant shall submit to the
Director of Nuclear Reactor Regulation or Director of Nuclear Material
Safety and Safeguards, as appropriate, an affidavit that distribution of
the additional copies to Federal, State, and local officials has been
completed in accordance with requirements of this chapter and written
instructions furnished to the applicant by the Director of Nuclear
Reactor Regulation or Director of Nuclear Material Safety and
Safeguards, as appropriate. Amendments to the application and
environmental report shall be filed and distributed and an affidavit
shall be furnished to the Director of Nuclear Reactor Regulation or
Director of Nuclear Material Safety and Safeguards, as appropriate, in
the same manner as for the initial application and environmental report.
If it is determined that all or any part of the tendered application
and/or environmental report is incomplete and therefore not acceptable
for processing, the applicant will be informed of this determination,
and the respects in which the document is deficient.
(5) An applicant for a construction permit for a production or
utilization facility which is subject to Sec. 51.20(b) of this chapter,
and is of the type specified in Sec. 50.21(b) (2) or (3) or Sec. 50.22
of this chapter or is a testing facility may submit the information
required of applicants by part 50 of the chapter in three parts. One
part shall be accompanied by the information required by Sec. 50.30(f)
of this chapter, another part shall include any information required by
Sec. 50.34(a) and, if applicable, Sec. 50.34a of this chapter and a
third part shall include any information required by Sec. 50.33a. One
part may precede or follow other parts by no longer than six (6) months
except that the part including information required by Sec. 50.33a shall
be submitted in accordance with time periods specified in Sec. 50.33a.
If an applicant for a construction permit for a nuclear power reactor is
exempted pursuant to Sec. 50.33a of this chapter from filing the
information described by Sec. 50.33a of this chapter, such applicant
shall file with the first part of its application an affidavit setting
forth facts as to the electrical generating capacity of its system. If
it is determined that any one of the parts as described above is
incomplete and not acceptable for processing, the Director of Nuclear
Reactor Regulation or Director of Nuclear Material Safety and
Safeguards, as appropriate, will inform the applicant of this
determination and the respects in which the document is deficient. Such
a determination of completeness will generally be made within a period
of thirty (30) days. Except for the part including information required
by Sec. 50.33a, whichever part is filed first shall also include the fee
required by Secs. 50.30(e) and 170.21 of this chapter and the
information required by Secs. 50.33, 50.34((a)(1), and 50.37 of this
chapter. The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will accept for
docketing an application for a construction permit for a production or
utilization facility which is subject to Sec. 51.20(b) of this chapter,
and is of the type specified in Sec. 50.21(b) (2) or (3) or Sec. 50.22
of this chapter or is a testing facility where one part of the
application as described above is complete and conforms to the
requirements of part 50 of this chapter. Additional parts will be
docketed upon a determination by the Director of Nuclear Reactor
Regulation or Director of Nuclear Material Safety and Safeguards, as
appropriate, that they are complete.
(a-1) Early consideration of site suitability issues. An applicant
for a construction permit for a utilization facility which is subject to
Sec. 51.20(b) of this chapter and is of the type specified in
Sec. 50.21(b) (2) or (3) or Sec. 50.22 of this chapter or is a testing
facility, may request that the Commission conduct an early review and
hearing and render an early partial decision in accordance with subpart
F on issues of site suitability within the purview of the applicable
provisions of parts 50, 51 and 100 of this chapter. In such cases, the
applicant for the construction permit may submit the information
required of applicants by the provisions of this chapter
[[Page 26]]
in three or (in the case of nuclear power reactors) four parts:
(1) Part one shall include or be accompanied by any information
required by Secs. 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 Secs. 50.33
(a) through (e) and 50.37 of this chapter. The information submitted
shall also include: (i) Proposed findings on the issues of site
suitability on which the applicant has requested review and a statement
of the bases or the reasons for those findings, (ii) a range of
postulated facility design and operation parameters that is sufficient
to enable the Commission to perform the requested review of site
suitability issues under the applicable provisions of parts 50, 51 and
100, and (iii) information concerning the applicant's site selection
process and long-range plans for ultimate development of the site
required by Sec. 2.603(b)(1).
(2) Part two shall include or be accompanied by the remaining
information required by Secs. 50.30(f), 50.33 and 50.34(a)(1) of this
chapter.
(3) Part three shall include the remaining information required by
Secs. 50.34a and (in the case of a nuclear power reactor) 50.34(a) of
this chapter.
(4) The information required for part two or part three shall be
submitted during the period the partial decision on part one is
effective. Submittal of the information required for part three may
precede by no more than six months or follow by no more than six months
the submittal of the information required for part two.
(5) Part four,\1\ which is only required when the application is for
a construction permit for a nuclear power reactor, shall include any
information required by Sec. 50.33a of this chapter and shall be filed
in accordance with the time periods specified in Sec. 50.33a.
---------------------------------------------------------------------------
\1\ For a construction permit application in four parts, part four
shall be filed second in time since it must precede both parts two and
three by a period of from 9 months to 3 years.
---------------------------------------------------------------------------
(b) After the application has been docketed each applicant for a
license for receipt of waste radioactive material from other persons for
the purpose of commercial disposal by the waste disposal licensee except
applicants under part 61 of this chapter, who must comply with paragraph
(g) of this section, shall serve a copy of the application and
environmental report, as appropriate, on the chief executive of the
municipality in which the activity is to be conducted or, if the
activity is not to be conducted within a municipality on the chief
executive of the county, and serve a notice of availability of the
application or environmental report on the chief executives of the
municipalities or counties which have been identified in the application
or environmental report as the location of all or part of the
alternative sites, containing the following information: Docket number
of the application; a brief description of the proposed site and
facility; the location of the site and facility as primarily proposed
and alternatively listed; the name, address, and telephone number 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 (b)
the applicant should not make public distribution of those parts of the
application subject to Sec. 2.790(d). The applicant shall submit to the
Director of Nuclear Material Safety and Safeguards an affidavit that
service of the notice of availability of the application or
environmental report has been completed along with a list of names and
addresses of those executives upon whom the notice was served.
(c) The notice published in the Federal Register announcing
docketing
[[Page 27]]
of the antitrust information portion of an application for a facility
construction permit under section 103 of the Act, except for those
applications described in Secs. 2.101(e) and 2.102(d)(2), shall state
that:
(1) The portion of the application filed contains the information
requested by the Attorney General for the purpose of an antitrust review
of the application as set forth in appendix L to part 50 of this
chapter;
(2) Upon receipt and acceptance for docketing of the remaining
portions of the application dealing with radiological health and safety
and environmental matters, notice of receipt will be published in the
Federal Register including an appropriate notice of hearing; and
(3) Any person who wishes to have his views on the antitrust matters
of the application considered by the NRC and presented to the Attorney
General for consideration should submit such views within sixty (60)
days after publication of the notice announcing receipt and docketing of
the antitrust information to the U.S. Nuclear Regulatory Commission,
Washington, DC 20555, Attention: Chief, Policy Development and Technical
Support Branch.
(d) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will give notice
of the docketing of the public health and safety, common defense and
security, and environmental parts of an application for a license for a
facility or for receipt of waste radioactive material from other persons
for the purpose of commercial disposal by the waste disposal licensee,
except that for applications pursuant to part 61 of this chapter
paragraph (g) of this section applies, to the Governor or other
appropriate official of the State in which the facility is to be located
or the activity is to be conducted and will cause to be published in the
Federal Register a notice of docketing of the application which states
the purpose of the application and specifies the location at which the
proposed activity would be conducted.
(e)(1) Upon receipt of the antitrust information responsive to
Regulatory Guide 9.3 submitted in connection with an application for a
facility operating license under section 103 of the Act, the Director of
Nuclear Reactor Regulation or the Director of Nuclear Material Safety
and Safeguards, as appropriate, shall publish in the Federal Register
and in appropriate trade journals a ``Notice of Receipt of Operating
License Antitrust Information.'' The notice shall invite persons to
submit, within thirty (30) days after publication of the notice,
comments or information concerning the antitrust aspects of the
application to assist the Director in determining, pursuant to section
105c of the Act, whether significant changes in the licensee's
activities or proposed activities have occurred since the completion of
the previous antitrust review in connection with the construction
permit. The notice shall also state that persons who wish to have their
views on the antitrust aspects of the application considered by the NRC
and presented to the Attorney General for consideration should submit
such views within thirty (30) days after publication of the notice to:
U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention:
Chief, Policy Development and Technical Support Branch.
(2) If the Director of Nuclear Reactor Regulation or the Director of
Nuclear Material Safety and Safeguards, as appropriate, after reviewing
any comments or information received in response to the published notice
and any comments or information regarding the applicant received from
the Attorney General, concludes that there have been no significant
changes since the completion of the previous antitrust review in
connection with the construction permit, a finding of no significant
changes shall be published in the Federal Register, together with a
notice stating that any request for reevaluation of such finding should
be submitted within thirty (30) days of publication of the notice. If no
requests for reevaluation are received within that time, the finding
shall become the NRC's final determination. Requests for a reevaluation
of the no significant changes determination may be accepted after the
date when the Director's finding becomes final but before the issuance
of the OL only if they contain new information, such as information
[[Page 28]]
about facts or events of antitrust significance that have occurred since
that date, or information that could not reasonably have been submitted
prior to that date.
(3) If, as a result of a reevaluation of the finding described in
paragraph (e)(2) of this section, it is determined that there have been
no significant changes, the Director of Nuclear Reactor Regulation or
the Director of Nuclear Material Safety and Safeguards, as appropriate,
shall deny the request and shall publish a notice of finding of no
significant changes in the Federal Register. The notice and finding
become the final NRC decision thirty (30) days after being made and only
in the event that the Commission has not exercised sua sponte review.
(4) If the Director of Nuclear Reactor Regulation or the Director of
Nuclear Material Safety and Safeguards, as appropriate, concludes that
significant changes have occurred since the completion of the antitrust
review in connection with the construction permit, then the provisions
of Sec. 2.102(d) apply.
(f)(1) Each application for a license to receive and possess high-
level radioactive waste at a geologic repository operations area
pursuant to part 60 of this chapter and any environmental impact
statement required in connection therewith pursuant to subpart A of part
51 of this chapter shall be processed in accordance with the provisions
of this paragraph.
(2) To allow a determination as to whether the application is
complete and acceptable for docketing, it will be initially treated as a
tendered document, and a copy will be available for public inspection in
the Commission's Public Document Room. Twenty copies shall be filed to
enable this determination to be made.
(3) If the Director of Nuclear Material Safety and Safeguards
determines that the tendered document is complete and acceptable for
docketing, a docket number will be assigned and the applicant will be
notified of the determination. If it is determined that all or any part
of the tendered document is incomplete and therefore not acceptable for
processing, the applicant will be informed of this determination and the
respects in which the document is deficient.
(4) [Reserved]
(5) If a tendered document is acceptable for docketing, the
applicant will be requested to (i) submit to the Director of Nuclear
Material Safety and Safeguards such additional copies of the application
and environmental impact statement as the regulations in part 60 and
subpart A of part 51 of this chapter require, (ii) serve a copy of such
application and environmental impact statement on the chief executive of
the municipality in which the geologic repository operations area is to
be located, or if the geologic repository operations area is not to be
located within a municipality, on the chief executive of the county (or
to the Tribal organization, if it is to be located within an Indian
reservation), and (iii) make direct distribution of additional copies to
Federal, State, Indian Tribe, and local officials in accordance with the
requirements of this chapter and written instructions from the Director
of Nuclear Material Safety and Safeguards. All such copies shall be
completely assembled documents, identified by docket number.
Subsequently distributed amendments to the application, however, may
include revised pages to previous submittals and, in such cases, the
recipients will be responsible for inserting the revised pages.
(6) The tendered document will be formally docketed upon receipt by
the Director of Nuclear Material Safety and Safeguards of the required
additional copies. The date of docketing shall be the date when the
required copies are received by the Director of Nuclear Material Safety
and Safeguards. Within ten (10) days after docketing, the applicant
shall submit to the Director of Nuclear Material Safety and Safeguards a
written statement that distribution of the additional copies to Federal,
State, Indian Tribe, and local officials has been completed in
accordance with requirements of this chapter and written instructions
furnished to the applicant by the Director of Nuclear Material Safety
and Safeguards. Distribution of the additional copies shall be deemed to
be complete as of the time the copies are deposited
[[Page 29]]
in the mail or with a carrier prepaid for delivery to the designated
addressees.
(7) Amendments to the application and supplements to the
environmental impact statement shall be filed and distributed and a
written statement shall be furnished to the Director of Nuclear Material
Safety and Safeguards in the same manner as for the initial application
and environmental impact statement.
(8) The Director of Nuclear Material Safety and Safeguards will
cause to be published in the Federal Register a notice of docketing
which identifies the State and location at which the proposed geologic
repository operations area would be located and will give notice of
docketing to the governor of that State. The notice of docketing will
state that the Commission finds that a hearing is required in the public
interest, prior to issuance of a construction authorization, and will
recite the matters specified in Sec. 2.104(a) of this part.
(g) Each application for a license to receive radioactive waste from
other persons for disposal under part 61 of this chapter and the
accompanying environmental report shall be processed in accordance with
the provisions of this paragraph.
(1) To allow a determination as to whether the application or
environmental report is complete and acceptable for docketing, it will
be initially treated as a tendered document, and a copy will be
available for public inspection in the Commission's Public Document
Room, 2120 L Street, NW., Washington, DC. One original and two copies
shall be filed to enable this determination to be made.
(i) Upon receipt of a tendered application, the Commission will
publish in the Federal Register notice of the filed application and will
notify the governors, legislatures and other appropriate State, county,
and municipal officials and tribal governing bodies of the States and
areas containing or potentially affected by the activities at the
proposed site and the alternative sites. The Commission will inform
these officials that the Commission staff will be available for
consultation pursuant to Sec. 61.71 of this chapter. The Federal
Register notice will note the opportunity for interested persons to
submit views and comments on the tendered application for consideration
by the Commission and applicant. The Commission will also notify the
U.S. Bureau of Indian Affairs when tribal governing bodies are notified.
(ii) The Commission will also post a public notice in a newspaper or
newspapers of general circulation in the affected States and areas
summarizing information contained in the applicant's tendered
application and noting the opportunity to submit views and comments.
(iii) When the Director of Nuclear Material Safety and Safeguards
determines that the tendered document is complete and acceptable for
docketing, a docket number will be assigned and the applicant will be
notified of the determination. If it is determined that all or any part
of the tendered document is incomplete and therefore not acceptable for
processing, the applicant will be informed of this determination and the
aspects in which the document is deficient.
(2) With respect to any tendered document that is acceptable for
docketing, the applicant will be requested to (i) submit to the Director
of Nuclear Material Safety and Safeguards such additional copies as the
regulations in part 61 and subpart A of part 51 of this chapter require,
(ii) serve a copy on the chief executive of the municipality in which
the waste is to be disposed of or, if the waste is not to be disposed of
within a municipality, serve a copy on the chief executive of the county
in which the waste is to be disposed of, (iii) make direct distribution
of additional copies to Federal, State, Indian Tribe, and local
officials in accordance with the requirements of this chapter and
written instructions from the Director of Nuclear Material Safety and
Safeguards, and (iv) serve a notice of availability of the application
and environmental report on the chief executives or governing bodies of
the municipalities or counties which have been identified in the
application and environmental report as the location of all or part of
the alternative sites if copies are not distributed under paragraph
(g)(2)(iii) of this section to the
[[Page 30]]
executives or bodies. All distributed copies shall be completely
assembled documents identified by docket number. Subsequently
distributed amendments, however, may include revised pages to previous
submittals and, in such cases, the recipients will be responsible for
inserting the revised pages. In complying with the requirements of
paragraph (g) of this section the applicant shall not make public
distribution of those parts of the application subject to Sec. 2.790(d).
(3) The tendered document will be formally docketed upon receipt by
the Director of Nuclear Material Safety and Safeguards of the required
additional copies. Distribution of the additional copies shall be deemed
to be complete as of the time the copies are deposited in the mail or
with a carrier prepaid for delivery to the designated addressees. The
date of docketing shall be the date when the required copies are
received by the Director of Nuclear Material Safety and Safeguards.
Within ten (10) days after docketing, the applicant shall submit to the
Director of Nuclear Material Safety and Safeguards a written statement
that distribution of the additional copies to Federal, State, Indian
Tribe, and local officials has been completed in accordance with
requirements of this section and written instructions furnished to the
applicant by the Director of Nuclear Material Safety and Safeguards.
(4) Amendments to the application and environmental report shall be
filed and distributed and a written statement shall be furnished to the
Director of Nuclear Material Safety and Safeguards in the same manner as
for the initial application and environmental report.
(5) The Director of Nuclear Material Safety and Safeguards will
cause to be published in the Federal Register a notice of docketing
which identifies the State and location of the proposed waste disposal
facility and will give notice of docketing to the governor of that State
and other officials listed in paragraph (g)(3) of this section and, in a
reasonable period thereafter, publish in the Federal Register a notice
pursuant to Sec. 2.105 offering opportunity to request a hearing to the
applicant and other affected persons.
[41 FR 15833, Apr. 15, 1976; 41 FR 16793, Apr. 22, 1976, as amended at
42 FR 22885, May 5, 1977; 43 FR 46293, Oct. 6, 1978; 44 FR 60716, Oct.
22, 1979; 46 FR 13976, Feb. 25, 1981; 47 FR 9985, Mar. 9, 1982; 47 FR
57477, Dec. 27, 1982; 49 FR 9399, Mar. 12, 1984; 52 FR 31608, Aug. 21,
1987; 53 FR 43419, Oct. 27, 1988; 54 FR 27869, July 3, 1989; 63 FR
66730, Dec. 3, 1998]
Sec. 2.102 Administrative review of application.
(a) During review of an application by the staff, an applicant may
be required to supply additional information. The staff may request any
one party to the proceeding to confer with the staff informally. In the
case of a docketed application for a construction permit or an operating
license for a facility, the staff shall establish a schedule for its
review of the application, specifying the key intermediate steps from
the time of docketing until the completion of its review.
(b) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will refer the
docketed application to the ACRS as required by law and in such
additional cases as he or the Commission may determine to be
appropriate. The ACRS will render to the Commission one or more reports
as required by law or as requested by the Commission.
(c) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will make each
report of the ACRS a part of the record of the docketed application, and
transmit copies to the appropriate State and local officials.
(d)(1) Except as provided in paragraph (d)(2) of this section, the
Director of Nuclear Reactor Regulation or Director of Nuclear Material
Safety and Safeguards, as appropriate, will refer and transmit a copy of
each docketed application for a construction permit or an operating
license for a utilization or production facility under section 103 of
the Act to the Attorney General as required by section 105c of the Act.
(2) The requirements of paragraph (d)(1) of this section do not
apply to an application for an operating license for
[[Page 31]]
a production or utilization facility under section 103 of the Act for
which the construction permit was also issued under section 103, unless
the Director of Nuclear Reactor Regulation or the Director of Nuclear
Material Safety and Safeguards, as appropriate, determines, after
consultation with the Attorney General and in accordance with
Sec. 2.101(e), that such review is advisable on the ground that
significant changes in the licensee's activities or proposed activities
have occurred subsequent to the previous review of the Attorney General
and the Commission under section 105c of the Act in connection with the
construction permit.
(3) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will cause the
Attorney General's advice received pursuant to paragraph (d)(1) of this
section to be published in the Federal Register promptly upon receipt,
and will make such advice a part of the record in any proceeding on
antitrust matters conducted in accordance with subsection 105c(5) and
section 189a of the Act. The Director of Nuclear Reactor Regulation or
Director of Nuclear Material Safety and Safeguards, as appropriate, will
also cause to be published in the Federal Register a notice that the
Attorney General has not rendered any such advice. Any notice published
in the Federal Register pursuant to this subparagraph will also include
a notice of hearing, if appropriate, or will state that any person whose
interest may be affected by the proceeding may, pursuant to and in
accordance with Sec. 2.714, file a petition for leave to intervene and
request a hearing on the antitrust aspects of the application. The
notice will state that petitions for leave to intervene and requests for
hearing shall be filed within 30 days after publication of the notice.
[27 FR 377, Jan. 13, 1962, as amended at 36 FR 13270, July 17, 1971; 37
FR 15130, July 28, 1972; 47 FR 9986, Mar. 9, 1982]
Sec. 2.103 Action on applications for byproduct, source, special nuclear material, and operator licenses.
(a) If the Director of Nuclear Reactor Regulation or the Director of
Nuclear Material Safety and Safeguards, as appropriate, finds that an
application for a byproduct, source, special nuclear material, 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 if it is to receive and possess high-level
radioactive waste at a geologic repository operations area pursuant to
part 60 of this chapter, the Director of Nuclear Reactor Regulation or
the Director of Nuclear Material Safety and Safeguards, as appropriate,
will inform the State, tribal and local officials specified in
Sec. 2.104(e) of the issuance of the license. For notice of issuance
requirements for licenses issued pursuant to part 61 of this chapter,
see Sec. 2.106(d) of this part.
(b) If the Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, finds that an
application does not comply with the requirements of the Act and this
chapter he may issue a notice of proposed denial or a notice of denial
of the application and inform the applicant in writing of:
(1) The nature of any deficiencies or the reason for the proposed
denial or the denial, and
(2) The right of the applicant to demand a hearing within twenty
(20) days from the date of the notice or such longer period as may be
specified in the notice.
[28 FR 10152, Sept. 17, 1963, as amended at 47 FR 57478, Dec. 27, 1982]
Hearing on Application--How Initiated
Sec. 2.104 Notice of hearing.
(a) In the case of an application on which a hearing is required by
the Act or this chapter, or in which the Commission finds that a hearing
is required in the public interest, the Secretary will issue a notice of
hearing to be published in the Federal Register as required by law at
least fifteen (15) days, and in the case of an application concerning a
construction permit for a facility of the type described in
Sec. 50.21(b)
[[Page 32]]
or Sec. 50.22 of this chapter or a testing facility, at least thirty
(30) days, prior to the date set for hearing in the notice. \1\ In
addition, in the case of an application for a construction permit for a
facility of the type described in Sec. 50.22 of this chapter, or a
testing facility, the notice (other than a notice pursuant to paragraph
(d) of this section) shall be issued as soon as practicable after the
application has been docketed: Provided, That if the Commission,
pursuant to Sec. 2.101(a)(2), decides to determine the acceptability of
the application on the basis of its technical adequacy as well as
completeness, the notice shall be issued as soon as practicable after
the application has been tendered. The notice will state:
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\1\ If the notice of hearing concerning an application for a
construction permit for a facility of the type described in
Sec. 50.21(b) or Sec. 50.22 of this chapter or a testing facility does
not specify the time and place of initial hearing, a subsequent notice
will be published in the Federal Register which will provide at least
thirty (30) days notice of the time and place of that hearing. After
this notice is given the presiding officer may reschedule the
commencement of the initial hearing for a later date or reconvene a
recessed hearing without again providing thirty (30) days notice.
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(1) The time, place, and nature of the hearing and/or prehearing
conference, if any;
(2) The authority under which the hearing is to be held;
(3) The matters of fact and law to be considered; and
(4) The time within which answers to the notice shall be filed.
(b) In the case of an application for a construction permit for a
facility on which the Act requires a hearing, the notice of hearing
will, except as provided in paragraph (d) of this section and unless the
Commission determines otherwise, state, in implementation of paragraph
(a)(3) of this section:
(1) That, if the proceeding is a contested proceeding, the presiding
officer will consider the following issues: \2\
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\2\ Issues (i) to (iv) are the issues pursuant to the Atomic Energy
Act of 1954, as amended. Issue (v) is the issue pursuant to the National
Environmental Policy Act of 1969.
---------------------------------------------------------------------------
(i) Whether in accordance with the provisions of Sec. 50.35(a) of
this chapter:
(a) The applicant has described the proposed design of the facility,
including, but not limited to, the principal architectural and
engineering criteria for the design, and has identified the major
features or components incorporated therein for the protection of the
health and safety of the public;
(b) Such further technical or design information as may be required
to complete the safety analysis, and which can reasonably be left for
later consideration will be supplied in the final safety analysis
report;
(c) Safety features or components, if any, which require research
and development, have been described by the applicant and the applicant
has identified, and there will be conducted, a research and development
program reasonably designed to resolve any safety questions associated
with such features or components; and
(d) On the basis of the foregoing, there is reasonable assurance
that (1) such safety questions will be satisfactorily resolved at or
before the latest date stated in the application for completion of the
proposed facility; and (2) taking into consideration the site criteria
contained in part 100 of this chapter, the proposed facility can be
constructed and operated at the proposed location without undue risk to
the health and safety of the public;
(ii) Whether the applicant is technically qualified to design and
construct the proposed facility;
(iii) Whether the applicant is financially qualified to design and
construct the proposed facility;
(iv) Whether the issuance of a permit for the construction of the
facility will be inimical to the common defense and security or to the
health and safety of the public;
(v) If the application is for a construction permit for a nuclear
power reactor, a testing facility, a fuel reprocessing plant, or other
facility whose construction or operation has been determined by the
Commission to have a significant impact on the environment, whether, in
accordance with the requirements of subpart A of part 51 of this
chapter, the construction permit should be issued as proposed.
[[Page 33]]
(2) That, if the proceeding is not a contested proceeding, the
presiding officer will determine:
(i) Without conducting a de novo evaluation of the application,
whether the application and the record of the proceeding contain
sufficient information, and the review of the application by the
Commission's staff has been adequate to support affirmative findings on
(b)(1) (i) through (iii) specified in this section and a negative
finding on (b)(1)(iv) specified in this section proposed to be made and
the issuance of the construction permit proposed by the Director of
Nuclear Reactor Regulation or Director of Nuclear Material Safety and
Safeguards, as appropriate, and
(ii) If the application is for a construction permit for a nuclear
power reactor, a testing facility, a fuel processing plant, a uranium
enrichment facility, or other facility whose construction or operation
has been determined by the Commission to have a significant impact on
the environment, whether the review conducted by the Commission pursuant
to the National Environmental Policy Act (NEPA) has been adequate.
(3) That, regardless of whether the proceeding is contested or
uncontested, the presiding officer will, in accordance with subpart A of
part 51 of this chapter.
(i) Determine whether the requirements of section 102(2) (A), (C)
and (E) of the National Environmental Policy Act and subpart A of part
51 of this chapter have been complied with in the proceeding;
(ii) Independently consider the final balance among conflicting
factors contained in the record of the proceeding with a view to
determining the appropriate action to be taken; and
(iii) Determine whether the construction permit should be issued,
denied, or appropriately conditioned to protect environmental values.
(c) In the case of an application for an operating license in which
a hearing will be held, the notice of hearing will, except as provided
in paragraph (d) of this section and unless the Commission determines
otherwise, state, in implementation of paragraph (a)(3) of this section,
that the presiding officer will consider any matters in controversy
among the parties and may, where he or she determines that a serious
safety, environmental, or common defense and security matter has not
been raised by the parties, consider such other matter within the
purview of:
(1) Whether there is reasonable assurance that construction of the
facility will be substantially completed on a timely basis, in
conformity with the construction permit and the application as amended,
the provisions of the Act, and the regulations in this chapter;
(2) Whether the facility will operate in conformity with the
application as amended, the provisions of the Act, and the regulations
in this chapter;
(3) Whether there is reasonable assurance: (i) That the activities
to be authorized by the operating license can be conducted without
endangering the health and safety of the public, and (ii) that such
activities will be conducted in compliance with the regulations in this
chapter;
(4) Whether the applicant is technically and financially qualified
to engage in the activities to be authorized by the operating license in
accordance with the regulations in this chapter, except that the issue
of financial qualification shall not be considered by the presiding
officer in an operating license hearing if the applicant is an electric
utility seeking a license to operate a utilization facility of the type
described in Sec. 50.21(b) or Sec. 50.22;
(5) Whether the applicable provisions of part 140 of this chapter
have been satisfied;
(6) Whether issuance of the license will be inimical to the common
defense and security or to the health and safety of the public; and
(7) If the application is for an operating license for a nuclear
power reactor, a testing facility, or a fuel reprocessing plant, or
other facility whose operation has been determined by the Commission to
have a significant impact on the environment, whether, in accordance
with the requirements of subpart A of part 51 of this chapter, the
[[Page 34]]
operating license should be issued as proposed.\3\
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\3\ Issues (1) to (6) are the issues pursuant to the Atomic Energy
Act of 1954, as amended. Issue (7) is the issue pursuant to the National
Environmental Policy Act of 1969.
\4\ As permitted by subsection 105c of the Act, with respect to
proceedings in which an application for a construction permit was filed
prior to December 19, 1970, and proceedings in which a written request
for antitrust review of an application for an operating license to be
issued under section 104b has been made by a person who intervened or
sought by timely written notice to the Commission to intervene in the
construction permit proceeding for the facility to obtain a
determination of antitrust considerations or to advance a jurisdictional
basis for such determination within 25 days after the date of
publication in the Federal Register or notice of filing of the
application for an operating license or December 19, 1970, whichever is
later, the Commission may issue a construction permit or operating
license which contains the conditions specified in Sec. 50.55b of this
chapter before the antitrust aspects of the application are finally
resolved.
---------------------------------------------------------------------------
(d) In an application for a construction permit or an operating
license for a facility on which a hearing is required by the Act or this
chapter, or in which the Commission finds that a hearing is required in
the public interest to consider the antitrust aspects of the
application, the notice of hearing will, unless the Commission
determines otherwise, state:
(1) A time of the hearing, which will be as soon as practicable
after the receipt of the Attorney General's advice and compliance with
sections 105 and 189a of the Act and this part; \4\
(2) The presiding officer for the hearing who shall be either an
administrative law judge or an atomic safety and licensing board
established by the Commission or by the Chief Administrative Judge of
the Atomic Safety and Licensing Board Panel;
(3) That the presiding officer will consider and decide whether the
activities under the proposed license would create or maintain a
situation inconsistent with the antitrust laws described in section 105a
of the Act; and
(4) That matters of radiological health and safety and common
defense and security, and matters raised under the National
Environmental Policy Act of 1969, will be considered at another hearing
if otherwise required or ordered to be held, for which a notice will be
published pursuant to paragraphs (a) and (b) of this section, unless
otherwise authorized by the Commission.
(e) The Secretary will give timely notice of the hearing to all
parties and to other persons, if any, entitled by law to notice. The
Secretary will transmit a notice of hearing on an application for a
license for a production or utilization facility, for a license for
receipt of waste radioactive material from other persons for the purpose
of commercial disposal by the waste disposal licensee, for a license
under part 61 of this chapter, for a license to receive and possess
high-level radioactive waste at a geologic repository operations area
pursuant to part 60 of this chapter, and for a license under part 72 of
this chapter to acquire, receive or possess spent fuel for the purpose
of storage in an independent spent fuel storage installation (ISFSI) to
the governor or other appropriate official of the State and to the chief
executive of the municipality in which the facility is to be located or
the activity is to be conducted or, if the facility is not to be located
or the activity conducted within a municipality, to the chief executive
of the county (or to the Tribal organization, if it is to be so located
or conducted within an Indian reservation). The Secretary will transmit
a notice of hearing on an application for a license under part 72 of
this chapter to acquire, receive or possess spent fuel, high-level
radioactive waste or radioactive material associated with high-level
radioactive waste for the purpose of storage in a monitored retrievable
storage installation (MRS) to the same persons who received the notice
of docketing under Sec. 72.16(e) of this chapter.
[27 FR 377, Jan. 13, 1962]
Editorial Note: For Federal Register citations affecting Sec. 2.104,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
Sec. 2.105 Notice of proposed action.
(a) If a hearing is not required by the Act or this chapter, and if
the Commission has not found that a hearing is in the public interest,
it will, prior to acting thereon, cause to be published in
[[Page 35]]
the Federal Register a notice of proposed action with respect to an
application for:
(1) A license for a facility;
(2) A license for receipt of waste radioactive material from other
persons for the purpose of commercial disposal by the waste disposal
licensee. All licenses issued under part 61 of this chapter shall be so
noticed;
(3) An amendment of a license specified in paragraph (a) (1) or (2)
of this section and which involves a significant hazards consideration;
(4) An amendment to an operating license for a facility licensed
under Sec. 50.21(b) or Sec. 50.22 of this chapter or for a testing
facility, as follows:
(i) If the Commission determines under Sec. 50.58 of this chapter
that the amendment involves no significant hazards consideration, though
it will provide notice of opportunity for ahearing pursuant to this
section, it may make the amendment immediately effective and grant a
hearing thereafter; or
(ii) If the Commission determines under Secs. 50.58 and 50.91 of
this chapter that an emergency situation exists or that exigent
circumstances exist and that the amendment involves no significant
hazards consideration, it will provide notice of opportunity for a
hearing pursuant to Sec. 2.106 (if a hearing is requested, it will be
held after issuance of the amendment);
(5) A license to receive and possess high-level radioactive waste at
a geologic repository operations area pursuant to part 60 of this
chapter;
(6) An amendment to a license specified in paragraph (a)(5) of this
section, or an amendment to a construction authorization granted in
proceedings on an application for such a license, when such an amendment
would authorize actions which may significantly affect the health and
safety of the public;
(7) A license under part 72 of this chapter to acquire, receive or
possess spent fuel for the purpose of storage in an independent spent
fuel storage installation (ISFSI) or to acquire, receive or possess
spent fuel, high-level radioactive waste or radioactive material
associated with high-level radioactive waste for the purpose of storage
in a monitored retrievable storage installation (MRS);
(8) An amendment to a license specified in paragraph (a)(7) of this
section when such an amendment presents a genuine issue as to whether
the health and safety of the public will be significantly affected; or
(9) Any other license or amendment as to which the Commission
determines that an opportunity for a public hearing should be afforded;
(10) In the case of an application for an operating license for a
facility of a type described in Sec. 50.21(b) or Sec. 50.22 of this
chapter or a testing facility, a notice of opportunity for hearing shall
be issued as soon as practicable after the application has been
docketed; or
(11) In the case of an application for a license to receive and
possess high-level radioactive waste at a geologic repository operations
area, a notice of opportunity for hearing, as required by this
paragraph, shall be published prior to Commission action authorizing
receipt of such wastes; this requirement is in addition to the
procedures set out in Secs. 2.101(f)(8) and 2.104 of this part, which
provide for a hearing on the application prior to issuance of a
construction authorization.
(b) The notice of proposed action will set forth:
(1) The nature of the action proposed;
(2) The manner in which a copy of the safety analysis and of the
ACRS report, if any, may be obtained or examined.
(c) If an application for a license is complete enough to permit all
evaluations, other than completion inspection, necessary for the
issuance of a construction permit and operating license, the notice of
proposed issuance of a construction permit may provide that on
completion of construction and inspection the operating license will be
issued without further prior notice.
(d) The notice of proposed action will provide that, within thirty
(30) days from the date of publication of the notice in the Federal
Register, or such lesser period authorized by law as the Commission may
specify:
(1) The applicant may file a request for a hearing; and
(2) Any person whose interest may be affected by the proceeding may
file a request for a hearing or a petition for
[[Page 36]]
leave to intervene if a hearing has already been requested.
(e)(1) If no request for a hearing or petition for leave to
intervene is filed within the time prescribed in the notice, the
Director of Nuclear Reactor Regulation or the Director of Nuclear
Material Safety and Safeguards, as appropriate, may take the proposed
action, inform the appropriate State and local officials, and publish in
the Federal Register a notice of issuance of the license or other
action.
(2) If a request for a hearing or a petition for leave to intervene
is filed within the time prescribed in the notice, the presiding officer
who shall be an Atomic Safety and Licensing Board established by the
Commission or by the Chief Administrative Judge of the Atomic Safety and
Licensing Board Panel, will rule on the request and/or petition, and the
Secretary or the presiding officer will issue a notice of hearing or an
appropriate order. The presiding officer designated to rule on a request
or petition concerning the antitrust aspects of an application may be
either an Administrative Law Judge or an Atomic Safety and Licensing
Board.
(f) Applications for facility licenses under section 103 of the Act
and for facility operating licenses under section 104b of the Act as to
which any person intervened or sought by timely written notice to the
Commission to intervene in the construction permit proceeding to obtain
a determination of antitrust considerations or to advance a
jurisdictional basis for such determination are also subject to the
provisions of Secs. 2.101(b) and 2.102(d).
[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10152, Sept. 17, 1963; 31
FR 12776, Sept. 30, 1966; 34 FR 9702, June 21, 1969; 34 FR 12255, July
25, 1969; 35 FR 19658, Dec. 29, 1970; 36 FR 4686, Mar. 11, 1971; 37 FR
15131, July 28, 1972; 37 FR 28711, Dec. 29, 1972; 38 FR 9585, Apr. 18,
1973]
Editorial Note: For additional Federal Register citations affecting
Sec. 2.105, see the List of CFR Sections Affected in the Finding Aids
section of this volume.
Sec. 2.106 Notice of issuance.
(a) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will cause to be
published in the Federal Register notice of, and will inform the State
and local officials specified in Sec. 2.104(e) of the issuance of:
(1) A license or an amendment of a license for which a notice of
proposed action has been previously published; and
(2) An amendment of a license for a facility of the type described
in Sec. 50.21(b) or Sec. 50.22 of this chapter, or a testing facility,
whether or not a notice of proposed action has been previously
published.
(b) The notice of issuance will set forth:
(1) The nature of the license or amendment;
(2) The manner in which copies of the safety analysis, if any, may
be obtained and examined; and
(3) A finding that the application for the license or amendment
complies with the requirements of the Act and this chapter.
(c) The Director of Nuclear Material Safety and Safeguards will also
cause to be published in the Federal Register notice of, and will inform
the State, local, and Tribal officials specified in Sec. 2.104(e) of any
action with respect to, an application for a license to receive and
possess high-level radioactive waste at a geologic repository operations
area pursuant to part 60 of this chapter, or for the amendment to such
license for which a notice of proposed action has been previously
published.
(d) The Director of Nuclear Material Safety and Safeguards will also
cause to be published in the Federal Register notice of, and will inform
the State and local officials or tribal governing body specified in
Sec. 2.104(e) of any licensing action with respect to a license to
receive radioactive waste from other persons for disposal under part 61
of this chapter or the amendment of such a license for which a notice of
proposed action has been previously published.
[37 FR 15131, July 28, 1972, as amended at 38 FR 9586, Apr. 18, 1973; 46
FR 13978, Feb. 25, 1981; 47 FR 57478, Dec. 27, 1982]
Sec. 2.107 Withdrawal of application.
(a) The Commission may permit an applicant to withdraw an
application prior to the issuance of a notice of
[[Page 37]]
hearing on such terms and conditions as it may prescribe, or may, on
receiving a request for withdrawal of an application, deny the
application or dismiss it with prejudice. Withdrawal of an application
after the issuance of a notice of hearing shall be on such terms as the
presiding officer may prescribe.
(b) The withdrawal of an application does not authorize the removal
of any document from the files of the Commission.
(c) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will cause to be
published in the Federal Register a notice of the withdrawal of an
application if notice of receipt of the application has been previously
published.
[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10152, Sept. 17, 1963]
Sec. 2.108 Denial of application for failure to supply information.
