[Title 10 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2005 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
10
Parts 1 to 50
Revised as of January 1, 2005
Energy
________________________
Containing a codification of documents of general
applicability and future effect
As of January 1, 2005
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
Legal Status and Use of Seals and Logos
The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established
under the Federal Register Act. Under the provisions of 44
U.S.C. 1507, the contents of the CFR, a special edition of the
Federal Register, shall be judicially noticed. The CFR is
prima facie evidence of the original documents published in
the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA's official seal and the stylized Code
of Federal Regulations logo on any republication of this
material without the express, written permission of the
Archivist of the United States or the Archivist's designee.
Any person using NARA's official seals and logos in a manner
inconsistent with the provisions of 36 CFR part 1200 is
subject to the penalties specified in 18 U.S.C. 506, 701, and
1017.
Use of ISBN Prefix
This is the Official U.S. Government edition of this publication
and is herein identified to certify its authenticity. Use of
the 0--16 ISBN prefix is for U.S. Government Printing Office
Official Editions only. The Superintendent of Documents of the
U.S. Government Printing Office requests that any reprinted
edition clearly be labeled as a copy of the authentic work
with a new ISBN.
U . S . G O V E R N M E N T P R I N T I N G O F F I C E
------------------------------------------------------------------
U.S. Superintendent of Documents Washington, DC
20402-0001
http://bookstore.gpo.gov
Phone: toll-free (866) 512-1800; DC area (202) 512-1800
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 10:
Chapter I--Nuclear Regulatory Commission 3
Finding Aids:
Material Approved for Incorporation by Reference........ 881
Table of CFR Titles and Chapters........................ 885
Alphabetical List of Agencies Appearing in the CFR...... 903
List of CFR Sections Affected........................... 913
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 10 CFR 1.1 refers to
title 10, part 1, section
1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 2005), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of textual material
appearing in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408 or e-mail
[email protected].
SALES
The Government Printing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call toll-free,
866-512-1800 or DC area, 202-512-1800, M-F, 8 a.m. to 4 p.m. e.s.t. or
fax your order to 202-512-2250, 24 hours a day. For payment by check,
write to the Superintendent of Documents, Attn: New Orders, P.O. Box
371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-
512-1803.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers, Weekly Compilation of Presidential
Documents and the Privacy Act Compilation are available in electronic
format at www. gpoaccess.gov/nara. For more information, contact
Electronic Information Dissemination Services, U.S. Government Printing
Office. Phone 202-512-1530, or 888-293-6498 (toll-free). E-mail,
[email protected].
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) World Wide Web
site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.archives.gov/federal--
register. The NARA site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 2005.
[[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, 2005.
For this volume, Bonnie Fritts was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Frances D.
McDonald, assisted by Alomha S. Morris.
[[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
--------------------------------------------------------------------
Part Page
1 Statement of organization and general
information............................. 5
2 Rules of practice for domestic licensing
proceedings and issuance of orders...... 17
4 Nondiscrimination in Federally assisted
programs or activities receiving Federal
financial assistance from the Commission 142
5 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 174
7 Advisory committees......................... 190
8 Interpretations............................. 202
9 Public records.............................. 208
10 Criteria and procedures for determining
eligibility for access to restricted
data or national security information or
an employment clearance................. 239
11 Criteria and procedures for determining
eligibility for access to or control
over special nuclear material........... 252
12 Implementation of the Equal Access to
Justice Act in agency proceedings....... 260
13 Program fraud civil remedies................ 267
14 Administrative claims under Federal Tort
Claims Act.............................. 282
15 Debt collection procedures.................. 288
16 Salary offset procedures for collecting
debts owed by Federal employees to the
Federal government...................... 304
19 Notices, instructions and reports to
workers: inspection and investigations.. 309
20 Standards for protection against radiation.. 316
21 Reporting of defects and noncompliance...... 418
25 Access authorization for licensee personnel. 426
26 Fitness for duty programs................... 436
30 Rules of general applicability to domestic
licensing of byproduct material......... 461
31 General domestic licenses for byproduct
material................................ 499
[[Page 4]]
32 Specific domestic licenses to manufacture or
transfer certain items containing
byproduct material...................... 508
33 Specific domestic licenses of broad scope
for byproduct material.................. 540
34 Licenses for industrial radiography and
radiation safety requirements for
industrial radiographic operations...... 544
35 Medical use of byproduct material........... 562
36 Licenses and radiation safety requirements
for irradiators......................... 609
39 Licenses and radiation safety requirements
for well logging........................ 624
40 Domestic licensing of source material....... 636
50 Domestic licensing of production and
utilization facilities.................. 689
[[Page 5]]
PART 1_STATEMENT OF ORGANIZATION AND GENERAL INFORMATION--Table of Contents
Subpart A_Introduction
Sec.
1.1 Creation and authority.
1.3 Sources of additional information.
1.5 Location of principal offices and Regional Offices.
Subpart B_Headquarters
1.11 The Commission.
Inspector General
1.12 Office of the Inspector General.
Panels, Boards, and Committees
1.13 Advisory Committee on Reactor Safeguards.
1.15 Atomic Safety and Licensing Board Panel.
1.18 Advisory Committee on Nuclear Waste.
1.19 Other committees, boards, and panels.
Commission Staff
1.23 Office of the General Counsel.
1.24 Office of Commission Appellate Adjudication.
1.25 Office of the Secretary of the Commission.
1.26 [Reserved]
1.27 Office of Congressional Affairs.
1.28 Office of Public Affairs.
1.29 Office of International Programs.
Chief Financial Officer
1.31 Office of the Chief Financial Officer.
Executive Director for Operations
1.32 Office of the Executive Director for Operations.
Staff Offices
1.33 Office of Enforcement.
1.34 Office of Administration.
1.35 Office of the Chief Information Officer.
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 Management Directives System and other NRC
issuances, including local directives issued by Regional Offices.
Letters and memoranda containing directives, delegations of authority
and the like are also issued from time to time and may not yet be
incorporated into the Management Directives System, parts of which are
revised as necessary. Copies of the Management Directives System and
other delegations of authority are available for public inspection and
copying for a fee at the NRC Public Document Room, One White Flint
North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852-
2738, and at each of NRC's Regional Offices. Information may also be
obtained from the Office of Public Affairs or from Public Affairs
Officers at the Regional Offices. In addition, NRC Functional
Organization Charts, NUREG-0325, contains detailed descriptions of the
functional responsibilities of NRC's offices. It is revised annually and
is available for public inspection at the NRC Web site, http://
www.nrc.gov, and/or at the NRC Public Document Room, or for purchase
from the Superintendent of Documents, US Government Printing Office,
P.O. Box 37082, Washington, DC 20013-7082; and from the National
Technical Information Service, Springfield, VA 22161.
(b) Commission meetings are open to the public, as provided by the
Government in the Sunshine Act, unless they fall within an exemption to
the Act's openness requirement and the Commission also has determined
that the public interest requires that those particular meetings be
closed. Information concerning Commission meetings may be obtained from
the Office of the Secretary.
(c) Information regarding the availability of NRC records under the
Freedom of Information Act and 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; 64 FR 48947, Sept. 9, 1999; 67 FR
67097, Nov. 4, 2002]
Sec. 1.5 Location of principal offices and Regional Offices.
(a) The principal NRC offices are located in the Washington, DC,
area. Facilities for the service of process and papers are maintained in
the State of Maryland at 11555 Rockville Pike, Rockville, Maryland
20852-2738. The agency's official mailing address is U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001. The locations of NRC
offices in the Washington, DC, area are as follows:
(1) One White Flint North Building, 11555 Rockville Pike, Rockville,
Maryland 20852-2738.
(2) Two White Flint North Building, 11545 Rockville Pike, Rockville,
Maryland 20852-2738.
(b) The addresses of the NRC Regional Offices are as follows:
(1) Region 1, USNRC, 475 Allendale Road, King of Prussia, PA 19406-
1415.
(2) Region II, USNRC, Sam Nunn Atlanta Federal Center, 61 Forsyth
Street, SW., Suite 23T85, Atlanta, GA 30303-3415.
(3) Region III, USNRC, 801 Warrenville Road, Lisle, IL 60532-4351.