(a) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, may deny an
application if an applicant fails to respond to a request for additional
information within thirty (30) days from the date of the request, or
within such other time as may be specified.
(b) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will cause to be
published in the Federal Register a notice of denial when notice of
receipt of the application has previously been published, but not notice
of hearing has yet been published. The notice of denial will provide
that, within thirty (30) days after the date of publication in the
Federal Register (1) the applicant may demand a hearing, and (2) any
person whose interest may be affected by the proceeding may file a
petition for leave to intervene.
(c) When both a notice of receipt of the application and a notice of
hearing have been published, the presiding officer, upon a motion made
by the staff pursuant to Sec. 2.730, will rule whether an application
should be denied by the Director of Nuclear Reactor Regulation or
Director of Nuclear Material Safety and Safeguards, as appropriate,
pursuant to paragraph (a).
[27 FR 377, Jan. 13, 1962, as amended at 39 FR 43195, Dec. 11, 1974]
Sec. 2.109 Effect of timely renewal application.
(a) Except for the renewal of an operating license for a nuclear
power plant under 10 CFR 50.21(b) or 50.22, if, at least 30 days prior
to the expiration of an existing license authorizing any activity of a
continuing nature, the licensee files an application for a renewal or
for a new license for the activity so authorized, the existing license
will not be deemed to have expired until the application has been
finally determined.
(b) If the licensee of a nuclear power plant licensed under 10 CFR
50.21(b) or 50.22 files a sufficient application for renewal of an
operating license at least 5 years prior to the expiration of the
existing license, the existing license will not be deemed to have
expired until the application has been finally determined.
[56 FR 64975, Dec. 13, 1991]
Sec. 2.110 Filing and administrative action on submittals for design review or early review of site suitability issues.
(a)(1) A submittal pursuant to appendix O of part 52 of this chapter
shall be subject to Secs. 2.101(a) and 2.790 to the same extent as if it
were an application for a permit or license.
(2) Except as specifically provided otherwise by the provisions of
appendix Q to part 52 of this chapter, a submittal pursuant to appendix
Q shall be subject to Sec. 2.101(a) (2) through (4) to the same extent
as if it were an application for a permit or license.
(b) Upon initiation of review by the staff of a submittal of a type
described in paragraph (a)(1) of this section, the Director of Nuclear
Reactor Regulation shall publish in the Federal Register a notice of
receipt of the submittal, inviting comments from interested persons
within 60 days of publication or such other time as may be specified,
for consideration by the staff and ACRS in their review.
(c) Upon completion of review by the staff and the ACRS of a
submittal of
[[Page 38]]
the type described in paragraph (a)(1) of this section, the Director of
Nuclear Reactor Regulation shall publish in the Federal Register a
determination as to whether or not the design is acceptable, subject to
such conditions as may be appropriate, and place in the Public Document
Room an analysis of the design in the form of a report.
[40 FR 2976, Jan. 17, 1975, as amended at 42 FR 22885, May 5, 1977; 54
FR 15398, Apr. 18, 1989]
Sec. 2.111 Prohibition of sex discrimination.
No person shall on the ground of sex be excluded from participation
in, be denied a license under, be denied the benefits of, or be
subjected to discrimination under any program or activity carried on or
receiving Federal assistance under the Act or the Energy Reorganization
Act of 1974.
[40 FR 8777, Mar. 3, 1975]
Subpart B--Procedure for Imposing Requirements by Order, or for
Modification, Suspension, or Revocation of a License, or for Imposing
Civil Penalties
Sec. 2.200 Scope of subpart.
(a) This subpart prescribes the procedures in cases initiated by the
staff, or upon a request by any person, to impose requirements by order,
or to modify, suspend, or revoke a license, or to take other action as
may be proper, against any person subject to the jurisdiction of the
Commission. However, with regard to the holder of a part 76 certificate
of compliance or compliance plan, except for civil penalty procedures in
this subpart, the applicable procedures are set forth in Sec. 76.70 of
this chapter.
(b) This subpart also prescribes the procedures in cases initiated
by the staff to impose civil penalties pursuant to section 234 of the
Act and section 206 of the Energy Reorganization Act of 1974.
[36 FR 16896, Aug. 26, 1971, as amended at 42 FR 28893, June 6, 1977; 48
FR 44172, Sept. 28, 1983; 62 FR 6668, Feb. 12, 1997]
Sec. 2.201 Notice of violation.
(a) In response to an alleged violation of any provision of the Act
or this chapter or the conditions of a license or an order issued by the
Commission, the Commission may serve on the licensee or other person
subject to the jurisdiction of the Commission a written notice of
violation; a separate notice may be omitted if an order pursuant to
Sec. 2.202 or demand for information pursuant to Sec. 2.204 is issued
that otherwise identifies the apparent violation. The notice of
violation will concisely state the alleged violation and may require
that the licensee or other person submit, within 20 days of the date of
the notice or other specified time, a written explanation or statement
in reply if the Commission believes that the licensee has not already
addressed all the issues contained in the notice of violation,
including:
(1) Corrective steps which have been taken by the licensee or other
person and the results achieved;
(2) Corrective steps which will be taken; and
(3) The date when full compliance will be achieved.
(b) The notice may require the licensee or other person subject to
the jurisdiction of the Commission to admit or deny the violation and to
state the reasons for the violation, if admitted. It may provide that,
if an adequate reply is not received within the time specified in the
notice, the Commission may issue an order or a demand for information as
to why the license should not be modified, suspended or revoked or why
such other action as may be proper should not be taken.
[56 FR 40684, Aug. 15, 1991, as amended at 61 FR 43408, Aug. 22, 1996]
Sec. 2.202 Orders.
(a) The Commission may institute a proceeding to modify, suspend, or
revoke a license or to take such other action as may be proper by
serving on the licensee or other person subject to the jurisdiction of
the Commission an order that will:
(1) Allege the violations with which the licensee or other person
subject to the Commission's jurisdiction is
[[Page 39]]
charged, or the potentially hazardous conditions or other facts deemed
to be sufficient ground for the proposed action, and specify the action
proposed;
(2) Provide that the licensee or other person must file a written
answer to the order under oath or affirmation within twenty (20) days of
its date, or such other time as may be specified in the order;
(3) Inform the licensee or any other person adversely affected by
the order of his or her right, within twenty (20) days of the date of
the order, or such other time as may be specified in the order, to
demand a hearing on all or part of the order, except in a case where the
licensee or other person has consented in writing to the order;
(4) Specify the issues for hearing; and
(5) State the effective date of the order; if the Commission finds
that the public health, safety, or interest so requires or that the
violation or conduct causing the violation is willful, the order may
provide, for stated reasons, that the proposed action be immediately
effective pending further order.
(b) A licensee or other person to whom the Commission has issued an
order under this section must respond to the order by filing a written
answer under oath or affirmation. The answer shall specifically admit or
deny each allegation or charge made in the order, and shall set forth
the matters of fact and law on which the licensee or other person
relies, and, if the order is not consented to, the reasons as to why the
order should not have been issued. Except as provided in paragraph (d)
of this section, the answer may demand a hearing.
(c) If the answer demands a hearing, the Commission will issue an
order designating the time and place of hearing.
(1) If the answer demands a hearing with respect to an immediately
effective order, the hearing will be conducted expeditiously, giving due
consideration to the rights of the parties.
(2) (i) The licensee or other person to whom the Commission has
issued an immediately effective order may, in addition to demanding a
hearing, at the time the answer is filed or sooner, move the presiding
officer to set aside the immediate effectiveness of the order on the
ground that the order, including the need for immediate effectiveness,
is not based on adequate evidence but on mere suspicion, unfounded
allegations, or error. The motion must state with particularity the
reasons why the order is not based on adequate evidence and must be
accompanied by affidavits or other evidence relied on. The NRC staff
shall respond within (5) days of the receipt of the motion. The motion
must be decided by the presiding officer expeditiously. During the
pendency of the motion or at any other time, the presiding officer may
not stay the immediate effectiveness of the order, either on its own
motion, or upon motion of the licensee or other person. The presiding
officer will uphold the immediate effectiveness of the order if it finds
that there is adequate evidence to support immediate effectiveness. An
order upholding immediate effectiveness will constitute the final agency
action on immediate effectiveness. An order setting aside immediate
effectiveness will be referred promptly to the Commission itself and
will not be effective pending further order of the Commission.
(ii) The presiding officer may, on motion by the staff or any other
party to the proceeding, where good cause exists, delay the hearing on
the immediately effective order at any time for such periods as are
consistent with the due process rights of the licensee and other
affected parties.
(d) An answer may consent to the entry of an order in substantially
the form proposed in the order with respect to all or some of the
actions proposed in the order. The consent, in the answer or other
written document, of the licensee or other person to whom the order has
been issued to the entry of an order shall constitute a waiver by the
licensee or other person of a hearing, findings of fact and conclusions
of law, and of all right to seek Commission and judicial review or to
contest the validity of the order in any forum as to those matters which
have been consented to or agreed to or on which a hearing has not been
requested. An order that has been consented to shall have the same force
and effect as an order made after hearing by a presiding officer or the
Commission, and shall be effective as provided in the order.
[[Page 40]]
(e) If the order involves the modification of a part 50 license and
is a backfit, the requirements of Sec. 50.109 of this chapter shall be
followed, unless the licensee has consented to the action required.
[56 FR 40684, Aug. 15, 1991, as amended at 57 FR 20198, May 12, 1992]
Sec. 2.203 Settlement and compromise.
At any time after the issuance of an order designating the time and
place of hearing in a proceeding to modify, suspend, or revoke a license
or for other action, the staff and a licensee or other person may enter
into a stipulation for the settlement of the proceeding or the
compromise of a civil penalty. The stipulation or compromise shall be
subject to approval by the designated presiding officer or, if none has
been designated, by the Chief Administrative Law Judge, according due
weight to the position of the staff. The presiding officer, or if none
has been designated, the Chief Administrative Law Judge, may order such
adjudication of the issues as he may deem to be required in the public
interest to dispose of the proceeding. If approved, the terms of the
settlement or compromise shall be embodied in a decision or order
settling and discontinuing the proceeding.
[36 FR 16896, Aug. 26, 1971]
Sec. 2.204 Demand for information.
(a) The Commission may issue to a licensee or other person subject
to the jurisdiction of the Commission a demand for information for the
purpose of determining whether an order under Sec. 2.202 should be
issued, or whether other action should be taken, which demand will:
(1) Allege the violations with which the licensee or other person is
charged, or the potentially hazardous conditions or other facts deemed
to be sufficient ground for issuing the demand; and
(2) Provide that the licensee must, or the other person may, file a
written answer to the demand for information under oath or affirmation
within twenty (20) days of its date, or such other time as may be
specified in the demand for information.
(b) A licensee to whom the Commission has issued a demand for
information under this section must respond to the demand by filing a
written answer under oath or affirmation; any other person to whom the
Commission has issued a demand for information may, in its discretion,
respond to the demand by filing a written answer under oath or
affirmation. The licensee's answer shall specifically admit or deny each
allegation or charge made in the demand for information, and shall set
forth the matters of fact and law on which the licensee relies. A person
other than a licensee may answer as described above, or by setting forth
its reasons why the demand should not have been issued and, if the
requested information is not provided, the reasons why it is not
provided.
(c) Upon review of the answer filed pursuant to paragraph (a)(2) of
this section, or if no answer is filed, the Commission may institute a
proceeding pursuant to 10 CFR 2.202 to take such action as may be
proper.
(d) An answer may consent to the entry of an order pursuant to
Sec. 2.202 in substantially the form proposed in the demand for
information. Such consent shall constitute a waiver as provided in
Sec. 2.202(d).
[56 FR 40685, Aug. 15, 1991]
Sec. 2.205 Civil penalties.
(a) Before instituting any proceeding to impose a civil penalty
under section 234 of the Act, the Executive Director for Operations or
the Executive Director's designee, as appropriate, shall serve a written
notice of violation upon the person charged. This notice may be included
in a notice issued pursuant to Sec. 2.201 or Sec. 76.70(d) of this
chapter. The notice of violation shall specify the date or dates, facts,
and the nature of the alleged act or omission with which the person is
charged, and shall identify specifically the particular provision or
provisions of the law, rule, regulation, license, permit, part 76
certificate of compliance or compliance plan, or cease and desist order
involved in the alleged violation and must state the amount of each
proposed penalty. The notice of violation shall also advise the person
charged that the civil penalty may be paid in the amount
[[Page 41]]
specified therein, or the proposed imposition of the civil penalty may
be protested in its entirety or in part, by a written answer, either
denying the violation or showing extenuating circumstances. The notice
of violation shall advise the person charged that upon failure to pay a
civil penalty subsequently determined by the Commission, if any, unless
compromised, remitted, or mitigated, be collected by civil action,
pursuant to Section 234c of the Act.
(b) Within twenty (20) days of the date of a notice of violation or
other time specified in the notice, the person charged may either pay
the penalty in the amount proposed or answer the notice of violation.
The answer to the notice of violation shall state any facts,
explanations, and arguments, denying the charges of violation, or
demonstrating any extenuating circumstances, error in the notice of
violation, or other reason why the penalty should not be imposed and may
request remission or mitigation of the penalty.
(c) If the person charged with violation fails to answer within the
time specified in paragraph (b) of this section, an order may be issued
imposing the civil penalty in the amount set forth in the notice of
violation described in paragraph (a) of this section.
(d) If the person charged with violation files an answer to the
notice of violation, the Executive Director for Operations or the
Executive Director's designee, upon consideration of the answer, will
issue an order dismissing the proceeding or imposing, mitigating, or
remitting the civil penalty. The person charged may, within twenty (20)
days of the date of the order or other time specified in the order,
request a hearing.
(e) If the person charged with violation requests a hearing, the
Commission will issue an order designating the time and place of
hearing.
(f) If a hearing is held, an order will be issued after the hearing
by the presiding officer or the Commission dismissing the proceeding or
imposing, mitigating, or remitting the civil penalty.
(g) The Executive Director for Operations or the Executive
Director's designee, as appropriate may compromise any civil penalty,
subject to the provisions of Sec. 2.203.
(h) If the civil penalty is not compromised, or is not remitted by
the Executive Director for Operations or the Executive Director's
designee, as appropriate, the presiding officer, or the Commission, and
if payment is not made within ten (10) days following either the service
of the order described in paragraph (c) or (f) of this section, or the
expiration of the time for requesting a hearing described in paragraph
(d) of this section, the Executive Director for Operations or the
Executive Director's designee, as appropriate, may refer the matter to
the Attorney General for collection.
(i) Except when payment is made after compromise or mitigation by
the Department of Justice or as ordered by a court of the United States,
following reference of the matter to the Attorney General for
collection, payment of civil penalties imposed under Section 234 of the
Act are to be made payable to the U.S. Nuclear Regulatory Commission, in
U.S. funds, by check, draft, money order, credit cars, or electronic
funds transfer such as Automated Clearing House (ACH) using Electronic
Data Interchange (EDI). Federal agencies may also make payment by the
On-Line Payment and Collections System (OPAC's). All payments are to be
made in accordance with the specific payment instructions provided with
Notices of Violation that propose civil penalties and Orders Imposing
Civil Monetary Penalties.
(j) Amount. A civil monetary penalty imposed under Section 234 of
the Atomic Energy Act of 1954, as amended, or any other statute within
the jurisdiction of the Commission that provides for imposition of a
civil penalty in an amount equal to the amount set forth in Section 234,
may not exceed $110,000 for each violation. If any violation is a
continuing one, each day of such violation shall constitute a separate
violation for the purpose of computing the applicable civil penalty.
[36 FR 16896, Aug. 26, 1971, as amended at 52 FR 31608, Aug. 21, 1987;
54 FR 53315, Dec. 28, 1989; 61 FR 53555, Oct. 11, 1996; 62 FR 6668, Feb.
12, 1997; 63 FR 31850, June 10, 1998]
[[Page 42]]
Sec. 2.206 Requests for action under this subpart.
(a) Any person may file a request to institute a proceeding pursuant
to Sec. 2.202 to modify, suspend, or revoke a license, or for such other
action as may be proper. Such a request shall be addressed to the
Executive Director for Operations and shall be filed either (1) by
delivery to the Public Document Room at 2120 L Street, NW., Washington,
DC, or (2) by mail or telegram addessed to the Executive Director for
Operations, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
The requests shall specify the action requested and set forth the facts
that constitute the basis for the request. The Executive Director for
Operations will refer the request to the Director of the NRC Office with
responsibility for the subject matter of the request for appropriate
action in accordance with paragraph (b) of this section.
(b) Within a reasonable time after a request pursuant to paragraph
(a) of this section has been received, the Director of the NRC office
with responsibility for the subject matter of the request shall either
institute the requested proceeding in accordance with this subpart or
shall advise the person who made the request in writing that no
proceeding will be instituted in whole or in part, with respect to the
request, and the reasons for the decision.
(c)(1) Director's decisions under this section will be filed with
the Office of the Secretary. Within twenty-five (25) days after the date
of the Director's decision under this section that no proceeding will be
instituted or other action taken in whole or in part, the Commission may
on its own motion review that decision, in whole or in part, to
determine if the Director has abused his discretion. This review power
does not limit in any way either the Commission's supervisory power over
delegated staff actions or the Commission's power to consult with the
staff on a formal or informal basis regarding institution of proceedings
under this section.
(2) No petition or other request for Commission review of a
Director's decision under this section will be entertained by the
Commission.
[39 FR 12353, Apr. 5, 1974, as amended at 42 FR 36240, July 14, 1977; 45
FR 73466, Nov. 5, 1980; 52 FR 31608, Aug. 21, 1987; 53 FR 43419, Oct.
27, 1988]
Subpart C [Reserved]
Subpart D--Additional Procedures Applicable to Proceedings for the
Issuance of Licenses To Construct or Operate Nuclear Power Plants of
Duplicate Design at Multiple Sites
Source: 40 FR 2976, Jan. 17, 1975, unless otherwise noted.
Sec. 2.400 Scope of subpart.
This subpart describes procedures applicable to licensing
proceedings which involve the consideration in hearings of a number of
applications, filed by one or more applicants pursuant to appendix N of
part 52 of this chapter, for licenses to construct and operate nuclear
power reactors of essentially the same design to be located at different
sites.
[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]
Sec. 2.401 Notice of hearing on applications pursuant to appendix N of part 52 for construction permits.
(a) In the case of applications pursuant to appendix N of part 52 of
this chapter for construction permits for nuclear power reactors of the
type described in Sec. 50.22 of this chapter, the Secretary will issue
notices of hearing pursuant to Sec. 2.104.
(b) The notice of hearing will also state the time and place of the
hearings on any separate phase of the proceeding.
[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]
Sec. 2.402 Separate hearings on separate issues; consolidation of proceedings.
(a) In the case of applications pursuant to appendix N of part 52 of
this chapter for construction permits for
[[Page 43]]
nuclear power reactors of a type described in Sec. 50.22 of this
chapter, the Commission or the presiding officer may order separate
hearings on particular phases of the proceeding, such as matters related
to the acceptability of the design of the reactor, in the context of the
site parameters postulated for the design; environmental matters; or
antitrust aspects of the application.
(b) If a separate hearing is held on a particular phase of the
proceeding, the Commission or presiding officers of each affected
proceeding may, pursuant to Sec. 2.716, consolidate for hearing on that
phase two or more proceedings to consider common issues relating to the
applications involved in the proceedings, if it finds that such action
will be conducive to the proper dispatch of its business and to the ends
of justice. In fixing the place of any such consolidated hearing due
regard will be given to the convenience and necessity of the parties,
petitioners for leave to intervene or the attorneys or representatives
of such persons, and the public interest.
[40 FR 2976, Jan. 17, 1975, as amended at 43 FR 17801, Apr. 26, 1978; 54
FR 15398, Apr. 18, 1989]
Sec. 2.403 Notice of proposed action on applications for operating licenses pursuant to appendix N of part 52.
In the case of applications pursuant to appendix N of part 52 of
this chapter for operating licenses for nuclear power reactors, if the
Commission has not found that a hearing is in the public interest, the
Director of Nuclear Reactor Regulation will, prior to acting thereon,
cause to be published in the Federal Register, pursuant to Sec. 2.105, a
notice of proposed action with respect to each application as soon as
practicable after the applications have been docketed.
[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]
Sec. 2.404 Hearings on applications for operating licenses pursuant to appendix N of part 52.
If a request for a hearing and/or petition for leave to intervene is
filed within the time prescribed in the notice of proposed action on an
application for an operating license pursuant to appendix N of part 52
of this chapter with respect to a specific reactor(s) at a specific site
and the Commission or an atomic safety and licensing board designated by
the Commission or by the Chairman of the Atomic Safety and Licensing
Board Panel has issued a notice of hearing or other appropriate order,
the Commission or the atomic safety and licensing board may order
separate hearings on particular phases of the proceeding and/or
consolidate for hearing two or more proceedings in the manner described
in Sec. 2.402.
[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]
Sec. 2.405 Initial decisions in consolidated hearings.
At the conclusion of any hearing held pursuant to this subpart, the
presiding officer will render a partial initial decision which may be
appealed pursuant to Sec. 2.762. No construction permit or full power
operating license will be issued until an initial decision has been
issued on all phases of the hearing and all issues under the Act and the
National Environmental Policy Act of 1969 appropriate to the proceeding
have been resolved.
Sec. 2.406 Finality of decisions on separate issues.
Notwithstanding any other provision of this chapter, in a proceeding
conducted pursuant to this subpart and appendix N of part 52 of this
chapter, no matter which has been reserved for consideration in one
phase of the hearing shall be considered at another phase of the hearing
except on the basis of significant new information that substantially
affects the conclusion(s) reached at the other phase or other good
cause.
[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]
Sec. 2.407 Applicability of other sections.
The provisions of subparts A and G relating to construction permits
and operating licenses apply, respectively, to construction permits and
operating licenses subject to this subpart, except as qualified by the
provisions of this subpart.
[[Page 44]]
Subpart E--Additional Procedures Applicable to Proceedings for the
Issuance of Licenses To Manufacture Nuclear Power Reactors To Be
Operated at Sites Not Identified in the License Application and Related
Licensing Proceedings
Source: 38 FR 30252, Nov. 2, 1973, unless otherwise noted.
Sec. 2.500 Scope of subpart.
This subpart prescribes procedures applicable to licensing
proceedings which involve the consideration in separate hearings of an
application for a license to manufacture nuclear power reactors pursuant
to appendix M of part 52 of this chapter, and applications for
construction permits and operating licenses for nuclear power reactors
which have been the subject of such an application for a license to
manufacture such facilities (manufacturing license).
[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]
Sec. 2.501 Notice of hearing on application pursuant to appendix M of part 52 for a license to manufacture nuclear power reactors.
(a) In the case of an application pursuant to appendix M of part 52
of this chapter for a license to manufacture nuclear power reactors of
the type described in Sec. 50.22 of this chapter to be operated at sites
not identified in the license application, the Secretary will issue a
notice of hearing to be published in the Federal Register at least
thirty (30) days prior to the date set for hearing in the notice. \1\
The notice shall be issued as soon as practicable after the application
has been docketed. The notice will state:
---------------------------------------------------------------------------
\1\ The thirty (30) day requirement of this paragraph is not
applicable to a notice of the time and place of hearing published by the
presiding officer after the notice of hearing described in this section
has been published.
---------------------------------------------------------------------------
(1) The time, place, and nature of the hearing and/or the prehearing
conference;
(2) The authority within which the hearing is to be held;
(3) The matters of fact and law to be considered; and
(4) The time within which answers to the notice shall be filed.
(b) The issues stated in the notice of hearing pursuant to paragraph
(a) of this section will not involve consideration of the particular
sites at which any of the nuclear power reactors to be manufactured will
be located and operated. Except as the Commission determines otherwise,
the notice of hearing will state:
(1) That, if the proceeding is a contested proceeding, the presiding
officer will consider the following issues: \2\
---------------------------------------------------------------------------
\2\ Issues (i) and (vi) are the issues pursuant to the Atomic Energy
Act of 1954, as amended. Issue (vii) is the issue pursuant to the
National Environmental Policy Act of 1969.
---------------------------------------------------------------------------
(i) Whether the applicant has described the proposed design of, and
the site parameters postulated for, the reactor(s), including, but not
limited to, the principal architectural and engineering criteria for the
design, and has identified the major features or components incorporated
therein for the protection of the health and safety of the public;
(ii) Whether such further technical or design information as may be
required to complete the design report and which can reasonably be left
for later consideration, will be supplied in a supplement to the design
report;
(iii) Whether safety features or components, if any, which require
research and development have been described by the applicant and the
applicant has identified, and there will be conducted a research and
development program reasonably designed to resolve any safety questions
associated with such features or components;
(iv) Whether on the basis of the foregoing, there is reasonable
assurance that (A) such safety questions will be satisfactorily resolved
before any of the proposed nuclear power reactors are removed from the
manufacturing site, and (B) taking into consideration the site criteria
contained in part 100 of this chapter, the proposed reactor(s) can be
constructed and operated at sites having characteristics that fall
within the site parameters postulated for the design of the reactor(s)
without
[[Page 45]]
undue risk to the health and safety of the public;
(v) Whether the applicant is technically and financially qualified
to design and manufacture the proposed reactor(s);
(vi) Whether the issuance of a license for manufacture of the
reactor(s) will be inimical to the common defense and security or to the
health and safety of the public; and
(vii) Whether, in accordance with the requirements of subpart A of
part 51 and appendix M of part 52 of this chapter, the license should be
issued as proposed.
(2) That, if the proceeding is not a contested proceeding, the
presiding officer will determine (i) without conducting a de novo
evaluation of the application, whether the application and the record of
the proceeding contain sufficient information, and the review of the
application by the Commission's staff has been adequate to support
affirmative findings on paragraphs (b)(1) (i) through (v) of this
section and a negative finding on paragraph (b)(1)(vi) of this section
proposed to be made and the issuance of the license to manufacture
proposed by the Director of Nuclear Reactor Regulation, and (ii) whether
the review conducted by the Commission pursuant to the National
Environmental Policy Act (NEPA) has been adequate.
(3) That, regardless of whether the proceeding is contested or
uncontested, the presiding officer will, in accordance with subpart A of
part 51 and paragraph 3 of appendix M of part 52 of this chapter,
(i) Determine whether the requirements of section 102(2) (A), (C)
and (E) of the National Environmental Policy Act and subpart A of part
51 of this chapter have been complied with in the proceeding;
(ii) Independently consider the final balance among conflicting
factors contained in the record of the proceeding with a view to
determining the appropriate action to be taken; and
(iii) Determine whether the manufacturing license should be issued,
denied or appropriately conditioned to protect environmental values.
(c) The place of hearing on an application for a manufacturing
license will be Washington, DC, or such other location as the Commission
deems appropriate.
[38 FR 30252, Nov. 2, 1973, as amended at 39 FR 26279, July 18, 1974; 39
FR 33202, Sept. 16, 1974; 49 FR 9401, Mar. 12, 1984; 54 FR 15398, Apr.
18, 1989; 54 FR 52342, Dec. 21, 1989]
Sec. 2.502 Notice of hearing on application for a permit to construct a nuclear power reactor manufactured pursuant to a Commission license issued pursuant to
appendix M of part 52 of this chapter at the site at which the
reactor is to be operated.
The issues stated for consideration in the notice of hearing on an
application for a permit to construct a nuclear power reactor(s) which
is the subject of an application for a manufacturing license pursuant to
appendix M of part 52 of this chapter, will be those stated in
Sec. 2.104(b) and, in addition, whether the site on which the facility
is to be operated falls within the postulated site parameters specified
in the relevant application for a manufacturing license.
[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]
Sec. 2.503 Finality of decisions on separate issues.
Notwithstanding any other provision of this chapter, no matter which
has been resolved at an earlier stage of the licensing process which
involves a manufacturing license, a permit to construct a reactor for
which a manufacturing license is sought, a license to operate such a
reactor, and any amendment to such permit or licenses shall be
determined to be at issue in any subsequent state of the licensing
process except on the basis of significant new information that
substantially affects the conclusion(s) reached at the earlier stage or
other good cause.
Sec. 2.504 Applicability of other sections.
The provisions of subparts A and G relating to construction permits
apply to manufacturing licenses subject to this subpart, with respect to
matters of radiological health and safety, environmental protection, and
the common defense and security, except that Sec. 2.104 (a) and (b) do
not apply to manufacturing licenses. The provisions of subparts A and G
relating to construction
[[Page 46]]
permits and operating licenses apply, respectively, to construction
permits and operating licenses subject to this subpart, except as
qualified by the provisions of this subpart.
Subpart F--Additional Procedures Applicable to Early Partial Decisions
on Site Suitability Issues in Connection With an Application for a
Permit To Construct Certain Utilization Facilities
Source: 42 FR 22885, May 5, 1977, unless otherwise noted.
Sec. 2.600 Scope of subpart.
This subpart prescribes procedures applicable to licensing
proceedings which involve an early submittal of site suitability
information in accordance with Sec. 2.101(a-1), and a hearing and early
partial decision on issues of site suitability, in connection with an
application for a permit to construct a utilization facility which is
subject to Sec. 51.20(b) of this chapter and is of the type specified in
Sec. 50.21(b) (2) or (3) or Sec. 50.22 of this chapter or is a testing
facility.
[49 FR 9401, Mar. 12, 1984]
Sec. 2.601 Applicability of other sections.
The provisions of subparts A and G relating to applications for
construction permits and proceedings thereon apply, respectively, to
aplications and proceedings in accordance with this subpart, except as
specifically provided otherwise by the provisions of this subpart.
Sec. 2.602 Filing fees.
Each application which contains a request for early review of site
suitability issues under the procedures of this subpart shall be
accompanied by any fee required by Sec. 50.30(e) and part 170 of this
chapter.
Sec. 2.603 Acceptance and docketing of application for early review of site suitability issues.
(a) Each part of an application submitted in accordance with
Sec. 2.101(a-1) of this part will be initially treated as a tendered
application. If it is determined that any one of the parts as described
in Sec. 2.101(a-1) is incomplete and not acceptable for processing, the
Director of Nuclear Reactor Regulation will inform the applicant of this
determination and the respects in which the document is deficient. Such
a determination of completeness will generally be made within a period
of thirty (30) days.
(b)(1) The Director of Nuclear Reactor Regulation will accept for
docketing an application for a construction permit for a utilization
facility which is subject to Sec. 51.20(b) of this chapter and is of the
type specified in Sec. 50.21(b) (2) or (3) or Sec. 50.22 or is a testing
facility where part one of the application as described in Sec. 2.101(a-
1) is complete. Part one of any application will not be considered
complete unless it contains proposed findings as required by
Sec. 2.101(a-1)(1)(i) and unless it describes the applicant's site
selection process, specifies the extent to which that process involves
the consideration of alternative sites, explains the relationship
between that process and the application for early review of site
suitability issues, and briefly describes the applicant's long-range
plans for ultimate development of the site. Upon assignment of a docket
number, the procedures in Sec. 2.101(a) (3) and (4) relating to formal
docketing and the submission and distribution of additional copies of
the application shall be followed.
(2) Additional parts of the application will be docketed upon a
determination by the Director of Nuclear Reactor Regulation that they
are complete.
(c) If part one of the application is docketed, the Director of
Nuclear Reactor Regulation will cause to be published in the Federal
Register and send to the Governor or other appropriate official of the
State in which the site is located, a notice of docketing of the
application which states the purpose of the application, states the
location of the proposed site, states that a notice of hearing will be
published, requests comments within 120 days or such other time as may
be specified on the initiation or outcome of an early site review from
Federal, State, and local agencies and interested persons, and in the
case of applications filed
[[Page 47]]
under section 103 of the Act, states that a person who wishes to have
his views on the antitrust aspects of the application presented to the
Attorney General for consideration shall submit such views in accordance
with a subsequent notice that will be published in the Federal Register.
In the case of a nuclear power reactor, such subsequent notice will be
published following submission of the information required by
Sec. 50.33a.
[42 FR 22885, May 5, 1977, as amended at 49 FR 9401, Mar. 12, 1984]
Sec. 2.604 Notice of hearing on application for early review of site suitability issues.
(a) Where an applicant for a construction permit for a utilization
facility subject to this subpart requests an early review and hearing
and an early partial decision on issues of site suitability pursuant to
Sec. 2.101(a-1), the provisions in the notice of hearing setting forth
the matters of fact and law to be considered, as required by Sec. 2.104,
shall be modified so as to relate only to the site suitability issue or
issues under review.
(b) After docketing of part two of the application, as provided in
Secs. 2.101(a-1) and 2.603, a supplementary notice of hearing will be
published pursuant to Sec. 2.104 with respect to the remaining
unresolved issues in the proceeding within the scope of Sec. 2.104. Such
supplementary notice of hearing will provide that any person whose
interest may be affected by the proceeding and who desires to
participate as a party in the resolution of the remaining issues shall
file a petition for leave to intervene pursuant to Sec. 2.714 within the
time prescribed in the notice. Such supplementary notice will also
provide appropriate opportunities for participation by a representative
of an interested state under Sec. 2.715(c) and for limited appearances
pursuant to Sec. 2.715(a).
(c) Any person who was permitted to intervene as a party pursuant to
the initial notice of hearing on site suitability issues and who was not
dismissed or did not withdraw as a party may continue to participate as
a party to the proceeding with respect to the remaining unresolved
issues, provided that within the time prescribed for filing of petitions
for leave to intervene in the supplementary notice of hearing, he files
a notice of his intent to continue as a party, along with a supporting
affidavit identifying the specific aspect or aspects of the subject
matter of the proceeding as to which he wishes to continue to
participate as a party and setting forth with particularity the basis
for his contentions with regard to each such aspect or aspects. A party
who files a non-timely notice of intent to continue as a party may be
dismissed from the proceeding, absent a determination that the party has
made a substantial showing of good cause for failure to file on time,
and with particular reference to the factors specified in Secs. 2.714(a)
(1) through (4) and 2.714(d). The notice will be ruled upon by the
Commission or atomic safety and licensing board designated to rule on
petitions for leave to intervene.
(d) To the maximum extent practicable, the membership of the atomic
safety and licensing board designated to preside in the proceeding on
the remaining unresolved issues pursuant to the supplemental notice of
hearing will be the same as the membership designated to preside in the
initial notice of hearing on site suitability issues.
Sec. 2.605 Additional considerations.
(a) The Commission will not conduct more than one review of site
suitability issues with regard to a particular site prior to filing and
review of part two of the application described in Sec. 2.101(a-1) of
this part.
(b) The Commission, upon its own initiative, or upon the motion of
any party to the proceeding filed at least sixty (60) days prior to the
date of the commencement of the evidentiary hearing on site suitability
issues, may decline to initiate an early hearing or render an early
partial decision on any issue or issues of site suitability:
(1) In cases where no partial decision on the relative merits of the
proposed site and alternative sites under subpart A of part 51 is
requested, upon determination that there is a reasonable likelihood that
further review would identify one or more preferable alternative sites
and the partial decision on one or more site suitability issues
[[Page 48]]
would lead to an irreversible and irretrievable commitment of resources
prior to the submittal of the remainder of the information required by
Sec. 50.30(f) of this chapter that would prejudice the later review and
decision on such alternative sites; or
(2) In cases where it appears that an early partial decision on any
issue or issues of site suitability would not be in the public interest
considering (i) the degree of likelihood that any early findings on
those issues would retain their validity in later reviews, (ii) the
objections, if any, of cognizant state or local government agencies to
the conduct of an early review on those issues, and (iii) the possible
effect on the public interest and the parties of having an early, if not
necessarily conclusive, resolution of those issues.
[42 FR 22885, May 5, 1977, as amended at 49 FR 9401, Mar. 12, 1984]
Sec. 2.606 Partial decisions on site suitability issues.
(a) The provisions of Secs. 2.754, 2.755, 2.760, 2.761, 2.762,
2.763, and 2.764(a) shall apply to any partial initial decision rendered
in accordance with this subpart. Section 2.764(b) shall not apply to any
partial initial decision rendered in accordance with this subpart. No
limited work authorization may be issued pursuant to Sec. 50.10(e) of
part 50 of this chapter and no construction permit may be issued without
completion of the full review required by section 102(2) of the National
Environmental Policy Act of 1969, as amended, and subpart A of part 51
of this chapter. The authority of the Commission to review such a
partial initial decision sua sponte, or to raise sua sponte an issue
that has not been raised by the parties, will be exercised within the
same time period as in the case of a full decision relating to the
issuance of a construction permit.
(b)(1) A partial decision on one or more site suitability issues
pursuant to the applicable provisions of part 50, subpart A of part 51,
and part 100 of this chapter issued in accordance with this subpart
shall (i) clearly identify the site to which the partial decision
applies and (ii) indicate to what extent additional information may be
needed and additional review may be required to enable the Commission to
determine in accordance with the provisions of the Act and the
applicable provisions of the regulations in this chapter whether a
construction permit for a facility to be located on the site identified
in the partial decision should be issued or denied.
(2) Following completion of Commission review of the partial initial
decision of the Atomic Safety and Licensing Board, after hearing, on the
site suitability issues, the partial decision shall remain in effect
either for a period of five years or, where the applicant for the
construction permit has made timely submittal of the information
required to support the application as provided in Sec. 2.101(a-1),
until the proceeding for a permit to construct a facility on the site
identified in the partial decision has been concluded, \3\ unless the
Commission or Atomic Safety and Licensing Board, upon its own initiative
or upon motion by a party to the proceeding, finds that there exists
significant new information that substantially affects the earlier
conclusions and reopens the hearing record on site suitability issues.
Upon good cause shown, the Commission may extend the five year period
during which a partial decision shall remain in effect for a reasonable
period of time not to exceed one year.
---------------------------------------------------------------------------
\3\ The partial decision on site suitability issues shall be
incorporated in the decision regarding issuance of a construction permit
to the extent that it serves as a basis for the decision on a specific
site issue(s).
[42 FR 22885, May 5, 1977, as amended at 49 FR 9401, Mar. 12, 1984]
Subpart G--Rules of General Applicability
Sec. 2.700 Scope of subpart.
The general rules in this subpart govern procedure in all
adjudications initiated by the issuance of an order pursuant to
Sec. 2.202, an order pursuant to Sec. 2.205(e), a notice of hearing, a
notice of proposed action issued pursuant to Sec. 2.105, or a notice
issued pursuant to Sec. 2.102(d)(3). The procedures applicable to the
proceeding on an application for a license to receive and possess high-
level radioactive waste at a geologic
[[Page 49]]
repository operations area are set forth in subpart J.
[56 FR 40685, Aug. 15, 1991]
Sec. 2.700a Exceptions.
(a) Consistent with 5 U.S.C. 554(a)(4) of the Administrative
Procedure Act, the Commission may provide alternative procedures in
adjudications to the extent that there is involved the conduct of
military or foreign affairs functions.
(b) This rule shall apply to proceedings in progress where hearings
have already been requested or ordered as well as to future proceedings.
[47 FR 4493, Feb. 1, 1982]
Sec. 2.701 Filing of documents.
(a) Documents shall be filed with the Commission in adjudications
subject to this part either:
(1) By delivery to the Public Document Room at 2120 L Street, NW.,
Washington, DC, or
(2) By mail or addressed to the Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: rulemakings and
Adjudications Staff.
(b) All documents offered for filing shall be accompanied by proof
of service upon all parties to the proceeding or their attorneys of
record as required by law or by rule or order of the Commission. The
staff of the Commission shall be deemed to be a party.
(c) Filing by mail, telegram, or facsimile will be deemed to be
complete as of the time of deposit in the mail or with a telegraph
company or upon facsimile transmission.
[27 FR 377, Jan. 13, 1962, as amended at 29 FR 12830, Sept. 11, 1964; 33
FR 6708, May 2, 1968; 39 FR 35332, Oct. 1, 1974; 53 FR 43419, Oct. 27,
1988; 62 FR 27495, May 20, 1997]
Sec. 2.702 Docket.
The Secretary shall maintain a docket for each proceeding subject to
this part, commencing with the issuance of the initial notice of
hearing, notice of consideration of issuance of facility operating
license or other proposed action specified in Sec. 2.105, or order. The
Secretary shall maintain all files and records, including the
transcripts of testimony and exhibits and all papers, correspondence,
decisions and orders filed or issued.
[57 FR 4153, Feb. 4, 1992]
Sec. 2.703 Notice of hearing.
(a) In a proceeding in which the terms of a notice of hearing are
not otherwise prescribed by this part, the order or notice of hearing
will state:
(1) The nature of the hearing, and its time and place, or a
statement that the time and place will be fixed by subsequent order;
(2) The legal authority and jurisdiction under which the hearing is
to be held;
(3) The matters of fact and law asserted or to be considered; and
(4) The time within which an answer shall be filed.
(b) The time and place of hearing will be fixed with due regard for
the convenience of the parties or their representatives, the nature of
the proceeding, and the public interest.
Sec. 2.704 Designation of presiding officer, disqualification, unavailability.
(a) The Commission may provide in the notice of hearing that one or
more members of the Commission, or an atomic safety and licensing board,
or a named officer who has been delegated final authority in the matter,
shall preside. If the Commission does not so provide, the Chairman of
the Atomic Safety and Licensing Board Panel will issue an order
designating an atomic safety and licensing board appointed pursuant to
section 191 of the Atomic Energy Act of 1954, as amended, or, if the
Commission has not provided for the hearing to be conducted by an atomic
safety and licensing board, the Chief Administrative Law Judge will
issue an order designating an administrative law judge appointed
pursuant to section 3105 of title 5 of the United States Code.
(b) If a designated presiding officer or a designated member of an
atomic safety and licensing board deems himself disqualified to preside
or to participate as a board member in the hearing, he shall withdraw by
notice on the record and shall notify the Commission or the Chairman of
the Atomic Safety and Licensing Board Panel, as appropriate, of his
withdrawal.
[[Page 50]]
(c) If a party deems the presiding officer or a designated member of
an atomic safety and licensing board to be disqualified, he may move
that the presiding officer or the board member disqualify himself. The
motion shall be supported by affidavits setting forth the alleged
grounds for disqualification. If the presiding officer does not grant
the motion or the board member does not disqualify himself, the motion
shall be referred to the Commission which will determine the sufficiency
of the grounds alleged.
(d) If a presiding officer or a designated member of an atomic
safety and licensing board becomes unavailable during the course of a
hearing, the Commission or the Chairman of the Atomic Safety and
Licensing Board Panel, as appropriate, will designate another presiding
officer or atomic safety and licensing board member. If he becomes
unavailable after the hearing has been concluded:
(1)(i) The Commission may designate another presiding officer to
make the decision; or
(ii) The Chairman of the Atomic Safety and Licensing Board Panel or
the Commission, as appropriate, may designate another atomic safety and
licensing board member to participate in the decision;
(2) The Commission may direct that the record be certified to it for
decision; or
(3) The Commission may designate another presiding officer.
(e) In the event of substitution of a presiding officer or a
designated member of an atomic safety and licensing board for the one
originally designated, any motion predicated upon the substitution shall
be made within five (5) days thereafter.
[27 FR 377, Jan. 13, 1962, as amended at 31 FR 16310, Dec. 21, 1966; 35
FR 11459, July 17, 1970; 35 FR 12649, Aug. 8, 1970; 40 FR 51996, Nov. 7,
1975; 40 FR 53379, Nov. 18, 1975; 56 FR 29408, June 27, 1991]
Sec. 2.705 Answer.
(a) Within twenty (20) days after service of the notice of hearing,
or such other time as may be specified in the notice of hearing, a party
may file an answer which shall concisely state:
(1) The nature of his defense or other position;
(2) The items of the specification of issues he controverts and
those he does not controvert; and
(3) Whether he proposes to appear and present evidence.
(b) If facts are alleged in the specification of issues, the answer
shall admit or deny specifically each material allegation of fact; or,
where the party has no knowledge or information sufficient to form a
belief, the answer may so state and the statement shall have the effect
of a denial. Material allegations of fact not denied shall be deemed to
be admitted. Matters alleged as affirmative defenses or positions shall
be separately stated and identified and, in the absence of a reply,
shall be deemed to be controverted.
(c) If a party does not oppose an order or proposed action embodied
in or accompanying the notice of hearing, or does not wish to appear and
present evidence at the hearing, the answer shall so state. In lieu of
appearing at the hearing, a party may request leave to file a statement
under oath or affirmation of reasons why the proposed order or action
should not be issued or should differ from that proposed. Such a
statement, if accepted, will be accorded whatever weight is deemed
proper.
Sec. 2.706 Reply.
A party may file a reply to an answer within ten (10) days after it
is served.
[27 FR 377, Jan. 13, 1962, as amended at 43 FR 17801, Apr. 26, 1978]
Sec. 2.707 Default.
On failure of a party to file an answer or pleading within the time
prescribed in this part or as specified in the notice of hearing or
pleading; to appear at a hearing or prehearing conference, to comply
with any prehearing order entered pursuant to Sec. 2.751a or Sec. 2.752,
or to comply with any discovery order entered by the presiding officer
pursuant to Sec. 2.740, the Commission or the presiding officer \1\ may
make such orders
[[Page 51]]
in regard to the failure as are just, including, among others, the
following:
---------------------------------------------------------------------------
\1\ When a reference is made to the Commission or the presiding
officer in this subpart and a presiding officer has been designated, the
specified action will be taken by the presiding officer, unless
otherwise provided.
---------------------------------------------------------------------------
(a) Without further notice, find the facts as to the matters
regarding which the order was made in accordance with the claim of the
party obtaining the order, and enter such order as may be appropriate;
or
(b) Proceed without further notice to take proof on the issues
specified.
[37 FR 15131, July 28, 1972]
Sec. 2.708 Formal requirements for documents.
(a) Each document filed in an adjudication subject to this part to
which a docket number has been assigned shall bear the docket number and
title of the proceeding.
(b) Each document shall be bound on the left side and typewritten,
printed or otherwise reproduced in permanent form on good unglazed paper
of standard letterhead size. Each page shall begin not less than one and
one-quarter inches from the top, with side and bottom margins of not
less than one and one-quarter inches. Text shall be double-spaced,
except that quotations may be single-spaced and indented. The
requirements of this paragraph do not apply to original documents or
admissible copies offered as exhibits, or to specially prepared
exhibits.
(c) The original of each document shall be signed in ink by the
party or his authorized representative, or by an attorney having
authority with respect to it. The capacity of the person signing, his
address, and the date shall be stated. The signature of a person signing
in a representative capacity is a representation that the document has
been subscribed in the capacity specified with full authority, that he
has read it and knows the contents, that to the best of his knowledge,
information, and belief the statements made in it are true, and that it
is not interposed for delay. If a document is not signed, or is signed
with intent to defeat the purpose of this section, it may be stricken.
(d) Except as otherwise provided by this part or by order, a
pleading (or other document) other than correspondence shall be filed in
an original and two conformed copies.
(e) The first document filed by any person in a proceeding shall
designate the name and address of a person on whom service may be made.
(f) A document filed by telegraph need not comply with the formal
requirements of paragraphs (b), (c), and (d) of this section if an
original and copies otherwise complying with all of the requirements of
this section are mailed within two (2) days thereafter to the Secretary,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
Attention: Rulemakings and Adjudications Staff.
[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10153, Sept. 17, 1963; 33
FR 6708, May 5, 1968; 39 FR 35332, Oct. 1, 1974; 45 FR 49537, July 25,
1980; 62 FR 27495, May 20, 1997]
Sec. 2.709 Acceptance for filing.
A document which fails to conform to the requirements of Sec. 2.708
may be refused acceptance for filing and may be returned with an
indication of the reason for nonacceptance. Any matter so tendered but
not accepted for filing shall not be entered on the Commission's docket.
Sec. 2.710 Computation of time.
In computing any period of time, the day of the act, event, or
default after which the designated period of time begins to run is not
included. The last day of the period so computed is included unless it
is a Saturday, Sunday, or legal holiday at the place where the action or
event is to occur, in which event the period runs until the end of the
next day which is neither a Saturday, Sunday, nor holiday. Whenever a
party has the right or is required to do some act within a prescribed
period after the service of a notice or other paper upon him or her and
the notice or paper is served upon by mail, five (5) days shall be added
to the prescribed period. Only two (2) days shall be added when a
document is served by express mail.
[46 FR 58281, Dec. 1, 1981]
[[Page 52]]
Sec. 2.711 Extension and reduction of time limits.
(a) Except as otherwise provided by law, whenever an act is required
or allowed to be done at or within a specified time, the time fixed or
the period of time prescribed may for good cause be extended or
shortened by the Commission or the presiding officer, or by stipulation
approved by the Commission or the presiding officer.
(b) In any instance in which this part does not prescribe a time
limit for an action to be taken in the proceeding, the Commission or the
presiding officer may set a time limit for that action.
[37 FR 15131, July 28, 1972]
Sec. 2.712 Service of papers, methods, proof.
(a) Service of papers by the Commission. Except for subpoenas, the
Commission will serve all orders, decisions, notices, and other papers
issued by it upon all parties.
(b) Who may be served. Any paper required to be served upon a party
shall be served upon him or upon the representative designated by him or
by law to receive service of papers. When a party has appeared by
attorney, service must be made upon the attorney of record.
(c) How service may be made. Service may be made by personal
delivery, by first class, certified or registered mail including air
mail, by telegraph, or as otherwise authorized by law. Where there are
numerous parties to a proceeding, the Commission may make special
provision regarding the service of papers. The presiding officer may
require service by express mail upon some or all parties and the
presiding officer.
(d) Service on the Secretary. (1) All pleadings must be served on
the Secretary of the Commission in the same or equivalent manner, i.e.,
telefax, express mail, personal delivery, or courier, that they are
served upon the adjudicatory tribunals and the parties to the
proceedings so that the Secretary will receive the pleading at
approximately the same time that it is received by the tribunal to which
the pleading is directed.
(2) When pleadings are personally delivered to tribunals while they
are conducting proceedings outside the Washington, DC area, service on
the Secretary may be accomplished by overnight mail.
(3) Service of pre-filed testimony and demonstrative evidence (e.g.,
maps and other physical exhibits) on the Secretary may be made by first-
class mail in all cases.
(4) The addresses for the Secretary are:
(i) First class mail: Office of the Secretary, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings
and Adjudications Staff.
(ii) Express mail: Office of the Secretary, Sixteenth Floor, One
White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852,
Attention: Rulemakings and Adjudications Staff.
(iii) Facsimile: (301) 415-1101, verification number is (301) 415-
1966; and e-mail: [email protected].
(e) When service complete. Service upon a party is complete:
(1) By personal delivery, on handing the paper to the individual, or
leaving it at his office with his clerk or other person in charge or, if
there is no one in charge, leaving it in a conspicuous place therein or,
if the office is closed or the person to be served has no office,
leaving it at his usual place of residence with some person of suitable
age and discretion then residing there;
(2) By telegraph, when deposited with a telegraph company, properly
addressed and with charges prepaid;
(3) By mail, on deposit in the United States mail, properly stamped
and addressed; or
(4) When service cannot be effected in a manner provided by
paragraphs (d) (1) to (3) inclusive of this section in any other manner
authorized by law.
(f) Proof of service. Proof of service, stating the name and address
of the person on whom served and the manner and date of service, shall
be shown for each document filed, and may be made by:
(1) Written acknowledgment of the party served or his counsel;
(2) The certificate of counsel if he has made the service; or
[[Page 53]]
(3) The affidavit of the person making the service.
(g) Free copying and service. Except in an antitrust proceeding, in
any adjudicatory proceeding on an application for a license or an
amendment thereto, the Commission, upon request by a party other than
the applicant, will copy and serve without cost to that party that
party's testimony (including attachments), proposed findings of fact and
conclusions of law, and responses to discovery requests. These documents
should be filed with Docketing and Service not less than five days
before they are due to be submitted to an adjudicatory board, unless the
presiding officer provides otherwise. \1\
---------------------------------------------------------------------------
\1\ This paragraph is suspended until further action of the
Commission. (See 46 FR 13681, Feb. 24, 1981)
[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10153, Sept. 17, 1963; 31
FR 4390, Mar. 15, 1966; 45 FR 49537, July 25, 1980; 46 FR 13681, Feb.
24, 1981; 46 FR 58281, Dec. 1, 1981; 54 FR 26731, June 26, 1989; 54 FR
29008, July 11, 1989; 60 FR 24551, May 9, 1995; 62 FR 27495, May 20,
1997]
Sec. 2.713 Appearance and practice before the Commission in adjudicatory proceedings.
(a) Standards of practice. In the exercise of their functions under
this subpart, the Commission, the Atomic Safety and Licensing Boards,
and Administrative Law Judges function in a quasijudicial capacity.
Accordingly, parties and their representatives in proceedings subject to
this subpart are expected to conduct themselves with honor, dignity, and
decorum as they should before a court of law.
(b) Representation. A person may appear in an adjudication on his or
her own behalf or by an attorney-at-law. A partnership, corporation or
unincorporated association may be represented by a duly authorized
member or officer, or by an attorney-at-law. A party may be represented
by an attorney-at-law provided the attorney is in good standing and has
been admitted to practice before any Court of the United States, the
District of Columbia, or the highest court of any State, territory, or
possession of the United States. Any person appearing in a
representative capacity shall file with the Commission a written notice
of appearance which shall state his or her name, address, and telephone
number; the name and address of the person on whose behalf he or she
appears; and, in the case of an attorney-at-law, the basis of his or her
eligibility as a representative or, in the case of another
representative, the basis of his or her authority to act on behalf of
the party.
(c) Reprimand, censure or suspension from the proceeding. (1) A
presiding officer or the Commission may, if necessary for the orderly
conduct of a proceeding, reprimand, censure or suspend from
participation in the particular proceeding pending before it any party
or representative of a party who shall refuse to comply with its
directions, or who shall be guilty of disorderly, disruptive, or
contemptuous conduct.
(2) A reprimand, a censure or a suspension which is ordered to run
for one day or less shall be ordered with grounds stated on the record
of the proceeding and shall advise the person disciplined of the right
to appeal pursuant to paragraph (c)(3) of this section. A suspension
which is ordered for a longer period shall be in writing, shall state
the grounds on which it is based, and shall advise the person suspended
of the right to appeal and to request a stay pursuant to paragraphs
(c)(3) and (c)(4) of this section. A proceeding may be stayed for a
reasonable time in order for an affected party to obtain other
representation if this would be necessary to prevent injustice.
(3) Anyone disciplined pursuant to this section may within ten (10)
days after issuance of the order file an appeal with the Commission. The
appeal shall 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
[[Page 54]]
procedure to be followed and who shall present evidence, subject to
applicable provisions of law. Such hearing shall commence 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. Such
notification shall include copies of the order of suspension, and, if an
appeal was taken, briefs of the parties, and the decision of the
Commission.
(4) A suspension exceeding 1 day shall not be effective for 72 hours
from the date the suspension order is issued. Within this time a
suspended individual may request a stay of the sanction from the
appropriate reviewing tribunal pending appeal. No responses to the stay
request from other parties will be entertained. If a timely stay request
is filed, the suspension shall be stayed until the reviewing tribunal
rules on the motion. The stay request shall be in writing and contain
the information specified in Sec. 2.788(b) (1), (2) and (3) of this
part. The Commission shall rule on the stay request within 10 days after
the filing of the motion. The Commission shall consider the factors
specified in Sec. 2.788(e) (1) and (2) of this part is determining
whether to grant or deny a stay application.
[45 FR 69878, Oct. 22, 1980, as amended at 56 FR 29408, June 27, 1991]
Sec. 2.714 Intervention.
(a)(1) Any person whose interest may be affected by a proceeding and
who desires to participate as a party shall file a written petition for
leave to intervene. In a proceeding noticed pursuant to Sec. 2.105, any
person whose interest may be affected may also request a hearing. The
petition and/or request shall be filed not later than the time specified
in the notice of hearing, or as provided by the Commission, the
presiding officer or the Atomic Safety and Licensing Board designated to
rule on the petition and/or request, or as provided in Sec. 2.102(d)(3).
Nontimely filings will not be entertained absent a determination by the
Commission, the presiding officer or the Atomic Safety and Licensing
Board designated to rule on the petition and/or request, that the
petition and/or request should be granted based upon a balancing of the
following factors in addition to those set out in paragraph (d)(1) of
this section:
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's
interest will be protected.
(iii) The extent to which the petitioner's participation may
reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be
represented by existing parties.
(v) The extent to which the petitioner's participation will broaden
the issues or delay the proceeding.
(2) The petition shall set forth with particularity the interest of
the petitioner in the proceeding, how that interest may be affected by
the results of the proceeding, including the reasons why petitioner
should be permitted to intervene, with particular reference to the
factors in paragraph (d)(1) of this section, and the specific aspect or
aspects of the subject matter of the proceeding as to which petitioner
wishes to intervene.
(3) Any person who has filed a petition for leave to intervene or
who has been admitted as a party pursuant to this section may amend his
petition for leave to intervene. A petition may be amended without prior
approval of the presiding officer at any time up to fifteen (15) days
prior to the holding of the special prehearing conference pursuant to
Sec. 2.751a, or where no special prehearing conference is held, fifteen
(15) days prior to the holding of the first prehearing conference. After
this time a petition may be amended only with approval of the presiding
officer, based on a balancing of the factors specified in paragraph
(a)(1) of this section. Such an amended petition for leave to intervene
must satisfy the requirements of this paragraph (a) of this section
pertaining to specificity.
(b)(1) Not later than fifteen (15) days prior to the holding of the
special prehearing conference pursuant to Sec. 2.751a, or if no special
prehearing conference is held, fifteen (15) days prior to the
[[Page 55]]
holding of the first prehearing conference, the petitioner shall file a
supplement to his or her petition to intervene that must include a list
of the contentions which petitioner seeks to have litigated in the
hearing. A petitioner who fails to file a supplement that satisfies the
requirements of paragraph (b)(2) of this section with respect to at
least one contention will not be permitted to participate as a party.
Additional time for filing the supplement may be granted based upon a
balancing of the factors in paragraph (a)(1) of this section.
(2) Each contention must consist of a specific statement of the
issue of law or fact to be raised or controverted. In addition, the
petitioner shall provide the following information with respect to each
contention:
(i) A brief explanation of the bases of the contention.
(ii) A concise statement of the alleged facts or expert opinion
which support the contention and on which the petitioner intends to rely
in proving the contention at the hearing, together with references to
those specific sources and documents of which the petitioner is aware
and on which the petitioner intends to rely to establish those facts or
expert opinion.
(iii) Sufficient information (which may include information pursuant
to paragraphs (b)(2) (i) and (ii) of this section) to show that a
genuine dispute exists with the applicant on a material issue of law or
fact. This showing must include references to the specific portions of
the application (including the applicant's environmental report and
safety report) that the petitioner disputes and the supporting reasons
for each dispute, or, if the petitioner believes that the application
fails to contain information on a relevant matter as required by law,
the identification of each failure and the supporting reasons for the
petitioner's belief. On issues arising under the National Environmental
Policy Act, the petitioner shall file contentions based on the
applicant's environmental report. The petitioner can amend those
contentions or file new contentions if there are data or conclusions in
the NRC draft or final environmental impact statement, environmental
assessment, or any supplements relating thereto, that differ
significantly from the data or conclusions in the applicant's document.
(c) Any party to a proceeding may file an answer to a petition for
leave to intervene or a supplement thereto within ten (10) days after
service of the petition or supplement, with particular attention to the
factors set forth in paragraph (d)(1) of this section. The staff may
file such an answer within fifteen (15) days after service of the
petition or supplement.
(d) The Commission, the presiding officer, or the Atomic Safety and
Licensing Board designated to rule on petitions to intervene and/or
requests for hearing shall permit intervention, in any hearing on an
application for a license to receive and possess high-level radioactive
waste at a geologic repository operations area, by the State in which
such area is located and by any affected Indian Tribe as defined in part
60 of this chapter. In all other circumstances, such ruling body or
officer shall, in ruling on--
(1) A petition for leave to intervene or a request for a hearing,
consider the following factors, among other things:
(i) The nature of the petitioner's right under the Act to be made a
party to the proceeding.
(ii) The nature and extent of the petitioner's property, financial,
or other interest in the proceeding.
(iii) The possible effect of any order that may be entered in the
proceeding on the petitioner's interest.
(2) The admissibility of a contention, refuse to admit a contention
if:
(i) The contention and supporting material fail to satisfy the
requirements of paragraph (b)(2) of this section; or
(ii) The contention, if proven, would be of no consequence in the
proceeding because it would not entitle petitioner to relief.
(e) If the Commission or the presiding officer determines that any
of the admitted contentions constitute pure issues of law, those
contentions must be decided on the basis of briefs or oral argument
according to a schedule determined by the Commission or presiding
officer.
[[Page 56]]
(f) An order permitting intervention and/or directing a hearing may
be conditioned on such terms as the Commission, presiding officer or the
designated atomic safety and licensing board may direct in the interests
of:
(1) Restricting irrelevant, duplicative, or repetitive evidence and
argument,
(2) Having common interests represented by a spokesman, and
(3) Retaining authority to determine priorities and control the
compass of the hearing.
(g) In any case in which, after consideration of the factors set
forth in paragraph (d)(1) of this section, the Commission or the
presiding officer finds that the petitioner's interest is limited to one
or more of the issues involved in the proceeding, any order allowing
intervention shall limit his participation accordingly.
(h) A person permitted to intervene becomes a party to the
proceeding, subject to any limitations imposed pursuant to paragraph (f)
of this section.
(i) Unless otherwise expressly provided in the order allowing
intervention, the granting of a petition for leave to intervene does not
change or enlarge the issues specified in the notice of hearing.
(j) The provisions of this section do not apply to license
applications docketed under subpart J of this part.
[37 FR 15132, July 28, 1972, as amended at 37 FR 28711, Dec. 29, 1972;
39 FR 17972, May 22, 1974; 43 FR 17801, Apr. 26, 1978; 44 FR 4459, Jan.
22, 1979; 51 FR 27162, July 30, 1986; 54 FR 14944, Apr. 14, 1989; 54 FR
23740, June 2, 1989; 54 FR 33180, Aug. 11, 1989; 54 FR 39728, Sept. 28,
1989]
Sec. 2.714a Petitions for review of certain rulings on petitions for leave to intervene and/or requests for hearing.
(a) Notwithstanding the provisions of Sec. 2.730(f), an order of the
presiding officer or the atomic safety and licensing board designated to
rule on petitions for leave to intervene and/or requests for hearing may
be appealed, in accordance with the provisions of this section, to the
Commission within ten (10) days after service of the order. The appeal
shall be asserted by the filing of a notice of appeal and accompanying
supporting brief. Any other party may file a brief in support of or in
opposition to the appeal within ten (10) days after service of the
appeal. No other appeals from rulings on petitions and/or requests for
hearing shall be allowed.
(b) An order wholly denying a petition for leave to intervene and/or
request for a hearing is appealable by the petitioner on the question
whether the petition and/or hearing request should have been granted in
whole or in part.
(c) An order granting a petition for leave to intervene and/or
request for a hearing is appealable by a party other than the petitioner
on the question whether the petition and/or the request for a hearing
should have been wholly denied.
[37 FR 28711, Dec. 29, 1972, as amended at 43 FR 17802, Apr. 26, 1978;
56 FR 29408, June 27, 1991]
Sec. 2.715 Participation by a person not a party.
(a) A person who is not a party may, in the discretion of the
presiding officer, be permitted to make a limited appearance by making
oral or written statement of his position on the issues at any session
of the hearing or any prehearing conference within such limits and on
such conditions as may be fixed by the presiding officer, but he may not
otherwise participate in the proceeding.
(b) The Secretary will give notice of a hearing to any person who
requests it prior to the issuance of the notice of hearing, and will
furnish a copy of the notice of hearing to any person who requests it
thereafter. When a communication bears more than one signature, the
Commission will give the notice to the person first signing unless the
communication clearly indicates otherwise.
(c) The presiding officer will afford representatives of an
interested State, county, municipality, and/or agencies thereof, a
reasonable opportunity to participate and to introduce evidence,
interrogate witnesses, and advise the Commission without requiring the
representative to take a position with respect to the issue. Such
participants may also file proposed findings and exceptions pursuant to
Secs. 2.754 and 2.762
[[Page 57]]
and petitions for review by the Commission pursuant to Sec. 2.786. The
presiding officer may require such representative to indicate with
reasonable specificity, in advance of the hearing, the subject matters
on which he desires to participate.
(d) If a matter is taken up by the Commission pursuant to
Sec. 2.786, a person who is not a party may, in the discretion of the
Commission, respectively, be permitted to file a brief ``amicus
curiae''. A person who is not a party and desires to file a brief must
submit a motion for leave to do so which identifies the interest of the
person and states the reasons why a brief is desirable. Except as
otherwise provided by the Commission, such brief must be filed within
the time allowed to the party whose position the brief will support. A
motion of a person who is not a party to participate in oral argument
before the Commission will be granted at the discretion of the
Commission.
[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10153, Sept. 17, 1963; 43
FR 17802, Apr. 26, 1978; 56 FR 29408, June 27, 1991]
Sec. 2.715a Consolidation of parties in construction permit or operating license proceedings.
On motion or on its or his own initiative, the Commission or the
presiding officer may order any parties in a proceeding for the issuance
of a construction permit or an operating license for a production or
utilization facility who have substantially the same interest that may
be affected by the proceeding and who raise substantially the same
questions, to consolidate their presentation of evidence, cross-
examination, briefs, proposed findings of fact, and conclusions of law
and argument. However, it may not order any consolidation that would
prejudice the rights of any party. A consolidation under this section
may be for all purposes of the proceeding, all of the issues of the
proceeding, or with respect to any one or more issues thereof.
[37 FR 15132, July 28, 1972]
Sec. 2.716 Consolidation of proceedings.
On motion and for good cause shown or on its own initiative, the
Commission or the presiding officers of each affected proceeding may
consolidate for hearing or for other purposes two or more proceedings,
or may hold joint hearings with interested States and/or other federal
agencies on matters of concurrent jurisdiction, if it is found that such
action will be conducive to the proper dispatch of its business and to
the ends of justice and will be conducted in accordance with the other
provisions of this subpart.
[43 FR 17802, Apr. 26, 1978]
Sec. 2.717 Commencement and termination of jurisdiction of presiding officer.
(a) Unless otherwise ordered by the Commission, the jurisdiction of
the presiding officer designated to conduct a hearing over the
proceeding, including motions and procedural matters, commences when the
proceeding commences. If no presiding officer has been designated, the
Chief Administrative Law Judge has such jurisdiction or, if he is
unavailable, another administrative law judge has such jurisdiction. A
proceeding is deemed to commence when a notice of hearing or a notice of
proposed action pursuant to Sec. 2.105 is issued. When a notice of
hearing provides that the presiding officer is to be an administrative
law judge, the Chief Administrative Law Judge will designate by order
the administrative law judge who is to preside. The presiding officer's
jurisdiction in each proceeding will terminate upon the expiration of
the period within which the Commission may direct that the record be
certified to it for final decision, or when the Commission renders a
final decision, or when the presiding officer shall have withdrawn
himself from the case upon considering himself disqualified, whichever
is earliest.
(b) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, may issue an
order and take any otherwise proper administrative action with respect
to a licensee who is a party to a pending proceeding. Any
[[Page 58]]
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.
[28 FR 10153, Sept. 17, 1963; 31 FR 12776, Sept. 30, 1966, as amended at
37 FR 28711, Dec. 29, 1972]
Sec. 2.718 Power of presiding officer.
A presiding officer has the duty to conduct a fair and impartial
hearing according to law, to take appropriate action to avoid delay, and
to maintain order. He has all powers necessary to those ends, including
the powers to:
(a) Administer oaths and affirmations.
(b) Issue subpoenas authorized by law.
(c) Rule on offers of proof, and receive evidence.
(d) Order depositions to be taken.
(e) Regulate the course of the hearing and the conduct of the
participants.
(f) Dispose of procedural requests or similar matters.
(g) Examine witnesses.
(h) Hold conferences before or during the hearing for settlement,
simplification of the issues, or any other proper purpose.
(i) Certify questions to the Commission for its determination,
either in his discretion or on direction of the Commission.
(j) Reopen a proceeding for the reception of further evidence at any
time prior to initial decision.
(k) Appoint special assistants from the Atomic Safety and Licensing
Board Panel pursuant to Sec. 2.722;
(l) Issue initial decisions; and
(m) Take any other action consistent with the Act, this chapter, and
sections 551-558 of title 5 of the United States Code.
[27 FR 377, Jan. 13, 1962, as amended at 45 FR 62028, Sept. 18, 1980]
Sec. 2.719 [Reserved]
Sec. 2.720 Subpoenas.
(a) On application by any party, the designated presiding officer
or, if he is not available, the Chairman of the Atomic Safety and
Licensing Board Panel, the Chief Administrative Law Judge, or other
designated officer will issue subpoenas requiring the attendance and
testimony of witnesses or the production of evidence. The officer to
whom application is made may require a showing of general relevance of
the testimony or evidence sought, and may withhold the subpoena if such
a showing is not made, but he shall not attempt to determine the
admissibility of evidence.
(b) Every subpoena will bear the name of the Commission, the name
and office of the issuing officer and the title of the hearing, and will
command the person to whom it is directed to attend and give testimony
or produce specified documents or other things at a designated time and
place. The subpoena will also advise of the quashing procedure provided
in paragraph (f) of this section.
(c) Unless the service of a subpoena is acknowledged on its face by
the witness or is served by an officer or employee of the Commission, it
shall be served by a person who is not a party to the hearing and is not
less than eighteen (18) years of age. Service of a subpoena shall be
made by delivery of a copy of the subpoena to the person named in it and
tendering him the fees for one day's attendance and the mileage allowed
by law. When the subpoena is issued on behalf of the Commission, fees
and mileage need not be tendered, and the subpoena may be served by
registered mail.
(d) Witnesses summoned by subpoena shall be paid, by the party at
whose instance they appear, the fees and mileage paid to witnesses in
the district courts of the United States.
(e) The person serving the subpoena shall make proof of service by
filing the subpoena and affidavit or acknowledgment of service with the
officer before whom the witness is required to testify or produce
evidence or with the Secretary. Failure to make proof of service shall
not affect the validity of the service.
(f) On motion made promptly, and in any event at or before the time
specified in the subpoena for compliance by the person to whom the
subpoena is directed, and on notice to the party at whose instance the
subpoena was issued, the presiding officer or, if he is unavailable, the
Commission may: (1)
[[Page 59]]
Quash or modify the subpoena if it is unreasonable or requires evidence
not relevant to any matter in issue, or (2) condition denial of the
motion on just and reasonable terms.
(g) On application and for good cause shown, the Commission will
seek judicial enforcement of a subpoena issued to a party and which has
not been quashed.
(h)(1) The provisions of paragraphs (a) through (g) of this section
are not applicable to the attendance and testimony of the Commissioners
or NRC personnel, or to the production of records or documents in the
custody thereof.
(2)(i) In a proceeding in which the NRC is a party, the NRC staff
will make available one or more witnesses designated by the Executive
Director for Operations, for oral examination at the hearing or on
deposition regarding any matter, not privileged, which is relevant to
the issues in the proceeding. The attendance and testimony of the
Commissioners and named NRC personnel at a hearing or on deposition may
not be required by the presiding officer, by subpoena or otherwise:
Provided, That the presiding officer may, upon a showing of exceptional
circumstances, such as a case in which a particular named NRC employee
has direct personal knowledge of a material fact not known to the
witnesses made available by the Executive Director for Operations
require the attendance and testimony of named NRC personnel.
(ii) In addition, a party may file with the presiding officer
written interrogatories to be answered by NRC personnel with knowledge
of the facts designated by the Executive Director for Operations. Upon a
finding by the presiding officer that answers to the interrogatories are
necessary to a proper decision in the proceeding and that answers to the
interrogatories are not reasonably obtainable from any other source, the
presiding officer may require that the staff answer the interrogatories.
(iii) No deposition of a particular named NRC employee or answer to
interrogatories by NRC personnel pursuant to paragraphs (h)(2) (i) and
(ii) of this section shall be required before the matters in controversy
in the proceeding have been identified by order of the Commission or the
presiding officer, pursuant to Sec. 2.751a, or after the beginning of
the prehearing conference held pursuant to Sec. 2.752 except upon leave
of the presiding officer for good cause shown.
(iv) The provisions of Sec. 2.740 (c) and (e) shall apply to
interrogatories served pursuant to this paragraph.
(3) Records or documents in the custody of the Commissioners and NRC
personnel are available for inspection and copying or photographing
pursuant to Secs. 2.744 and 2.790.
[27 FR 377, Jan. 13, 1962, as amended at 31 FR 16310, Dec. 21, 1966; 35
FR 19501, Dec. 23, 1970; 37 FR 15132, July 28, 1972; 40 FR 2973, Jan.
17, 1975]
Sec. 2.721 Atomic safety and licensing boards.
(a) The Commission or the Chairman of the Atomic Safety and
Licensing Board Panel may from time to time establish one or more atomic
safety and licensing boards, each comprised of three members, one of
whom will be qualified in the conduct of administrative proceedings and
two of whom shall have such technical or other qualifications as the
Commission or the Chairman of the Atomic Safety and Licensing Board
Panel deems appropriate to the issues to be decided, to preside in such
proceedings for granting, suspending, revoking, or amending licenses or
authorizations as the Commission may designate, and to perform such
other adjudicatory functions as the Commission deems appropriate. The
members of an atomic safety and licensing board shall be designated from
the Atomic Safety and Licensing Board Panel established by the
Commission.
(b) The Commission or the Chairman of the Atomic Safety and
Licensing Board Panel may designate an alternate qualified in the
conduct of administrative proceedings, or an alternate having technical
or other qualifications, or both, for an atomic safety and licensing
board established pursuant to paragraph (a) of this section. If a member
of a board becomes unavailable, the Commission or the Chairman of the
Atomic Safety and Licensing Board
[[Page 60]]
Panel may constitute the alternate qualified in the conduct of
administrative proceedings, or the alternate having technical or other
qualifications, as appropriate, as a member of the board by notifying
the alternate who will, as of the date of such notification, serve as
member of the board. In the event that an alternate is unavailable or no
alternates have been designated, and a member of a board becomes
unavailable, the Commission or the Chairman of the Atomic Safety and
Licensing Board Panel may appoint a member of the Atomic Safety and
Licensing Board Panel who is qualified in the conduct of administrative
proceedings or a member having technical or other qualifications, as
appropriate, as a member of the atomic safety and licensing board by
notifying the appointee who will, as of the date of such notification,
serve as a member of the Board.
(c) An atomic safety and licensing board shall have the duties and
may exercise the powers of a presiding officer as granted by Sec. 2.718
and otherwise in this part. At any time when such a board is in
existence but is not actually in session, any powers which could be
exercised by a presiding officer or by the Chief Administrative Law
Judge may be exercised with respect to such a proceeding by the chairman
of the board having jurisdiction over it. Two members of an atomic
safety and licensing board constitute a quorum, if one of those members
is the member qualified in the conduct of administrative proceedings.
[31 FR 12776, Sept. 30, 1966, as amended at 33 FR 8588, June 12, 1968;
34 FR 13361, Aug. 19, 1969; 35 FR 11459, July 17, 1970; 35 FR 19658,
Dec. 29, 1970; 37 FR 15132, July 28, 1972; 37 FR 28711, Dec. 29, 1972;
40 FR 51996, Nov. 7, 1975; 48 FR 52285, Nov. 17, 1983; 56 FR 29408, June
27, 1991]
Sec. 2.722 Special assistants to the presiding officer.
(a) In consultation with the Panel Chairman, the presiding officer
may, at his discretion, appoint from the Atomic Safety and Licensing
Board Panel established by the Commission, personnel to assist the
presiding officer in taking evidence and preparing a suitable record for
review. Such appointment may occur at any appropriate time during the
proceeding but shall, at the time of the appointment, be subject to the
notice and disqualification provisions as described in Sec. 2.704. Such
special assistants may function as:
(1) Technical interrogators in their individual fields of expertise.
Such interrogators shall be required to study the written testimony and
sit with the presiding officer to hear the presentation and cross-
examination by the parties of all witnesses on the issues of the
interrogators' expertise, taking a leading role in examining such
witnesses to ensure that the record is as complete as possible;
(2) Upon consent of all the parties, Special Masters to hear
evidentiary presentations by the parties on specific technical matters,
and, upon completion of the presentation of evidence, to prepare a
report that would become part of the record. Special Masters may rule on
evidentiary issues brought before them, in accordance with Secs. 2.743
and 2.757. Appeals from such rulings may be taken to the presiding
officer in accordance with procedures which shall be established in the
presiding officer's order appointing the Special Master. Special
Masters' reports are advisory only; the presiding officer shall retain
final authority with respect to the issues heard by the Special Master;
or
(3) Alternate Atomic Safety and Licensing Board members to sit with
the presiding officer, to participate in the evidentiary sessions on the
issue for which the alternate members were designated by examining
witnesses, and to advise the presiding officer of their conclusions
through an on-the-record report. This report is advisory only; the
presiding officer shall retain final authority on the issue for which
the alternate member was designated.
(4) Discovery Master to rule on the matters specified in
Sec. 2.1018(a)(2) of this part.
(b) The presiding officer may, as a matter of discretion, informally
seek the assistance of Members of the Atomic Safety and Licensing Board
Panel to brief the presiding officer on the general technical background
of subjects involving complex issues which the presiding officer might
otherwise have
[[Page 61]]
difficulty in quickly grasping. Such informal briefings shall take place
prior to the hearing on the subject involved and shall supplement the
reading and study undertaken by the presiding officer. They are not
subject to the procedures described in Sec. 2.704.
[45 FR 62028, Sept. 18, 1980, as amended at 54 FR 14944, Apr. 14, 1989]
Motions
Sec. 2.730 Motions.
(a) Presentation and disposition. All motions shall be addressed to
the Commission or, when a proceeding is pending before a presiding
officer, to the presiding officer. All written motions shall be filed
with the Secretary, and served on all parties to the proceeding.
(b) Form and content. Unless made orally on the record during a
hearing, or the presiding officer directs otherwise, a motion shall be
in writing, shall state with particularity the grounds and the relief
sought, and shall be accompanied by any affidavits or other evidence
relied on, and, as appropriate, a proposed form of order.