(4) Region IV, USNRC, 611 Ryan Plaza Drive, Suite 400, Arlington, TX
76011-4005.
[67 FR 67097, Nov. 4, 2002; 67 FR 70835, Nov. 27, 2002, as amended at 67
FR 77652, Dec. 19, 2002; 68 FR 75389, Dec. 31, 2003]
[[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 Network Advisory Review Panel (LSNARP) was
established by the Commission on October 3, 1989, pursuant to 10 CFR
2.1011(e) of the Commission's regulations. The LSNARP provides advice to
the Commission on the design, development, and operation of the
Licensing Support Network (LSN) an electronic information management
system for use in the Commission's high-level radioactive waste (HLW)
licensing proceeding. Membership consists of those interests that will
be affected by the use of the LSN, and selected Federal agencies with
expertise in large-scale electronic information systems. The individual
representatives of these interests and agencies possess expertise in
management information science and in managing records of the
Commission's licensing process for the HLW repository.
[52 FR 31602, Aug. 21, 1987, as amended at 54 FR 53314, Dec. 28, 1989;
68 FR 75389, Dec. 31, 2003]
Commission Staff
Sec. 1.23 Office of the General Counsel.
The Office of the General Counsel, established pursuant to section
25 of the Atomic Energy Act of 1954, as amended--
(a) Directs matters of law and legal policy, providing opinions,
advice, and assistance to the agency with respect to all of its
activities;
(b) Reviews and prepares appropriate draft Commission decisions on
public petitions seeking direct Commission action and rulemaking
proceedings involving hearings, monitors cases pending before presiding
officers and reviews draft Commission decisions on Atomic Safety and
Licensing Board decisions and rulings;
(c) Provides interpretation of laws, regulations, and other sources
of authority;
(d) Reviews the legal form and content of proposed official actions;
(e) As requested, provides the agency with legal advice and opinions
on acquisition matters, including agency procurement contracts;
placement of work at Department of Energy national laboratories;
interagency agreements to acquire supplies and services; and grants and
cooperative agreements. Prepares or concurs in all other interagency
agreements, delegations of authority, regulations; orders; licenses; and
other legal documents and prepares legal interpretations thereof;
(f) Reviews and directs intellectual property (patent) work;
(g) Represents and protects the interests of the NRC in legal
matters and in court proceedings, and in relation to other government
agencies, administrative bodies, committees of Congress, foreign
governments, and members of the public; and
[[Page 10]]
(h) Represents the NRC staff as a party in NRC administrative
hearings.
[52 FR 31602, Aug. 21, 1987, as amended at 56 FR 29407, June 27, 1991;
65 FR 59272, Oct. 4, 2000]
Sec. 1.24 Office of Commission Appellate Adjudication.
The Office of Commission Appellate Adjudication--
(a) Monitors cases pending before presiding officers;
(b) Provides the Commission with an analysis of any adjudicatory
matter requiring a Commission decision (e.g., petitions for review,
certified questions, stay requests) including available options;
(c) Drafts any necessary decisions pursuant to the Commission's
guidance after presentation of options; and
(d) Consults with the Office of the General Counsel in identifying
the options to be presented to the Commission and in drafting the final
decision to be presented to the Commission.
[56 FR 29407, June 27, 1991]
Sec. 1.25 Office of the Secretary of the Commission.
The Office of the Secretary of the Commission--
(a) Provides general management services to support the Commission
and to implement Commission decisions; and advises and assists the
Commission and staff on the planning, scheduling, and conduct of
Commission business including preparation of internal procedures;
(b) Prepares the Commission's meeting agenda;
(c) Manages the Commission Staff Paper and COMSECY systems;
(d) Receives, processes, and controls Commission mail,
communications, and correspondence;
(e) Maintains the Commission's official records and acts as Freedom
of Information administrative coordinator for Commission records;
(f) Codifies Commission decisions in memoranda directing staff
action and monitors compliance;
(g) Receives, processes, and controls motions and pleadings filed
with the Commission; issues and serves adjudicatory orders on behalf of
the Commission; receives and distributes public comments in rulemaking
proceedings; issues proposed and final rules on behalf of the
Commission; maintains the official adjudicatory and rulemaking dockets
of the Commission; and exercises responsibilities delegated to the
Secretary in 10 CFR 2.303 and 2.346;
(h) Administers the NRC Historical Program;
(i) Integrates office automation initiatives into the Commission's
administrative system;
(j) Functions as the NRC Federal Advisory Committee Management
Officer; and
(k) Provides guidance and direction on the use of the NRC seal and
flag.
[52 FR 31602, Aug. 21, 1987, as amended at 63 FR 15741, Apr. 1, 1998; 69
FR 2233, Jan. 14, 2004]
Sec. 1.26 [Reserved]
Sec. 1.27 Office of Congressional Affairs.
The Office of Congressional Affairs--
(a) Advises the Chairman, the Commission, and NRC staff on all NRC
relations with Congress and the views of Congress toward NRC policies,
plans and activities;
(b) Maintains liaison with Congressional committees and members of
Congress on matters of interest to NRC;
(c) Serves as primary contact point for all NRC communications with
Congress;
(d) Coordinates NRC internal activities with Congress;
(e) Plans, develops, and manages NRC's legislative programs; and
(f) Monitors legislative proposals, bills, and hearings.
[57 FR 1639, Jan. 15, 1992]
Sec. 1.28 Office of Public Affairs.
The Office of Public Affairs--
(a) Develops policies, programs, and procedures for the Chairman's
approval for informing the public of NRC activities;
(b) Prepares, clears, and disseminates information to the public and
the news media concerning NRC policies, programs, and activities;
(c) Keeps NRC management informed on media coverage of activities of
interest to the agency;
[[Page 11]]
(d) Plans, directs, and coordinates the activities of public
information staffs located at Regional Offices;
(e) Conducts a cooperative program with schools; and
(f) Carries out assigned activities in the area of consumer affairs.
[57 FR 1639, Jan. 15, 1992]
Sec. 1.29 Office of International Programs.
The Office of International Programs--
(a) Advises the Chairman, the Commission, and NRC staff on
international issues;
(b) Recommends policies concerning nuclear exports and imports,
international safeguards, international physical security,
nonproliferation matters, and international cooperation and assistance
in nuclear safety and radiation protection;
(c) Plans, develops, and manages international nuclear safety
information exchange programs and coordinates international research
agreements;
(d) Obtains, evaluates, and uses pertinent information from other
NRC and U.S. Government offices in processing nuclear export and import
license applications;
(e) Establishes and maintains working relationships with individual
countries and international nuclear organizations, as well as other
involved U.S. Government agencies; and
(f) Assures that all international activities carried out by the
Commission and staff are well coordinated internally and Government-wide
and are consistent with NRC and U.S. policies.
[57 FR 1639, Jan. 15, 1992]
Chief Financial Officer
Sec. 1.31 Office of the Chief Financial Officer.
The Office of the Chief Financial Officer--
(a) Oversees all financial management activities relating to NRC's
programs and operations and provides advice to the Chairman on financial
management matters;
(b) Develops and transmits the NRC's budget estimates to the Office
of Management and Budget (OMB) and Congress;
(c) Establishes financial management policy including accounting
principles and standards for the agency and provides policy guidance to
senior managers on the budget and all other financial management
activities;
(d) Provides an agencywide management control program for financial
and program managers that establishes internal control processes and
provides for timely corrective actions regarding material weaknesses
that are disclosed to comply with the Federal Manager's Financial
Integrity Act of 1982;
(e) Develops and manages an agencywide planning, budgeting, and
performance management process;
(f) Develops and maintains an integrated agency accounting and
financial management system, including an accounting system, and
financial reporting and internal controls;
(g) Directs, manages, and provides policy guidance and oversight of
agency financial management personnel activities and operations;
(h) Prepares and transmits an annual financial management report to
the Chairman and the Director, Office of Management and Budget,
including an audited financial statement;
(i) Monitors the financial execution of NRC's budget in relation to
actual expenditures, controls the use of NRC funds to ensure that they
are expended in accordance with applicable laws and financial management
principles, and prepares and submits to the Chairman timely cost and
performance reports;
(j) Establishes, maintains, and oversees the implementation of
license fee polices and regulations; and
(k) Reviews, on a periodic basis, fees and other charges imposed by
NRC for services provided and makes recommendations for revising those
charges, as appropriate.