(c) Answers to motions. Within ten (10) days after service of a
written motion, or such other period as the Secretary or the Assistant
Secretary or presiding officer may prescribe, a party may file an answer
in support of or in opposition to the motion, accompanied by affidavits
or other evidence. However, the staff may file such an answer within
fifteen (15) days after service of a written motion. The moving party
shall have no right to reply, except as permitted by the presiding
officer or the Secretary or the Assistant Secretary.
(d) Oral arguments; briefs. No oral argument will be heard on a
motion unless the presiding officer or the Commission directs otherwise.
A written brief may be filed with a motion or an answer to a motion,
stating the arguments and authorities relied on.
(e) The Board may dispose of written motions either by written order
or by ruling orally during the course of a prehearing conference or
hearing. The Board should ensure that parties not present for the oral
ruling are notified promptly of the order.
(f) Interlocutory appeals to the Commission. No interlocutory appeal
may be taken to the Commission from a ruling of the presiding officer.
When in the judgment of the presiding officer prompt decision is
necessary to prevent detriment to the public interest or unusual delay
or expense, the presiding officer may refer the ruling promptly to the
Commission, and notify the parties either by announcement on the record
or by written notice if the hearing is not in session.
(g) Effect of filing a motion or certification of question to the
Commission. Unless otherwise ordered, neither the filing of a motion nor
the certification of a question to the Commission shall stay the
proceeding or extend the time for the performance of any act.
(h) Where the motion in question is a motion to compel discovery
under Sec. 2.720(h)(2) or Sec. 2.740(f), parties may file answers to the
motion pursuant to paragraph (c) of this section. The presiding officer
in his or her discretion, may order that the answer be given orally
during a telephone conference or other prehearing conference, rather
than in writing. If responses are given over the telephone the presiding
officer shall issue a written order on the motion which summarizes the
views presented by the parties. This does not preclude the presiding
officer from issuing a prior oral ruling on the matter which is
effective at the time of such ruling, provided that the terms of the
ruling are incorporated in the subsequent written order.
[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10154, Sept. 17, 1963; 37
FR 15132, July 28, 1972; 39 FR 24219, July 1, 1974; 43 FR 17802, Apr.
26, 1978; 46 FR 30331, June 8, 1981; 46 FR 58281, Dec. 1, 1981]
Sec. 2.731 Order of procedure.
The presiding officer or the Commission will designate the order of
procedure at a hearing. The proponent of an order will ordinarily open
and close.
Sec. 2.732 Burden of proof.
Unless otherwise ordered by the presiding officer, the applicant or
the proponent of an order has the burden of proof.
[[Page 62]]
Sec. 2.733 Examination by experts.
A party may request the presiding officer to permit a qualified
individual who has scientific or technical training or experience to
participate on behalf of that party in the examination and cross-
examination of expert witnesses. The presiding officer may permit such
individual to participate on behalf of the party in the examination and
cross-examination of expert witnesses, where it would serve the purpose
of furthering the conduct of the proceeding, upon finding: (a) That the
individual is qualified by scientific or technical training or
experience to contribute to the development of an adequate decisional
record in the proceeding by the conduct of such examination or cross-
examination, (b) that the individual has read any written testimony on
which he intends to examine or cross-examine and any documents to be
used or referred to in the course of the examination or cross-
examination, and (c) that the individual has prepared himself to conduct
a meaningful and expeditious examination or cross-examination.
Examination or cross-examination conducted pursuant to this section
shall be limited to areas within the expertise of the individual
conducting the examination or cross-examination. The party on behalf of
whom such examination or cross-examination is conducted and his attorney
shall be responsible for the conduct of examination or cross-examination
by such individuals.
[37 FR 15132, July 28, 1972]
Sec. 2.734 Motions to reopen.
(a) A motion to reopen a closed record to consider additional
evidence will not be granted unless the following criteria are
satisfied:
(1) The motion must be timely, except that an exceptionally grave
issue may be considered in the discretion of the presiding officer even
if untimely presented.
(2) The motion must address a significant safety or environmental
issue.
(3) The motion must demonstrate that a materially different result
would be or would have been likely had the newly proffered evidence been
considered initially.
(b) The motion must be accompanied by one or more affidavits which
set forth the factual and/or technical bases for the movant's claim that
the criteria of paragraph (a) of this section have been satisfied.
Affidavits must be given by competent individuals with knowledge of the
facts alleged, or by experts in the disciplines appropriate to the
issues raised. Evidence contained in affidavits must meet the
admissibility standards set forth in Sec. 2.743(c). Each of the criteria
must be separately addressed, with a specific explanation of why it has
been met. Where multiple allegations are involved, the movant must
identify with particularity each issue it seeks to litigate and specify
the factual and/or technical bases which it believes support the claim
that this issue meets the criteria in paragraph (a) of this section.
(c) A motion predicated in whole or in part on the allegations of a
confidential informant must identify to the presiding officer the source
of the allegations and must request the issuance of an appropriate
protective order.
(d) A motion to reopen which relates to a contention not previously
in controversy among the parties must also satisfy the requirements for
nontimely contentions in Sec. 2.714(a)(1) (i) through (v).
[51 FR 19539, May 30, 1986; 51 FR 23523, June 30, 1986]
Depositions and Written Interrogatories; Discovery; Admission; Evidence
Sec. 2.740 General provisions governing discovery.
(a) Discovery methods. Parties may obtain discovery by one or more
of the following methods: Depositions upon oral examination or written
interrogatories (Sec. 2.740a); written interrogatories (Sec. 2.740b);
production of documents or things or permission to enter upon land or
other property, for inspection and other purposes (Sec. 2.741); and
requests for admission (Sec. 2.742).
(b) Scope of discovery. Unless otherwise limited by order of the
presiding officer in accordance with this section, the scope of
discovery is as follows:
[[Page 63]]
(1) In general. Parties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in the
proceeding, whether it relates to the claim or defense of any other
party, including the existence, description, nature, custody, condition,
and location of any books, documents, or other tangible things and the
identity and location of persons having knowledge of any discoverable
matter. Where any book, document or other tangible thing sought is
reasonably available from another source, such as from the Commission's
Public Document Room or local Public Document Room, a sufficient
response to an interrogatory involving such materials would be the
location, the title and a page reference to the relevant book, document
or tangible thing. In a proceeding on an application for a construction
permit or an operating license for a production or utilization facility,
discovery shall begin only after the prehearing conference provided for
in Sec. 2.751a and shall relate only to those matters in controversy
which have been identified by the Commission or the presiding officer in
the prehearing order entered at the conclusion of that prehearing
conference. In such a proceeding, no discovery shall be had after the
beginning of the prehearing conference held pursuant to Sec. 2.752
except upon leave of the presiding officer upon good cause shown. It is
not ground for objection that the information sought will be
inadmissible at the hearing if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.
(2) Trial preparation materials. A party may obtain discovery of
documents and tangible things otherwise discoverable under paragraph
(b)(1) of this section and prepared in anticipation of or for the
hearing by or for another party's representative (including his
attorney, consultant, surety, indemnitor, insurer, or agent) only upon a
showing that the party seeking discovery has substantial need of the
materials in the preparation of this case and that he is unable without
undue hardship to obtain the substantial equivalent of the materials by
other means. In ordering discovery of such materials when the required
showing has been made, the presiding officer shall protect against
disclosure of the mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party concerning
the proceeding.
(3) While interrogatories may seek to elicit factual information
reasonably related to a party's position in the proceeding, including
data used, assumptions made, and analyses performed by the party, such
interrogatories may not be addressed to, or be construed to require:
(A) Reasons for not using alternative data, assumptions, and
analyses where the alternative data, assumptions, and analyses were not
relied on in developing the party's position; or
(B) Performance of additional research or analytical work beyond
that which is needed to support the party's position on any particular
matter.
(c) Protective order. Upon motion by a party or the person from whom
discovery is sought, and for good cause shown, the presiding officer may
make any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(3) That the discovery may be had only by a method of discovery
other than that selected by the party seeking discovery;
(4) That certain matters not be inquired into, or that the scope of
discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons
designated by the presiding officer;
(6) That, subject to the provisions of Secs. 2.744 and 2.790, a
trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way;
(7) That studies and evaluations not be prepared.
If the motion for a protective order is denied in whole or in part, the
presiding officer may, on such terms and conditions as are just, order
that any
[[Page 64]]
party or person provide or permit discovery.
(d) Sequence and timing of discovery. Unless the presiding officer
upon motion, for the convenience of parties and witnesses and in the
interests of justice, orders otherwise, methods of discovery may be used
in any sequence and the fact that a party is conducting discovery,
whether by deposition or otherwise, shall not operate to delay any other
party's discovery.
(e) Supplementation of responses. A party who has responded to a
request for discovery with a response that was complete when made is
under no duty to supplement his response to include information
thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response
with respect to any question directly addressed to (i) the identity and
location of persons having knowledge of discoverable matters, and (ii)
the identity of each person expected to be called as an expert witness
at the hearing, the subject matter on which he is expected to testify,
and the substance of his testimony.
(2) A party is under a duty seasonably to amend a prior response if
he obtains information upon the basis of which (i) he knows that the
response was incorrect when made, or (ii) he knows that the response
though correct when made is no longer true and the circumstances are
such that a failure to amend the response is in substance a knowing
concealment.
(3) A duty to supplement responses may be imposed by order of the
presiding officer or agreement of the parties.
(f) Motion to compel discovery. (1) If a deponent or party upon whom
a request for production of documents or answers to interrogatories is
served fails to respond or objects to the request, or any part thereof,
or fails to permit inspection as requested, the deposing party or the
party submitting the request may move the presiding officer, within ten
(10) days after the date of the response or after failure of a party to
respond to the request for an order compelling a response or inspection
in accordance with the request. The motion shall set forth the nature of
the questions or the request, the response or objection of the party
upon whom the request was served, and arguments in support of the
motion. For purposes of this paragraph, an evasive or incomplete answer
or response shall be treated as a failure to answer or respond. Failure
to answer or respond shall not be excused on the ground that the
discovery sought is objectionable unless the person or party failing to
answer or respond has applied for a protective order pursuant to
paragraph (c) of this section.
(2) In ruling on a motion made pursuant to this section, the
presiding officer may make such a protective order as he is authorized
to make on a motion made pursuant to paragraph (c) of this section.
(3) This section does not preclude an independent request for
issuance of a subpena directed to a person not a party for production of
documents and things. This section does not apply to requests for the
testimony or interrogatories of the regulatory staff pursuant to
Sec. 2.720(h)(2) or production of NRC documents pursuant to Sec. 2.744
or Sec. 2.790, except for paragraphs (c) and (e) of this section.
[37 FR 15133, July 28, 1972, as amended at 43 FR 17802, Apr. 26, 1978;
54 FR 33181, Aug. 11, 1989]
Sec. 2.740a Depositions upon oral examination and upon written interrogatories.
(a) Any party desiring to take the testimony of any party or other
person by deposition on oral examination or written interrogatories
shall, without leave of the Commission or the presiding officer, give
reasonable notice in writing to every other party, to the person to be
examined and to the presiding officer of the proposed time and place of
taking the deposition; the name and address of each person to be
examined, if known, or if, the name is not known, a general description
sufficient to identify him or the class or group to which he belongs;
the matters upon which each person will be examined and the name or
descriptive title and address of the officer before whom the deposition
is to be taken.
(b) [Reserved]
[[Page 65]]
(c) Within the United States, a deposition may be taken before any
officer authorized to administer oaths by the laws of the United States
or of the place where the examination is held. Outside of the United
States, a deposition may be taken before a secretary of an embassy or
legation, a consul general, vice consul or consular agent of the United
States, or a person authorized to administer oaths designated by the
Commission.
(d) The deponent shall be sworn or shall affirm before any questions
are put to him. Examination and cross-examination shall proceed as at a
hearing. Each question propounded shall be recorded and the answer taken
down in the words of the witness. Objections on questions of evidence
shall be noted in short form without the arguments. The officer shall
not decide on the competency, materiality, or relevancy of evidence but
shall record the evidence subject to objection. Objections on questions
of evidence not made before the officer shall not be deemed waived
unless the ground of the objection is one which might have been obviated
or removed if presented at that time.
(e) When the testimony is fully transcribed, the deposition shall be
submitted to the deponent for examination and signature unless he is ill
or cannot be found or refuses to sign. The officer shall certify the
deposition or, if the deposition is not signed by the deponent, shall
certify the reasons for the failure to sign, and shall promptly forward
the deposition by registered mail to the Commission.
(f) Where the deposition is to be taken on written interrogatories,
the party taking the deposition shall serve a copy of the
interrogatories, showing each interrogatory separately and consecutively
numbered, on every other party with a notice stating the name and
address of the person who is to answer them, and the name, description,
title, and address of the officer before whom they are to be taken.
Within ten (10) days after service, any other party may serve cross-
interrogatories. The interrogatories, cross-interrogatories, and answers
shall be recorded and signed, and the deposition certified, returned,
and filed as in the case of a deposition on oral examination.
(g) A deposition will not become a part of the record in the hearing
unless received in evidence. If only part of a deposition is offered in
evidence by a party, any other party may introduce any other parts. A
party shall not be deemed to make a person his own witness for any
purpose by taking his deposition.
(h) A deponent whose deposition is taken and the officer taking a
deposition shall be entitled to the same fees as are paid for like
services in the district courts of the United States, to be paid by the
party at whose instance the deposition is taken.
(i) The witness may be accompanied, represented, and advised by
legal counsel.
(j) The provisions of paragraphs (a) through (i) of this section are
not applicable to NRC personnel. Testimony of NRC personnel by oral
examination and written interrogatories addressed to NRC personnel are
subject to the provisions of Sec. 2.720(h).
[27 FR 377, Jan. 13, 1962, as amended at 35 FR 19501, Dec. 23, 1970.
Redesignated at 37 FR 15133, July 28, 1972, and amended at 43 FR 17802,
Apr. 26, 1978]
Sec. 2.740b Interrogatories to parties.
(a) Any party may serve upon any other party (other than the staff)
\4\ written interrogatories to be answered in writing by the party
served, or if the party served is a public or private corporation or a
partnership or association, by any officer or agent, who shall furnish
such information as is available to the party. A copy of the
interrogatories, answers, and all related pleadings shall be filed with
the Secretary of the Commission and shall be served on the presiding
officer and upon all parties to the proceeding.
---------------------------------------------------------------------------
\4\ Interrogatories addressed to the staff are subject to
Sec. 2.720(h)(2)(ii).
---------------------------------------------------------------------------
(b) Each interrogatory shall be answered separately and fully in
writing under oath or affirmation, unless it is objected to, in which
event the reasons for objection shall be stated in lieu of an answer.
The answers shall be signed by the person making them, and the
objections by the attorney making them. The party upon whom the
interrogatories were served shall serve a
[[Page 66]]
copy of the answers and objections upon all parties to the proceeding
within 14 days after service of the interrogatories, or within such
shorter or longer period as the presiding officer may allow. Answers may
---------------------------------------------------------------------------
be used in the same manner as depositions (see Sec. 2.740a(g)).
[37 FR 15134, July 28, 1972]
Sec. 2.741 Production of documents and things and entry upon land for inspection and other purposes.
(a) Request for discovery. Any party may serve on any other party a
request to:
(1) Produce and permit the party making the request, or a person
acting on his behalf, to inspect and copy any designated documents, or
to inspect and copy, test, or sample any tangible things which are
within the scope of Sec. 2.740 and which are in the possession, custody,
or control of the party upon whom the request is served; or
(2) Permit entry upon designated land or other property in the
possession or control of the party upon whom the request is served for
the purpose of inspection and measuring, surveying, photographing,
testing, or sampling the property or any designated object or operation
thereon, within the scope of Sec. 2.740.
(b) Service. The request may be served on any party without leave of
the Commission or the presiding officer. Except as otherwise provided in
Sec. 2.740, the request may be served after the proceeding is set for
hearing.
(c) Contents. The request shall set forth the items to be inspected
either by individual item or by category, and describe each item and
category with reasonable particularity. The request shall specify a
reasonable time, place, and manner of making the inspection and
performing the related acts.
(d) Response. The party upon whom the request is served shall serve
on the party submitting the request a written response within thirty
(30) days after the service of the request. The response shall state,
with respect to each item or category, that inspection and related
activities will be permitted as requested, unless the request is
objected to, in which case the reasons for objection shall be stated. If
objection is made to part of an item or category, the part shall be
specified.
(e) NRC records and documents. The provisions of paragraphs (a)
through (d) of this section do not apply to the production for
inspection and copying or photographing of NRC records or documents.
Production of such records or documents is subject to the provisions of
Secs. 2.744 and 2.790.
[37 FR 15134, July 28, 1972]
Sec. 2.742 Admissions.
(a) Apart from any admissions made during or as a result of a
prehearing conference, at any time after his answer has been filed, a
party may file a written request for the admission of the genuineness
and authenticity of any relevant document described in or attached to
the request, or for the admission of the truth of any specified relevant
matter of fact. A copy of the document shall be delivered with the
request unless a copy has already been furnished.
(b) Each requested admission shall be deemed made unless, within a
time designated by the presiding officer or the Commission, and not less
than ten (10) days after service of the request or such further time as
may be allowed on motion, the party to whom the request is directed
serves on the requesting party either (1) a sworn statement denying
specifically the relevant matters of which an admission is requested or
setting forth in detail the reasons why he can neither truthfully admit
nor deny them, or (2) written objections on the ground that some or all
of the matters involved are privileged or irrelevant or that the request
is otherwise improper in whole or in part. Answers on matters to which
such objections are made may be deferred until the objections are
determined. If written objections are made to only a part of a request,
the remainder of the request shall be answered within the time
designated.
(c) Admissions obtained pursuant to the procedure in this section
may be used in evidence to the same extent and subject to the same
objections as other admissions.
[27 FR 377, Jan. 13, 1962, as amended at 37 FR 15134, July 28, 1972]
[[Page 67]]
Sec. 2.743 Evidence.
(a) General. Every party to a proceeding shall have the right to
present such oral or documentary evidence and rebuttal evidence and to
conduct, in accordance with an approved cross-examination plan that
contains the information specified in paragraph (b)(2) of this section
if so directed by the presiding officer, such cross-examination as may
be required for full and true disclosure of the facts.
(b)(1) Testimony and cross-examination. The parties shall submit
direct testimony of witnesses in written form, unless otherwise ordered
by the presiding officer on the basis of objections presented. In any
proceeding in which advance written testimony is to be used, each party
shall serve copies of its proposed written testimony on each other party
at least fifteen (15) days in advance of the session of the hearing at
which its testimony is to be presented. The presiding officer may permit
the introduction of written testimony not so served, either with the
consent of all parties present or after they have had a reasonable
opportunity to examine it. Written testimony must be incorporated into
the transcript of the record as if read or, in the discretion of the
presiding officer, may be offered and admitted in evidence as an
exhibit.
(2) The presiding officer may require a party seeking an opportunity
to cross-examine to request permission to do so in accordance with a
schedule established by the presiding officer. A request to conduct
cross-examination shall be accompanied by a cross-examination plan that
contains the following information:
(i) A brief description of the issue or issues on which cross-
examination will be conducted;
(ii) The objective to be achieved by cross-examination; and
(iii) The proposed line of questions that may logically lead to
achieving the objective of the cross-examination.
The cross-examination plan may be submitted only to the presiding
officer and must be kept by the presiding officer in confidence until
issuance of the initial decision on the issue being litigated. The
presiding officer shall then provide each cross-examination plan to the
Commission's Secretary for inclusion in the official record of the
proceeding.
(3) Paragraphs (b) (1) and (2) of this section do not apply to
proceedings under subpart B of this part for modification, suspension,
or revocation of a license or to proceedings for imposition of a civil
penalty.
(c) Admissibility. Only relevant, material, and reliable evidence
which is not unduly repetitious will be admitted. Immaterial or
irrelevant parts of an admissible document will be segregated and
excluded so far as is practicable.
(d) Objections. An objection to evidence shall briefly state the
grounds of objection. The transcript shall include the objection, the
grounds, and the ruling. Exception to an adverse ruling is preserved
without notation on the record.
(e) Offer of proof. An offer of proof made in connection with an
objection to a ruling of the presiding officer excluding or rejecting
proffered oral testimony shall consist of a statement of the substance
of the proffered evidence. If the excluded evidence is written, a copy
shall be marked for identification. Rejected exhibits, adequately marked
for identification, shall be retained in the record.
(f) Exhibits. A written exhibit will not be received in evidence
unless the original and two copies are offered and a copy is furnished
to each party, or the parties have been previously furnished with copies
or the presiding officer directs otherwise. The presiding officer may
permit a party to replace with a true copy an original document admitted
in evidence. Exhibits in the proceeding on an application for a license
to receive and possess high-level radioactive waste at a geologic
repository operations area are governed by Sec. 2.1013 of this part.
(g) Proceedings involving applications. In any proceeding involving
an application, there shall be offered in evidence by the staff any
report submitted by the ACRS in the proceeding in compliance with
section 182b. of the Act, any safety evaluation prepared by the staff
and any environmental impact statement prepared by the Director of
Nuclear Reactor Regulation or Director of Nuclear Material Safety and
Safeguards, as appropriate, or his designee
[[Page 68]]
in the proceeding pursuant to subpart A of part 51 of this chapter.
(h) Official record. An official record of a government agency or
entry in an official record may be evidenced by an official publication
or by a copy attested by the officer having legal custody of the record
and accompanied by a certificate of his custody.
(i) Official notice. (1) The Commission or the presiding officer may
take official notice of any fact of which a court of the United States
may take judicial notice or of any technical or scientific fact within
the knowledge of the Commission as an expert body. Each fact officially
noticed under this subparagraph shall be specified in the record with
sufficient particularity to advise the parties of the matters which have
been noticed or brought to the attention of the parties before final
decision and each party adversely affected by the decision shall be
given opportunity to controvert the fact.
(2) If a decision is stated to rest in whole or in part on official
notice of a fact which the parties have not had a prior opportunity to
controvert, a party may controvert the fact by filing an appeal from an
initial decision or a petition for reconsideration of a final decision
clearly and concisely setting forth the information relied upon to show
the contrary.
[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10154, Sept. 17, 1963; 31
FR 4339, Mar. 12, 1966; 37 FR 15134, July 28, 1972; 43 FR 17802, Apr.
26, 1978; 48 FR 52285, Nov. 17, 1983; 49 FR 9401, Mar. 12, 1984; 54 FR
14944, Apr. 14, 1989; 54 FR 33181, Aug. 11, 1989]
Sec. 2.744 Production of NRC records and documents.
(a) A request for the production of an NRC record or document not
available pursuant to Sec. 2.790 by a party to an initial licensing
proceeding may be served on the Executive Director for Operations,
without leave of the Commission or the presiding officer. The request
shall set forth the records or documents requested, either by individual
item or by category, and shall describe each item or category with
reasonable particularity and shall state why that record or document is
relevant to the proceeding.
(b) If the Executive Director for Operations objects to producing a
requested record or document on the ground that (1) it is not relevant
or (2) it is exempted from disclosure under Sec. 2.790 and the
disclosure is not necessary to a proper decision in the proceeding or
the document or the information therein is reasonably obtainable from
another source, he shall so advise the requesting party.
(c) If the Executive Director for Operations objects to producing a
record or document, the requesting party may apply to the presiding
officer, in writing, to compel production of that record or document.
The application shall set forth the relevancy of the record or document
to the issues in the proceeding. The application shall be processed as a
motion in accordance with Sec. 2.730 (a) through (d). The record or
document covered by the application shall be produced for the ``in
camera'' inspection of the presiding officer, exclusively, if requested
by the presiding officer and only to the extent necessary to determine:
(1) The relevancy of that record or document;
(2) Whether the document is exempt from disclosure under Sec. 2.790;
(3) Whether the disclosure is necessary to a proper decision in the
proceeding;
(4) Whether the document or the information therein is reasonably
obtainable from another source.
(d) Upon a determination by the presiding officer that the
requesting party has demonstrated the relevancy of the record or
document and that its production is not exempt from disclosure under
Sec. 2.790 or that, if exempt, its disclosure is necessary to a proper
decision in the proceeding, and the document or the information therein
is not reasonably obtainable from another source, he shall order the
Executive Director for Operations, to produce the document.
(e) In the case of requested documents and records (including
Safeguards Information referred to in sections 147 and 181 of the Atomic
Energy Act, as amended) exempt from disclosure under Sec. 2.790, but
whose disclosure is found by the presiding officer to be necessary to a
proper decision in the
[[Page 69]]
proceeding, any order to the Executive Director for Operations to
produce the document or records (or any other order issued ordering
production of the document or records) may contain such protective terms
and conditions (including affidavits of non-disclosure) as may be
necessary and appropriate to limit the disclosure to parties in the
proceeding, to interested States and other governmental entities
participating pursuant to Sec. 2.715(c), and to their qualified
witnesses and counsel. When Safeguards Information protected from
disclosure under section 147 of the Atomic Energy Act, as amended, is
received and possessed by a party other than the Commission staff, it
shall also be protected according to the requirements of Sec. 73.21 of
this chapter. The presiding officer may also prescribe such additional
procedures as will effectively safeguard and prevent disclosure of
Safeguards Information to unauthorized persons with minimum impairment
of the procedural rights which would be available if Safeguards
Information were not involved. In addition to any other sanction that
may be imposed by the presiding officer for violation of an order issued
pursuant to this paragraph, violation of an order pertaining to the
disclosure of Safeguards Information protected from disclosure under
section 147 of the Atomic Energy Act, as amended, may be subject to a
civil penalty imposed pursuant to Sec. 2.205. For the purpose of
imposing the criminal penalties contained in section 223 of the Atomic
Energy Act, as amended, any order issued pursuant to this paragraph with
respect to Safeguards Information shall be deemed an order issued under
section 161b of the Atomic Energy Act.
(f) A ruling by the presiding officer or the Commission for the
production of a record or document will specify the time, place, and
manner of production.
(g) No request pursuant to this section shall be made or entertained
before the matters in controversy have been identified by the Commission
or the presiding officer, or after the beginning of the prehearing
conference held pursuant to Sec. 2.752 except upon leave of the
presiding officer for good cause shown.
(h) The provisions of Sec. 2.740 (c) and (e) shall apply to
production of NRC records and documents pursuant to this section.
[37 FR 15135, July 28, 1972, as amended at 40 FR 2973, Jan. 17, 1975; 46
FR 51723, Oct. 22, 1981]
Summary Disposition on Pleadings
Sec. 2.749 Authority of presiding officer to dispose of certain issues on the pleadings.
(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.
The moving party shall annex to the motion a separate, short, and
concise statement of the material facts as to which the moving party
contends that there is no genuine issue to be heard. Motions may be
filed at any time. Any other party may serve an answer supporting or
opposing the motion, with or without affidavits, within twenty (20) days
after service of the motion. The party shall annex to any answer
opposing the motion a separate, short, and concise statement of the
material facts as to which it is contended there exists a genuine issue
to be heard. All material facts set forth in the statement required to
be served by the moving party will be deemed to be admitted unless
controverted by the statement required to be served by the opposing
party. The opposing party may, within ten (10) days after service,
respond in writing to new facts and arguments presented in any statement
filed in support of the motion. No further supporting statements or
responses thereto may be entertained. The presiding officer may dismiss
summarily or hold in abeyance motions filed shortly before the hearing
commences or during the hearing if the other parties or the presiding
officer would be required to divert substantial resources from the
hearing in order to respond adequately to the motion and thereby extend
the proceeding.
(b) Affidavits shall set forth such facts as would be admissible in
evidence and shall show affirmatively that the affiant is competent to
testify
[[Page 70]]
to the matters stated therein. The presiding officer may permit
affidavits to be supplemented or opposed by depositions, answers to
interrogatories or further affidavits. When a motion for summary
decision is made and supported as provided in this section, a party
opposing the motion may not rest upon the mere allegations or denials of
his answer; his answer by affidavits or as otherwise provided in this
section must set forth specific facts showing that there is a genuine
issue of fact. If no such answer is filed, the decision sought, if
appropriate, shall be rendered.
(c) Should it appear from the affidavits of a party opposing the
motion that he cannot, for reasons stated, present by affidavit facts
essential to justify his opposition, the presiding officer may refuse
the application for summary decision or may order a continuance to
permit affidavits to be obtained or make such other order as is
appropriate and a determination to that effect shall be made a matter of
record.
(d) The presiding officer shall render the decision sought if the
filings in the proceeding, depositions, answers to interrogatories, and
admissions on file, together with the statements of the parties and the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a decision as a
matter of law. However, in any proceeding involving a construction
permit for a production or utilization facility, the procedure described
in this section may be used only for the determination of specific
subordinate issues and may not be used to determine the ultimate issue
as to whether the permit shall be issued.
[37 FR 15135, July 28, 1972, as amended at 46 FR 30331, June 8, 1981; 54
FR 33181, Aug. 11, 1989]
Hearings
Sec. 2.750 Official reporter; transcript.
(a) A hearing will be reported under the supervision of the
presiding officer, stenographically or by other means, by an official
reporter who may be designated from time to time by the Commission or
may be a regular employee of the Commission. The transcript prepared by
the reporter shall be the sole official transcript of the proceeding.
Except as limited pursuant to section 181 of the Act or order of the
Commission, the transcript will be open for inspection at the Public
Document Room. Copies of transcripts are available to parties and to the
public from the official reporter on payment of the charges fixed
therefor.
(b) Transcript corrections. Corrections of the official transcript
may be made only in the manner provided by this paragraph. Corrections
ordered or approved by the presiding officer shall be included in the
record as an appendix, and when so incorporated the Secretary shall make
the necessary physical corrections in the official transcript so that it
will incorporate the changes ordered. In making corrections there shall
be no substitution of pages but, to the extent practicable, corrections
shall be made by running a line through the matter to be changed without
obliteration and writing the matter as changed immediately above. Where
the correction consists of an insertion, it shall be added by rider or
interlineation as near as possible to the text which is intended to
precede and follow it.
(c) Free transcript. Except in an antitrust proceeding, in any
adjudicatory proceeding on an application for a license or an amendment
thereto, the presiding officer may arrange for provision of one free
transcript to a party, other than the applicant, upon request by that
party. The transcript will be made available to a party at the same time
and location as it is made available to the NRC staff. If a transcript
is mailed to the staff, it will also be mailed to the requesting party.
A presiding officer has the discretion to control the distribution of
transcripts to parties.\1\
---------------------------------------------------------------------------
\1\ This paragraph is suspended until further action of the
Commission. (See 46 FR 13681, Feb. 24, 1981)
[27 FR 377, Jan. 13, 1962, as amended at 45 FR 49537, July 25, 1980; 45
FR 54725, Aug. 18, 1980; 46 FR 13681, Feb. 2, 1981]
[[Page 71]]
Sec. 2.751 Hearings to be public.
Except as may be requested pursuant to section 181 of the Act, all
hearings will be public unless otherwise ordered by the Commission.
Sec. 2.751a Special prehearing conference in construction permit and operating license proceedings.
(a) In any proceeding involving an application for a construction
permit or an operating license for a production or utilization facility,
the Commission or the presiding officer will direct the parties and any
petitioners for intervention, or their counsel, to appear at a specified
time and place, within ninety (90) days after the notice of hearing is
published, or such other time as the Commission or the presiding officer
may deem appropriate, for a conference \1a\ to:
---------------------------------------------------------------------------
\1a\ This conference may be omitted in proceedings other than
contested proceedings.
---------------------------------------------------------------------------
(1) Permit identification of the key issues in the proceeding;
(2) Take any steps necessary for further identification of the
issues;
(3) Consider all intervention petitions to allow the presiding
officer to make such preliminary or final determination as to the
parties to the proceeding, as may be appropriate; and
(4) Establish a schedule for further actions in the proceeding.
(b) The presiding officer may order any further informal conferences
among the parties, including telephone conferences, to the extent that
he considers that such a conference would expedite the proceeding.
(c) A prehearing conference held pursuant to this section may be
stenographically reported.
(d) The presiding officer shall enter an order which recites the
action taken at the conference, the schedule for further actions in the
proceeding, any agreements by the parties, and which identifies the key
issues in the proceeding, makes a preliminary or final determination as
to the parties in the proceeding, and provides for the submission of
status reports on discovery. The order shall be served upon all parties
to the proceeding. Objections to the order may be filed by a party
within five (5) days after service of the order, except that the staff
may file objections to such order within ten (10) days after service.
Parties may not file replies to the objections unless the Board so
directs. The filing of objections shall not stay the decision unless the
presiding officer so orders. The board may revise the order in
consideration of the objections presented and, as permitted by
Sec. 2.718(i), may certify for determination to the Commission such
matters raised in the objections as it deems appropriate. The order
shall control the subsequent course of the proceeding unless modified
for good cause.
[37 FR 15135, July 28, 1972, as amended at 43 FR 17802, Apr. 26, 1978;
46 FR 30331, June 8, 1981]
Sec. 2.752 Prehearing conference.
(a) The Commission or the presiding officer may, and in the case of
a proceeding on an application for a construction permit or an operating
license for a facility of a type described in Secs. 50.21(b) or 50.22 of
this chapter or a testing facility, shall direct the parties or their
counsel to appear at a specified time and place for a conference to
consider:
(1) Simplification, clarification, and specification of the issues;
(2) The necessity or desirability of amending the pleadings;
(3) The obtaining of stipulations and admissions of fact and of the
contents and authenticity of documents to avoid unnecessary proof;
(4) Identification of witnesses and the limitation of the number of
expert witnesses, and other steps to expedite the presentation of
evidence;
(5) The setting of a hearing schedule; and
(6) Such other matters as may aid in the orderly disposition of the
proceeding.
A prehearing conference held under this section in a proceeding
involving a construction permit or operating license shall be held
within sixty (60)
[[Page 72]]
days after discovery has been completed, \1\ or such other time as the
Commission or the presiding officer may specify.
---------------------------------------------------------------------------
\1\ Discovery, as used in this section, does not include the
production of the ACRS report, the safety evaluation prepared by the
regulatory staff, or any detailed statement on environmental
considerations prepared by the Director of Nuclear Reactor Regulation or
Director of Nuclear Material Safety and Safeguards, as appropriate or
his designee in the proceeding pursuant to part 51 of this chapter.
---------------------------------------------------------------------------
(b) Prehearing conferences may be stenographically reported.
(c) The presiding officer shall enter an order which recites the
action taken at the conference, the amendments allowed to the pleadings
and agreements by the parties, and which limits the issues or defines
the matters in controversy to be determined in the proceeding.
Objections to the order may be filed by a party within five (5) days
after service of the order, except that the regulatory staff may file
objections to such order within ten (10) days after service. Parties may
not file replies to the objections unless the board so directs. The
filing of objections shall not stay the decision unless the presiding
officer so orders. The board may revise the order in the light of the
objections presented and, as permitted by Sec. 2.718(i) may certify for
determination to the Commission such matters raised in the objections as
it deems appropriate. The order shall control the subsequent course of
the proceeding unless modified for good cause.
[27 FR 377, Jan. 13, 1962, as amended at 37 FR 15136, July 28, 1972; 40
FR 8777, Mar. 3, 1975; 46 FR 30331, June 8, 1981]
Sec. 2.753 Stipulations.
Apart from any stipulations made during or as a result of a
prehearing conference, the parties may stipulate in writing at any stage
of the proceeding or orally during the hearing, any relevant fact or the
contents or authenticity of any document. Such a stipulation may be
received in evidence. The parties may also stipulate as to the procedure
to be followed in the proceeding. Such stipulations may, on motion of
all parties, be recognized by the presiding officer to govern the
conduct of the proceeding.
[37 FR 15136, July 28, 1972]
Sec. 2.754 Proposed findings and conclusions.
(a) Any party to a proceeding may, or if directed by the presiding
officer shall, file proposed findings of fact and conclusions of law,
briefs and a proposed form or order of decision within the time provided
by the following subparagraphs, except as otherwise ordered by the
presiding officer:
(1) The party who has the burden of proof shall, within thirty (30)
days after the record is closed, file proposed findings of fact and
conclusions of law and briefs, and a proposed form of order or decision.
(2) Other parties may file proposed findings, conclusions of law and
briefs within forty (40) days after the record is closed. However, the
staff may file such proposed findings, conclusions of law and briefs
within fifty (50) days after the record is closed.
(3) A party who has the burden of proof may reply within five (5)
days after filing of proposed findings and conclusions of law and briefs
by other parties.
(b) Failure to file proposed findings of fact, conclusions of law or
briefs when directed to do so may be deemed a default, and an order or
initial decision may be entered accordingly.
(c) Proposed findings of fact must be clearly and concisely set
forth in numbered paragraphs and must be confined to the material issues
of fact presented on the record, with exact citations to the transcript
of record and exhibits in support of each proposed finding. Proposed
conclusions of law must be set forth in numbered paragraphs as to all
material issues of law or discretion presented on the record. An
intervenor's proposed findings of fact and conclusions of law must be
confined to issues which that party placed in controversy or sought to
place in controversy in the proceeding.
[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10154, Sept. 17, 1963; 35
FR 11459, July 17, 1970; 43 FR 17802, Apr. 26, 1978; 46 FR 30331, June
8, 1981; 54 FR 33182, Aug. 11, 1989]
[[Page 73]]
Sec. 2.755 Oral argument before presiding officer.
When, in the opinion of the presiding officer, time permits and the
nature of the proceeding and the public interest warrant, he may allow
and fix a time for the presentation of oral argument. He will impose
appropriate limits of time on the argument. The transcript of the
argument shall be a part of the record.
Sec. 2.756 Informal procedures.
The Commission encourages the use of informal procedures consistent
with the Act, sections 551-558 of title 5 of the United States Code, and
the regulations in this chapter, and with the orderly conduct of the
proceeding and the necessity for preserving a suitable record for
review.
[35 FR 11459, July 17, 1970]
Sec. 2.757 Authority of presiding officer to regulate procedure in a hearing.
To prevent unnecessary delays or an unnecessarily large record, the
presiding officer may:
(a) Limit the number of witnesses whose testimony may be cumulative;
(b) Strike argumentative, repetitious, cumulative, or irrelevant
evidence;
(c) Take necessary and proper measures to prevent argumentative,
repetitious, or cumulative cross-examination; and
(d) Impose such time limitations on arguments as he determines
appropriate, having regard for the volume of the evidence and the
importance and complexity of the issues involved.
[37 FR 15136, July 28, 1972]
Sec. 2.758 Consideration of Commission rules and regulations in adjudicatory proceedings.
(a) Except as provided in paragraphs (b), (c), and (d) of this
section, any rule or regulation of the Commission, or any provision
thereof, issued in its program for the licensing of production and
utilization facilities, source material, special nuclear material, or
byproduct material is not subject to attack by way of discovery, proof,
argument, or other means in any adjudicatory proceeding involving
initial or renewal licensing subject to this subpart.
(b) A party to an adjudicatory proceeding involving initial or
renewal licensing subject to this subpart may petition that the
application of a specified Commission rule or regulation or any
provision thereof, of the type described in paragraph (a) of this
section, be waived or an exception made for the particular proceeding.