[63 FR 15741, Apr. 1, 1998]
Executive Director for Operations
Sec. 1.32 Office of the Executive Director for Operations.
(a) The Executive Director for Operations (EDO) reports for all
matters to
[[Page 12]]
the Chairman, and is subject to the supervision and direction of the
Chairman as provided in Reorganization Plan No. 1 of 1980.
(b) The EDO supervises and coordinates policy development and
operational activities in the following line offices; the Office of
Nuclear Reactor Regulation, the Office of Nuclear Material Safety and
Safeguards, the Office of Nuclear Regulatory Research, and the NRC
Regional Offices; and the following staff offices: The Office of
Enforcement, the Office of Administration, the Office of Investigations,
Incident Response Operations, 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; 67 FR 3585, Jan.
25, 2002]
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 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,
[[Page 13]]
and provides technical oversight of DOE in the design, development, and
operation of the LSS.
[63 FR 15741, Apr. 1, 1998. Redesignated at 67 FR 67097, Nov. 4, 2002]
Sec. 1.36 Office of Investigations.
The Office of Investigations (OI)--
(a) Conducts investigations of licensees, applicants, their
contractors or vendors, including the investigation of all allegations
of wrongdoing by other than NRC employees and contractors;
(b) Maintains current awareness of inquiries and inspections by
other NRC offices to identify the need for formal investigations;
(c) Makes appropriate referrals to the Department of Justice;
(d) Maintains liaison with other agencies and organizations to
ensure the timely exchange of information of mutual interest; and
(e) Issues subpoenas where necessary or appropriate for the conduct
of investigations.
[54 FR 53315, Dec. 28, 1989]
Sec. 1.37 Office of Small Business and Civil Rights.
The Office of Small Business and Civil Rights--
(a) Develops and implements an effective small and disadvantaged
business program in accordance with the Small Business Act, as amended,
and plans and implements NRC policies and programs relating to equal
employment oppportunity and civil rights matters as required by the
Equal Employment Opportunity Commission (EEOC) and the Office of
Personnel Management (OPM);
(b) Ensures that appropriate consideration is given to Labor Surplus
Area firms and Women Business Enterprises, and conducts an outreach
program aimed at contractors desiring to do business with NRC;
(c) Maintains liaison with other Government agencies and trade
associations;
(d) Coordinates efforts with the Director, Division of Contracts,
and Directors of other affected offices;
(e) Develops and recommends for approval by the Executive Director
for Operations, NRC policy providing for equal employment opportunity in
all aspects of Federal personnel practice;
(f) Develops, monitors, and evaluates the agency's equal employment
opportunity efforts and affirmative action programs to ensure compliance
with NRC policy;
(g) Serves as the principal contact with local and national public
and private organizations to facilitate the NRC equal opportunity
program; and
(h) Coordinates all efforts pertaining to small and disadvantaged
business utilization and equal employment opportunity with Office
Directors and Regional Administrators.
[52 FR 31602, Aug. 21, 1987, as amended at 59 FR 63882, Dec. 12, 1994]
Sec. 1.38 [Reserved]
Sec. 1.39 Office of Human Resources.
The Office of Human Resources--
(a) Plans and implements NRC policies, programs, and services to
provide for the effective organization, utilization, and development of
the agency's human resources;
(b) Provides labor relations and personnel policy guidance and
supporting services to NRC managers and employees;
(c) Provides training, benefits administration, and counseling
services for NRC employees;
(d) Collects, analyzes, and provides data on the characteristics,
allocation, utilization, and retention of NRC's workforce;
(e) Provides staffing advice and services to NRC managers and
employees; and
(f) Provides executive resources management and organizational and
managerial development services to the NRC.
[52 FR 31602, Aug. 21, 1987, as amended at 63 FR 15742, Apr. 1, 1998]
Sec. 1.40 [Reserved]
Sec. 1.41 Office of State 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;
[[Page 14]]
(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 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
[[Page 15]]
(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
(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
[[Page 16]]
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.
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.
[[Page 17]]
PART 2_RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND
ISSUANCE OF ORDERS--Table of Contents
Sec.
2.1 Scope.
2.2 Subparts.
2.3 Resolution of conflict.
2.4 Definitions.
2.8 Information collection requirements: OMB approval.
Subpart A_Procedure for Issuance, Amendment, Transfer, or Renewal of a
License
2.100 Scope of subpart.
2.101 Filing of application.
2.102 Administrative review of application.
2.103 Action on applications for byproduct, source, special nuclear
material, facility and operator licenses.
Hearing on Application--How Initiated
2.104 Notice of hearing.
2.105 Notice of proposed action.
2.106 Notice of issuance.
2.107 Withdrawal of application.
2.108 Denial of application for failure to supply information.
2.109 Effect of timely renewal application.
2.110 Filing and administrative action on submittals for design review
or early review of site suitability issues.
2.111 Prohibition of sex discrimination.
Subpart B_Procedure for Imposing Requirements by Order, or for
Modification, Suspension, or Revocation of a License, or for Imposing
Civil Penalties
2.200 Scope of subpart.
2.201 Notice of violation.
2.202 Orders.
2.203 Settlement and compromise.
2.204 Demand for information.
2.205 Civil penalties.
2.206 Requests for action under this subpart.
Subpart C_Rules of General Applicability: Hearing Requests, Petitions to
Intervene, Availability of Documents, Selection of Specific Hearing
Procedures, Presiding Officer Powers, and General Hearing Management for
NRC Adjudicatory Hearings
2.300 Scope of subpart C.
2.301 Exceptions.
2.302 Filing of documents.
2.303 Docket.
2.304 Formal requirements for documents; acceptance for filing.
2.305 Service of papers, methods, proof.
2.306 Computation of time.
2.307 Extension and reduction of time limits.
2.308 Treatment of requests for hearing or petitions for leave to
intervene by the Secretary.
2.309 Hearing requests, petitions to intervene, requirements for
standing, and contentions.
2.310 Selection of hearing procedures.
2.311 Interlocutory review of rulings on requests for hearings/petitions
to intervene and selection of hearing procedures.
2.312 Notice of hearing.
2.313 Designation of presiding officer, disqualification,
unavailability, and substitution.
2.314 Appearance and practice before the Commission in adjudicatory
proceedings.
2.315 Participation by a person not a party.
2.316 Consolidation of parties.
2.317 Separate hearings; consolidation of proceedings.
2.318 Commencement and termination of jurisdiction of presiding officer.
2.319 Power of the presiding officer.
2.320 Default.
2.321 Atomic Safety and Licensing Boards.
2.322 Special assistants to the presiding officer.
2.323 Motions.
2.324 Order of procedure.
2.325 Burden of proof.
2.326 Motions to reopen.
2.327 Official recording; transcript.
2.328 Hearings to be public.
2.329 Prehearing conference.
2.330 Stipulations.
2.331 Oral argument before the presiding officer.
2.332 General case scheduling and management.
2.333 Authority of the presiding officer to regulate procedure in a
hearing.
2.334 Schedules for proceedings.
2.335 Consideration of Commission rules and regulations in adjudicatory
proceedings.
2.336 General discovery.
2.337 Evidence at a hearing.
2.338 Settlement of issues; alternative dispute resolution.
2.339 Expedited decisionmaking procedure.
2.340 Initial decision in contested proceedings on applications for
facility operating licenses; immediate effectiveness of
initial decision directing issuance or amendment of
construction permit or operating license.
2.341 Review of decisions and actions of a presiding officer.
2.342 Stays of decisions.
2.343 Oral argument.
2.344 Final decision.
2.345 Petition for reconsideration.
2.346 Authority of the Secretary.
2.347 Ex parte communications.
2.348 Separation of functions.
[[Page 18]]
2.390 Public inspections, exemptions, requests for withholding.
Subpart D_Additional Procedures Applicable to Proceedings for the
Issuance of Licenses To Construct or Operate Nuclear Power Plants of
Duplicate Design at Multiple Sites
2.400 Scope of subpart.
2.401 Notice of hearing on applications pursuant to appendix N of part
52 for construction permits.