The sole ground for petition for waiver or exception shall be that
special circumstances with respect to the subject matter of the
particular proceeding are such that the application of the rule or
regulation (or provision thereof) would not serve the purposes for which
the rule or regulation was adopted. The petition shall 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 thereof) would not serve the purposes for
which the rule or regulation was adopted, and shall set forth with
particularity the special circumstances alleged to justify the waiver or
exception requested. Any other party may file a response thereto, by
counter affidavit or otherwise.
(c) If, on the basis of the petition, affidavit and any response
thereto provided for in paragraph (b) of this section, the presiding
officer determines that the petitioning party has not made a prima facie
showing that the application of the specific Commission rule or
regulation or provision thereof to a particular aspect or aspects of the
subject matter of the proceeding would not serve the purposes for which
the rule or regulation was adopted and that application of the rule or
regulation should be waived or an exception granted, no evidence may be
received on that matter and no discovery, cross-examination or argument
directed to the matter will be permitted, and the presiding officer may
not further consider the matter.
(d) If, on the basis of the petition, affidavit and any response
provided for in paragraph (b) of this section, the presiding officer
determines that such a prima facie showing has been made, the presiding
officer shall, before ruling
[[Page 74]]
thereon, certify directly to the Commission \7\ for determination the
matter of whether the application of the Commission rule or regulation
or provision thereof to a particular aspect or aspects of the subject
matter of the proceeding, in the context of this section, should be
waived or an exception made. The Commission may, among other things, on
the basis of the petition, affidavits, and any response, determine
whether the application of the specified rule or regulation (or
provision thereof) should be waived or an exception be made, or the
Commission may direct such further proceedings as it deems appropriate
to aid its determination.
---------------------------------------------------------------------------
\7\ The matter will be certified to the Commission notwithstanding
the provisions of Sec. 2.785.
---------------------------------------------------------------------------
(e) Whether or not the procedure in paragraph (b) of this section is
available, a party to an initial or renewal licensing proceeding may
file a petition for rulemaking pursuant to Sec. 2.802.
[37 FR 15136, July 28, 1972, as amended at 56 FR 64975, Dec. 13, 1991;
60 FR 22491, May 8, 1995]
Sec. 2.759 Settlement in initial licensing proceedings.
The Commission recognizes that the public interest may be served
through settlement of particular issues in a proceeding or the entire
proceeding. Therefore, to the extent that it is not inconsistent with
hearing requirements in section 189 of the Act (42 U.S.C. 2239), the
fair and reasonable settlement of contested initial licensing
proceedings is encouraged. It is expected that the presiding officer and
all of the parties to those proceedings will take appropriate steps to
carry out this purpose.
[37 FR 15137, July 28, 1972]
Initial Decision and Commission Review
Sec. 2.760 Initial decision and its effect.
(a) After hearing, the presiding officer will render an initial
decision which will constitute the final action of the Commission forty
(40) days after its date unless any party petitions for Commission
review in accordance with Sec. 2.786 or the Commission takes review sua
sponte or the decision is subject to the provisions of Sec. 2.764.
(b) Where the public interest so requires, the Commission may direct
that the presiding officer certify the record to it without an initial
decision, and may:
(1) Prepare its own decision which will become final unless the
Commission grants a petition for reconsideration pursuant to Sec. 2.771;
or
(2) Omit an initial decision on a finding that due and timely
execution of its functions imperatively and unavoidably so requires.
(c) An initial decision will be in writing and will be based on the
whole record and supported by reliable, probative, and substantial
evidence. The initial decision will include:
(1) Findings, conclusions and rulings, with the reasons or basis for
them, on all material issues of fact, law, or discretion presented on
the record;
(2) All facts officially noticed and relied on in making the
decision;
(3) The appropriate ruling, order or denial of relief with the
effective date;
(4) The time within which a petition for review of the decision may
be filed, the time within which answers in support of or in opposition
to a petition for review filed by another party may be filed and, in the
case of an initial decision which may become final in accordance with
paragraph (a) of this section, the date when it may become final.
[27 FR 377, Jan. 13, 1962, as amended at 31 FR 4339, Mar. 12, 1966; 35
FR 11459, July 17, 1970; 48 FR 52285, Nov. 17, 1983; 56 FR 29408, June
27, 1991]
Sec. 2.760a Initial decision in contested proceedings on applications for facility operating licenses.
In any initial decision in a contested proceeding on an application
for an operating license for a production or utilization facility, the
presiding officer shall make findings of fact and conclusions of law on
the matters put into controversy by the parties to the proceeding and on
matters which have been determined to be the issues in the proceeding by
the Commission or the presiding officer. Matters not put into
[[Page 75]]
controversy by the parties will be examined and decided by the presiding
officer only where he or she determines that a serious safety,
environmental, or common defense and security matter exists. Depending
on the resolution of those matters, the Director of Nuclear Reactor
Regulation or Director of Nuclear Material Safety and Safeguards, as
appropriate, after making the requisite findings, will issue, deny, or
appropriately condition the license.
[44 FR 67088, Nov. 23, 1979]
Sec. 2.761 Expedited decisional procedure.
(a) The presiding officer may determine a proceeding by an order
after the conclusion of a hearing without issuing an initial decision,
when:
(1) All parties stipulate that the initial decision may be omitted
and waive their rights to file a petition for review, to request oral
argument, and to seek judicial review;
(2) No unresolved substantial issue of fact, law, or discretion
remains, and the record clearly warrants granting the relief requested;
and
(3) The presiding officer finds that dispensing with the issuance of
the initial decision is in the public interest.
(b) An order entered pursuant to paragraph (a) of this section shall
be subject to review by the Commission on its own motion within thirty
(30) days after its date.
(c) An initial decision may be made effective immediately, subject
to review by the Commission on its own motion within thirty (30) days
after its date, except as otherwise provided in this chapter, when:
(1) All parties stipulate that the initial decision may be made
effective immediately and waive their rights to file a petition for
review, to request oral argument, and to seek judicial review;
(2) No unresolved substantial issue of fact, law, or discretion
remains and the record clearly warrants granting the relief requested;
and
(3) The presiding officer finds that it is in the public interest to
make the initial decision effective immediately.
(d) The provisions of this section do not apply to an initial
decision directing the issuance or amendment of a construction permit or
construction authorization, or the issuance of an operating license or
provisional operating authorization.
[27 FR 377, Jan. 13, 1962, as amended at 28 FR 7935, Aug. 3, 1963; 28 FR
10154, Sept. 17, 1963; 35 FR 5318, Mar. 31, 1970; 48 FR 52285, Nov. 17,
1983; 56 FR 29408, June 27, 1991]
Sec. 2.761a Separate hearings and decisions.
In a proceeding on an application for a construction permit for a
utilization facility which is subject to Sec. 51.20(b) of this chapter,
and is of the type specified in Sec. 51.21(b) (2) or (3) or Sec. 50.22
of this chapter or is a testing facility, the presiding officer shall,
unless the parties agree otherwise or the rights of any party would be
prejudiced thereby, commence a hearing on issues covered by
Sec. 50.10(e)(2)(ii) and subpart A of part 51 of this chapter as soon as
practicable after issuance of the staff of its final environmental
impact statement, but no later than thirty (30) days after issuance of
such statement, and complete such a hearing and issue an initial
decision on such matters. Pehearing procedures regarding issues covered
by subpart A of part 51 and Sec. 51.10(e)(2)(ii) of this chapter,
including any discovery and special prehearing conferences and
prehearing conferences as provided in Secs. 2.740, 2.740a, 2.740b,
2.741, 2.742, 2.751a, and 2.752, shall be scheduled accordingly. The
provisions of Secs. 2.754, 2.755, 2.760, 2.762, 2.763, and 2.764(a)
shall apply to any proceeding conducted and any initial decision
rendered in accordance with this section. Section 2.764(b) shall not
apply to any partial initial decision rendered in accordance with this
section. This section shall not preclude separate hearings and decisions
on other particular issues.
[49 FR 9402, Mar. 12, 1984]
Sec. 2.763 Oral argument.
In its discretion the Commission may allow oral argument upon the
request of a party made in a petition for review or brief on review, or
upon its own initiative.
[56 FR 29408, June 27, 1991]
[[Page 76]]
Sec. 2.764 Immediate effectiveness of initial decision directing issuance or amendment of construction permit or operating license.
(a) Except as provided in paragraphs (c) through (f) of this
section, or as otherwise ordered by the Commission in special
circumstances, an initial decision directing the issuance or amendment
of a construction permit, a construction authorization, an operating
license, or a license under 10 CFR part 72 to store spent fuel in an
independent spent fuel storage installation (ISFSI) at a reactor site
shall be effective immediately upon issuance unless the presiding
officer finds that good cause has been shown by a party why the initial
decision should not become immediately effective, subject to review
thereof and further decision by the Commission upon petition for review
filed by any party pursuant to Sec. 2.786 or upon its own motion.
(b) Except as provided in paragraphs (c) through (f) of this
section, or as otherwise ordered by the Commission in special
circumstances, the Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, notwithstanding
the filing or granting of a petition for review, shall issue a
construction permit, a construction authorization, an operating license,
or a license under 10 CFR part 72 to store spent fuel in an independent
spent fuel storage installation (ISFSI) at a reactor site, or amendments
thereto, authorized by an initial decision, within ten (10) days from
the date of issuance of the decision.
(c) An initial decision directing the issuance of an initial license
for the construction and operation of an independent spent fuel storage
installation (ISFSI) located at a site other than a reactor site or a
monitored retrievable storage installation (MRS) under 10 CFR part 72
shall become effective only upon order of the Commission. The Director
of Nuclear Material Safety and Safeguards shall not issue an initial
license for the construction and operation of an independent spent fuel
storage installation (ISFSI) located at a site other than a reactor site
or a monitored retrievable storage installation (MRS) under 10 CFR part
72 until expressly authorized to do so by the Commission.
(d) [Reserved]
(e) Nuclear power reactor construction permits--(1) Atomic Safety
and Licensing Boards. (i) Atomic Safety and Licensing Boards shall hear
and decide all issues that come before them, indicating in their
decisions the type of licensing action, if any, which their decision
would authorize. The Boards' decisions concerning construction permits
shall not become effective until the Commission actions outlined in
paragraph (e)(2) of this section have taken place.
(ii) In reaching their decisions the Boards should interpret
existing regulations and regulatory policies with due consideration to
the implications for those regulations and policies of the Three Mile
Island accident. As provided in paragraph (e)(3) of this section, in
addition to taking generic rulemaking actions, the Commission will be
providing case-by-case guidance on changes in regulatory policies in
conducting its reviews in adjudicatory proceedings. The Boards shall, in
turn, apply these revised regulations and policies in cases then pending
before them to the extent that they are applicable. The Commission
expects the Licensing Boards to pay particular attention in their
decisions to analyzing the evidence on those safety and environmental
issues arising under applicable Commission regulations and policies
which the Boards believe present serious, close questions and which the
Boards believe may be crucial to whether a license should become
effective before full appellate review is completed. Furthermore, the
Boards should identify any apects of the case which in their judgment,
present issues on which prompt Commission policy guidance is called for.
The Boards may request the assistance of the parties in identifying such
policy issues but, absent specific Commission directives, such policy
issues shall not be the subject of discovery, examination, or cross-
examination.
(2) Commission. Within sixty days of the service of any Licensing
Board decision that would otherwise authorize issuance of a construction
permit, the
[[Page 77]]
Commission will seek to issue a decision on any stay motions that are
timely filed. Such motions shall be filed as provided by 10 CFR 2.788.
For the purpose of this policy, a ``stay'' motion is one that seeks to
defer the effectiveness of a Licensing Board decision beyond the period
necessary for the Commission action described herein. If no stay papers
are filed, the Commission will, within the same time period (or earlier
if possible), analyze the record and construction permit decision below
on its own motion and will seek to issue a decision on whether a stay is
warranted. It shall not, however, decide that a stay is warranted
without giving the affected parties an opportunity to be heard. The
initial decision will be considered stayed pending the Commission's
decision. In deciding these stay questions, the Commission shall employ
the procedures set out in 10 CFR 2.788.
(f) Nuclear power reactor operating licenses--(1) Atomic Safety and
Licensing Boards. (i) Atomic Safety and Licensing Boards shall hear and
decide all issues that come before them, indicating in their decisions
the type of licensing action, if any, which their decision would
authorize. A Board's decision authorizing issuance of an operating
license may not become effective insofar as it authorizes operating at
greater than 5 percent of rated power until the Commission actions
outlined below in paragraph (f)(2) of this section have taken place.
Insofar as it authorizes operation up to 5 percent, the decision is
effective and the Director shall issue the appropriate license in
accordance with paragraph (b) of this section.
(ii) In reaching their decisions the Boards should interpret
existing regulations and regulatory policies with due consideration to
the implications for those regulations and policies of the Three Mile
Island accident. In this regard it should be understood that as a result
of analyses still under way the Commission may change its present
regulations and regulatory policies in important respects and thus
compliance with existing regulations may turn out to no longer warrant
approval of a license application. As provided in paragraph (f)(2) of
this section, in addition to taking generic rulemaking actions, the
Commission will be providing case-by-case guidance on changes in
regulatory policies in conducting its reviews in adjudicatory
proceedings. The Boards shall, in turn, apply these revised regulations
and policies in cases then pending before them to the extent that they
are applicable. The Commission expects the Licensing Boards to pay
particular attention in their decisions to analyzing the evidence on
those safety and environmental issues arising under applicable
Commission regulations and policies which the Boards believe present
serious, close questions and which the Boards believe may be crucial to
whether a license should become effective before full appellate review
is completed. Furthermore, the Boards should identify any aspects of the
case which in their judgment, present issues on which prompt Commission
policy guidance is called for. The Boards may request the assistance of
the parties in identifying such policy issues but, absent specific
Commission directive, such policy issues shall not be the subject of
discovery, examination, or cross-examination.
(2) Commission. (i) Reserving the power to step in at an earlier
time, the Commission will, upon receipt of the Licensing Board decision
authorizing issuance of an operating license, other than a decision
authorizing only fuel loading and low power (up to 5 percent of rated
power) testing, review the matter on its own motion to determine whether
to stay the effectiveness of the decision. An operating license decision
will be stayed by the Commission, insofar as it authorizes other than
fuel loading and low power testing, if it determines that it is in the
public interest to do so, based on a consideration of the gravity of the
substantive issue, the likelihood that it has been resolved incorrectly
below, the degree to which correct resolution of the issue would be
prejudiced by operation pending review, and other relevant public
interest factors.
(ii) For operating license decisions other than those authorizing
only fuel loading and low power testing consistent with the target
schedule set forth below, the parties may file brief
[[Page 78]]
comments with the Commission pointing out matters which, in their view,
pertain to the immediate effectiveness issue. To be considered, such
comments must be received within 10 days of the Board decision. However,
the Commission may dispense with comments by so advising the parties. No
extensive stay shall be issued without giving the affected parties an
opportunity to be heard.
(iii) The Commission intends to issue a stay decision within 30 days
of receipt of the Licensing Board's decision. The Licensing Board's
initial decision will be considered stayed pending the Commission's
decision insofar as it may authorize operations other than fuel loading
and low power (up to 5 percent of rated power) testing.
(iv) In announcing a stay decision, the Commission may allow the
proceeding to run its ordinary course or give instructions as to the
future handling of the proceeding. Furthermore, the Commission may in a
particular case determine that compliance with existing regulations and
policies may no longer be sufficient to warrant approval of a license
application and may alter those regulations and policies.
(g) The Commission's effectiveness determination is entirely without
prejudice to proceedings under Sec. 2.786 or Sec. 2.788.
[36 FR 828, Jan. 19, 1971, as amended at 45 FR 74711, Nov. 12, 1980; 46
FR 13978, Feb. 25, 1981; 46 FR 28628, May 28, 1981; 46 FR 47765, Sept.
30, 1981; 47 FR 2305, Jan. 15, 1982; 47 FR 40536, Sept. 15, 1982; 48 FR
52286, Nov. 17, 1983; 54 FR 7757, Feb. 23, 1989; 54 FR 14944, Apr. 14,
1989; 56 FR 29408, June 27, 1991; 60 FR 20886, Apr. 28, 1995]
Sec. 2.765 Immediate effectiveness of initial decision directing issuance or amendment of licenses under part 61 of this chapter.
An initial decision directing the issuance of a license under part
61 of this chapter (relating to land disposal of radioactive waste) or
any amendment to such a license authorizing actions which may
significantly affect the health and safety of the public, will become
effective only upon order of the Commission. The Director of Nuclear
Material Safety and Safeguards may not issue a license under part 61 of
this chapter, or any amendment to such a license which may significantly
affect the health and safety of the public, until expressly authorized
to do so by the Commission.
[47 FR 57478, Dec. 27, 1982]
Final Decision
Sec. 2.770 Final decision.
(a) The Commission will ordinarily consider the whole record on
review, but may limit the issues to be reviewed to those identified in
an order taking review.
(b) The Commission may adopt, modify, or set aside the findings,
conclusions and order in the initial decision, and will state the basis
of its action. The final decision will be in writing and will include:
(1) A statement of findings and conclusions, with the basis for them
on all material issues of fact, law or discretion presented;
(2) All facts officially noticed;
(3) The ruling on each material issue; and
(4) The appropriate ruling, order, or denial of relief, with the
effective date.
[27 FR 377, Jan. 13, 1962, as amended at 48 FR 52286, Nov. 17, 1983; 56
FR 29409, June 27, 1991]
Sec. 2.771 Petition for reconsideration.
(a) A petition for reconsideration of a final decision may be filed
by a party within ten (10) days after the date of the decision.
(b) The petition for reconsideration shall state specifically the
respects in which the final decision is claimed to be erroneous, the
grounds of the petition, and the relief sought. Within ten (10) days
after a petition for reconsideration has been filed, any other party may
file an answer in opposition to or in support of the petition. However,
the staff may file such an answer within twelve (12) days after a
petition for reconsideration has been filed.
(c) Neither the filing nor the granting of the petition shall stay
the decision unless the Commission orders otherwise.
[27 FR 377, Jan. 13, 1962, as amended at 31 FR 4340, Mar. 12, 1966; 43
FR 17802, Apr. 26, 1978; 48 FR 52286, Nov. 17, 1983; 56 FR 29409, June
27, 1991]
[[Page 79]]
Sec. 2.772 Authority of the Secretary to rule on procedural matters.
When briefs, motions or other papers listed herein are submitted to
the Commission itself, as opposed to officers who have been delegated
authority to act for the Commission, the Secretary or the Assistant
Secretary are authorized to:
(a) Prescribe schedules for the filing of briefs, motions, or other
pleadings, where such schedules may differ from those elsewhere
prescribed in these rules or where these rules do not prescribe a
schedule;
(b) Rule on motions for extensions of time;
(c) Reject motions, briefs, pleadings, and other documents filed
with the Commission later than the time prescribed by the Secretary or
the Assistant Secretary or established by an order, rule, or regulation
of the Commission unless good cause is shown for the late filing;
(d) Prescribe all procedural arrangements relating to any oral
argument to be held before the Commission;
(e) Extend the time for the Commission to rule on a petition for
review under 10 CFR 2.786(b);
(f) Extend the time for the Commission to grant review on its own
motion under 10 CFR 2.786(a);
(g) Extend time for Commission review on its own motion of a
Director's denial under 10 CFR 2.206(c);
(h) Direct pleadings improperly filed before the Commission to the
appropriate adjudicatory board for action;
(i) Deny a request for hearings, where the request fails to comply
with the Commission's pleading requirements set forth in this part, and
fails to set forth an arguable basis for further proceedings;
(j) Refer to the Atomic Safety and Licensing Board Panel or an
Administrative Law Judge, as appropriate, requests for hearings not
falling under Sec. 2.104 of this part, where the requester is entitled
to further proceedings; and
(k) Take action on minor procedural matters.
[39 FR 24219, July 1, 1974, as amended at 43 FR 22346, May 25, 1978; 46
FR 34794, July 6, 1981; 47 FR 47803, Sept. 28, 1982]
Restricted Communications
Sec. 2.780 Ex parte communications.
In any proceeding under this subpart--
(a) Interested persons outside the agency may not make or knowingly
cause to be made to any Commission adjudicatory employee, any ex parte
communication relevant to the merits of the proceeding.
(b) Commission adjudicatory employees may not request or entertain
from any interested person outside the agency or make or knowingly cause
to be made to any interested person outside the agency, and ex parte
communication relevant to the merits of the proceeding.
(c) Any Commission adjudicatory employee who receives, makes, or
knowingly causes to be made a communication prohibited by this section
shall ensure that it and any responses to the communication promptly are
served on the parties and placed in the public record of the proceeding.
In the case of oral communications, a written summary must be served and
placed in the public record of the proceeding.
(d) Upon receipt of a communication knowingly made or knowingly
caused to be made by a party in violation of this section, the
Commission or other adjudicatory employee presiding in a proceeding may,
to the extent consistent with the interests of justice and the policy of
the underlying statutes, require the party to show cause why its claim
or interest in the proceeding should not be dismissed, denied,
disregarded, or otherwise adversely affected on account of the
violation.
(e) (1) The prohibitions of this section apply--
(i) When a notice of hearing or other comparable order is issued in
accordance with Secs. 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e),
or 2.703; 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
Secs. 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e), or 2.703.
[[Page 80]]
(2) The prohibitions of this section cease to apply to ex parte
communications relevant to the merits of a full or partial initial
decision when, in accordance with Sec. 2.786, the time has expired for
Commission review of the decision.
(f) The prohibitions in this section do not apply to--
(1) Requests for and the provision of status reports;
(2) Communications specifically permitted by statute or regulation;
(3) Communications made to or by Commission adjudicatory employees
in the Office of the General Counsel regarding matters pending before a
court or another agency; and
(4) Communications regarding generic issues involving public health
and safety or other statutory responsibilities of the agency (e.g.,
rulemakings, congressional hearings on legislation, budgetary planning)
not associated with the resolution of any proceeding under this subpart
pending before the NRC.
[53 FR 10365, Mar. 31, 1988, as amended at 56 FR 29409, June 27, 1991]
Sec. 2.781 Separation of functions.
(a) In any proceeding under this subpart, any NRC officer or
employee engaged in the performance of any investigative or litigating
function in that proceeding or in a factually related proceeding may not
participate in or advise a Commission adjudicatory employee about the
initial or final decision on any disputed issue in that proceeding,
except--
(1) As witness or counsel in the proceeding;
(2) Through a written communication served on all parties and made
on the record of the proceeding; or
(3) Through an oral communication made both with reasonable prior
notice to all parties and with reasonable opportunity for all parties to
respond.
(b) The prohibition in paragraph (a) of this section does not apply
to--
(1) Communications to or from any Commission adjudicatory employee
regarding--
(i) The status of a proceeding;
(ii) Matters with regard to which the communications specifically
are permitted by statute or regulation;
(iii) Agency participation in matters pending before a court or
another agency; or
(iv) Generic issues involving public health and safety or other
statutory responsibilities of the agency (e.g., rulemakings,
congressional hearings on legislation, budgetary planning) not
associated with the resolution of any proceeding under this subpart
pending before the NRC.
(2) Communications to or from Commissioners, members of their
personal staffs, Commission adjudicatory employees in the Office of the
General Counsel, and the Secretary and employees of the Office of the
Secretary, regarding--
(i) Initiation or direction of an investigation or initiation of an
enforcement proceeding;
(ii) Supervision of agency staff to ensure compliance with the
general policies and procedures of the agency;
(iii) Staff priorities and schedules or the allocation of agency
resources; or
(iv) General regulatory, scientific, or engineering principles that
are useful for an understanding of the issues in a proceeding and are
not contested in the proceeding.
(3) None of the communications permitted by paragraph (b)(2) (i)
through (iii) of this section is to be associated by the Commission
adjudicatory employee or the NRC officer or employee performing
investigative or litigating functions with the resolution of any
proceeding under this subpart pending before the NRC.
(c) Any Commission adjudicatory employee who receives a
communication prohibited under paragraph (a) of this section shall
ensure that it and any responses to the communication are placed in the
public record of the proceeding and served on the parties. In the case
of oral communications, a written summary must be served and placed in
the public record of the proceeding.
(d)(1) The prohibitions in this section apply--
(i) When a notice of hearing or other comparable order is issued in
accordance with Secs. 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e),
or 2.703; or
(ii) Whenever an NRC officer or employee who is or has reasonable
cause
[[Page 81]]
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 Secs. 2.104(a), 2.105(e)(2),
2.202(c), 2.204, 2.205(e), or 2.703.
(2) The prohibitions of this section will cease to apply to the
disputed issues pertinent to a full or partial initial decision when, in
accordance with Sec. 2.786, the time has expired for Commission review
of the decision.
(e) Communications to, from, and between Commission adjudicatory
employees not prohibited by this section may not serve as a conduit for
a communication that otherwise would be prohibited by this section or
for an ex parte communication that otherwise would be prohibited by
Sec. 2.780.
(f) If an initial or final decision is stated to rest in whole or in
part on fact or opinion obtained as a result of a communication
authorized by this section, the substance of the communication must be
specified in the record of the proceeding and every party must be
afforded an opportunity to controvert the fact or opinion. If the
parties have not had an opportunity to controvert the fact or opinion
prior to the filing of the decision, a party may controvert the fact or
opinion by filing a petition for review of an initial decision, or a
petition for reconsideration of a final decision that clearly and
concisely sets forth the information or argument relied on to show the
contrary. If appropriate, a party may be afforded the opportunity for
cross-examination or to present rebuttal evidence.
[53 FR 10366, Mar. 31, 1988, as amended at 56 FR 29409, June 27, 1991]
Sec. 2.786 Review of decisions and actions of a presiding officer.
(a) Within forty (40) days after the date of a decision or action by
a presiding officer, or within thirty (30) days after a petition for
review of the decision or action has been filed under paragraph (b) of
this section, whichever is greater, the Commission may review the
decision or action on its own motion, unless the Commission, in its
discretion, extends the time for its review.
(b)(1) Within fifteen (15) days after service of a full or partial
initial decision by a presiding officer, and within fifteen (15) days
after service of any other decision or action by a presiding officer
with respect to which a petition for review is authorized by this part,
a party may file a petition for review with the Commission on the
grounds specified in paragraph (b)(4) of this section. The filing of a
petition for review is mandatory for a party to exhaust its
administrative remedies before seeking judicial review.
(2) A petition for review under this paragraph must be no longer
than ten (10) pages, and must contain the following:
(i) A concise summary of the decision or action of which review is
sought;
(ii) A statement (including record citation) where the matters of
fact or law raised in the petition for review were previously raised
before the presiding officer and, if they were not why they could not
have been raised;
(iii) A concise statement why in the petitioner's view the decision
or action is erroneous; and
(iv) A concise statement why Commission review should be exercised.
(3) Any other party to the proceeding may, within ten (10) days
after service of a petition for review, file an answer supporting or
opposing Commission review. This answer must be no longer than ten (10)
pages and should concisely address the matters in paragraph (b)(2) of
this section to the extent appropriate. The petitioning party shall have
no right to reply, except as permitted by the Commission.
(4) The petition for review may be granted in the discretion of the
Commission, giving due weight to the existence of a substantial question
with respect to the following considerations:
(i) A finding of material fact is clearly erroneous or in conflict
with a finding as to the same fact in a different proceeding;
(ii) A necessary legal conclusion is without governing precedent or
is a departure from or contrary to established law;
(iii) A substantial and important question of law, policy or
discretion has been raised;
[[Page 82]]
(iv) The conduct of the proceeding involved a prejudicial procedural
error; or
(v) Any other consideration which the Commission may deem to be in
the public interest.
(5) A petition for review will not be granted to the extent that it
relies on matters that could have been but were not raised before the
presiding officer. A matter raised sua sponte by a presiding officer has
been raised before the presiding officer for the purpose of this
section.
(6) A petition for review will not be granted as to issues raised
before the presiding officer on a pending motion for reconsideration.
(c) If within thirty (30) days after the filing of a petition for
review the Commission does not grant the petition, in whole or in part,
the petition shall be deemed denied, unless the Commission in its
discretion extends the time for its consideration of the petition and
any answers thereto.
(d) If a petition for review is granted, the Commission will issue
an order specifying the issues to be reviewed and designating the
parties to the review proceeding and direct that appropriate briefs be
filed, oral argument be held, or both.
(e) Petitions for reconsideration of Commission decisions granting
or denying review in whole or in part will not be entertained. A
petition for reconsideration of a Commission decision after review may
be filed within ten (10) days, but is not necessary for exhaustion of
administrative remedies. However, if a petition for reconsideration is
filed, the Commission decision is not final until the petition is
decided.
(f) Neither the filing nor the granting of a petition for review
will stay the effect of the decision or action of the presiding officer,
unless otherwise ordered by the Commission.
(g) Certified questions and referred rulings. A question certified
to the Commission under Sec. 2.718(i) or a ruling referred under
Sec. 2.730(f) must meet one of the alternative standards in this
subsection to merit Commission review. A certified question or referred
ruling will be reviewed if it either--
(1) Threatens the party adversely affected by it with immediate and
serious irreparable impact which, as a practical matter, could not be
alleviated through a petition for review of the presiding officer's
final decision; or
(2) Affects the basic structure of the proceeding in a pervasive or
unusual manner.
[56 FR 29409, June 27, 1991]
Sec. 2.788 Stays of decisions of presiding officers pending review.
(a) Within ten (10) days after service of a decision or action of a
presiding officer any party to the proceeding may file an application
for a stay of the effectiveness of the decision or action pending filing
of and a decision on a petition for review. This application may be
filed with the Commission or the presiding officer, but not both at the
same time.
(b) An application for a stay must be no longer than ten (10) pages,
exclusive of affidavits, and must contain the following:
(1) A concise summary of the decision or action which is requested
to be stayed;
(2) A concise statement of the grounds for stay, with reference to
the factors specified in paragraph (e) of this section; and
(3) To the extent that an application for a stay relies on facts
subject to dispute, appropriate references to the record or affidavits
by knowledgeable persons.
(c) Service of an application for a stay on the other parties shall
be by the same method, e.g., telecopier message, mail, as the method for
filing the application with the Commission or the presiding officer.
(d) Within ten (10) days after service of an application for a stay
under this section, any party may file an answer supporting or opposing
the granting of a stay. This answer must be no longer than ten (10)
pages, exclusive of affidavits, and should concisely address the matters
in paragraph (b) of this section to the extent appropriate. No further
replies to answers will be entertained. Filing of and service of an
answer on the other parties must be by the same method, e.g., telecopier
message, mail,
[[Page 83]]
as the method for filing the application for the stay.
(e) In determining whether to grant or deny an application for a
stay, the Commission or presiding officer will consider:
(1) Whether the moving party has made a strong showing that it is
likely to prevail on the merits;
(2) Whether the party will be irreparably injured unless a stay is
granted;
(3) Whether the granting of a stay would harm other parties; and
(4) Where the public interest lies.
(f) In extraordinary cases, where prompt application is made under
this section, the Commission or presiding officer may grant a temporary
stay to preserve the status quo without waiting for filing of any
answer. The application may be made orally provided the application is
promptly confirmed by telecopier message. Any party applying under this
paragraph shall make all reasonable efforts to inform the other parties
of the application, orally if made orally.
[56 FR 29410, June 27, 1991]
Availability of Official Records
Sec. 2.790 Public inspections, exemptions, requests for withholding.
(a) Subject to the provisions of paragraphs (b), (d), and (e) of
this section, final NRC records and documents, \8\ including but not
limited to correspondence to and from the NRC regarding the issuance,
denial, amendment, transfer, renewal, modification, suspension,
revocation, or violation of a license, permit, or order, or regarding a
rule making proceeding subject to this part shall not, in the absence of
a compelling reason for nondisclosure after a balancing of the interests
of the person or agency urging nondisclosure and the public interest in
disclosure, be exempt from disclosure and will be made available for
inspection and copying in the NRC Public Document Room, except for
matters that are:
---------------------------------------------------------------------------
\8\ Such records and documents do not include handwritten notes and
drafts.
---------------------------------------------------------------------------
(1)(i) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy and (ii) are in fact properly classified pursuant to such
Executive order;
(2) Related solely to the internal personnel rules and practices of
the Commission;
(3) Specifically exempted from disclosure by statute (other than 5
U.S.C.) 552(b), provided that such statute (i) requires that the matters
be withheld from the public in such a manner as to leave no discretion
on the issue, or (ii) establishes particular criteria for withholding or
refers to particular types or matters to be withheld.
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Interagency or intraagency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the Commission;
(6) Personnel and medical files and similar files, the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information.
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority, or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such
[[Page 84]]
disclosure could reasonably be expected to risk circumvention of the
law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(9) Geological and geophysical information and data, including maps,
concerning wells.
(b)(1) A person who proposes that a document or a part be withheld
in whole or part from public disclosure on the ground that it contains
trade secrets or privileged or confidential commercial or financial
information shall submit an application for withholding accompanied by
an affidavit which:
(i) Identifies the document or part sought to be withheld and the
position of the person making the affidavit, and
(ii) Contains a full statement of the reasons on the basis of which
it is claimed that the information should be withheld from public
disclosure. Such statement shall address with specificity the
considerations listed in paragraph (b)(4) of this section. In the case
of an affidavit submitted by a company, the affidavit shall be executed
by an officer or upper-level management official who has been
specifically delegated the function of reviewing the information sought
to be withheld and authorized to apply for its withholding on behalf of
the company. The affidavit shall be executed by the owner of the
information, even though the information sought to be withheld is
submitted to the Commission by another person. The application and
affidavit shall be submitted at the time of filing the information
sought to be withheld. The information sought to be withheld shall be
incorporated, as far as possible, into a separate paper. The affiant may
designate with appropriate markings information submitted in the
affidavit as a trade secret or confidential or privileged commercial or
financial information within the meaning of Sec. 9.17(a)(4) of this
chapter and such information shall be subject to disclosure only in
accordance with the provisions of Sec. 9.19 of this chapter.
(2) A person who submits commercial or financial information
believed to be privileged or confidential or a trade secret shall be on
notice that it is the policy of the Commission to achieve an effective
balance between legitimate concerns for protection of competitive
positions and the right of the public to be fully apprised as to the
basis for and effects of licensing or rule making actions, and that it
is within the discretion of the Commission to withhold such information
from public disclosure.
(3) The Commission shall determine whether information sought to be
withheld from public disclosure pursuant to this paragraph: (i) is a
trade secret or confidential or privileged commercial or financial
information; and (ii) if so, should be withheld from public disclosure.
(4) In making the determination required by paragraph (b)(3)(i) of
this section, the Commission will consider:
(i) Whether the information has been held in confidence by its
owner;
(ii) Whether the information is of a type customarily held in
confidence by its owner and whether there is a rational basis therefor;
(iii) Whether the information was transmitted to and received by the
Commission in confidence;
(iv) Whether the information is available in public sources;
(v) Whether public disclosure of the information sought to be
withheld is likely to cause substantial harm to the competitive position
of the owner of the information, taking into account the value of the
information to the owner; the amount of effort or money, if any,
expended by the owner in developing the information; and the ease or
difficulty with which the information could be properly acquired or
duplicated by others.
(5) If the Commission determines, pursuant to paragraph (b)(4) of
this section, that the record or document contains trade secrets or
privileged or confidential commercial or financial information, the
Commission will then determine (i) whether the right of the public to be
fully apprised as to the
[[Page 85]]
bases for and effects of the proposed action outweighs the demonstrated
concern for protection of a competitive position and (ii) whether the
information should be withheld from public disclosure pursuant to this
paragraph. If the record or document for which withholding is sought is
deemed by the Commission to be irrelevant or unnecessary to the
performance of its functions, it shall be returned to the applicant.
(6) Withholding from public inspection shall not affect the right,
if any, of persons properly and directly concerned to inspect the
document. The Commission may require information claimed to be a trade
secret or privileged or confidential commercial or financial information
to be subject to inspection: (i) Under a protective agreement, by
contractor personnel or government officials other than NRC officials;
(ii) by the presiding officer in a proceeding; and (iii) under
protective order, by parties to a proceeding, pending a decision of the
Commission on the matter of whether the information should be made
publicly available or when a decision has been made that the information
should be withheld from public disclosure. In camera sessions of
hearings may be held when the information sought to be withheld is
produced or offered in evidence. If the Commission subsequently
determines that the information should be disclosed, the information and
the transcript of such in camera session will be made publicly
available.
(c) If a request for withholding pursuant to paragraph (b) of this
section is denied, the Commission will notify an applicant for
withholding of the denial with a statement of reasons. The notice of
denial will specify a time, not less than thirty (30) days after the
date of the notice, when the document will be placed in the Public
Document Room. If, within the time specified in the notice, the
applicant requests withdrawal of the document, the document will not be
placed in the Public Document Room and will be returned to the
applicant: Provided, That information submitted in a rule making
proceeding which subsequently forms the basis for the final rule will
not be withheld from public disclosure by the Commission and will not be
returned to the applicant after denial of any application for
withholding submitted in connection with that information. If a request
for withholding pursuant to paragraph (b) of this section is granted,
the Commission will notify the applicant of its determination to
withhold the information from public disclosure.
(d) The following information shall be deemed to be commercial or
financial information within the meaning of Sec. 9.17(a)(4) of this
chapter and shall be subject to disclosure only in accordance with the
provisions of Sec. 9.19 of this chapter.
(1) Correspondence and reports to or from the NRC which contain
information or records concerning a licensee's or applicant's physical
protection or material control and accounting program for special
nuclear material not otherwise designated as Safeguards Information or
classified as National Security Information or Restricted Data.
(2) Information submitted in confidence to the Commission by a
foreign source.
(e) The presiding officer, if any, or the Commission may, with
reference to the NRC records and documents made available pursuant to
this section, issue orders consistent with the provisions of this
section and Sec. 2.740(c).
[41 FR 11810, Mar. 22, 1976, as amended at 42 FR 12877, Mar. 7, 1977; 52
FR 49355, Dec. 31, 1987; 53 FR 17688, May 18, 1988]
Subpart H--Rulemaking
Sec. 2.800 Scope of rulemaking.
This subpart governs the issuance, amendment and repeal of
regulations in which participation by interested persons is prescribed
under section 553 of title 5 of the U.S. Code.
[35 FR 11459, July 17, 1970]
Sec. 2.801 Initiation of rulemaking.
Rulemaking may be initiated by the Commission at its own instance,
on the recommendation of another agency of the United States, or on the
petition of any other interested person.
Sec. 2.802 Petition for rulemaking.
(a) Any interested person may petition the Commission to issue,
amend or
[[Page 86]]
rescind any regulation. The petition should be addressed to the
Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, Attention: Rulemakings and Adjudications Staff.
(b) A prospective petitioner may consult with the NRC before filing
a petition for rulemaking by writing to the Chief, Rules and Directives
Branch, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. A
prospective petitioner also may telephone the Rules and Directives
Branch on (301) 415-7163 or toll free on (800) 368-5642.
(1) In any consultation prior to the filing of a petition for
rulemaking, the assistance that may be provided by the NRC staff is
limited to--
(i) Describing the procedure and process for filing and responding
to a petition for rulemaking;
(ii) Clarifying an existing NRC regulation and the basis for the
regulation; and
(iii) Assisting the prospective petitioner to clarify a potential
petition so that the Commission is able to understand the nature of the
issues of concern to the petitioner.
(2) In any consultation prior to the filing of a petition for
rulemaking, in providing the assistance permitted in paragraph (b)(1) of
this section, the NRC staff will not draft or develop text or
alternative approaches to address matters in the prospective petition
for rulemaking.
(c) Each petition filed under this section shall:
(1) Set forth a general solution to the problem or the substance or
text of any proposed regulation or amendment, or specify the regulation
which is to be revoked or amended;
(2) State clearly and concisely the petitioner's grounds for and
interest in the action requested;
(3) Include a statement in support of the petition which shall set
forth the specific issues involved, the petitioner's views or arguments
with respect to those issues, relevant technical, scientific or other
data involved which is reasonably available to the petitioner, and such
other pertinent information as the petitioner deems necessary to support
the action sought. In support of its petition, petitioner should note
any specific cases of which petitioner is aware where the current rule
is unduly burdensome, deficient, or needs to be strengthened.
(d) The petitioner may request the Commission to suspend all or any
part of any licensing proceeding to which the petitioner is a party
pending disposition of the petition for rulemaking.
(e) If it is determined that the petition includes the information
required by paragraph (c) of this section and is complete, the Chief,
Rules and Directives Branch, or designee, will assign a docket number to
the petition, will cause the petition to be formally docketed, and will
deposit a copy of the docketed petition in the Commission's Public
Document Room. Public comment may be requested by publication of a
notice of the docketing of the petition in the Federal Register or, in
appropriate cases, may be invited for the first time upon publication in
the Federal Register of a proposed rule developed in response to the
petition. Publication will be limited by the requirements of section 181
of the Atomic Energy Act of 1954, as amended, and may be limited by
order of the Commission.
(f) If it is determined by the Executive Director for Operations
that the petition does not include the information required by paragraph
(c) of this section and is incomplete, the petitioner will be notified
of that determination and the respects in which the petition is
deficient and will be accorded an opportunity to submit additional data.
Ordinarily this determination will be made within 30 days from the date
of receipt of the petition by the Office of the Secretary of the
Commission. If the petitioner does not submit additional data to correct
the deficiency within 90 days from the date of notification to the
petitioner that the petition is incomplete, the petition may be returned
to the petitioner without prejudice to the right of the petitioner to
file a new petition.
(g) The Chief, Rules and Directives Branch, will prepare on a
semiannual basis a summary of petitions for rulemaking before the
Commission, including the status of each petition. A copy of the report
will be available for public inspection and copying for a fee in the
Commission's Public Document
[[Page 87]]
Room, 2120 L Street, NW, Washington, DC 20555-0001.
[44 FR 61322, Oct. 25, 1979, as amended at 46 FR 35487, July 9, 1981; 52
FR 31609, Aug. 21, 1987; 53 FR 52993, Dec. 30, 1988; 54 FR 53315, Dec.
28, 1989; 56 FR 10360, Mar. 12, 1991; 59 FR 44895, Aug. 31, 1994; 59 FR
60552, Nov. 25, 1994; 62 FR 27495, May 20, 1997; 63 FR 15742, Apr. 1,
1998]
Sec. 2.803 Determination of petition.
No hearing will be held on the petition unless the Commission deems
it advisable. If the Commission determines that sufficient reason
exists, it will publish a notice of proposed rulemaking. In any other
case, it will deny the petition and will notify the petitioner with a
simple statement of the grounds of denial.
Sec. 2.804 Notice of proposed rulemaking.
(a) Except as provided by paragraph (d) of this section, when the
Commission proposes to adopt, amend, or repeal a regulation, it will
cause to be published in the Federal Register a notice of proposed
rulemaking, unless all persons subject to the notice are named and
either are personally served or otherwise have actual notice in
accordance with law.
(b) The notice will include:
(1) Either the terms or substance of the proposed rule, or a
specification of the subjects and issues involved;
(2) The manner and time within which interested members of the
public may comment, and a statement that copies of comments may be
examined in the Public Document Room;
(3) The authority under which the regulation is proposed;
(4) The time, place, and nature of the public hearing, if any;
(5) If a hearing is to be held, designation of the presiding officer
and any special directions for the conduct of the hearing; and
(6) Such explanatory statement as the Commission may consider
appropriate.
(c) The publication or service of notice will be made not less than
fifteen (15) days prior to the time fixed for hearing, if any, unless
the Commission for good cause stated in the notice provides otherwise.
(d) The notice and comment provisions contained in paragraphs (a),
(b), and (c) of this section will not be required to be applied--
(1) To interpretative rules, general statements of policy, or rules
of agency organization, procedure, or practice; or
(2) When the Commission for good cause finds that notice and public
comment are impracticable, unnecessary, or contrary to the public
interest, and are not required by statute. This finding, and the reasons
therefor, will be incorporated into any rule issued without notice and
comment for good cause.
(e) The Commission shall provide for a 30-day post-promulgation
comment period for--
(1) Any rule adopted without notice and comment under the good cause
exception on paragraph (d)(2) of this section where the basis is that
notice and comment is ``impracticable'' or ``contrary to the public
interest.''
(2) Any interpretative rule, or general statement of policy adopted
without notice and comment under paragraph (d)(1) of this section,
except for those cases for which the Commission finds that such
procedures would serve no public interest, or would be so burdensome as
to outweigh any foreseeable gain.
(f) For any post-promulgation comments received under paragraph (e)
of this section, the Commission shall publish a statement in the Federal
Register containing an evaluation of the significant comments and any
revisions of the rule or policy statement made as a result of the
comments and their evaluation.
[27 FR 377, Jan. 13, 1962, as amended at 50 FR 13010, Apr. 2, 1985]
Sec. 2.805 Participation by interested persons.
(a) In all rulemaking proceedings conducted under the provisions of
Sec. 2.804(a), the Commission will afford interested persons an
opportunity to participate through the submission of statements,
information, opinions, and arguments in the manner stated in the notice.
The Commission may grant additional reasonable opportunity for the
submission of comments.
[[Page 88]]
(b) The Commission may hold informal hearings at which interested
persons may be heard, adopting procedures which in its judgment will
best serve the purpose of the hearing.
[27 FR 377, Jan. 13, 1962, as amended at 50 FR 13010, Apr. 2, 1985; 50
FR 15865, Apr. 22, 1985]
Sec. 2.806 Commission action.
The Commission will incorporate in the notice of adoption of a
regulation a concise general statement of its basis and purpose, and
will cause the notice and regulation to be published in the Federal
Register or served upon affected persons.
Sec. 2.807 Effective date.
The notice of adoption of a regulation will specify the effective
date. Publication or service of the notice and regulation, other than
one granting or recognizing exemptions or relieving from restrictions,
will be made not less than thirty (30) days prior to the effective date
unless the Commission directs otherwise on good cause found and
published in the notice of rule making.
Sec. 2.808 Authority of the Secretary to rule on procedural matters.
When briefs, motions or other papers listed herein are submitted to
the Commission itself, as opposed to officers who have been delegated
authority to act for the Commission, the Secretary or the Assistant
Secretary are authorized to:
(a) Prescribe schedules for the filing of statements, information,
briefs, motions, responses or other pleadings, where such schedules may
differ from those elsewhere prescribed in these rules or where these
rules do not prescribe a schedule;
(b) Rule on motions for extensions of time;
(c) Reject motions, briefs, pleadings, and other documents filed
with the Commission later than the time prescribed by the Secretary or
the Assistant Secretary or established by an order, rule, or regulation
of the Commission unless good cause is shown for the late filing; and
(d) Prescribe all procedural arrangements relating to any oral
argument to be held before the Commission.
[39 FR 24219, July 1, 1974]
Sec. 2.809 Participation by the Advisory Committee on Reactor Safeguards.
(a) In its advisory capacity to the Commission, the ACRS may
recommend that the Commission initiate rulemaking in a particular area.
The Commission will respond to such rulemaking recommendation in writing
within 90 days, noting its intent to implement, study, or defer action
on the recommendation. In the event the Commission decides not to accept
or decides to defer action on the recommendation, it will give its
reasons for doing so. Both the ACRS recommendation and the Commission's
response will be placed in the NRC Public Document Room following
transmittal of the Commission's response to the ACRS.
(b) When a rule involving nuclear safety matters within the purview
of the ACRS is under development by the NRC Staff, the Staff will ensure
that the ACRS is given an opportunity to provide advice at appropriate
stages and to identify issues to be considered during rulemaking
hearings.
[46 FR 22358, Apr. 17, 1981]
Sec. 2.810 NRC size standards.
The NRC shall use the size standards contained in this section to
determine whether a licensee qualifies as a small entity in its
regulatory programs.
(a) A small business is a for-profit concern and is a--
(1) Concern that provides a service or a concern not engaged in
manufacturing with average gross receipts of $5 million or less over its
last 3 completed fiscal years; or
(2) Manufacturing concern with an average number of 500 or fewer
employees based upon employment during each pay period for the preceding
12 calendar months.
(b) A small organization is a not-for-profit organization which is
independently owned and operated and has annual gross receipts of $5
million or less.
(c) A small governmental jurisdiction is a government of a city,
county,
[[Page 89]]
town, township, village, school district, or special district with a
population of less than 50,000.
(d) A small educational institution is one that is--
(1) Supported by a qualifying small governmental jurisdiction; or
(2) Not state or publicly supported and has 500 or fewer employees.
(e) For the purposes of this section, the NRC shall use the Small
Business Administration definition of receipts (13 CFR 121.402(b)(2)). A
licensee who is a subsidiary of a large entity does not qualify as a
small entity for purposes of this section.
(f) Whenever appropriate in the interest of administering statutes
and regulations within its jurisdiction, it is the practice of the NRC
to answer inquiries from small entities concerning information on and
advice about compliance with the statutes and regulations that affect
them. To help small entities obtain information quickly, the NRC has
established a toll-free telephone number at 1-800-368-5642.
[60 FR 18346, Apr. 11, 1995, as amended at 62 FR 26220, May 13, 1997]
Subpart I--Special Procedures Applicable to Adjudicatory Proceedings
Involving Restricted Data and/or National Security Information
Source: 41 FR 53329, Dec. 6, 1976, unless otherwise noted.
Sec. 2.900 Purpose.
This subpart is issued pursuant to section 181 of the Atomic Energy
Act of 1954, as amended, and section 201 of the Energy Reorganization
Act of 1974, as amended, to provide such procedures in proceedings
subject to this part as will effectively safeguard and prevent
disclosure of Restricted Data and National Security Information to
unauthorized persons, with minimum impairment of procedural rights.
Sec. 2.901 Scope.
This subpart applies to all proceedings subject to subpart G.
Sec. 2.902 Definitions.
As used in this subpart:
(a) Government agency means any executive department, commission,
independent establishment, corporation, wholly or partly owned by the
United States of America, which is an instrumentality of the United
States, or any board, bureau, division, service, office, officer,
authority, administration, or other establishment in the executive
branch of the Government.
(b) Interested party means a party having an interest in the issue
or issues to which particular Restricted Data or National Security
Information is relevant. Normally the interest of a party in an issue
may be determined by examination of the notice of hearing, the answers
and replies.
(c) The phrase introduced into a proceeding refers to the
introduction or incorporation of testimony or documentary matter into
any part of the official record of a proceeding subject to this part.
(d) National Security Information means information that has been
classified pursuant to Executive Order 12356.
(e) Party, in the case of proceedings subject to this subpart
includes a person admitted as a party pursuant to Sec. 2.714 or an
interested State admitted pursuant to Sec. 2.715(c).
[41 FR 53329, Dec. 6, 1976, as amended at 47 FR 56314, Dec. 16, 1982]
Sec. 2.903 Protection of restricted data and national security information.
Nothing in this subpart shall relieve any person from safeguarding
Restricted Data or National Security Information in accordance with the
applicable provisions of laws of the United States and rules,
regulations or orders of any Government Agency.
Sec. 2.904 Classification assistance.
On request of any party to a proceeding or of the presiding officer,
the Commission will designate a representative to advise and assist the
presiding officer and the parties with respect to security
classification of information and the safeguards to be observed.
[[Page 90]]
Sec. 2.905 Access to restricted data and national security information for parties; security clearances.
(a) Access to restricted data and national security information
introduced into proceedings. Except as provided in paragraph (h) of this
section, restricted data or national security information introduced
into a proceeding subject to this part will be made available to any
interested party having the required security clearance; to counsel for
an interested party provided the counsel has the required security
clearance; and to such additional persons having the required security
clearance as the Commission or the presiding officer determined are
needed by such party for adequate preparation or presentation of his
case. Where the interest of such party will not be prejudiced, the
Commission or presiding officer may postpone action upon an application
for access under this paragraph until after a notice of hearing,
answers, and replies have been filed.
(b) Access to Restricted Data or National Security Information not
introduced into proceedings.
(1) On application showing that access to Restricted Data or
National Security Information may be required for the preparation of a
party's case, and except as provided in paragraph (h) of this section,
the Commission or the presiding officer will issue an order granting
access to such Restricted Data or National Security Information to the
party upon his obtaining the required security clearance, to counsel for
the party upon their obtaining the required security clearance, and to
such other individuals as may be needed by the party for the preparation
and presentation of his case upon their obtaining the required
clearance.
(2) Where the interest of the party applying for access will not be
prejudiced, the Commission or the presiding officer may postpone action
on an application pursuant to this paragraph until after a notice of
hearing, answers and replies have been filed.
(c) The Commission will consider requests for appropriate security
clearances in reasonable numbers pursuant to this section. A reasonable
charge will be made by the Commission for costs of security clearance
pursuant to this section.
(d) The presiding officer may certify to the Commission for its
consideration and determination any questions relating to access to
Restricted Data or National Security Information arising under this
section. Any party affected by a determination or order of the presiding
officer under this section may appeal forthwith to the Commission from
the determination or order. The filing by the staff of an appeal from an
order of a presiding officer granting access to Restricted Data or
National Security Information shall stay the order pending determination
of the appeal by the Commission.
(e) Application granting access to restricted data or national
security information.
(1) An application under this section for orders granting access to
restricted data or national security information not received from
another Government agency will normally be acted upon by the presiding
officer, or if a proceeding is not before a presiding officer, by the
Commission.
(2) An application under this section for orders granting access to
restricted data or national security information where the information
has been received by the Commission from another Government agency will
be acted upon by the Commission.
(f) To the extent practicable, an application for an order granting
access under this section shall describe the subjects of Restricted Data
or National Security Information to which access is desired and the
level of classification (confidential, secret or other) of the
information; the reasons why access to the information is requested; the
names of individuals for whom clearances are requested; and the reasons
why security clearances are being requested for those individuals.
(g) On the conclusion of a proceeding, the Commission will terminate
all orders issued in the proceeding for access to Restricted Data or
National Security Information and all security clearances granted
pursuant to them; and may issue such orders requiring the disposal of
classified matter received
[[Page 91]]
pursuant to them or requiring the observance of other procedures to
safeguard such classified matter as it deems necessary to protect
Restricted Data or National Security Information.
(h) Refusal to grant access to restricted data or national security
information.
(1) The Commission will not grant access to restricted data or
national security information unless it determines that the granting of
access will not be inimical to the common defense and security.
(2) Access to Restricted Data or National Security Information which
has been received by the Commission from another Government agency will
not be granted by the Commission if the originating agency determines in
writing that access should not be granted. The Commission will consult
the originating agency prior to granting access to such data or
information received from another Government agency.
Sec. 2.906 Obligation of parties to avoid introduction of restricted data or national security information.
It is the obligation of all parties in a proceeding subject to this
part to avoid, where practicable, the introduction of Restricted Data or
National Security Information into the proceeding. This obligation rests
on each party whether or not all other parties have the required
security clearance.participants, and the LSS Administration.
Sec. 2.907 Notice of intent to introduce restricted data or national security information.
(a) If, at the time of publication of a notice of hearing, it
appears to the staff that it will be impracticable for it to avoid the
introduction of Restricted Data or National Security Information into
the proceeding, it will file a notice of intent to introduce Restricted
Data or National Security Information.
(b) If, at the time of filing of an answer to the notice of hearing
it appears to the party filing that it will be impracticable for the
party to avoid the introduction of Restricted Data or National Security
Information into the proceeding, the party shall state in the answer a
notice of intent to introduce Restricted Data or National Security
Information into the proceeding.
(c) If, at any later stage of a proceeding, it appears to any party
that it will be impracticable to avoid the introduction of Restricted
Data or National Security Information into the proceeding, the party
shall give to the other parties prompt written notice of intent to
introduce Restricted Data or National Security Information into the
proceeding.
(d) Restricted Data or National Security Information shall not be
introduced into a proceeding after publication of a notice of hearing
unless a notice of intent has been filed in accordance with Sec. 2.908,
except as permitted in the discretion of the presiding officer when it
is clear that no party or the public interest will be prejudiced.
Sec. 2.908 Contents of notice of intent to introduce restricted data or other national security information.
(a) A party who intends to introduce Restricted Data or other
National Security Information shall file a notice of intent with the
Secretary. The notice shall be unclassified and, to the extent
consistent with classification requirements, shall include the
following:
(1) The subject matter of the Restricted Data or other National
Security Information which it is anticipated will be involved;
(2) The highest level of classification of the information
(confidential, secret, or other);
(3) The stage of the proceeding at which he anticipates a need to
introduce the information; and
(4) The relevance and materiality of the information to the issues
on the proceeding.
(b) In the discretion of the presiding officer, such notice, when
required by Sec. 2.907(c), may be given orally on the record.
Sec. 2.909 Rearrangement or suspension of proceedings.
In any proceeding subject to this part where a party gives a notice
of intent to introduce Restricted Data or other National Security
Information, and the presiding officer determines that any other
interested party does not have
[[Page 92]]
required security clearances, the presiding officer may in his
discretion:
(a) Rearrange the normal order of the proceeding in a manner which
gives such interested parties an opportunity to obtain required security
clearances with minimum delay in the conduct of the proceeding.
(b) Suspend the proceeding or any portion of it until all interested
parties have had opportunity to obtain required security clearances. No
proceeding shall be suspended for such reasons for more than 100 days
except with the consent of all parties or on a determination by the
presiding officer that further suspension of the proceeding would not be
contrary to the public interest.
(c) Take such other action as he determines to be in the best
interest of all parties and the public.
Sec. 2.910 Unclassified statements required.
(a) Whenever Restricted Data or other National Security Information
is introduced into a proceeding, the party offering it shall submit to
the presiding officer and to all parties to the proceeding an
unclassified statement setting forth the information in the classified
matter as accurately and completely as possible.
(b) In accordance with such procedures as may be agreed upon by the
parties or prescribed by the presiding officer, and after notice to all
parties and opportunity to be heard thereon, the presiding officer shall
determine whether the unclassified statement or any portion of it,
together with any appropriate modifications suggested by any party, may
be substituted for the classified matter or any portion of it without
prejudice to the interest of any party or to the public interest.
(c) If the presiding officer determines that the unclassified
statement, together with such unclassified modifications as he finds are
necessary or appropriate to protect the interest of other parties and
the public interest, adequately sets forth information in the classified
matter which is relevant and material to the issues in the proceeding,
he shall direct that the classified matter be excluded from the record
of the proceeding. His determination will be considered by the
Commission as a part of the decision in the event of review.
(d) If the presiding officer determines that an unclassified
statement does not adequately present the information contained in the
classified matter which is relevant and material to the issues in the
proceeding, he shall include his reasons in his determination. This
determination shall be included as part of the record and will be
considered by the Commission in the event of review of the
determination.
(e) The presiding officer may postpone all or part of the procedures
established in this section until the reception of all other evidence
has been completed. Service of the unclassified statement required in
paragraph (a) of this section shall not be postponed if any party does
not have access to Restricted Data or other National Security
Information.
Sec. 2.911 Admissibility of restricted data or other national security information.
A presiding officer shall not receive any Restricted Data or other
National Security Information in evidence unless:
(a) The relevance and materiality of the Restricted Data or other
National Security Information to the issues in the preceeding, and its
competence, are clearly established; and
(b) The exclusion of the Restricted Data or other National Security
Information would prejudice the interests of a party or the public
interest.
Sec. 2.912 Weight to be attached to classified evidence.
In considering the weight and effect of any Restricted Data or other
National Security Information received in evidence to which an
interested party has not had opportunity to receive access, the
presiding officer and the Commission shall give to such evidence such
weight as is appropriate under the circumstances, taking into
consideration any lack of opportunity to rebut or impeach the evidence.
[[Page 93]]
Sec. 2.913 Review of Restricted Data or other National Security Information received in evidence.
At the close of the reception of evidence, the presiding officer
shall review the record and shall direct that any Restricted Data or
other National Security Information be expunged from the record where
such expunction would not prejudice the interests of a party or the
public interest. Such directions by the presiding officer will be
considered by the Commission in the event of review of the
determinations of the presiding officer.
Subpart J--Procedures Applicable to Proceedings for the Issuance of
Licenses for the Receipt of High-Level Radioactive Waste at a Geologic
Repository
Source: 54 FR 14944, Apr. 14, 1989, unless otherwise noted.
Sec. 2.1000 Scope of subpart.
The rules in this subpart govern the procedure for applications for
a license to receive and possess high-level radioactive waste at a
geologic repository operations area noticed pursuant to Sec. 2.101(f)(8)
or Sec. 2.105(a)(5). The procedures in this subpart take precedence over
the 10 CFR Part 2, subpart G, rules of general applicability, except for
the following provisions: Secs. 2.702, 2.703, 2.704, 2.707, 2.711,
2.713, 2.715, 2.715a, 2.717, 2.718, 2.720, 2.721, 2.722, 2.732, 2.733,
2.734, 2.742, 2.743, 2.750, 2.751, 2.753, 2.754, 2.755, 2.756, 2.757,
2.758, 2.759, 2.760, 2.761, 2.763, 2.770, 2.771, 2.772, 2.780, 2.781,
2.786, 2.788, and 2.790.
[63 FR 71736, Dec. 30, 1998]
Effective Date Note: At 63 FR 71736, Dec. 30, 1998, Sec. 2.1000 was
revised, effective Jan. 29, 1999.
Sec. 2.1001 Definitions.
Bibliographic header means the minimum series of descriptive fields
that a potential party, interested governmental participant, or party
must submit with a document or other material. The bibliographic header
fields are a subset of the fields in the full header.
Circulated draft means a nonfinal document circulated for
supervisory concurrence or signature in which the original author or
others in the concurrence process have non-concurred. A ``circulated
draft'' meeting the above criterion includes a draft of a document that
eventually becomes a final document, and a draft of a document that does
not become a final document due to either a decision not to finalize the
document or the passage of a substantial period of time in which no
action has been taken on the document.
Document means any written, printed, recorded, magnetic, graphic
matter, or other documentary material, regardless of form or
characteristic.
Documentary material means (1) any information upon which a party,
potential party, or interested governmental participant intends to rely
and/or to cite in support of its position in the proceeding for a
license to receive and possess high-level radioactive waste at a
geologic repository operations area pursuant to part 60 of this chapter;
(2) any information that is known to, and in the possession of, or
developed by the party that is relevant to, but does not support, that
information or that party's position; and (3) all reports and studies,
prepared by or on behalf of the potential party, interested governmental
participant, or party, including all related ``circulated drafts,''
relevant to both the license application and the issues set forth in the
Topical Guidelines in Regulatory Guide 3.69, regardless of whether they
will be relied upon and/or cited by a party. The scope of documentary
material shall be guided by the topical guidelines in the applicable NRC
Regulatory Guide.
DOE means the U.S. Department of Energy or its duly authorized
representatives.
Electronic docket means the NRC information system that receives,
distributes, stores, and retrieves the Commission's adjudicatory docket
materials.
Full header means the series of descriptive fields and subject terms
given to a document or other material.
Image means a visual likeness of a document, presented on a paper
copy, microform, or a bit-map on optical or magnetic media.
[[Page 94]]
Interested governmental participant means any person admitted under
Sec. 2.715(c) of this part to the proceeding on an application for a
license to receive and possess high-level radioactive waste at a
geologic repository operations area pursuant to part 60 of this chapter.
Licensing Support Network means the combined system that makes
documentary material available electronically to parties, potential
parties, and interested governmental participants to the proceeding for
a license to receive and possess high-level radioactive waste at a
geologic repository operations area pursuant to part 60 of this chapter,
as part of the electronic docket or electronic access to documentary
material, beginning in the pre-license application phase.
LSN Administrator means the person within the U.S. Nuclear
Regulatory Commission responsible for coordinating access to and the
integrity of data available on the Licensing Support Network. The LSN
Administrator shall not be in any organizational unit that either
represents the U.S. Nuclear Regulatory Commission staff as a party to
the high-level waste repository licensing proceeding or is a part of the
management chain reporting to the Director, Office of Nuclear Material
Safety and Safeguards. For the purposes of this subpart, the
organizational unit within the NRC selected to be the LSN Administrator
shall not be considered to be a party to the proceeding.
Marginalia means handwritten, printed, or other types of notations
added to a document excluding underlining and highlighting.
NRC means the U.S. Nuclear Regulatory Commission or its duly
authorized representatives.
Party for the purpose of this subpart means the DOE, the NRC staff,
the host State, any affected unit of local government as defined in
section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C.
10101), any affected Indian Tribe as defined in section 2 of the Nuclear
Waste Policy Act of 1982, as amended (42 U.S.C. 10101), and a person
admitted under Sec. 2.1014 to the proceeding on an application for a
license to receive and possess high-level radioactive waste at a
geologic repository operations area pursuant to part 60 of this chapter;
provided that a host State, affected unit of local government, or
affected Indian Tribe shall file a list of contentions in accordance
with the provisions of Secs. 2.1014(a)(2) (ii) and (iii).
Personal record means a document in the possession of an individual
associated with a party, interested governmental participant, or
potential party that was not required to be created or retained by the
party, interested governmental participant, or potential party, and can
be retained or discarded at the possessor's sole discretion, or
documents of a personal nature that are not associated with any business
of the party, interested governmental participant, or potential party.
Potential party means any person who, during the period before the
issuance of the first pre-hearing conference order under Sec. 2.1021(d),
is given access to the Licensing Support Network and who consents to
comply with the regulations set forth in subpart J of this part,
including the authority of the Pre-License Application Presiding Officer
designated pursuant to Sec. 2.1010.
Pre-license application electronic docket means the NRC's electronic
information system that receives, distributes, stores, and maintains NRC
pre-license application docket materials during the pre-license
application phase.
Pre-license application phase means the time period before the
license application to receive and possess high-level radioactive waste
at a geologic repository operations area is docketed under
Sec. 2.101(f)(3). For the purpose of this subpart, this period begins 30
days after the date the DOE submits the site recommendation to the
President pursuant to section 114(a) of the Nuclear Waste Policy Act of
1982, as amended (42 U.S.C. 10134(a)).
Pre-License Application Presiding Officer means one or more members
of the Commission, or an atomic safety and licensing board, or a named
officer who has been delegated final authority in the pre-license
application phase with jurisdiction specified at the time of
designation.
[[Page 95]]
Preliminary draft means any nonfinal document that is not a
circulated draft.
Presiding Officer means one or more members of the Commission, or an
atomic safety and licensing board, or a named officer who has been
delegated final authority in the matter, designated in the notice of
hearing to preside.
Searchable full text means the electronic indexed entry of a
document that allows the identification of specific words or groups of
words within a text file.
Topical Guidelines means the set of topics set forth in Regulatory
Guide 3.69, Topical Guidelines for the Licensing Support System, which
are intended to serve as guidance on the scope of ``documentary
material''.
[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7795, Feb. 26, 1991; 63
FR 71736, Dec. 30, 1998]
Effective Date Note: At 63 FR 71736, Dec. 30, 1998, Sec. 2.1001 was
amended by removing the definitions of ASCII File and LSS Administrator,
adding definitions of Electronic docket, Licensing Support Network, LSN
Administrator, Pre-license application electronic docket, and Topical
Guidelines, and revising the definitions of Documentary material, Party,
Potential party, Pre-license application phase, and Searchable full
text, effective Jan. 29, 1999.
Sec. 2.1002 [Reserved]
Sec. 2.1003 Availability of material.
(a) Subject to the exclusions in Sec. 2.1005 and paragraphs (b) and
(c) of this section, NRC and DOE shall make available, beginning in the
pre-license application phase, and each other potential party,
interested governmental participant or party shall make available no
later than 30 days after the date the repository site selection decision
becomes final after review by Congress--
(1) An electronic file including bibliographic header for all
documentary material (including circulated drafts but excluding
preliminary drafts) generated by, or at the direction of, or acquired
by, a potential party, interested governmental participant, or party.
Concurrent with the production of the electronic file will be an
authentication statement that indicates where an authenticated image
copy of the document can be obtained.
(2) In electronic image form, subject to the claims of privilege in
Sec. 2.1006, graphic-oriented documentary material that includes raw
data, computer runs, computer programs and codes, field notes,
laboratory notes, maps, diagrams and photographs which have been
printed, scripted, or hand written. Text embedded within these documents
need not be separately entered in searchable full text. Graphic-oriented
documents may include--
(i) Calibration procedures, logs, guidelines, data and
discrepancies;
(ii) Gauge, meter and computer settings;
(iii) Probe locations;
(iv) Logging intervals and rates;
(v) Data logs in whatever form captured;
(vi) Text data sheets;
(vii) Equations and sampling rates;
(viii) Sensor data and procedures;
(ix) Data Descriptions;
(x) Field and laboratory notebooks;
(xi) Analog computer, meter or other device print-outs;
(xii) Digital computer print-outs;
(xiii) Photographs;
(xiv) Graphs, plots, strip charts, sketches;
(xv) Descriptive material related to the information identified in
paragraph (b)(1) of this section.
(3) In an electronic file, subject to the claims of privilege in
Sec. 2.1006, only a bibliographic header for each item of documentary
material that is not suitable for image or searchable full text.
(4) An electronic bibliographic header for each documentary
material--
(i) For which a claim of privilege is asserted;
(ii) Which constitutes confidential financial or commercial
information; or
(iii) Which constitutes safeguards information under Sec. 73.21 of
this chapter.
(b) Basic licensing documents generated by DOE, such as the Site
Characterization Plan, the Environmental Impact Statement, and the
license application, or by NRC, such as the Site Characterization
Analysis, and the Safety Evaluation Report, shall be made available in
electronic form by the respective agency that generated the document.
[[Page 96]]
(c) The participation of the host State in the pre-license
application phase shall not affect the State's ability to exercise its
disapproval rights under section 116(b)(2) of the Nuclear Waste Policy
Act, as amended, 42 U.S.C. 10136(b)(2).
(d) This subpart shall not affect any independent right of a
potential party, interested governmental participant or party to receive
information.
[63 FR 71737, Dec. 30, 1998]
Effective Date Note: At 63 FR 71737, Dec. 30, 1998, Sec. 2.1003 was
revised, effective Jan. 29, 1999.
Sec. 2.1004 Amendments and additions.
Any document that has not been provided to other parties in
electronic form must be identified in an electronic notice and made
available for inspection and copying by the potential party, interested
governmental participant, or party responsible for the submission of the
document within five days after it has been requested unless some other
time is approved by the Pre-License Application Presiding Officer or the
Presiding Officer designated for the high-level waste proceeding. The
time allowed under this paragraph will be stayed pending Officer action
on a motion to extend the time.
[63 FR 71737, Dec. 30, 1998]
Effective Date Note: At 63 FR 71737, Dec. 30, 1998, Sec. 2.1004 was
revised, effective Jan. 29, 1999.
Sec. 2.1005 Exclusions.
The following material is excluded from the requirement to provide
electronic access, either pursuant to Sec. 2.1003, or through derivative
discovery pursuant to Sec. 2.1019(i)--
(a) Official notice materials;
(b) Reference books and text books;
(c) Material pertaining exclusively to administration, such as
material related to budgets, financial management, personnel, office
space, general distribution memoranda, or procurement, except for the
scope of work on a procurement related to repository siting,
construction, or operation, or to the transportation of spent nuclear
fuel or high-level waste;
(d) Press clippings and press releases;
(e) Junk mail;
(f) References cited in contractor reports that are readily
available;
(g) Classified material subject to subpart I of this part;
(h) Readily available references, such as journal articles and
proceedings, which may be subject to copyright.
[63 FR 71738, Dec. 30, 1998]
Effective Date Note: At 63 FR 71738, Dec. 30, 1998, Sec. 2.1005 was
revised, effective Jan. 29, 1999.
Sec. 2.1006 Privilege.
(a) Subject to the requirements in Sec. 2.1003(c), the traditional
discovery privileges recognized in NRC adjudicatory proceedings and the
exceptions from disclosure in Sec. 2.790 may be asserted by potential
parties, interested governmental participants, and parties. In addition
to Federal agencies, the deliberative process privilege may also be
asserted by State and local government entities and Indian Tribes.
(b) Any document for which a claim of privilege is asserted, but is
denied in whole or in part by the Pre-License Application Presiding
Officer or the Presiding Officer, must be provided in electronic form by
the party, interested governmental participant, or potential party that
asserted the claim to--
(1) The other participants; or
(2) To the Pre-License Application Presiding Officer or to the
Presiding Officer, for entry into a Protective Order file, if the Pre-
License Application Presiding Officer or the Presiding Officer so
directs under Secs. 2.1010(b) or 2.1018(c).
(c) Notwithstanding any availability of the deliberative process
privilege under paragraph (a) of this section, circulated drafts not
otherwise privileged shall be provided for electronic access pursuant to
Sec. 2.1003(a).
[63 FR 71738, Dec. 30, 1998]
Effective Date Note: At 63 FR 71738, Dec. 30, 1998, Sec. 2.1006 was
revised, effective Jan. 29, 1999.
Sec. 2.1007 Access.
(a)(1) A system to provide electronic access to the Licensing
Support Network shall be provided at the headquarters of DOE, and at all
DOE Local
[[Page 97]]
Public Document Rooms established in the vicinity of the likely
candidate site for a geologic repository, beginning in the pre-license
application phase.
(2) A system to provide electronic access to the Licensing Support
Network shall be provided at the headquarters Public Document Room of
NRC, and at all NRC Local Public Document Rooms established in the
vicinity of the likely candidate site for a geologic repository, and at
the NRC Regional Offices beginning in the pre-license application phase.
(3) The systems for electronic access specified in paragraphs (a)(1)
and (a)(2) of this section shall include locations at Las Vegas, Nevada;
Reno, Nevada; Carson City, Nevada; Nye County, Nevada; and Lincoln
County, Nevada.
(b) Public availability of paper and electronic copies of the
records of NRC and DOE, as well as duplication fees, and fee waiver for
those records, is governed by the regulations of the respective
agencies.
[63 FR 71738, Dec. 30, 1998]
Effective Date Note: At 63 FR 71738, Dec. 30, 1998, Sec. 2.1007 was
revised, effective Jan. 29, 1999.
Sec. 2.1008 [Reserved]
Sec. 2.1009 Procedures.
(a) Each potential party, interested governmental participant, or
party shall--
(1) Designate an official who will be responsible for administration
of its responsibility to provide electronic files of documentary
material ;
(2) Establish procedures to implement the requirements in
Sec. 2.1003;
(3) Provide training to its staff on the procedures for
implementation of the responsibility to provide electronic files of
documentary material;
(4) Ensure that all documents carry the submitter's unique
identification number;
(5) Cooperate with the advisory review process established by the
NRC under Sec. 2.1011(d).
(b) The responsible official designated pursuant to paragraph (a)(1)
of this section shall certify to the Pre-License Application Presiding
Officer that the procedures specified in paragraph (a)(2) of this
section have been implemented, and that to the best of his or her
knowledge, the documentary material specified in Sec. 2.1003 has been
identified and made electronically available. The responsible official
shall update this certification at twelve month intervals. The
responsible official for the DOE shall also update this certification at
the time of submission of the license application.
[63 FR 71738, Dec. 30, 1998]
Effective Date Note: At 63 FR 71738, Dec. 30, 1998, Sec. 2.1009 was
revised, effective Jan. 29, 1999.
Sec. 2.1010 Pre-License Application Presiding Officer.
(a)(1) The Commission may designate one or more members of the
Commission, or an atomic safety and licensing board, or a named officer
who has been delegated final authority on the matter to serve as the
Pre-License Application Presiding Officer to rule on disputes over the
electronic availability of documents during the pre-license application
phase, including disputes relating to privilege, and disputes relating
to the implementation of the recommendations of the Advisory Review
Panel established under Sec. 2.1011(d).
(2) The Pre-License Application Presiding Officer shall be
designated before the Licensing Support Network is scheduled to be
available.
(b) The Pre-License Application Presiding Officer shall rule on any
claim of document withholding to determine--
(1) Whether it is documentary material within the scope of this
subpart;
(2) Whether the material is excluded under Sec. 2.1005;
(3) Whether the material is privileged or otherwise excepted from
disclosure under Sec. 2.1006;
(4) If privileged, whether it is an absolute or qualified privilege;
(5) If qualified, whether the document should be disclosed because
it is necessary to a proper decision in the proceeding;
[[Page 98]]
(6) Whether the material should be disclosed under a protective
order containing such protective terms and conditions (including
affidavits of nondisclosure) as may be necessary and appropriate to
limit the disclosure to potential participants, interested governmental
participants and parties in the proceeding, or to their qualified
witnesses and counsel. When Safeguards Information protected from
disclosure under section 147 of the Atomic Energy Act of 1954, as
amended, is received and possessed by a potential party, interested
governmental participant, or party, other than the Commission staff, it
shall also be protected according to the requirements of Sec. 73.21 of
this chapter. The Pre-License Application Presiding Officer may also
prescribe such additional procedures as will effectively safeguard and
prevent disclosure of Safeguards Information to unauthorized persons
with minimum impairment of the procedural rights which would be
available if Safeguards Information were not involved. In addition to
any other sanction that may be imposed by the Pre-License Application
Presiding Officer for violation of an order pertaining to the disclosure
of Safeguards Information protected from disclosure under section 147 of
the Atomic Energy Act of 1954, as amended, the entity in violation may
be subject to a civil penalty imposed pursuant to Sec. 2.205. For the
purpose of imposing the criminal penalties contained in section 223 of
the Atomic Energy Act of 1954, as amended, any order issued pursuant to
this paragraph with respect to Safeguards Information shall be deemed to
be an order issued under section 161b of the Atomic Energy Act of 1954,
as amended.
(c) Upon a final determination that the material is relevant, and
not privileged, exempt from disclosure, or otherwise exempt from
production under Sec. 2.1005, the potential party, interested
governmental participant, or party who asserted the claim of withholding
must make the document available in accordance with the provisions of
this subpart within five days.
(d) The service of all pleadings and answers, orders, and decisions
during the pre-license application phase shall be made according to the
procedures specified in Sec. 2.1013(c) and entered into the pre-license
application electronic docket.
(e) The Pre-License Application Presiding Officer shall possess all
the general powers specified in Secs. 2.721(c) and 2.718.
(f) The Commission, in designating the Pre-License Application
Presiding Officer in accordance with paragraphs (a) (1) and (2) of this
section, shall specify the jurisdiction of the Officer.