2.402 Separate hearings on separate issues; consolidation of
proceedings.
2.403 Notice of proposed action on applications for operating licenses
pursuant to appendix N of part 52.
2.404 Hearings on applications for operating licenses pursuant to
appendix N of part 52.
2.405 Initial decisions in consolidated hearings.
2.406 Finality of decisions on separate issues.
2.407 Applicability of other sections.
Subpart E_Additional Procedures Applicable to Proceedings for the
Issuance of Licenses To Manufacture Nuclear Power Reactors To Be
Operated at Sites Not Identified in the License Application and Related
Licensing Proceedings
2.500 Scope of subpart.
2.501 Notice of hearing on application pursuant to appendix M of part 52
for a license to manufacture nuclear power reactors.
2.502 Notice of hearing on application for a permit to construct a
nuclear power reactor manufactured pursuant to a Commission
license issued pursuant to appendix M of part 52 of this
chapter at the site at which the reactor is to be operated.
2.503 Finality of decision on separate issues.
2.504 Applicability of other sections.
Subpart F_Additional Procedures Applicable to Early Partial Decisions on
Site Suitability Issues in Connection With an Application for a Permit
To Construct Certain Utilization Facilities
2.600 Scope of subpart.
2.601 Applicability of other sections.
2.602 Filing fees.
2.603 Acceptance and docketing of application for early review of site
suitability issues.
2.604 Notice of hearing on application for early review of site
suitability issues.
2.605 Additional considerations.
2.606 Partial decisions on site suitability issues.
Subpart G_Rules for Formal Adjudications
2.700 Scope of subpart G.
2.701 Exceptions.
2.702 Subpoenas.
2.703 Examination by experts.
2.704 Discovery--required disclosures.
2.705 Discovery--additional methods.
2.706 Depositions upon oral examination and written interrogatories;
interrogatories to parties.
2.707 Production of documents and things; entry upon land for inspection
and other purposes.
2.708 Admissions.
2.709 Discovery against NRC staff.
2.710 Motions for summary disposition.
2.711 Evidence.
2.712 Proposed findings and conclusions.
2.713 Initial decision and its effect.
Subpart H_Rulemaking
2.800 Scope of rulemaking.
2.801 Initiation of rulemaking.
2.802 Petition for rulemaking.
2.803 Determination of petition.
2.804 Notice of proposed rulemaking.
2.805 Participation by interested persons.
2.806 Commission action.
2.807 Effective date.
2.808 Authority of the Secretary to rule on procedural matters.
2.809 Participation by the Advisory Committee on Reactor Safeguards.
2.810 NRC size standards.
Subpart I_Special Procedures Applicable to Adjudicatory Proceedings
Involving Restricted Data and/or National Security Information
2.900 Purpose.
2.901 Scope of subpart I.
2.902 Definitions.
2.903 Protection of restricted data and national security information.
2.904 Classification assistance.
2.905 Access to restricted data and national security information for
parties; security clearances.
2.906 Obligation of parties to avoid introduction of restricted data or
national security information.
2.907 Notice of intent to introduce restricted data or national security
information.
2.908 Contents of notice of intent to introduce restricted data or other
national security information.
2.909 Rearrangement or suspension of proceedings.
2.910 Unclassified statements required.
2.911 Admissibility of restricted data or other national security
information.
2.912 Weight to be attached to classified evidence.
[[Page 19]]
2.913 Review of Restricted Data or other National Security Information
received in evidence.
Subpart J_Procedures Applicable to Proceedings for the Issuance of
Licenses for the Receipt of High-Level Radioactive Waste at a Geologic
Repository
2.1000 Scope of subpart J.
2.1001 Definitions.
2.1002 [Reserved]
2.1003 Availability of material.
2.1004 Amendments and additions.
2.1005 Exclusions.
2.1006 Privilege.
2.1007 Access.
2.1008 [Reserved]
2.1009 Procedures.
2.1010 Pre-License Application Presiding Officer.
2.1011 Management of electronic information.
2.1012 Compliance.
2.1013 Use of the electronic docket during the proceeding.
2.1015 Appeals.
2.1017 Computation of time.
2.1018 Discovery.
2.1019 Depositions.
2.1020 Entry upon land for inspection.
2.1021 First prehearing conference.
2.1022 Second prehearing conference.
2.1023 Immediate effectiveness.
2.1025 Authority of the Presiding Officer to dispose of certain issues
on the pleadings.
2.1026 Schedule.
2.1027 Sua sponte.
Subpart K_Hybrid Hearing Procedures for Expansion of Spent Nuclear Fuel
Storage Capacity at Civilian Nuclear Power Reactors
2.1101 Purpose.
2.1103 Scope of subpart K.
2.1105 Definitions.
2.1107 Notice of proposed action.
2.1109 Requests for oral argument.
2.1113 Oral argument.
2.1115 Designation of issues for adjudicatory hearing.
2.1117 Burden of proof.
2.1119 Applicability of other sections.
Subpart L_Informal Hearing Procedures for NRC Adjudications
2.1200 Scope of subpart L.
2.1201 Definitions.
2.1202 Authority and role of NRC staff.
2.1203 Hearing file; prohibition on discovery.
2.1204 Motions and requests.
2.1205 Summary disposition.
2.1206 Informal hearings.
2.1207 Process and schedule for submissions and presentations in an oral
hearing.
2.1208 Process and schedule for a hearing consisting of written
presentations.
2.1209 Findings of fact and conclusions of law.
2.1210 Initial decision and its effect.
2.1211 Immediate effectiveness of initial decision directing issuance or
amendment of licenses under part 61 of this chapter.
2.1212 Petitions for Commission review of initial decisions.
2.1213 Application for a stay.
Subpart M_Procedures for Hearings on License Transfer Applications
2.1300 Scope of subpart M.
2.1301 Public notice of receipt of a license transfer application.
2.1302 Notice of withdrawal of an application.
2.1303 Availability of documents.
2.1304 Hearing procedures.
2.1305 Written comments.
2.1308 Oral hearings.
2.1309 Notice of oral hearing.
2.1310 Notice of hearing consisting of written comments.
2.1311 Conditions in a notice or order.
2.1315 Generic determination regarding license amendments to reflect
transfers.
2.1316 Authority and role of NRC staff.
2.1319 Presiding Officer.
2.1320 Responsibility and power of the Presiding Officer in an oral
hearing.
2.1321 Participation and schedule for submissions in a hearing
consisting of written comments.
2.1322 Participation and schedule for submissions in an oral hearing.
2.1323 Presentation of testimony in an oral hearing.
2.1324 Appearance in an oral hearing.
2.1325 Motions and requests.
2.1327 Application for a stay of the effectiveness of NRC staff action
on license transfer.
2.1331 Commission action.
Subpart N_Expedited Proceedings with Oral Hearings
2.1400 Purpose and scope of subpart N.
2.1401 Definitions.
2.1402 General procedures and limitations; requests for other
procedures.
2.1403 Authority and role of the NRC staff.
2.1404 Prehearing conference.
2.1405 Hearing.
2.1406 Initial decision--issuance and effectiveness.
2.1407 Appeal and Commission review of initial decision.
Subpart O_Legislative Hearings
2.1500 Purpose and scope.
[[Page 20]]
2.1501 Definitions.
2.1502 Commission decision to hold legislative hearing.
2.1503 Authority of presiding officer.
2.1504 Request to participate in legislative hearing.
2.1505 Role of the NRC staff.
2.1506 Written statements and submission of information.
2.1507 Oral hearing.
2.1508 Recommendation of presiding officer.
2.1509 Ex parte communications and separation of functions.
Appendixes A-C to Part 2 [Reserved]
Appendix D to Part 2--Schedule for the Proceeding on Consideration of
Construction Authorization for a High-Level Waste Geologic
Repository.
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.
2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 409 (42
U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5
U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 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(0); 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, 2.321 also issued
under secs. 102, 163, 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). Section
2.205(j) also issued under Pub. L. 101-410, 104 Stat. 90, as amended by
section 3100(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461
note). Subpart C also issued under sec. 189, 68 Stat. 955 (42 U.S.C.
2239). Sections 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 also issued
under 5 U.S.C. 554. Sections 2.343, 2.346, 2.754, 2.712, also issued
under 5 U.S.C. 557. Section 2.764 also issued under secs. 135, 141, Pub.
L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790
also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133)
and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C.
553, Section 2.809 also issued under 5 U.S.C. 553, and sec. 29, Pub, L.
85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K 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). Subpart N also
issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also
issued under sec. 6, Pub. L. 91-550, 84 Stat. 1473 (42 U.S.C. 2135).
Source: 27 FR 377, Jan. 13, 1962, unless otherwise noted.
Sec. 2.1 Scope.
This part governs the conduct of all proceedings, other than export
and import licensing proceedings described in part 110, under the Atomic
Energy Act of 1954, as amended, and the Energy Reorganization Act of
1974, for--
(a) Granting, suspending, revoking, amending, or taking other action
with respect to any license, construction permit, or application to
transfer a license;
(b) Issuing orders and demands for information to persons subject to
the Commission's jurisdiction, including licensees and persons not
licensed by the Commission;
(c) Imposing civil penalties under section 234 of the Act; and
(d) Public rulemaking.
[56 FR 40684, Aug. 15, 1991]
Sec. 2.2 Subparts.
Each subpart other than subpart C of this part sets forth special
rules applicable to the type of proceeding described in the first
section of that subpart. Subpart C sets forth general rules applicable
to all types of proceedings except rulemaking, and should be read in
conjunction with the subpart governing a particular proceeding. Subpart
I of this part sets forth special procedures to be followed in
proceedings in order to safeguard and prevent disclosure of Restricted
Data.
[69 FR 2233, Jan. 14, 2004]
Sec. 2.3 Resolution of conflict.
(a) In any conflict between a general rule in subpart C of this part
and a special rule in another subpart or other part of this chapter
applicable to a particular type of proceeding, the special rule governs.
(b) Unless otherwise specifically referenced, the procedures in this
part do not apply to hearings in 10 CFR parts 4, 9, 10, 11, 12, 13, 15,
16, and subparts H and I of 10 CFR part 110.
[69 FR 2233, Jan. 14, 2004]
[[Page 21]]
Sec. 2.4 Definitions.
As used in this part,
ACRS means the Advisory Committee on Reactor Safeguards established
by the Act.
Act means the Atomic Energy Act of 1954, as amended (68 Stat. 919).
Adjudication means the process for the formulation of an order for
the final disposition of the whole or any part of any proceeding subject
to this part, other than rule making.
Administrative Law Judge means an individual appointed pursuant to
section 11 of the Administrative Procedure Act to conduct proceedings
subject to this part.
Commission means the Commission of five members or a quorum thereof
sitting as a body, as provided by section 201 of the Energy
Reorganization Act of 1974 (88 Stat. 1242), or any officer to whom has
been delegated authority pursuant to section 161n of the Act.
Commission adjudicatory employee means--
(1) The Commissioners and members of their personal staffs;
(2) The employees of the Office of Commission Appellate
Adjudication;
(3) The members of the Atomic Safety and Licensing Board Panel and
staff assistants to the Panel;
(4) A presiding officer appointed under Sec. 2.313, and staff
assistants to a presiding officer;
(5) Special assistants (as defined in Sec. 2.322);
(6) The General Counsel, the Solicitor, the Associate General
Counsel for Licensing and Regulation, and employees of the Office of the
General Counsel under the supervision of the Solicitor;
(7) The Secretary and employees of the Office of the Secretary; and
(8) Any other Commission officer or employee who is appointed by the
Commission, the Secretary, or the General Counsel to participate or
advise in the Commission's consideration of an initial or final decision
in a proceeding. Any other Commission officer or employee who, as
permitted by Sec. 2.348, participates or advises in the Commission's
consideration of an initial or final decision in a proceeding must be
appointed as a Commission adjudicatory employee under this paragraph and
the parties to the proceeding must be given written notice of the
appointment.
Contested proceeding means (1) a proceeding in which there is a
controversy between the staff of the Commission and the applicant for a
license concerning the issuance of the license or any of the terms or
conditions thereof or (2) a proceeding in which a petition for leave to
intervene in opposition to an application for a license has been granted
or is pending before the Commission.
Department means the Department of Energy established by the
Department of Energy Organization Act (Pub. L. 95-91, 91 Stat. 565 42
U.S.C. 7101 et seq.) to the extent that the Department, or its duly
authorized representatives, exercises functions formerly vested in the
U.S. Atomic Energy Commission, its Chairman, members, officers and
components and transferred to the U.S. Energy Research and Development
Administration and to the Administrator thereof pursuant to sections 104
(b), (c) and (d) of the Energy Reorganization Act of 1974 (Pub. L. 93-
438, 88 Stat. 1233 at 1237, 42 U.S.C. 5814) and retransferred to the
Secretary of Energy pursuant to section 301(a) of the Department of
Energy Organization Act (Pub. L. 95-91, 91 Stat. 565 at 577-578, 42
U.S.C. 7151).
Electric utility means any entity that generates or distributes
electricity and which recovers the costs of this electricity, either
directly or indirectly through rates established by the entity itself or
by a separate regulatory authority. Investor-owned utilities including
generation or distribution subsidiaries, public utility districts,
municipalities, rural electric cooperatives, and State and Federal
agencies, including associations of any of the foregoing, are included
within the meaning of ``electric utility.''
Ex parte communication means an oral or written communication not on
the public record with respect to which reasonable prior notice to all
parties is not given.
Facility means a production facility or a utilization facility as
defined in Sec. 50.2 of this chapter.
Investigative or litigating function means--
[[Page 22]]
(1) Personal participation in planning, conducting, or supervising
an investigation; or
(2) Personal participation in planning, developing, or presenting,
or in supervising the planning, development or presentation of
testimony, argument, or strategy in a proceeding.
License means a license, including a renewed license, or
construction permit issued by the Commission.
Licensee means a person who is authorized to conduct activities
under a license, including a renewed license, or construction permit
issued by the Commission.
NRC personnel means:
(1) NRC employees;
(2) For the purpose of Sec. Sec. 2.336, 2.702, 2.709 and 2.1018
only, persons acting in the capacity of consultants to the Commission,
regardless of the form of the contractual arrangements under which such
persons act as consultants to the Commission; and
(3) Members of advisory boards, committees, and panels of the NRC;
members of boards designated by the Commission to preside at
adjudicatory proceedings; and officers or employees of Government
agencies, including military personnel, assigned to duty at the NRC.
NRC Public Document Room means the facility at One White Flint
North, 11555 Rockville Pike (first floor), Rockville, Maryland, where
certain public records of the NRC that were made available for public
inspection in paper or microfiche prior to the implementation of the NRC
Agencywide Documents Access and Management System, commonly referred to
as ADAMS, will remain available for public inspection. It is also the
place where NRC makes computer terminals available to access the
Publicly Available Records System (PARS) component of ADAMS on the NRC
Web site, http://www.nrc.gov, and where copies of publicly available
documents can be viewed or ordered for a fee as set forth in Sec. 9.35
of this chapter. The facility is staffed with reference librarians to
assist the public in identifying and locating documents and in using the
NRC Web site and ADAMS. The NRC Public Document Room is open from 7:45
am to 4:15 pm, Monday through Friday, except on Federal holidays.
Reference service and access to documents may also be requested by
telephone (301-415-4737 or 800-397-4209) between 8:30 am and 4:15 pm, or
by e-mail ([email protected]), facsimile (301-415-3548), or letter (NRC Public
Document Room, One White Flint North, 11555 Rockville Pike (first
floor), Rockville, Maryland 20852-2738).
NRC records and documents means any book, paper, map, photograph,
brochure, punch card, magnetic tape, paper tape, sound recording,
pamphlet, slide, motion picture, or other documentary material
regardless of form or characteristics, made by, in the possession of, or
under the control of the NRC pursuant to Federal law or in connection
with the transaction of public business as evidence of NRC organization,
functions, policies, decisions, procedures, operations, programs or
other activities. ``NRC rec ords and documents'' do not include objects
or articles such as structures, furniture, tangible exhibits or models,
or vehicles and equipment.
NRC Web site, http://www.nrc.gov, is the Internet uniform resource
locator name for the Internet address of the Web site where NRC will
ordinarily make available its public records for inspection.