[63 FR 71738, Dec. 30, 1998]
Effective Date Note: At 63 FR 71738, Dec. 30, 1998, Sec. 2.1010 was
revised, effective Jan. 29, 1999.
Sec. 2.1011 Management of electronic information.
(a) Electronic document production and the electronic docket are
subject to the provisions of this subpart.
(b) The NRC, DOE, parties, and potential parties participating in
accordance with the provisions of this subpart shall be responsible for
obtaining the computer system necessary to comply with the requirements
for electronic document production and service.
(c) The Licensing Support Network shall be coordinated by the LSN
Administrator, who shall be designated before the start of the pre-
license application phase. The LSN Administrator shall have the
responsibility to--
(1) Identify technical and policy issues related to implementation
of the LSN for LSN Advisory Review Panel and Commission consideration;
(2) Address the consensus advice of the LSN Advisory Review Panel
under paragraph (e)(1) of this section that is consistent with the
requirements of this subpart;
(3) Coordinate the resolution of problems experienced by
participants regarding LSN availability, including the availability of
individual participants' data;
(4) Coordinate the resolution of problems regarding the integrity of
the documentary material certified in accordance with Sec. 2.1009(b) by
the participants to be in the LSN; and
(5) Provide periodic reports to the Commission on the status of LSN
functionality and operability.
[[Page 99]]
(d) The Secretary of the Commission shall reconstitute the LSS
Advisory Review Panel as the LSN Advisory Review Panel, composed of the
interests currently represented on the LSS Advisory Review Panel. The
Secretary of the Commission shall have the authority to appoint
additional representatives to the LSN Advisory Review Panel consistent
with the requirements of the Federal Advisory Committee Act, 5 U.S.C.
app. I, giving particular consideration to potential parties, parties,
and interested governmental participants who were not members of the NRC
HLW Licensing Support System Advisory Review Panel.
(e)(1) The LSN Advisory Review Panel shall provide advice to--
(i) NRC on the fundamental issues of the type of computer system
necessary to access the Licensing Support Network effectively under
paragraph (b) of this section; and
(ii) The Secretary of the Commission on the operation and
maintenance of the electronic docket established for the HLW geologic
repository licensing proceeding under the Commission's Rules of Practice
(10 CFR part 2).
(iii) The LSN Administrator on solutions to improve the functioning
of the LSN;
(2) The responsibilities of the LSN Advisory Review Panel shall
include advice on--
(i) Format standards for providing electronic access to the
documentary material certified by each participant to be made available
in the LSN to the other parties, interested governmental participants,
or potential parties;
(ii) The procedures and standards for the electronic transmission of
filings, orders, and decisions during both the pre-license application
phase and the high-level waste licensing proceeding;
(iii) Other duties as specified in this subpart or as directed by
the Secretary of the Commission.
[63 FR 71739, Dec. 30, 1998]
Effective Date Note: At 63 FR 71739, Dec. 30, 1998, Sec. 2.1011 was
revised, effective Jan. 29, 1999.
Sec. 2.1012 Compliance.
(a) In addition to the requirements of Sec. 2.101(f), the Director
of the NRC's Office of Nuclear Materials Safety and Safeguards may
determine that the tendered application is not acceptable for docketing
under this subpart if the Secretary of the Commission determines that it
cannot be effectively accessed through the Commission's electronic
docket system or if the application is not accompanied by an updated
certification pursuant to Sec. 2.1009(b).
(b)(1) A person, including a potential party given access to the
Licensing Support Network under this subpart, shall not be granted party
status under Sec. 2.1014, or status as an interested governmental
participant under Sec. 2.715(c), if it cannot demonstrate substantial
and timely compliance with the requirements of Sec. 2.1003 at the time
it requests participation in the high-level waste licensing proceeding
under Sec. 2.1014 or Sec. 2.715(c).
(2) A person denied party status or interested governmental
participant status under paragraph (b)(1) of this section may request
party status or interested governmental participant status upon a
showing of subsequent compliance with the requirements of Sec. 2.1003 of
this subpart. Admission of such a party or interested governmental
participant under Sec. 2.1014 of this subpart or Sec. 2.715(c) of this
part, respectively, shall be conditioned on accepting the status of the
proceeding at the time of admission.
(c) The Presiding Officer shall not make a finding of substantial
and timely compliance pursuant to paragraph (b) of this section for any
person who is not in compliance with all applicable orders of the Pre-
License Application Presiding Officer designated pursuant to
Sec. 2.1010.
[54 FR 14944, Apr. 14, 1991, as amended at 56 FR 7796, Feb. 26, 1991; 63
FR 71739, Dec. 30, 1998]
Effective Date Note: At 63 FR 71739, Dec. 30, 1998, Sec. 2.1012 was
amended by revising paragraphs (a) and (b)(1) and removing paragraph
(d), effective Jan. 29, 1999.
Sec. 2.1013 Use of the electronic docket during the proceeding.
(a)(1) Pursuant to Sec. 2.702, the Secretary of the Commission will
maintain the official docket of the proceeding on the application for a
license
[[Page 100]]
to receive and possess waste at a geologic repository operations area.
(2) Commencing with the docketing in an electronic form of the
license application to receive and possess high-level radioactive waste
at a geologic repository operations area pursuant to part 60 of this
chapter, the Secretary of the Commission, upon determining that the
application can be properly accessed under the Commission's electronic
docket rules, will establish an electronic docket to contain the
official record materials of the high-level radioactive waste licensing
proceeding in searchable full text, or, for material that is not
suitable for entry in searchable full text, by header and image, as
appropriate.
(b) Absent good cause, all exhibits tendered during the hearing must
have been made available to the parties in electronic form before the
commencement of that portion of the hearing in which the exhibit will be
offered. The electronic docket will contain a list of all exhibits,
showing where in the transcript each was marked for identification and
where it was received into evidence or rejected. Transcripts will be
entered into the electronic docket on a daily basis in order to provide
next-day availability at the hearing.
(c)(1) All filings in the adjudicatory proceeding on the license
application to receive and possess high-level radioactive waste at a
geologic repository operations area pursuant to part 60 of this chapter
shall be transmitted electronically by the submitter to the Presiding
Officer, parties, and the Secretary of the Commission, according to
established format requirements. Parties and interested governmental
participants will be required to use a password security code for the
electronic transmission of these documents.
(2) Filings required to be served shall be served upon either the
parties and interested governmental participants, or their designated
representatives. When a party or interested governmental participant has
appeared by attorney, service must be made upon the attorney of record.
(3) Service upon a party or interested governmental participant is
completed when the sender receives electronic acknowledgment (``delivery
receipt'') that the electronic submission has been placed in the
recipient's electronic mailbox.
(4) Proof of service, stating the name and address of the person on
whom served and the manner and date of service, shall be shown for each
document filed, by--
(i) Electronic acknowledgment (``delivery receipt'');
(ii) The affidavit of the person making the service; or
(iii) The certificate of counsel.
(5) All Presiding Officer and Commission issuances and orders will
be transmitted electronically to the parties and interested governmental
participants.
(d) Online access to the electronic docket, including a Protective
Order File if authorized by a Presiding Officer, shall be provided to
the Presiding Officer, the representatives of the parties and interested
governmental participants, and the witnesses while testifying, for use
during the hearing. Use of paper copy and other images will also be
permitted at the hearing.
[63 FR 71739, Dec. 30, 1998]
Effective Date Note: At 63 FR 71739, Dec. 30, 1998, Sec. 2.1013 was
revised, effective Jan. 29, 1999.
Sec. 2.1014 Intervention.
(a)(1) Any person whose interest may be affected by a proceeding on
the application for a license to receive and possess high-level
radioactive waste at a geologic repository operations area pursuant to
part 60 of this chapter and who desires to participate as a party shall
file a written petition for leave to intervene. In a proceeding noticed
pursuant to Sec. 2.105 of this part, any person whose interest may be
affected may also request a hearing. The petition and/or request, and
any request to participate under Sec. 2.715(c) of this part, shall be
filed within thirty days after the publication of the notice of hearing
in the Federal Register. Nontimely filings will not be entertained
absent a determination by the Commission, or the Presiding Officer
designated to rule on the petition and/or request, that the petition
and/or request should be granted based upon a balancing of the
[[Page 101]]
following factors, in addition to satisfying those set out in paragraphs
(a)(2) and (c) of this section:
(i) Good cause, if any, for failure to file on time;
(ii) The availability of other means whereby the petitioner's
interest will be protected;
(iii) The extent to which the petitioner's participation may
reasonably be expected to assist in developing a sound record;
(iv) The extent to which the petitioner's interest will be
represented by existing parties;
(v) The extent to which the petitioner's participation will broaden
the issues or delay the proceeding.
(2) The petition shall set forth with particularity--
(i) The interest of the petitioner in the proceeding, and how that
interest may be affected by the results of the proceeding, including the
reasons why petitioner should be permitted to intervene, with particular
reference to the factors in paragraph (c) of this section;
(ii) A list of the contentions that petitioner seeks to have
litigated in the matter;
(iii) With respect to each contention:
(A) A specific statement of the issue of law or fact to be raised or
controverted.
(B) A brief explanation of the basis of the contention.
(C) A concise statement of the alleged facts or expert opinion that
support the contention and on which the petitioner intends to rely in
proving the contention at the hearing, together with references to those
specific sources and documents of which the petitioner is aware and on
which the petitioner intends to rely to establish those facts or expert
opinion.
(D) Sufficient information to show that a genuine dispute exists
with the applicant on a material issue of law or fact. This showing must
include reference to the specific documentary material that provides a
basis for the contention, or if the petitioner believes that any
documentary material fails to contain information on a relevant matter
as required by law, the identification of each failure and the
supporting reasons for the petitioner's belief. In determining whether a
genuine dispute exists on a material issue of law or fact, a dispositive
factor shall be whether the contention, if proven, would be of no
consequence in the proceeding because it would not entitle the
petitioner to relief.
(E) The specific regulatory or statutory requirement to which the
contention is relevant.
(3) Any petitioner who fails to satisfy paragraphs (a)(2) (ii) and
(iii) of this section with respect to at least one contention shall not
be permitted to participate as a party.
(4) Any party may amend its contentions specified in paragraph
(a)(2)(ii) of this section. The Presiding Officer shall rule on any
petition to amend such contentions based on the balancing of the factors
specified in paragraph (a)(1) of this section, and a showing that a
significant safety or environmental issue is involved or that the
amended contention raises a material issue related to the performance
evaluation anticipated by Secs. 60.112 and 60.113 of this chapter.
(b) Any party or interested governmental participant may file an
answer to a petition for leave to intervene or a petition to amend
contentions within twenty days after service of the petition.
(c) Subject to paragraph (a)(3) of this section, the Commission, or
the Presiding Officer designated to rule on petitions to intervene and/
or requests for hearing shall permit intervention, in any hearing on an
application for a license to receive and possess high-level radioactive
waste at a geologic repository operations area, by an affected unit of
local government as defined in section 2(31) of the Nuclear Waste Policy
Act of 1982, as amended, 42 U.S.C. 10101. In all other circumstances,
the Commission or Presiding Officer shall, in ruling on a petition for
leave to intervene, consider the following factors, among other things:
(1) The nature of the petitioner's right under the Atomic Energy Act
to be made a party to the proceeding;
(2) The nature and extent of the petitioner's property, financial,
or other interest in the proceeding;
(3) The possible effect of any order that may be entered in the
proceeding on the petitioner's interest;
[[Page 102]]
(4) The failure of the petitioner to participate as a potential
party in the pre-license application phase.
(5) In determining whether a genuine dispute exists on a material
issue of law or fact, whether the contention, if proven, would be of no
consequence in the proceeding because it would not entitle petitioner to
relief.
(d) An order permitting intervention and/or directing a hearing may
be conditioned on such terms as the Commission, or the designated
Presiding Officer may direct in the interests of:
(1) Restricting irrelevant, duplicative, or repetitive evidence and
argument,
(2) Having common interests represented by a spokesman, and
(3) Retaining authority to determine priorities and control the
compass of the hearing.
(e) In any case in which, after consideration of the factors set
forth in paragraph (c) of this section, the Commission or the Presiding
Officer finds that the petitioner's interest is limited to one or more
of the issues involved in the proceeding, any order allowing
intervention shall limit the petitioner's participation accordingly.
(f) A person permitted to intervene becomes a party to the
proceeding, subject to any limitations imposed pursuant to paragraph (e)
of this section.
(g) Unless otherwise expressly provided in the order allowing
intervention, the granting of a petition for leave to intervene does not
change or enlarge the issues specified in the notice of hearing.
(h) If the Commission or the Presiding Officer determines that any
of the admitted contentions constitute pure issues of law, those
contentions must be decided on the basis of briefs or oral argument
according to a schedule determined by the Commission or the Presiding
Officer.
[54 FR 14944, Apr. 14, 1991, as amended at 56 FR 7796, Feb. 26, 1991; 63
FR 71740, Dec. 30, 1998]
Effective Date Note: At 63 FR 71740, Dec. 30, 1998, Sec. 2.1014 was
amended by revising paragraph (c)(4), effective Jan. 29, 1999.
Sec. 2.1015 Appeals.
(a) No appeals from any Pre-License Application Presiding Officer or
Presiding Officer order or decision issued under this subpart are
permitted, except as prescribed in paragraphs (b), (c), and (d) of this
section.
(b) A notice of appeal from (1) a Pre-License Application Presiding
Officer order issued pursuant to Sec. 2.1010, (2) a Presiding Officer
First or Second Prehearing Conference Order issued pursuant to
Sec. 2.1021 or Sec. 2.1022, (3) a Presiding Officer order granting or
denying a motion for summary disposition issued in accordance with
Sec. 2.1025 of this part, or (4) a Presiding Officer order granting or
denying a petition to amend one or more contentions pursuant to
Sec. 2.1014(a)(4), must be filed with the Commission no later than (10)
days after service of the order. A supporting brief must accompany the
notice of appeal. Any other party, interested governmental participant,
or potential party may file a brief in opposition to the appeal no later
than ten days after service of the appeal.
(c) Appeals from a Presiding Officer initial decision or partial
initial decision must be filed and briefed before the Commission in
accordance with the following requirements.
(1) Notice of appeal. Within ten (10) days after service of an
initial decision, any party may take an appeal to the Commission by
filing a notice of appeal. The notice shall specify:
(i) The party taking the appeal; and
(ii) The decision being appealed.
(2) Filing appellant's brief. Each appellant shall file a brief
supporting its position on appeal within thirty (30) days (40 days if
Commission staff is the appellant) after the filing of notice required
by paragraph (a) of this section.
(3) Filing responsive brief. Any party who is not an appellant may
file a brief in support of or in opposition to the appeal within thirty
(30) days after the period has expired for the filing and service of the
brief of all appellants. Commission staff may file a responsive brief
within forty (40) days after the period has expired for the filing and
service of the briefs of all appellants. A responding party shall file a
single responsive brief regardless of the number of appellants' briefs
filed.
(4) Brief content. A brief in excess of ten (10) pages must contain
a table of contents, with page references, and a
[[Page 103]]
table of cases (alphabetically arranged), statutes, regulations, and
other authorities cited, with references to the pages of the brief where
they are cited.
(i) An appellant's brief must clearly identify the errors of fact or
law that are the subject of the appeal. An intervenor-appellant's brief
must be confined to issues which the intervenor-appellant placed in
controversy or sought to place in controversy in the proceeding. For
each issue appealed, the precise portion of the record relied upon in
support of the assertion of error must also be provided.
(ii) Each responsive brief must contain a reference to the precise
portion of the record which supports each factual assertion made.
(5) Brief length. A party shall not file a brief in excess of
seventy (70) pages in length, exclusive of pages containing the table of
contents, table of citations and any addendum containing statutes,
rules, regulations, etc. A party may request an increase of this page
limit for good cause. Such a request shall be made by motion submitted
at least seven (7) days before the date upon which the brief is due for
filing and shall specify the enlargement requested.
(6) Certificate of service. All documents filed under this section
must be accompanied by a certificate reflecting service upon all other
parties to the proceeding.
(7) Failure to comply. A brief which in form or content is not in
substantial compliance with the provisions of this section may be
stricken, either on motion of a party or by the Commission on its own
initiative.
(d) When, in the judgment of a Pre-License Application Presiding
Officer or Presiding Officer, prompt appellate review of an order not
immediately appealable under paragraph (b) of this section is necessary
to prevent detriment to the public interest or unusual delay or expense,
the Pre-License Application Presiding Officer or Presiding Officer may
refer the ruling promptly to the Commission, and shall provide notice of
this referral to the parties, interested governmental participants, or
potential parties. The parties, interested governmental participants, or
potential parties may also request that the Pre-License Application
Presiding Officer or Presiding Officer certify, pursuant to
Sec. 2.718(i) of this part, rulings not immediately appealable under
paragraph (b) of this section.
(e) Unless otherwise ordered, the filing of an appeal, petition for
review, referral, or request for certification of a ruling shall not
stay the proceeding or extend the time for the performance of any act.
[56 FR 7797, Feb. 26, 1991, as amended at 56 FR 29410, June 27, 1991]
Sec. 2.1016 Motions.
(a) All motions shall be addressed to the Commission or, when a
proceeding is pending before a Presiding Officer, to the Presiding
Officer. All motions, unless made orally on the record, shall be filed
according to the provisions of Sec. 2.1013(c) of this subpart.
(b) A motion shall state with particularity the grounds and the
relief sought, and shall be accompanied by any affidavits or other
evidence relied on, and, as appropriate, a proposed form of order.
(c) Within ten days after service of a motion a party, potential
party, or interested governmental participant may file an answer in
support of or in opposition to the motion, accompanied by affidavits or
other evidence. The moving party shall have no right to reply, except as
permitted by the Presiding Officer or the Secretary or the Assistant
Secretary.
(d) The Presiding Officer may dispose of motions either by order or
by ruling orally during the course of a prehearing conference or
hearing.
(e) Where the motion in question is a motion to compel discovery
under Sec. 2.720(h)(2) of this part or Sec. 2.1018(f) of this subpart,
parties, potential parties, and interested governmental participants may
file answers to the motion pursuant to paragraph (c) of this section.
The Presiding Officer in its discretion, may order that the answer be
given orally during a telephone conference or other prehearing
conference, rather than filed electronically. If responses are given
over the telephone
[[Page 104]]
the Presiding Officer shall issue a written order on the motion which
summarizes the views presented by the parties, potential parties, and
interested governmental participants unless the conference has been
transcribed. This does not preclude the Presiding Officer from issuing a
prior oral ruling on the matter which is effective at the time of its
issuance, provided that the terms of the ruling are incorporated in the
subsequent written order.
[54 FR 14944, Apr. 14, 1991, as amended at 56 FR 7797, Feb. 26, 1991]
Sec. 2.1017 Computation of time.
In computing any period of time, the day of the act, event, or
default after which the designated period of time begins to run is not
included. The last day of the period so computed is included unless it
is a Saturday, Sunday, or legal holiday at the place where the action or
event is to occur, in which event the period runs until the end of the
next day which is neither a Saturday, Sunday, nor holiday. Whenever a
party, potential party, or interested governmental participant, has the
right or is required to do some act within a prescribed period after the
service of a notice or other document upon it, one day shall be added to
the prescribed period. If the electronic docket is unavailable for more
than four access hours of any day that would be counted in the
computation of time, that day will not be counted in the computation of
time.
[63 FR 71740, Dec. 30, 1998]
Effective Date Note: At 63 FR 71740, Dec. 30, 1998, Sec. 2.1017 was
revised, effective Jan. 29, 1999.
Sec. 2.1018 Discovery.
(a)(1) Parties, potential parties, and interested governmental
participants in the high-level waste licensing proceeding may obtain
discovery by one or more of the following methods:
(i) Access to the documentary material made available pursuant to
Sec. 2.1003;
(ii) Entry upon land for inspection, access to raw data, or other
purposes pursuant to Sec. 2.1020;
(iii) Access to, or the production of, copies of documentary
material for which bibliographic headers only have been submitted
pursuant to Sec. 2.1003(a);
(iv) Depositions upon oral examination pursuant to Sec. 2.1019;
(v) Requests for admission pursuant to Sec. 2.742;
(vi) Informal requests for information not made electronically
available, such as the names of witnesses and the subjects they plan to
address; and
(vii) Interrogatories and depositions upon written questions, as
provided in paragraph (a)(2) of this section.
(2) Interrogatories and depositions upon written questions may be
authorized by order of the discovery master appointed under paragraph
(g) of this section, or if no discovery master has been appointed, by
order of the Presiding Officer, in the event that the parties are
unable, after informal good faith efforts, to resolve a dispute in a
timely fashion concerning the production of information.
(b)(1) Parties, potential parties, and interested governmental
participants, pursuant to the methods set forth in paragraph (a) of this
section, may obtain discovery regarding any matter, not privileged,
which is relevant to the licensing of the likely candidate site for a
geologic repository, whether it relates to the claim or defense of the
person seeking discovery or to the claim or defense of any other person.
Except for discovery pursuant to Secs. 2.1018(a)(2) and 2.1019 of this
subpart, all other discovery shall begin during the pre-license
application phase. Discovery pursuant to Secs. 2.1018(a)(2) and 2.1019
of this subpart shall begin after the issuance of the first pre-hearing
conference order under Sec. 2.1021 of this subpart, and shall be limited
to the issues defined in that order or subsequent amendments to the
order. It is not ground for objection that the information sought will
be inadmissible at the hearing if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
(2) A party, potential party, or interested governmental participant
may obtain discovery of documentary material otherwise discoverable
under paragraph (b)(1) of this section and prepared in anticipation of,
or for the
[[Page 105]]
hearing by, or for another party's, potential party's, or interested
governmental participant's representative (including its attorney,
surety, indemnitor, insurer, or similar agent) only upon a showing that
the party, potential party, or interested governmental participant
seeking discovery has substantial need of the materials in the
preparation of its case and that it is unable without undue hardship to
obtain the substantial equivalent of the materials by other means. In
ordering discovery of these materials when the required showing has been
made, the Presiding Officer shall protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party, potential party, or
interested governmental participant concerning the proceeding.
(c) Upon motion by a party, potential party, interested governmental
participant, or the person from whom discovery is sought, and for good
cause shown, the Presiding Officer may make any order that justice
requires to protect a party, potential party, interested governmental
participant, or other person from annoyance, embarrassment, oppression,
or undue burden, delay, or expense, including one or more of the
following:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(3) That the discovery may be had only by a method of discovery
other than that selected by the party, potential party, or interested
governmental participant seeking discovery;
(4) That certain matters not be inquired into, or that the scope of
discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons
designated by the Presiding Officer;
(6) That, subject to the provisions of Sec. 2.790 of this part, a
trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way;
(7) That studies and evaluations not be prepared.
If the motion for a protective order is denied in whole or in part, the
Presiding Officer may, on such terms and conditions as are just, order
that any party, potential party, interested governmental participant or
other person provide or permit discovery.
(d) Except as provided in paragraph (b) of this section, and unless
the Presiding Officer upon motion, for the convenience of parties,
potential parties, interested governmental participants, and witnesses
and in the interest of justice, orders otherwise, methods of discovery
may be used in any sequence, and the fact that a party, potential party,
or interested governmental participant is conducting discovery, whether
by deposition or otherwise, shall not operate to delay any other
party's, potential party's, or interested governmental participant's
discovery.
(e) A party, potential party, or interested governmental participant
who has made available in electronic form all material relevant to any
discovery request or who has responded to a request for discovery with a
response that was complete when made is under no duty to supplement its
response to include information thereafter acquired, except as follows:
(1) To the extent that written interrogatories are authorized
pursuant to paragraph (a)(2) of this section, a party or interested
governmental participant is under a duty to seasonably supplement its
response to any question directly addressed to (i) the identity and
location of persons having knowledge of discoverable matters, and (ii)
the identity of each person expected to be called as an expert witness
at the hearing, the subject matter on which the witness is expected to
testify, and the substance of the witness' testimony.
(2) A party, potential party, or interested governmental participant
is under a duty seasonably to amend a prior response if it obtains
information upon the basis of which (i) it knows that the response was
incorrect when made, or (ii) it knows that the response though correct
when made is no longer true and the circumstances are such that a
failure to amend the response is in substance a knowing concealment.
[[Page 106]]
(3) A duty to supplement responses may be imposed by order of the
Presiding Officer or agreement of the parties, potential parties, and
interested governmental participants.
(f)(1) If a deponent of a party, potential party, or interested
governmental participant upon whom a request for discovery is served
fails to respond or objects to the request, or any part thereof, the
party, potential party, or interested governmental participant
submitting the request or taking the deposition may move the Presiding
Officer, within five days after the date of the response or after
failure to respond to the request, for an order compelling a response in
accordance with the request. The motion shall set forth the nature of
the questions or the request, the response or objection of the party,
potential party, interested governmental participant, or other person
upon whom the request was served, and arguments in support of the
motion. For purposes of this paragraph, an evasive or incomplete answer
or response shall be treated as a failure to answer or respond. Failure
to answer or respond shall not be excused on the ground that the
discovery sought is objectionable unless the person, party, potential
party, or interested governmental participant failing to answer or
respond has applied for a protective order pursuant to paragraph (c) of
this section.
(2) In ruling on a motion made pursuant to this section, the
Presiding Officer may make such a protective order as it is authorized
to make on a motion made pursuant to paragraph (c) of this section.
(3) An independent request for issuance of a subpoena may be
directed to a nonparty for production of documents. This section does
not apply to requests for the testimony of the NRC regulatory staff
pursuant to Sec. 2.720(h)(2)(i) of this part.
(g) The Presiding Officer pursuant to Sec. 2.722 of this part may
appoint a discovery master to resolve disputes between parties
concerning informal requests for information as provided in paragraphs
(a)(1) and (a)(2) of this section.
[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 63
FR 71740, Dec. 30, 1998]
Effective Date Note: At 63 FR 71740, Dec. 30, 1998, Sec. 2.1018 was
amended by revising paragraphs (a)(1) and (e) introductory text,
effective Jan. 29, 1999.
Sec. 2.1019 Depositions.
(a) Any party or interested governmental participant desiring to
take the testimony of any person by deposition on oral examination
shall, without leave of the Commission or the Presiding Officer, give
reasonable notice in writing to every other party and interested
governmental participant, to the person to be examined, and to the
Presiding Officer of the proposed time and place of taking the
deposition; the name and address of each person to be examined, if
known, or if the name is not known, a general description sufficient to
identify him or her or the class or group to which he or she belongs,
the matters upon which each person will be examined and the name or
descriptive title and address of the officer before whom the deposition
is to be taken.
(b) Within the United States, a deposition may be taken before any
officer authorized to administer oaths by the laws of the United States
or of the place where the examination is held. Outside of the United
States, a deposition may be taken before a secretary of an embassy or
legation, a consul general, vice consul or consular agent of the United
States, or a person authorized to administer oaths designated by the
Commission. Depositions may be conducted by telephone or by video
teleconference at the option of the party or interested governmental
participant taking the deposition.
(c) The deponent shall be sworn or shall affirm before any questions
are put to him or her. Examination and cross-examination shall proceed
as at a hearing. Each question propounded shall be recorded and the
answer taken down in the words of the witness. Objections on questions
of evidence shall
[[Page 107]]
be noted in short form without the arguments. The officer shall not
decide on the competency, materiality, or relevancy of evidence but
shall record the evidence subject to objection. Objections on questions
of evidence not made before the officer shall not be deemed waived
unless the ground of the objection is one which might have been obviated
or removed if presented at that time.
(d) When the testimony is fully transcribed, the deposition shall be
submitted to the deponent for examination and signature unless the
deponent is ill or cannot be found or refuses to sign. The officer shall
certify the deposition or, if the deposition is not signed by the
deponent, shall certify the reasons for the failure to sign, and shall
promptly transmit an electronic copy of the deposition to the Secretary
of the Commission for entry into the electronic docket.
(e) Where the deposition is to be taken on written questions as
authorized under Sec. 2.1018(a)(2), the party or interested governmental
participant taking the deposition shall electronically serve a copy of
the questions, showing each question separately and consecutively
numbered, on every other party and interested governmental participant
with a notice stating the name and address of the person who is to
answer them, and the name, description, title, and address of the
officer before whom they are to be asked. Within ten days after service,
any other party or interested governmental participant may serve cross-
questions. The questions, cross-questions, and answers shall be recorded
and signed, and the deposition certified, returned, and transmitted in
electronic form to the Secretary of the Commission for entry into the
electronic docket as in the case of a deposition on oral examination.
(f) A deposition will not become a part of the evidentiary record in
the hearing unless received in evidence. If only part of a deposition is
offered in evidence by a party or interested governmental participant,
any other party or interested governmental participant may introduce any
other parts. A party or interested governmental participant shall not be
deemed to make a person its own witness for any purpose by taking his or
her deposition.
(g) A deponent whose deposition is taken and the officer taking a
deposition shall be entitled to the same fees as are paid for like
services in the district courts of the United States, to be paid by the
party or interested governmental participant at whose instance the
deposition is taken.
(h) The deponent may be accompanied, represented, and advised by
legal counsel.
(i)(1) After receiving written notice of the deposition under
paragraph (a) or paragraph (e) of this section, and ten days before the
scheduled date of the deposition, the deponent shall submit an
electronic index of all documents in his or her possession, relevant to
the subject matter of the deposition, including the categories of
documents set forth in paragraph (i)(2) of this section, to all parties
and interested governmental participants. The index shall identify those
records which have already been made available electronically. All
documents that are not identical to documents already made available
electronically, whether by reason of subsequent modification or by the
addition of notations, shall be treated as separate documents.
(2) The following material is excluded from the initial requirements
of Sec. 2.1003 to be made available electronically, but is subject to
derivative discovery under paragraph (i)(1) of this section--
(i) Personal records;
(ii) Travel vouchers;
(iii) Speeches;
(iv) Preliminary drafts;
(v) Marginalia.
(3) Subject to paragraph (i)(6) of this section, any party or
interested governmental participant may request from the deponent a
paper copy of any or all of the documents on the index that have not
already been provided electronically.
(4) Subject to paragraph (i)(6) of this section, the deponent shall
bring a paper copy of all documents on the index that the deposing party
or interested governmental participant requests that have not already
been provided electronically to an oral deposition conducted pursuant to
paragraph (a) of this section, or in the case of a
[[Page 108]]
deposition taken on written questions pursuant to paragraph (e) of this
section, shall submit such documents with the certified deposition.
(5) Subject to paragraph (i)(6) of this section, a party or
interested governmental participant may request that any or all
documents on the index that have not already been provided
electronically, and on which it intends to rely at hearing, be made
electronically available by the deponent.
(6) The deposing party or interested governmental participant shall
assume the responsibility for the obligations set forth in paragraphs
(i)(1), (i)(3), (i)(4), and (i)(5) of this section when deposing someone
other than a party or interested governmental participant.
(j) In a proceeding in which the NRC is a party, the NRC staff will
make available one or more witnesses designated by the Executive
Director for Operations, for oral examination at the hearing or on
deposition regarding any matter, not privileged, which is relevant to
the issues in the proceeding. The attendance and testimony of the
Commissioners and named NRC personnel at a hearing or on deposition may
not be required by the Presiding Officer, by subpoena or otherwise:
Provided, That the Presiding Officer may, upon a showing of exceptional
circumstances, such as a case in which a particular named NRC employee
has direct personal knowledge of a material fact not known to the
witnesses made available by the Executive Director for Operations and
the testimony sought is not reasonably obtainable from another source by
any party, require the attendance and testimony of named NRC personnel.
[54 FR 14944, Apr. 14, 1991, as amended at 56 FR 7797, Feb. 26, 1991; 63
FR 71740, Dec. 30, 1998]
Effective Date Note: At 63 FR 71740, Dec. 30, 1998, Sec. 2.1019 was
amended by revising paragraphs (d), (e), and (i), effective Jan. 29,
1999.
Sec. 2.1020 Entry upon land for inspection.
(a) Any party, potential party, or interested governmental
participant may serve on any other party, potential party, or interested
governmental participant a request to permit entry upon designated land
or other property in the possession or control of the party, potential
party, or interested governmental participant upon whom the request is
served for the purpose of access to raw data, inspection and measuring,
surveying, photographing, testing, or sampling the property or any
designated object or operation thereon, within the scope of Sec. 2.1018
of this subpart.
(b) The request may be served on any party, potential party, or
interested governmental participant without leave of the Commission or
the Presiding Officer.
(c) The request shall describe with reasonable particularity the
land or other property to be inspected either by individual item or by
category. The request shall specify a reasonable time, place, and manner
of making the inspection and performing the related acts.
(d) The party, potential party, or interested governmental
participant upon whom the request is served shall serve on the party,
potential party, or interested governmental participant submitting the
request a written response within ten days after the service of the
request. The response shall state, with respect to each item or
category, that inspection and related activities will be permitted as
requested, unless the request is objected to, in which case the reasons
for objection shall be stated. If objection is made to part of an item
or category, the part shall be specified.
[54 FR 14944, Apr. 14, 1991, as amended at 56 FR 7797, Feb. 26, 1991]
Sec. 2.1021 First prehearing conference.
(a) In any proceeding involving an application for a license to
receive and possess high-level radioactive waste at a geologic
repository operations area pursuant to part 60 of this chapter the
Commission or the Presiding Officer will direct the parties, interested
governmetal participants and any petitioners for intervention, or their
counsel, to appear at a specified time and place, within seventy days
after the notice of hearing is published, or such other time as the
Commission or the Presiding Officer may deem appropriate, for a
conference to:
[[Page 109]]
(1) Permit identification of the key issues in the proceeding;
(2) Take any steps necessary for further identification of the
issues;
(3) Consider all intervention petitions to allow the Presiding
Officer to make such preliminary or final determination as to the
parties and interested governmental participants, as may be appropriate;
(4) Establish a schedule for further actions in the proceeding; and
(5) Establish a discovery schedule for the proceeding taking into
account the objective of meeting the three year time schedule specified
in section 114(d) of the Nuclear Waste Policy Act of 1982, as amended,
42 U.S.C. 10134(d).
(b) The Presiding Officer may order any further formal and informal
conferences among the parties and interested governmental participants
including teleconferences, to the extent that it considers that such a
conference would expedite the proceeding.
(c) A prehearing conference held pursuant to this section shall be
stenographically reported.
(d) The Presiding Officer shall enter an order which recites the
action taken at the conference, the schedule for further actions in the
proceeding, and any agreements by the parties, and which identifies the
key issues in the proceeding, makes a preliminary or final determination
as to the parties and interested governmental participants in the
proceeding, and provides for the submission of status reports on
discovery.
[54 FR 14944, Apr. 14, 1991, as amended at 56 FR 7797, Feb. 26, 1991]
Sec. 2.1022 Second prehearing conference.
(a) The Commission or the Presiding Officer in a proceeding on an
application for a license to receive and possess high-level radioactive
waste at a geologic repository operations area shall direct the parties,
interested governmental participants, or their counsel to appear at a
specified time and place not later than thirty days after the Safety
Evaluation Report is issued by the NRC staff for a conference to
consider:
(1) Any amended contentions submitted under Sec. 2.1014(a)(4) of
this subpart;
(2) Simplification, clarification, and specification of the issues;
(3) The obtaining of stipulations and admissions of fact and of the
contents and authenticity of documents to avoid unnecessary proof;
(4) Identification of witnesses and the limitation of the number of
expert witnesses, and other steps to expedite the presentation of
evidence;
(5) The setting of a hearing schedule;
(6) Establishing a discovery schedule for the proceeding taking into
account the objective of meeting the three year time schedule specified
in section 114(d) of the Nuclear Waste Policy Act of 1982, as amended,
42 U.S.C. 10134(d); and
(7) Such other matters as may aid in the orderly disposition of the
proceeding.
(b) A prehearing conference held pursuant to this section shall be
stenographically reported.
(c) The Presiding Officer shall enter an order which recites the
action taken at the conference and the agreements by the parties, limits
the issues or defines the matters in controversy to be determined in the
proceeding, sets a discovery schedule, and sets the hearing schedule.
[54 FR 14944, Apr. 14, 1991, as amended at 56 FR 7797, Feb. 26, 1991]
Sec. 2.1023 Immediate effectiveness.
(a) Pending review and final decision by the Commission, an initial
decision resolving all issues before the Presiding Officer in favor of
issuance or amendment of a construction authorization pursuant to
Sec. 60.31 of this chapter or a license to receive and possess high-
level radioactive waste at a geologic repository operations area
pursuant to Sec. 60.41 of this chapter, will be immediately effective
upon issuance except--
(1) As provided in any order issued in accordance with Sec. 2.788 of
this part that stays the effectiveness of an initial decision; or
(2) As otherwise provided by the Commission in special
circumstances.
[[Page 110]]
(b) The Director of Nuclear Material Safety and Safeguards,
notwithstanding the filing or pendency of an appeal or a petition for
review pursuant to Sec. 2.1015 of this subpart, promptly shall issue a
construction authorization or a license to receive and possess high-
level radioactive waste at a geologic respository operations area, or
amendments thereto, following an initial decision resolving all issues
before the Presiding Officer in favor of the licensing action, upon
making the appropriate licensing findings, except--
(1) As provided in paragraph (c) of this section; or
(2) As provided in any order issued in accordance with Sec. 2.788 of
this part that stays the effectiveness of an initial decision; or
(3) As otherwise provided by the Commission in special
circumstances.
(c)(1) Before the Director of Nuclear Material Safety and Safeguards
may issue a construction authorization or a license to receive and
possess waste at a geologic repository operations area in accordance
with paragraph (b) of this section, the Commission, in the exercise of
its supervisory authority over agency proceedings, shall undertake and
complete a supervisory examination of those issues contested in the
proceeding before the Presiding Officer to consider whether there is any
significant basis for doubting that the facility will be constructed or
operated with adequate protection of the public health and safety, and
whether the Commission should take action to suspend or to otherwise
condition the effectiveness of a Presiding Officer decision that
resolves contested issues in a proceeding in favor of issuing a
construction authorization or a license to receive and possess high-
level radioactive waste at a geologic repository operations area. This
supervisory examination is not part of the adjudicatory proceeding. The
Commission shall notify the Director in writing when its supervisory
examination conducted in accordance with this paragraph has been
completed.
(2) Before the Director of Nuclear Material Safety and Safeguards
issues a construction authorization or a license to receive and possess
high-level radioactive waste at a geologic repository operations area,
the Commission shall review those issues that have not been contested in
the proceeding before the Presiding Officer but about which the Director
must make appropriate findings prior to the issuance of such a license.
The Director shall issue a construction authorization or a license to
receive and possess high-level radioactive waste at a geologic
repository operations area only after written notification from the
Commission of its completion of its review under this paragraph and of
its determination that it is appropriate for the Director to issue such
a construction authorization or license. This Commission review of
uncontested issues is not part of the adjudicatory proceeding.
(3) No suspension of the effectiveness of a Presiding Officer's
initial decision or postponement of the Director's issuance of a
construction authorization or license that results from a Commission
supervisory examination of contested issues under paragraph (c)(1) of
this section or a review of uncontested issues under paragraph (c)(2) of
this section will be entered except in writing with a statement of the
reasons. Such suspension or postponement will be limited to such period
as is necessary for the Commission to resolve the matters at issue. If
the supervisory examination results in a suspension of the effectiveness
of the Presiding Officer's initial decision under paragraph (c)(1) of
this section, the Commission will take review of the decision sua sponte
and further proceedings relative to the contested matters at issue will
be in accordance with procedures for participation by the DOE, the NRC
staff, or other parties and interested governmental participants to the
Presiding Officer proceeding established by the Commission in its
written statement of reasons. If a postponement results from a review
under paragraph (c)(2) of this section, comments on the uncontested
matters at issue may be filed by the DOE within ten days of service of
the Commission's written statement.
[54 FR 14944, Apr. 14, 1991, as amended at 56 FR 7797, Feb. 26, 1991]
[[Page 111]]
Sec. 2.1025 Authority of the Presiding Officer to dispose of certain issues on the pleadings.
(a) Any party may move, with or without supporting affidavits, for a
decision by the Presiding Officer in that party's favor as to all or any
part of the matters involved in the proceeding. The moving party shall
annex to the motion a separate, short, and concise statement of the
material facts as to which the moving party contends that there is no
genuine issue to be heard. Motions may be filed at any time. Any other
party may file an answer supporting or opposing the motion, with or
without affidavits, within twenty (20) days after service of the motion.
The party shall annex to any answer opposing the motion a separate,
short, and concise, statement of the material facts as to which it is
contended there exists a genuine issue to be heard. All material facts
set forth in the statement to be filed by the moving party will be
deemed to be admitted unless controverted by the statement required to
be filed by the opposing party. The opposing party may, within ten (10)
days after service, respond in writing to new facts and arguments
presented in any statement filed in support of the motion. No further
supporting statements or responses thereto may be entertained. The
Presiding Officer may dismiss summarily or hold in abeyance motions
filed shortly before the hearing commences or during the hearing if the
other parties or the Presiding Officer would be required to divert
substantial resources from the hearing in order to respond adequately to
the motion.
(b) Affidavits must set forth those facts that would be admissible
in evidence and show affirmatively that the affiant is competent to
testify to the matters stated therein. The Presiding Officer may permit
affidavits to be supplemented or opposed by further affidavits. When a
motion for summary disposition is made and supported as provided in this
section, a party opposing the motion may not rest upon the mere
allegations or denials of its answer; its answer by affidavits or as
otherwise provided in this section must set forth specific facts showing
that there is a genuine issue of fact. If no such answer is filed, the
decision sought, if appropriate, must be rendered.
(c) The Presiding Officer shall render the decision sought if the
filings in the proceeding show that there is no genuine issue as to any
material fact and that the moving party is entitled to a decision as a
matter of law. However, in any proceeding involving a construction
authorization for a geologic repository operations area, the procedure
described in this section may be used only for the determination of
specific subordinate issues and may not be used to determine the
ultimate issue as to whether the authorization must be issued.
[56 FR 7798, Feb. 26, 1991]
Sec. 2.1026 Schedule.
(a) Subject to paragraphs (b) and (c) of this section, the Presiding
Officer shall adhere to the schedule set forth in appendix D of this
part.
(b)(1) Pursuant to Sec. 2.711, the Presiding Officer may approve
extensions of no more than 15 days beyond any required time set forth in
this subpart for a filing by a party to the proceeding. Except in the
case of exceptional and unforseen circumstances, requests for extensions
of more than 15 days must be filed no later than 5 days in advance of
the required time set forth in this subpart for a filing by a party to
the proceeding.
(2) Extensions beyond 15 days must be referred to the Commission. If
the Commission does not disapprove the extension within 10 days of
receiving the request, the extension will be effective. If the
Commission disapproves the extension, the date which was the subject of
the extension request will be set for 5 days after the Commission's
disapproval action.
(c)(1) The Presiding Officer may delay the issuance of an order up
to thirty days beyond the time set forth for the issuance in appendix D.
(2) If the Presiding Officer anticipates that the issuance of an
order will not occur until after the thirty day extension specified in
paragraph (c)(1) of this section, the Presiding Officer shall notify the
Commission at least ten days in advance of the scheduled date
[[Page 112]]
for the milestone and provide a justification for the delay.
[56 FR 7798, Feb. 26, 1991]
Sec. 2.1027 Sua Sponte.
In any initial decision in a proceeding on an application to receive
and possess waste at a geologic repository operations area, the
Presiding Officer, other than the Commission, shall make findings of
fact and conclusions of law on, and otherwise give consideration to,
only those matters put into controversy by the parties and determined to
be litigable issues in the proceeding.
[56 FR 7798, Feb. 26, 1991]
Subpart K--Hybrid Hearing Procedures for Expansion of Spent Nuclear Fuel
Storage Capacity at Civilian Nuclear Power Reactors
Source: 50 FR 41670, Oct. 15, 1985, unless otherwise noted.
Sec. 2.1101 Purpose.
The regulations in this subpart establish hybrid hearing procedures,
as authorized by section 134 of the Nuclear Waste Policy Act of 1982 (96
Stat. 2230), to be used at the request of any party in certain contested
proceedings on applications for a license or license amendment to expand
the spent nuclear fuel storage capacity at the site of a civilian
nuclear power plant. These procedures are intended to encourage and
expedite onsite expansion of spent nuclear fuel storage capacity.
Sec. 2.1103 Scope.
The procedures in this subpart apply to contested proceedings on
applications filed after January 7, 1983, for a license or license
amendment under part 50 of this chapter, to expand the spent fuel
storage capacity at the site of a civilian nuclear power plant, through
the use of high density fuel storage racks, fuel rod compaction, the
transshipment of spent nuclear fuel to another civilian nuclear power
reactor within the same utility system, the construction of additional
spent nuclear fuel pool capacity or dry storage capacity, or by other
means. This subpart also applies to proceedings on applications for a
license under part 72 of this chapter to store spent nuclear fuel in an
independent spent fuel storage installation located at the site of a
civilian nuclear power reactor. This subpart shall not apply to the
first application for a license or license amendment to expand the spent
fuel storage capacity at a particular site through the use of a new
technology not previously approved by the Commission for use at any
other nuclear power plant. This subpart shall not apply to proceedings
on applications for transfer of a license issued under part 72 of this
chapter. Subpart M of this part applies to license transfer proceedings.
[50 FR 41670, Oct. 15, 1985, as amended at 63 FR 66730, Dec. 3, 1998]
Sec. 2.1105 Definitions.
As used in this part:
(a) Civilian nuclear power reactor means a civilian nuclear power
plant required to be licensed as a utilization facility under section
103 or 104(b) of the Atomic Energy Act of 1954.
(b) Spent nuclear fuel means fuel that has been withdrawn from a
nuclear reactor following irradiation, the constituent elements of which
have not been separated by reprocessing.
Sec. 2.1107 Notice of proposed action.
In connection with each application filed after January 7, 1983, for
a license or an amendment to a license to expand the spent nuclear fuel
storage capacity at the site of a civilian nuclear power plant, for
which the Commission has not found that a hearing is required in the
public interest, for which an adjudicatory hearing has not yet been
convened, and for which a notice of proposed action has not yet been
published as of the effective date of this subpart, the Commission will,
prior to acting thereon, cause to be published in the Federal Register a
notice of proposed action in accordance with Sec. 2.105. The notice of
proposed action will identify the availability of the hybrid hearing
procedures in this subpart, specify that any party may invoke these
procedures by filing a timely request for oral argument under
Sec. 2.1109, and provide that if a request
[[Page 113]]
for oral argument is granted, any hearing held on the application shall
be conducted in accordance with the procedures in this subpart.
Sec. 2.1109 Requests for oral argument.
(a)(1) Within ten (10) days after an order granting a request for
hearing or petition for leave to intervene, any party may invoke the
hybrid hearing procedures in this subpart by requesting an oral
argument. Requests for oral argument shall be in writing and shall be
filed with the presiding officer. The presiding officer shall grant a
timely request for oral argument.
(2) The presiding officer may grant an untimely request for oral
argument only upon a showing of good cause by the requesting party for
failure to file on time and after providing the other parties an
opportunity to respond to the untimely request.
(b) The presiding officer shall issue a written order ruling on any
requests for oral argument. If the presiding officer grants a request
for oral argument, the order shall include a schedule for discovery and
subsequent oral argument with respect to the admitted contentions.
(c) If no party to the proceeding requests oral argument, or if all
untimely requests for oral argument are denied, the presiding officer
shall conduct the proceeding in accordance with subpart G of 10 CFR part
2.
Sec. 2.1111 Discovery.
Discovery shall begin and end at such times as the presiding officer
shall order. It is expected that all discovery shall be completed within
90 days. The presiding officer may extend the time for discovery upon
good cause shown based on exceptional circumstances and after providing
the other parties an opportunity to respond to the request.
Sec. 2.1113 Oral argument.
(a) Fifteen (15) days prior to the date set for oral argument, each
party, including the NRC staff, shall submit to the presiding officer a
detailed written summary of all the facts, data, and arguments which are
known to the party at such time and on which the party proposes to rely
at the oral argument either to support or to refute the existence of a
genuine and substantial dispute of fact. Each party shall also submit
all supporting facts and data in the form of sworn written testimony or
other sworn written submission. Each party's written summary and
supporting information shall be simultaneously served on all other
parties to the proceeding.
(b) Only facts and data in the form of sworn written testimony or
other sworn written submission may be relied on by the parties during
oral argument, and the presiding officer shall consider those facts and
data only if they are submitted in that form.
Sec. 2.1115 Designation of issues for adjudicatory hearing.
(a) After due consideration of the oral presentation and the written
facts and data submitted by the parties and relied on at the oral
argument, the presiding officer shall promptly by written order:
(1) Designate any disputed issues of fact, together with any
remaining issues of law, for resolution in an adjudicatory hearing; and
(2) Dispose of any issues of law or fact not designated for
resolution in an adjudicatory hearing.
With regard to each issue designated for resolution in an adjudicatory
hearing, the presiding officer shall identify the specific facts that
are in genuine and substantial dispute, the reason why the decision of
the Commission is likely to depend on the resolution of that dispute,
and the reason why an adjudicatory hearing is likely to resolve the
dispute. With regard to issues not designated for resolution in an
adjudicatory hearing, the presiding officer shall include a brief
statement of the reasons for the disposition. If the presiding officer
finds that there are no disputed issues of fact or law requiring
resolution in an adjudicatory hearing, the presiding officer shall also
dismiss the proceeding.
(b) No issue of law or fact shall be designated for resolution in an
adjudicatory hearing unless the presiding officer determines that:
(1) There is a genuine and substantial dispute of fact which can
only be resolved with sufficient accuracy by the
[[Page 114]]
introduction of evidence in an adjudicatory hearing; and
(2) The decision of the Commission is likely to depend in whole or
in part on the resolution of that dispute.
(c) In making a determination under paragraph (b) of this section,
the presiding officer shall not consider:
(1) Any issue relating to the design, construction, or operation of
any civilian nuclear power reactor already licensed to operate at the
site, or any civilian nuclear power reactor for which a construction
permit has been granted at the site, unless the presiding officer
determines that any such issue substantially affects the design,
construction, or operation of the facility or activity for which a
license application, authorization, or amendment to expand the spent
nuclear fuel storage capacity is being considered; or
(2) Any siting or design issue fully considered and decided by the
Commission in connection with the issuance of a construction permit or
operating license for a civilian nuclear power reactor at that site,
unless (i) such issue results from any revision of siting or design
criteria by the Commission following such decision; and (ii) the
presiding officer determines that such issue substantially affects the
design, construction, or operation of the facility or activity for which
a license application, authorization, or amendment to expand the spent
nuclear fuel storage capacity is being considered.
(d) The provisions of paragraph (c) of this section shall apply only
with respect to licenses, authorizations, or amendments to licenses or
authorizations applied for under the Atomic Energy Act of 1954, as
amended, before December 31, 2005.
(e) Unless the presiding officer disposes of all issues and
dismisses the proceeding, appeals from the presiding officer's order
disposing of issues and designating one or more issues for resolution in
an adjudicatory hearing are interlocutory and must await the end of the
proceeding.
[50 FR 41671, Oct. 15, 1985; 50 FR 45398, Oct. 31, 1985]
Sec. 2.1117 Applicability of other sections.
In proceedings subject to this subpart, the provisions of subparts A
and G of 10 CFR part 2 are also applicable, except where inconsistent
with the provisions of this subpart.
Subpart L--Informal Hearing Procedures for Adjudications in Materials
and Operator Licensing Proceedings
Source: 54 FR 8276, Feb. 28, 1989, unless otherwise noted.
Sec. 2.1201 Scope of subpart.
(a) The general rules of this subpart govern procedure in any
adjudication initiated by a request for a hearing in a proceeding for--
(1) The grant, renewal or licensee-initiated amendment of a
materials license subject to parts 30, 32 through 35, 39, 40, or 70 of
this chapter, with the exception of a license amendment related to an
application to transfer a license; or
(2) The grant, renewal, or licensee-initiated amendment of an
operator or senior operator license subject to part 55 of this chapter.
(3) The amendment of a part 50 license following permanent removal
of fuel from the part 50 facility to an authorized facility for
licensees that have previously made declarations related to permanent
cessation of operations and permanent removal of fuel from the reactor
in accordance with Sec. 50.82(a)(1). Subpart L hearings for the license
termination plan amendment, if conducted, must be completed before
license termination.
(b) Any adjudication regarding, (1) a materials license subject to
parts 30, 32 through 35, 39, 40, or 70, or an operator or senior
operator license subject to part 55 that is initiated by a notice of
hearing issued under Sec. 2.104, or (2) a notice of proposed action
under Sec. 2.105, or a request for hearing under subpart B of 10 CFR
part 2 on an order or a civil penalty, is to be conducted in accordance
with the procedures set forth in subpart G of 10 CFR part 2.
[57 FR 4153, Feb. 4, 1992, as amended at 61 FR 39297, July 29, 1996; 63
FR 66730, Dec. 3, 1998]
Sec. 2.1203 Docket; filing; service.
(a) The Secretary shall maintain a docket for each adjudication
subject to
[[Page 115]]
this subpart, commencing with the filing of a request for a hearing. All
papers, including any request for a hearing, petition for leave to
intervene, correspondence, exhibits, decisions, and orders, submitted or
issued in the proceeding; the hearing file compiled in accordance with
Sec. 2.1231; and the transcripts of any oral presentations or oral
questioning made in accordance with Sec. 2.1235 or in connection with
any appeal under this subpart must be filed with the Office of the
Secretary and must be included in the docket. The public availability of
official records relating to the proceeding is governed by Sec. 2.790.
(b) Documents are filed with the Office of the Secretary in
adjudications subject to this subpart either--
(1)(i) By delivery to the Rulemakings and Adjudications Staff of the
Office of the Secretary at One White Flint North, 11555 Rockville Pike,
Rockville, MD 20852; or
(ii) By mail, telegram or facsimile addressed to the Secretary, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention:
Rulemakings and Adjudications Staff.
(2) Filing by mail, telegram or facsimile is complete as of the time
of deposit in the mail, with the telegraph company, or upon facsimile
transmission. Filing by other means is complete as of the time of
delivery to the Rulemakings and Adjudications Staff of the Office of the
Secretary.
(c) Each document submitted for filing in an adjudication subject to
this part, other than an exhibit, must be legibly typed, must bear the
docket number and the title of the proceeding, and, if it is the first
document filed by that participant, must designate the name and address
of a person upon whom service can be made. The document also must be
signed in accordance with Sec. 2.708(c). A document, other than
correspondence, must be filed in an original and two conforming copies.
Documents filed by telegram are governed by Sec. 2.708(f). A document
that fails to conform to these requirements may be refused acceptance
for filing and may be returned with an indication of the reason for
nonacceptance. Any document tendered but not accepted for filing may not
be entered in the docket.
(d) Computation of time and extension and reduction of time limits
is done in accordance with Secs. 2.710-2.711.
(e) A request for a hearing or petition for leave to intervene must
be served in accordance with Sec. 2.712 and Sec. 2.1205(f) and (R). All
other documents issued by the presiding officer or the Commission or
offered for filing are served in accordance with Sec. 2.712.
[54 FR 8276, Feb. 28, 1989, as amended at 61 FR 39297, July 29, 1996; 62
FR 27495, May 20, 1997]
Sec. 2.1205 Request for a hearing; petition for leave to intervene.
(a) Any person whose interest may be affected by a proceeding for
the grant, renewal, or licensee-initiated amendment of a license subject
to this subpart may file a request for a hearing.
(b) An applicant for a license, a license amendment, or a license
renewal who is issued a notice of proposed denial or a notice of denial
and who desires a hearing shall file the request for the hearing within
the time specified in Sec. 2.103 in all cases. An applicant may include
in the request for hearing a request that the presiding officer
recommend to the Commission that procedures other than those authorized
under this subpart be used in the proceeding, provided that the
applicant identifies the special factual circumstances or issues which
support the use of other procedures.
(c) For amendments of part 50 licenses under Sec. 2.1201(a)(3), a
notice of receipt of the application, with reference to the opportunity
for a hearing under the procedures set forth in this subpart, must be
published in the Federal Register at least 30 days prior to issuance of
the requested amendment by the Commission.
(d) A person, other than an applicant, shall file a request for a
hearing within--
(1) Thirty days of the agency's publication in the Federal Register
of a notice referring or relating to an application or the licensing
action requested by an application, which must include a reference to
the opportunity for a hearing under the procedures set forth in this
subpart. With respect to
[[Page 116]]
an amendment described in Sec. 2.1201(a)(3), other than the one to
terminate the license, the Commission, prior to issuance of the
requested amendment, will follow the procedures in Sec. 50.91 and
Sec. 50.92(c) to the extent necessary to make a determination on whether
the amendment involves a significant hazards consideration. If the
Commission finds there are significant hazards considerations involved
in the requested amendment, the amendment will not be issued until any
hearings under this paragraph are completed.
(2) If a Federal Register notice is not published in accordance with
paragraph (d)(1), the earliest of--
(i) Thirty days after the requester receives actual notice of a
pending application, or
(ii) Thirty days after the requester receives actual notice of an
agency action granting an application in whole or in part, or
(iii) One hundred and eighty days after agency action granting an
application in whole or in part.
(e) The request for a hearing filed by a person other than an
applicant must describe in detail--
(1) The interest of the requestor in the proceeding;
(2) How the interests may be affected by the results of the
proceeding, including the reasons why the requestor should be permitted
a hearing, with particular reference to the factors set out in paragraph
(h) of this section;
(3) The requestor's areas of concern about the licensing activity
that is the subject matter of the proceeding; and
(4) The circumstances establishing that the request for a hearing is
timely in accordance with paragraph (d) of this section.
(f) Each request for a hearing must be served, by delivering it
personally or by mail to--
(1) The applicant (unless the requestor is the applicant); and
(2) The NRC staff, by delivery to the Executive Director for
Operations, One White Flint North, 11555 Rockville Pike, Rockville, MD
20852, or by mail addressed to the Executive Director for Operations,
U.S. Nuclear Regulatory Commission, Washington, DC 20555.
(g) Within ten (10) days of service of a request for a hearing filed
under paragraph (c) of this section, the applicant may file an answer.
The NRC staff, if it chooses or is ordered to participate as a party in
accordance with Sec. 2.1213, may file an answer to a request for a
hearing within ten (10) days of the designation of the presiding
officer.
(h) In ruling on a request for a hearing filed under paragraph (d)
of this section, the presiding officer shall determine that the
specified areas of concern are germane to the subject matter of the
proceeding and that the petition is timely. The presiding officer also
shall determine that the requestor meets the judicial standards for
standing and shall consider, among other factors--
(1) The nature of the requestor's right under the Act to be made a
party to the proceeding;
(2) The nature and extent of the requestor's property, financial, or
other interest in the proceeding; and
(3) The possible effect of any order that may be entered in the
proceeding upon the requestor's interest.
(i) If a hearing request filed under paragraph (b) of this section
is granted, the applicant and the NRC staff shall be parties to the
proceeding. If a hearing request filed under paragraph (c) or (d) of
this section is granted, the requestor shall be a party to the
proceeding along with the applicant and the NRC staff, if the NRC staff
chooses or is ordered to participate as a party in accordance with
Sec. 2.1213.
(j) If a request for hearing is granted and a notice of the kind
described in paragraph (d)(1) previously has not been published in the
Federal Register, a notice of hearing must be published in the Federal
Register stating--
(1) The time, place, and nature of the hearing;
(2) The authority under which the hearing is to be held;
(3) The matters of fact and law to be considered;
(4) The time within which any other person whose interest may be
affected by the proceeding may petition for leave to intervene, as
specified in paragraph (j) of this section; and
(5) The time within which a request to participate under
Sec. 2.1211(b) must be filed.
[[Page 117]]
(k) Any petition for leave to intervene must be filed within 30 days
of the date of publication of the notice of hearing. The petition must
set forth the information required under paragraph (e) of this section.
(1) A petition for leave to intervene must be served upon the
applicant. The petition also must be served upon the NRC staff--
(i) By delivery to the Executive Director for Operations, One White
Flint North, 11555 Rockville Pike, Rockville, MD 20852; or
(ii) By mail addressed to the Executive Director for Operations,
U.S. Nuclear Regulatory Commission, Washington, DC 20555.
(2) Within ten (10) days of service of a petition for leave to
intervene, the applicant and the NRC staff, if the staff chooses or is
ordered to participate as a party in accordance with Sec. 2.1213, may
file an answer.
(3) Thereafter, the petition for leave to intervene must be ruled
upon by the presiding officer, taking into account the matters set forth
in paragraph (h) of this section.
(4) If the petition is granted, the petitioner becomes a party to
the proceeding.
(l)(1) A request for a hearing or a petition for leave to intervene
found by the presiding officer to be untimely under paragraph (d) or (k)
of this section will be entertained only upon determination by the
Commission or the presiding officer that the requestor or petitioner has
established that--
(i) The delay in filing the request for a hearing or the petition
for leave to intervene was excusable; and
(ii) The grant of the request for a hearing or the petition for
leave to intervene will not result in undue prejudice or undue injury to
any other participant in the proceeding, including the applicant and the
NRC staff, if the staff chooses or is ordered to participate as a party
in accordance with Sec. 2.1213.
(2) If the request for a hearing on the petition for leave to
intervene is found to be untimely and the requestor or petitioner fails
to establish that it otherwise should be entertained on the paragraph
(l)(1) of this section, the request or petition will be treated as a
petition under Sec. 2.206 and referred for appropriate disposition.
(m) The filing or granting of a request for a hearing or petition
for leave to intervene need not delay NRC staff action regarding an
application for a licensing action covered by this subpart.
(n) An order granting a request for a hearing or a petition for
leave to intervene may condition or limit participation in the interest
of avoiding repetitive factual presentations and argument.
(o) If the presiding officer denies a request for a hearing or a
petition for leave to intervene in its entirety, the action is
appealable within ten (10) days of service of the order on the question
whether the request for a hearing or the petition for leave to intervene
should have been granted in whole or in part. If a request for a hearing
or a petition for leave to intervene is granted, parties other than the
requestor or petitioner may appeal that action within ten (10) days of
service of the order on the question whether the request for a hearing
or the petition for leave to intervene should have been denied in its
entirety. An appeal may be taken by filing and serving upon all parties
a statement that succinctly sets out, with supporting argument, the
errors alleged. The appeal may be supported or opposed by any party by
filing a counter-statement within fifteen (15) days of the service of
the appeal brief.
[54 FR 8276, Feb. 28, 1989, as amended at 55 FR 36806, Sept. 7, 1990; 59
FR 29189, June 6, 1994; 61 FR 39297, July 29, 1996; 63 FR 66730, Dec. 3,
1998]
Sec. 2.1207 Designation of presiding officer.
(a) Unless otherwise ordered by the Commission or as provided in
paragraph (b) of this section, within ten (10) days of receiving from
the Office of the Secretary a request for a hearing relating to a
licensing proceeding covered by this subpart, the Chairman of the Atomic
Safety and Licensing Board Panel shall issue an order designating a
single member of the panel to rule on the request for a hearing and, if
necessary, to serve as the presiding officer to conduct the hearing.
[[Page 118]]
(b) For any request for hearing relating to an application under 10
CFR part 70 to receive and store unirradiated fuel at the site of a
production or utilization facility that also is the subject of a
proceeding under subpart G of this part for the issuance of an operating
license, within ten (10) days of receiving from the Office of the
Secretary a request for a hearing the Chairman of the Atomic Safety and
Licensing Board Panel shall issue an order designating a Licensing Board
conducting the operating license proceeding to rule on the request for a
hearing and, if necessary, to conduct the hearing in accordance with
this subpart. Upon certification to the Commission by the Licensing
Board designated to conduct the hearing that the matters presented for
adjudication by the parties with respect to the part 70 application are
substantially the same as those being heard in the pending proceeding
under 10 CFR part 50, the Licensing Board may conduct the hearing in
accordance with the procedures in subpart G.
Sec. 2.1209 Power of presiding officer.
A presiding officer has the duty to conduct a fair and impartial
hearing according to law, to take appropriate action to avoid delay, and
to maintain order. The presiding officer has all powers necessary to
those ends, including the power to--
(a) Regulate the course of the hearing and the conduct of the
participants;
(b) Dispose of procedural requests or similar matters;
(c) Hold conferences before or during the hearing for settlement,
simplification of the issues, or any other proper purpose;
(d) Certify questions to the Commission for determination, either in
the presiding officer's discretion or on direction of the Commission;
(e) Reopen a closed record for the reception of further information
at any time prior to initial decision in accordance with Sec. 2.734;
(f) Administer oaths and affirmations;
(g) Issue initial decisions;
(h) Issue subpoenas requiring the attendance and testimony of
witnesses at the hearing or the production of documents for the hearing;
(i) Receive written or oral evidence and take official notice of any
fact in accordance with Sec. 2.743(i);
(j) Appoint special assistants from the Atomic Safety and Licensing
Board Panel in accordance with Sec. 2.722;
(k) Recommend to the Commission that procedures other than those
authorized under this subpart be used in a particular proceeding; and
(l) Take any other action consistent with the Act and this chapter.
[54 FR 8276, Feb. 28, 1989, as amended at 56 FR 29411, June 27, 1991]
Sec. 2.1211 Participation by a person not a party.
(a) The presiding officer may permit a person who is not a party to
make a limited appearance in order to state his or her views on the
issues. Limited appearances may be in writing or oral, at the discretion
of the presiding officer, and are governed by rules adopted by the
presiding officer. A limited appearance statement is not to be
considered part of the decisional record under Sec. 2.1251(c).
(b) Within 30 days of an order granting a request for a hearing made
under Sec. 2.1205 (b)-(d) or, in instances when it is published, within
30 days of notice of hearing issued under Sec. 2.1205(j), the
representative of the interested State, county, municipality, or an
agency thereof, may request an opportunity to participate in a
proceeding under this subpart. The request for an opportunity to
participate must state with reasonable specificity the requestor's areas
of concern about the licensing activity that is the subject matter of
the proceeding. Upon receipt of a request that is filed in accordance
with these time limits and that specifies the requestor's areas of
concern, the presiding officer shall afford the representative a
reasonable opportunity to make written and oral presentations in
accordance with Secs. 2.1233 and 2.1235, without requiring the
representative to take a position with respect to the issues.
Participants under this subsection may notice an appeal of an initial
decision in accordance with Sec. 2.1253
[[Page 119]]
with respect to any issue on which they participate.
[54 FR 8276, Feb. 28, 1989, as amended at 61 FR 39298, July 29, 1996]
Sec. 2.1213 Role of the NRC staff.
If a hearing request is filed under Sec. 2.1205(b), the NRC staff
shall be a party to the proceeding. If a hearing request is filed under
Sec. 2.1205 (c) or (d), within 10 days of the designation of a presiding
officer pursuant to Sec. 2.1207, the NRC staff shall notify the
presiding officer whether or not the staff desires to participate as a
party to the adjudication. In addition, upon a determination by the
presiding officer that the resolution of any issue in the proceeding
would be aided materially by the staff's participation in the proceeding
as a party, the presiding officer may order or permit the NRC staff to
participate as a party with respect to that particular issue.
[61 FR 39298, July 29, 1996]
Sec. 2.1215 Appearance and practice.
(a) An individual may appear in an adjudication under this subpart
on his or her own behalf or by an attorney-at-law. Representation by an
attorney-at-law is not necessary in order for an organization or a
Sec. 2.1211(b) participant to appear in an adjudication conducted under
this subpart. If the representative of an organization is not an
attorney-at-law, he or she shall be a member or officer of the
organization represented. Upon request of the presiding officer, an
individual acting as a representative shall provide appropriate
information establishing the basis of his or her authority to act in a
representational capacity.
(b) Any action to reprimand, censure, or suspend a party, a
Sec. 2.1211(b) participant, or the representative of a party or a
Sec. 2.1211(b) participant must be in accordance with the procedures in
Sec. 2.713(c).
Hearings
Sec. 2.1231 Hearing file; prohibition on discovery.
(a) Within thirty (30) days of the presiding officer's entry of an
order granting a request for a hearing, the NRC staff shall file in the
docket, present to the presiding officer, and make available to the
applicant and any other party to the proceeding a hearing file.
Thereafter, within ten (10) days of the date a petition for leave to
intervene or a request to participate under Sec. 2.1211(b) is granted,
the NRC staff shall make the hearing file available to the petitioner or
the Sec. 2.1211(b) participant.
(1) The hearing file must be made available to the applicant and any
other party or Sec. 2.1211(b) participant to the proceeding either by--
(i) Service in accordance with Sec. 2.1203(e); or
(ii) Placing the file in an established local public document room
in the vicinity of the principal location where nuclear material that is
the subject of a proceeding under this subpart will be possessed, and
informing the applicant, party, or Sec. 2.1211(b) participant in writing
of its action and the location of the file. If an established local
public document room does not exist, the NRC staff will arrange for the
documents contained in the hearing file, along with any other material
docketed in accordance with Sec. 2.1203, to be made available for public
inspection and copying during the course of the adjudication in a
library or other facility that is accessible to the general public
during regular business hours and is in the vicinity of the principal
location where the nuclear material that is the subject of the
proceeding will be possessed.
(2) The hearing file also must be made available for public
inspection and copying during regular business hours at the NRC Public
Document Room in Washington, DC.
(b) The hearing file will consist of the application and any
amendment thereto, any NRC environmental impact statement or assessment
relating to the application, and any NRC report and any correspondence
between the applicant and the NRC that is relevant to the application.
Hearing file documents already in an established local public document
room or the NRC Public Document Room when the hearing request is granted
may be incorporated into the hearing file at those locations by a
reference indicating where at
[[Page 120]]
those locations the documents can be found. The presiding officer shall
rule upon any issue regarding the appropriate materials for the hearing
file.
(c) The NRC staff has a continuing duty to keep the hearing file up
to date with respect to the materials set forth in paragraph (b) of this
section and to provide those materials for the docket, the presiding
officer, and the applicant or any party or Sec. 2.1211(b) participant in
a manner consistent with the way the hearing file was made available
initially under paragraph (a).
(d) A party or Sec. 2.1211(b) participant may not seek discovery
from any other party, Sec. 2.1211(b) participant, or the NRC or its
personnel, whether by document production, deposition, interrogatories,
or otherwise.
Sec. 2.1233 Written presentations; written questions.
(a) After publication of a notice of hearing in accordance with
Sec. 2.1205(i) and after the NRC staff has made the hearing file
available in accordance with Sec. 2.1231, the parties and Sec. 2.1211(b)
participants shall be afforded the opportunity to submit, under oath or
affirmation, written presentations of their arguments and documentary
data, informational material, and other supporting written evidence at
the time or times and in the sequence the presiding officer establishes
by appropriate order. The presiding officer also may, on his or her
initiative, submit written questions to the parties to be answered in
writing, under oath or affirmation, and supported by appropriate
documentary data, informational material, or other written evidence.
(b) In a hearing initiated under Sec. 2.1205(b), the initial written
presentation of the applicant that is issued a notice of proposed denial
or a notice of denial must describe in detail any deficiency or omission
in the agency's denial or proposed denial of its application and what
relief is sought with respect to each deficiency or omission.
(c) In a hearing initiated under Sec. 2.1205(d), the initial written
presentation of a party that requested a hearing or petitioned for leave
to intervene must describe in detail any deficiency or omission in the
license application, with references to any particular section or
portion of the application considered deficient, give a detailed
statement of reasons why any particular sections or portion is deficient
or why an omission is material, and describe in detail what relief is
sought with respect to each deficiency or omission.
(d) A party or Sec. 2.1211(b) participant making an initial written
presentation under this section shall submit with its presentation or
identify by reference to a generally available publication or source,
such as the hearing file, all documentary data, informational material,
or other written evidence upon which it relies to support or illustrate
each omission or deficiency complained of. Thereafter, additional
documentary data, informational material, or other written evidence may
be submitted or referenced by any party, other than the NRC staff, or by
any Sec. 2.1211(b) participant in a written presentation or in response
to a written question only as the presiding officer, in his or her
discretion, permits.
(e) Strict rules of evidence do not apply to written submissions
under this section, but the presiding officer may, on motion or on the
presiding officer's own initiative, strike any portion of a written
presentation or a response to a written question that is cumulative,
irrelevant, immaterial, or unreliable.
[54 FR 8276, Feb. 28, 1989, as amended at 61 FR 39298, July 29, 1996]
Sec. 2.1235 Oral presentations; oral questions.
(a) Upon a determination that it is necessary to create an adequate
record for decision, in his or her discretion the presiding officer may
allow or require oral presentations by any party or Sec. 2.1211(b)
participant, including testimony by witnesses. Oral presentations are
subject to any appropriate time limits the presiding officer imposes.
Responsibility for the conduct of the examination of any witness rests
with the presiding officer who may allow a party or Sec. 2.1211(b)
participant to propose questions for the presiding officer to pose to a
witness.
(b) Oral presentations and responses to oral questioning to be
relied upon as oral evidence must be given under oath
[[Page 121]]
or affirmation. All oral presentations or oral questioning must be
stenographically reported and, except as requested pursuant to section
181 of the Act, must be public unless otherwise ordered by the
Commission.
(c) Strict rules of evidence do not apply to oral submissions under
this section, but the presiding officer may, on motion or on the
presiding officer's own initiative, strike any portion of an oral
presentation or a response to oral questioning that is cumulative,
irrelevant, immaterial, or unreliable.
[54 FR 8279, Feb. 28, 1989; 54 FR 53035, Dec. 26, 1989]
Sec. 2.1237 Motions; burden of proof.
(a) Motions presented in the proceeding must be presented and
disposed of in accordance with Secs. 2.730 (a)-(g).
(b) Unless otherwise ordered by the presiding officer, the applicant
or the proponent of an order has the burden of proof.
Sec. 2.1239 Consideration of Commission rules and regulations in informal adjudications.
(a) Except as provided in paragraph (b) of this section, any
regulation of the Commission issued in its program for the licensing and
regulation of production and utilization facilities, source material,
special nuclear material, or byproduct material may not be challenged in
any adjudication subject to this subpart.
(b) A party to an adjudication subject to this subpart may petition
that the application of a Commission regulation specified in paragraph
(a) of this section be waived or an exception made for the particular
proceeding. The sole ground for a request for waiver or exception must
be that special circumstances exist so that application of the
regulation to the subject matter of the proceeding would not serve the
purposes for which the regulation was adopted. In the absence of a prima
facie showing of special circumstances, the presiding officer may not
further consider the matter. If the presiding officer determines that a
prima facie showing has been made, he or she shall certify directly to
the Commission itself for determination the matter of whether special
circumstances support a waiver or an exception and whether a waiver or
an exception should be granted. The Commission's determination shall be
made after any further proceeding the Commission deems appropriate.
Sec. 2.1241 Settlement of proceedings.
The fair and reasonable settlement of proceedings subject to this
subpart is encouraged. A settlement must be approved by the presiding
officer or the Commission as appropriate in order to be binding in the
proceeding.
[56 FR 29411, June 27, 1991]
Initial Decision, Commission Review, And Final Decision
Sec. 2.1251 Initial decision and its effect.
(a) Unless the Commission directs that the record be certified to it
in accordance with paragraph (b) of this section, the presiding officer
shall render an initial decision after completion of an informal hearing
under this subpart. That initial decision constitutes the final action
of the Commission thirty (30) days after the date of issuance, unless
any party petitions for Commission review in accordance with Sec. 2.786
or the Commission takes review of the decision sua sponte.
(b) The Commission may direct that the presiding officer certify the
record to it without an initial decision and may omit an initial
decision and prepare a final decision upon a finding that due and timely
execution of its functions so requires.
(c) An initial decision must be in writing and must be based only
upon information in the record or facts officially noticed. The record
must include all information submitted in the proceeding with respect to
which all parties have been given reasonable prior notice and an
opportunity to comment. The initial decision must include--
(1) Findings, conclusions, and rulings, with the reasons or basis
for them, on all material issues of fact, law, or discretion presented
on the record;
(2) The appropriate ruling, order, or denial of relief with its
effective date; and
[[Page 122]]
(3) The time within which a petition for review may be filed, the
time within which any answer to a petition for review may be filed, and
the date when the decision becomes final in the absence of the
Commission taking review of the decision.
(d) Matters not put into controversy by the parties may not be
examined and decided by the presiding officer. If the presiding officer
believes that a serious safety, environmental, or common defense and
security matter exists that has not been placed in controversy, the
presiding officer shall advise the Commission promptly of the basis for
that view, and the Commission may take appropriate action.
(e) Pending review and final decision by the Commission, an initial
decision resolving all issues before the presiding officer in favor of
authorizing licensing action subject to this subpart is immediately
effective upon issuance except--
(1) As provided in any order issued in accordance with Sec. 2.1263
that stays the effectiveness of an initial decision; or
(2) As otherwise provided by the Commission in special
circumstances.
(f) Following an initial decision resolving all issues in favor of
the licensing action as specified in paragraph (e) of this section, the
Director of Nuclear Reactor Regulation or the Director of Nuclear
Material Safety and Safeguards, as appropriate, notwithstanding the
filing of a petition for review or pendency of any review taken by the
Commission pursuant to Sec. 2.786, shall take the appropriate licensing
action upon making the appropriate licensing findings promptly, except
as may be provided pursuant to paragraph (e)(1) or (2) of this section.
[54 FR 8280, Feb. 28, 1989; 54 FR 53035, Dec. 26, 1989; 56 FR 29411,
June 27, 1991]
Sec. 2.1253 Petitions for review of initial decisions.
Parties and Sec. 2.1211(b) participants may petition for review of
an initial decision under this subpart in accordance with the procedures
set out in Secs. 2.786 and 2.763 or the Commission may review the
decision on its own motion. Commission review will be conducted in
accordance with those procedures the Commission deems appropriate. The
filing of a petition for review is mandatory for a party to exhaust its
administrative remedies before seeking judicial review.
[56 FR 29411, June 27, 1991]
Sec. 2.1259 Final decision; petition for reconsideration.
(a) Commission action to render a final decision must be in
accordance with Sec. 2.770.
(b) The provisions of Sec. 2.771 govern the filing of petitions for
reconsideration.