Person means (1) any individual, corporation, partnership, firm,
association, trust, estate, public or private institution, group,
government agency other than the Commission or the Department, except
that the Department shall be considered a person with respect to those
facilities of the Department specified in section 202 of the Energy
Reorganization Act of 1974 (88 Stat. 1244), any State or any political
subdivision of, or any political entity within a State, any foreign
government or nation or any political subdivision of any such government
or nation, or other entity; and (2) any legal successor, representative,
agent, or agency of the foregoing.
Presiding officer means the Commission, an administrative law judge,
an administrative judge, an Atomic Safety and Licensing Board, or other
person designated in accordance with the provisions of this part,
presiding over the conduct of a hearing conducted under the provisions
of this part.
[[Page 23]]
Public Document Room means the place at One White Flint North, 11555
Rockville Pike (first floor), Rockville, Maryland 20852-2738, at which
public records of the Commission will ordinarily be made available for
inspection.
Secretary means the Secretary to the Commission.
Except as redefined in this section, words and phrases which are
defined in the Act and in this chapter have the same meaning when used
in this part.
[27 FR 377, Jan. 13, 1962]
Editorial Note: For Federal Register citations affecting Sec. 2.4,
see the List of Sections Affected, which appears in the Finding Aids
section of the printed volume and on GPO Access.
Sec. 2.8 Information collection requirements: OMB approval.
This part contains no information collection requirements and
therefore is not subject to requirements of the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.).
[61 FR 43408, Aug. 22, 1996]
Subpart A_Procedure for Issuance, Amendment, Transfer, or Renewal of a
License
Sec. 2.100 Scope of subpart.
This subpart prescribes the procedures for issuance of a license,
amendment of a license at the request of the licensee, and transfer and
renewal of a license.
[69 FR 2234, Jan. 14, 2004]
Sec. 2.101 Filing of application.
(a)(1) An application for a license, a license transfer, or an
amendment to a license shall be filed with the Director of the Office of
Nuclear Reactor Regulation or Director of the Office of Nuclear Material
Safety and Safeguards, as prescribed by the applicable provisions of
this chapter. A prospective applicant may confer informally with the NRC
staff prior to the filing of an application.
(2) Each application for a license for a facility or for receipt of
waste radioactive material from other persons for the purpose of
commercial disposal by the waste disposal licensee will be assigned a
docket number. However, to allow a determination as to whether an
application for a construction permit or operating license for a
production or utilization facility is complete and acceptable for
docketing, it will be initially treated as a tendered application. A
copy of the tendered application will be available for public inspection
at the NRC Web site, http://www.nrc.gov, and/or at the NRC Public
Document Room. Generally, the determination on acceptability for
docketing will be made within a period of thirty (30) days. However, in
selected construction permit applications, the Commission may decide to
determine acceptability on the basis of the technical adequacy of the
application as well as its completeness. In these cases, the Commission,
pursuant to Sec. 2.104(a), will direct that the notice of hearing be
issued as soon as practicable after the application has been tendered,
and the determination of acceptability will be made generally within a
period of sixty (60) days. For docketing and other requirements for
applications pursuant to part 61 of this chapter, see paragraph (g) of
this section.
(3) If the Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, determines that
a tendered application for a construction permit or operating license
for a production or utilization facility, and/or any environmental
report required pursuant to subpart A of part 51 of this chapter, or
part thereof as provided in paragraphs (a)(5) or (a-1) of this section
are complete and acceptable for docketing, a docket number will be
assigned to the application or part thereof, and the applicant will be
notified of the determination. With respect to the tendered application
and/or environmental report or part thereof that is acceptable for
docketing, the applicant will be requested to:
(i) Submit to the Director of Nuclear Reactor Regulation or Director
of Nuclear Material Safety and Safeguards, as appropriate, such
additional copies as the regulations in part 50 and subpart A of part 51
require;
(ii) Serve a copy on the chief executive of the municipality in
which the
[[Page 24]]
facility is to be located or, if the facility is not to be located
within a municipality, on the chief executive of the county, and serve a
notice of availability of the application or environmental report on the
chief executives of the municipalities or counties which have been
identified in the application or environmental report as the location of
all or part of the alternative sites, containing the following
information: Docket number of the application, a brief description of
the proposed site and facility; the location of the site and facility as
primarily proposed and alternatively listed; the name, address,
telephone number, and email address (if available) of the applicant's
representative who may be contacted for further information;
notification that a draft environmental impact statement will be issued
by the Commission and will be made available upon request to the
Commission; and notification that if a request is received from the
appropriate chief executive, the applicant will transmit a copy of the
application and environmental report, and any changes to such documents
which affect the alternative site location, to the executive who makes
the request. In complying with the requirements of this paragraph, the
applicant should not make public distribution of those parts of the
application subject to Sec. 2.390(d). The applicant shall submit to the
Director of Nuclear Reactor Regulation an affidavit that service of the
notice of availability of the application or environmental report has
been completed along with a list of names and addresses of those
executives upon whom the notice was served; and
(iii) Make direct distribution of additional copies to Federal,
State, and local officials in accordance with the requirements of this
chapter and written instructions furnished to the applicant by the
Director of Nuclear Reactor Regulation or Director of Nuclear Material
Safety and Safeguards, as appropriate. Such written instructions will be
furnished as soon as practicable after all or any part of the
application, or environmental report, is tendered. The copies submitted
to the Director of Nuclear Reactor Regulation or Director of Nuclear
Material Safety and Safeguards, as appropriate, and distributed by the
applicant shall be completely assembled documents, identified by docket
number. Subsequently distributed amendments to applications, however,
may include revised pages to previous submittals and, in such cases, the
recipients will be responsible for inserting the revised pages.
(4) The tendered application for a construction permit or operating
license for a production or utilization facility will be formally
docketed upon receipt by the Director of Nuclear Reactor Regulation or
Director of Nuclear Material Safety and Safeguards, as appropriate, of
the required additional copies. Distribution of the additional copies
shall be deemed to be complete as of the time the copies are deposited
in the mail or with a carrier prepaid for delivery to the designated
addresses. The date of docketing shall be the date when the required
copies are received by the Director of Nuclear Reactor Regulation or
Director of Nuclear Material Safety and Safeguards, as appropriate.
Within ten (10) days after docketing the applicant shall submit to the
Director of Nuclear Reactor Regulation or Director of Nuclear Material
Safety and Safeguards, as appropriate, an affidavit that distribution of
the additional copies to Federal, State, and local officials has been
completed in accordance with requirements of this chapter and written
instructions furnished to the applicant by the Director of Nuclear
Reactor Regulation or Director of Nuclear Material Safety and
Safeguards, as appropriate. Amendments to the application and
environmental report shall be filed and distributed and an affidavit
shall be furnished to the Director of Nuclear Reactor Regulation or
Director of Nuclear Material Safety and Safeguards, as appropriate, in
the same manner as for the initial application and environmental report.
If it is determined that all or any part of the tendered application
and/or environmental report is incomplete and therefore not acceptable
for processing, the applicant will be informed of this determination,
and the respects in which the document is deficient.
[[Page 25]]
(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 Sec. Sec. 50.30(e) and 170.21 of this chapter and the
information required by Sec. Sec. 50.33, 50.34((a)(1), and 50.37 of this
chapter. The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will accept for
docketing an application for a construction permit for a production or
utilization facility which is subject to Sec. 51.20(b) of this chapter,
and is of the type specified in Sec. 50.21(b) (2) or (3) or Sec. 50.22
of this chapter or is a testing facility where one part of the
application as described above is complete and conforms to the
requirements of part 50 of this chapter. 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 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 Sec. Sec. 50.34(a)(1) and 50.30(f) of this chapter which
relates to the issue(s) of site suitability for which an early review,
hearing and partial decision are sought, except that information with
respect to operation of the facility at the projected initial power
level need not be supplied, and shall include the information required
by Sec. Sec. 50.33 (a) through (e) and 50.37 of this chapter. The
information submitted shall also include: (i) Proposed findings on the
issues of site suitability on which the applicant has requested review
and a statement of the bases or the reasons for those findings, (ii) a
range of postulated facility design and operation parameters that is
sufficient to enable the Commission to perform the requested review of
site suitability issues under the applicable provisions of parts 50, 51
and 100, and (iii) information concerning the applicant's site selection
process and long-range plans for ultimate development of the site
required by Sec. 2.603(b)(1).
(2) Part two shall include or be accompanied by the remaining
information required by Sec. Sec. 50.30(f), 50.33 and 50.34(a)(1) of
this chapter.
[[Page 26]]
(3) Part three shall include the remaining information required by
Sec. Sec. 50.34a and (in the case of a nuclear power reactor) 50.34(a)
of this chapter.
(4) The information required for part two or part three shall be
submitted during the period the partial decision on part one is
effective. Submittal of the information required for part three may
precede by no more than six months or follow by no more than six months
the submittal of the information required for part two.
(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, telephone number, and email
address (if available) of the applicant's representative who may be
contacted for further information; notification that a draft
environmental impact statement will be issued by the Commission and will
be made available upon request to the Commission; and notification that
if a request is received from the appropriate chief executive, the
applicant will transmit a copy of the application and environmental
report, and any changes to such documents which affect the alternative
site location, to the executive who makes the request. In complying with
the requirements of this paragraph the applicant should not make public
distribution of those parts of the application subject to Sec.
2.390(d). The applicant shall submit to the Director of Nuclear Material
Safety and Safeguards an affidavit that service of the notice of
availability of the application or environmental report has been
completed 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 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 Sec. Sec. 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.
[[Page 27]]
(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's initial 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 Initial 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 initial operating license only if they contain new information,
such as information 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.
[[Page 28]]
(f)(1) Each application for construction authorization for a HLW
repository at a geologic repository operations area pursuant to parts 60
or 63 of this chapter, and each application for a license to receive and
possess high-level radioactive waste at a geologic repository operations
area pursuant to parts 60 or 63 of this chapter, and any environmental
impact statement required in connection therewith pursuant to subpart A
of part 51 of this chapter shall be processed in accordance with the
provisions of this paragraph.
(2) To allow a determination as to whether the application is
complete and acceptable for docketing, it will be initially treated as a
tendered document, and a copy will be available for public inspection in
the Commission's Public Document Room. Twenty copies shall be filed to
enable this determination to be made.
(3) If the Director of Nuclear Material Safety and Safeguards
determines that the tendered document is complete and acceptable for
docketing, a docket number will be assigned and the applicant will be
notified of the determination. If it is determined that all or any part
of the tendered document is incomplete and therefore not acceptable for
processing, the applicant will be informed of this determination and the
respects in which the document is deficient.
(4) [Reserved]
(5) If a tendered document is acceptable for docketing, the
applicant will be requested to submit to the Director of Nuclear
Material Safety and Safeguards such additional copies of the application
and environmental impact statement as the regulations in part 60 or 63
and subpart A of part 51 of this chapter require; serve a copy of such
application and environmental impact statement on the chief executive of
the municipality in which the geologic repository operations area is to
be located, or if the geologic repository operations area is not to be
located within a municipality, on the chief executive of the county (or
to the Tribal organization, if it is to be located within an Indian
reservation); and make direct distribution of additional copies to
Federal, State, Indian Tribe, and local officials in accordance with the
requirements of this chapter, and written instructions from the Director
of Nuclear Material Safety and Safeguards. All such copies shall be
completely assembled documents, identified by docket number.
Subsequently distributed amendments to the application, however, may
include revised pages to previous submittals and, in such cases, the
recipients are responsible for inserting the revised pages.
(6) The tendered document will be formally docketed upon receipt by
the Director of Nuclear Material Safety and Safeguards of the required
additional copies. The date of docketing shall be the date when the
required copies are received by the Director of Nuclear Material Safety
and Safeguards. Within ten (10) days after docketing, the applicant
shall submit to the Director of Nuclear Material Safety and Safeguards a
written statement that distribution of the additional copies to Federal,
State, Indian Tribe, and local officials has been completed in
accordance with requirements of this chapter and written instructions
furnished to the applicant by the Director of Nuclear Material Safety
and Safeguards. Distribution of the additional copies shall be deemed to
be complete as of the time the copies are deposited in the mail or with
a carrier prepaid for delivery to the designated addressees.
(7) Amendments to the application and supplements to the
environmental impact statement shall be filed and distributed and a
written statement shall be furnished to the Director of Nuclear Material
Safety and Safeguards in the same manner as for the initial application
and environmental impact statement.
(8) The Director of Nuclear Material Safety and Safeguards will
cause to be published in the Federal Register a notice of docketing
which identifies the State and location at which the proposed geologic
repository operations area would be located and will give notice of
docketing to the governor of that State. The notice of docketing will
state that the Commission finds that a hearing is required in the public
interest, prior to issuance of a construction authorization, and will
[[Page 29]]
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, One White Flint North, 11555 Rockville Pike (first floor),
Rockville, Maryland 20852-2738. One original and two copies shall be
filed to enable this determination to be made.
(i) Upon receipt of a tendered application, the Commission will
publish in the Federal Register notice of the filed application and will
notify the governors, legislatures and other appropriate State, county,
and municipal officials and tribal governing bodies of the States and
areas containing or potentially affected by the activities at the
proposed site and the alternative sites. The Commission will inform
these officials that the Commission staff will be available for
consultation pursuant to Sec. 61.71 of this chapter. The Federal
Register notice will note the opportunity for interested persons to
submit views and comments on the tendered application for consideration
by the Commission and applicant. The Commission will also notify the
U.S. Bureau of Indian Affairs when tribal governing bodies are notified.
(ii) The Commission will also post a public notice in a newspaper or
newspapers of general circulation in the affected States and areas
summarizing information contained in the applicant's tendered
application and noting the opportunity to submit views and comments.
(iii) When the Director of Nuclear Material Safety and Safeguards
determines that the tendered document is complete and acceptable for
docketing, a docket number will be assigned and the applicant will be
notified of the determination. If it is determined that all or any part
of the tendered document is incomplete and therefore not acceptable for
processing, the applicant will be informed of this determination and the
aspects in which the document is deficient.
(2)(i) With respect to any tendered document that is acceptable for
docketing, the applicant will be requested to:
(A) Submit to the Director of Nuclear Material Safety and Safeguards
such additional copies as required by the regulations in part 61 and
subpart A of part 51 of this chapter;
(B) Serve a copy on the chief executive of the municipality in which
the waste is to be disposed of or, if the waste is not to be disposed of
within a municipality, serve a copy on the chief executive of the county
in which the waste is to be disposed of;
(C) Make direct distribution of additional copies to Federal, State,
Indian Tribe, and local officials in accordance with the requirements of
this chapter and written instructions from the Director of Nuclear
Material Safety and Safeguards; and
(D) Serve a notice of availability of the application and
environmental report on the chief executives or governing bodies of the
municipalities or counties which have been identified in the application
and environmental report as the location of all or part of the
alternative sites if copies are not distributed under paragraph
(g)(2)(i)(C) of this section to the executives or bodies.
(ii) All distributed copies shall be completely assembled documents
identified by docket number. However, subsequently distributed
amendments may include revised pages to previous submittals and, in such
cases, the recipients will be responsible for inserting the revised
pages. In complying with the requirements of paragraph (g) of this
section the applicant may not make public distribution of those parts of
the application subject to Sec. 2.390(d).
(3) The tendered document will be formally docketed upon receipt by
the Director of Nuclear Material Safety and Safeguards of the required
additional copies. Distribution of the additional copies shall be deemed
to be complete as of the time the copies are deposited in the mail or
with a carrier prepaid for delivery to the designated
[[Page 30]]
addressees. The date of docketing shall be the date when the required
copies are received by the Director of Nuclear Material Safety and
Safeguards. Within ten (10) days after docketing, the applicant shall
submit to the Director of Nuclear Material Safety and Safeguards a
written statement that distribution of the additional copies to Federal,
State, Indian Tribe, and local officials has been completed in
accordance with requirements of this section and written instructions
furnished to the applicant by the Director of Nuclear Material Safety
and Safeguards.
(4) Amendments to the application and environmental report shall be
filed and distributed and a written statement shall be furnished to the
Director of Nuclear Material Safety and Safeguards in the same manner as
for the initial application and environmental report.
(5) The Director of Nuclear Material Safety and Safeguards will
cause to be published in the Federal Register a notice of docketing
which identifies the State and location of the proposed waste disposal
facility and will give notice of docketing to the governor of that State
and other officials listed in paragraph (g)(3) of this section and, in a
reasonable period thereafter, publish in the Federal Register a notice
pursuant to Sec. 2.105 offering opportunity to request a hearing to the
applicant and other affected persons.
[41 FR 15833, Apr. 15, 1976]
Editorial Note: For Federal Register citations affecting Sec.
2.101, see the List of Sections Affected, which appears in the Finding
Aids section of the printed volume and on GPO Access.
Sec. 2.102 Administrative review of application.
(a) During review of an application by the staff, an applicant may
be required to supply additional information. The staff may request any
one party to the proceeding to confer with the staff informally. In the
case of a docketed application for a construction permit or an operating
license for a facility, the staff shall establish a schedule for its
review of the application, specifying the key intermediate steps from
the time of docketing until the completion of its review.
(b) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will refer the
docketed application to the ACRS as required by law and in such
additional cases as he or the Commission may determine to be
appropriate. The ACRS will render to the Commission one or more reports
as required by law or as requested by the Commission.
(c) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will make each
report of the ACRS a part of the record of the docketed application, and
transmit copies to the appropriate State and local officials.
(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 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
[[Page 31]]
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 under this paragraph will also include a notice of hearing, if
appropriate, or will state that any person whose interest may be
affected by the proceeding may, under Sec. 2.309, 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; 69 FR 2235, Jan. 14,
2004]
Sec. 2.103 Action on applications for byproduct, source, special
nuclear material, facility and operator licenses.
(a) If the Director of Nuclear Reactor Regulation or the Director of
Nuclear Material Safety and Safeguards, as appropriate, finds that an
application for a byproduct, source, special nuclear material, facility,
or operator license complies with the requirements of the Act, the
Energy Reorganization Act, and this chapter, he will issue a license. If
the license is for a facility, or for receipt of waste radioactive
material from other persons for the purpose of commercial disposal by
the waste disposal licensee, or for a construction authorization for a
HLW repository at a geologic repository operations area under to parts
60 or 63 of this chapter, or if it is to receive and possess high-level
radioactive waste at a geologic repository operations area under parts
60 or 63 of this chapter, the Director of Nuclear Reactor Regulation or
the Director of Nuclear Material Safety and Safeguards, as appropriate,
will inform the State, Tribal and local officials specified in Sec.
2.104(e) of the issuance of the license. For notice of issuance
requirements for licenses issued under part 61 of this chapter, see
Sec. 2.106(d).
(b) If the Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, finds that an
application does not comply with the requirements of the Act and this
chapter he may issue a notice of proposed denial or a notice of denial
of the application and inform the applicant in writing of:
(1) The nature of any deficiencies or the reason for the proposed
denial or the denial, and
(2) The right of the applicant to demand a hearing within twenty
(20) days from the date of the notice or such longer period as may be
specified in the notice.
[28 FR 10152, Sept. 17, 1963, as amended at 47 FR 57478, Dec. 27, 1982;
66 FR 55787, Nov. 2, 2001; 69 FR 2235, Jan. 14, 2004]
Hearing on Application--How Initiated
Sec. 2.104 Notice of hearing.
(a) In the case of an application on which a hearing is required by
the Act or this chapter, or in which the Commission finds that a hearing
is required in the public interest, the Secretary will issue a notice of
hearing to be published in the Federal Register as required by law at
least fifteen (15) days, and in the case of an application concerning a
construction permit for a facility of the type described in Sec.
50.21(b) or Sec. 50.22 of this chapter or a testing facility, at least
thirty (30) days, prior to the date set for hearing in the notice. \1\
In addition, in the case of an application for a construction permit for
a facility of the type described in Sec. 50.22 of this chapter, or a
testing facility, the
[[Page 32]]
notice (other than a notice pursuant to paragraph (d) of this section)
shall be issued as soon as practicable after the application has been
docketed: Provided, That if the Commission, pursuant to Sec.
2.101(a)(2), decides to determine the acceptability of the application
on the basis of its technical adequacy as well as completeness, the
notice shall be issued as soon as practicable after the application has
been tendered. The notice will state:
---------------------------------------------------------------------------
\1\ If the notice of hearing concerning an application for a
construction permit for a facility of the type described in Sec.
50.21(b) or Sec. 50.22 of this chapter or a testing facility does not
specify the time and place of initial hearing, a subsequent notice will
be published in the Federal Register which will provide at least thirty
(30) days notice of the time and place of that hearing. After this
notice is given the presiding officer may reschedule the commencement of
the initial hearing for a later date or reconvene a recessed hearing
without again providing thirty (30) days notice.
---------------------------------------------------------------------------
(1) The time, place, and nature of the hearing and/or prehearing
conference, if any;
(2) The authority under which the hearing is to be held;
(3) The matters of fact and law to be considered; and
(4) The time within which answers to the notice shall be filed.
(b) In the case of an application for a construction permit for a
facility on which the Act requires a hearing, the notice of hearing
will, except as provided in paragraph (d) of this section and unless the
Commission determines otherwise, state, in implementation of paragraph
(a)(3) of this section:
(1) That, if the proceeding is a contested proceeding, the presiding
officer will consider the following issues: \2\
---------------------------------------------------------------------------
\2\ Issues (i) to (iv) are the issues pursuant to the Atomic Energy
Act of 1954, as amended. Issue (v) is the issue pursuant to the National
Environmental Policy Act of 1969.
---------------------------------------------------------------------------
(i) Whether in accordance with the provisions of Sec. 50.35(a) of
this chapter:
(a) The applicant has described the proposed design of the facility,
including, but not limited to, the principal architectural and
engineering criteria for the design, and has identified the major
features or components incorporated therein for the protection of the
health and safety of the public;
(b) Such further technical or design information as may be required
to complete the safety analysis, and which can reasonably be left for
later consideration will be supplied in the final safety analysis
report;
(c) Safety features or components, if any, which require research
and development, have been described by the applicant and the applicant
has identified, and there will be conducted, a research and development
program reasonably designed to resolve any safety questions associated
with such features or components; and
(d) On the basis of the foregoing, there is reasonable assurance
that (1) such safety questions will be satisfactorily resolved at or
before the latest date stated in the application for completion of the
proposed facility; and (2) taking into consideration the site criteria
contained in part 100 of this chapter, the proposed facility can be
constructed and operated at the proposed location without undue risk to
the health and safety of the public;
(ii) Whether the applicant is technically qualified to design and
construct the proposed facility;
(iii) Whether the applicant is financially qualified to design and
construct the proposed facility;
(iv) Whether the issuance of a permit for the construction of the
facility will be inimical to the common defense and security or to the
health and safety of the public;
(v) If the application is for a construction permit for a nuclear
power reactor, a testing facility, a fuel reprocessing plant, or other
facility whose construction or operation has been determined by the
Commission to have a significant impact on the environment, whether, in
accordance with the requirements of subpart A of part 51 of this
chapter, the construction permit should be issued as proposed.
(2) That, if the proceeding is not a contested proceeding, the
presiding officer will determine:
(i) Without conducting a de novo evaluation of the application,
whether the application and the record of the proceeding contain
sufficient information, and the review of the application by the
Commission's staff has been adequate to support affirmative findings on
(b)(1) (i) through (iii) specified in this section and a negative
finding on (b)(1)(iv) specified in this section proposed to be made and
the issuance of the construction permit proposed by the Director of
Nuclear Reactor Regulation or Director of Nuclear Material Safety and
Safeguards, as appropriate, and
(ii) If the application is for a construction permit for a nuclear
power
[[Page 33]]
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
operating license should be issued as proposed.\3\
---------------------------------------------------------------------------
\3\ Issues (1) to (6) are the issues pursuant to the Atomic Energy
Act of 1954, as amended. Issue (7) is the issue pursuant to the National
Environmental Policy Act of 1969.
---------------------------------------------------------------------------
(d) In an application for a construction permit or an operating
license for a facility on which a hearing is required by the Act or this
chapter, 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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
[[Page 34]]
(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 construction authorization for a
HLW repository at a geologic repository operations area pursuant to
parts 60 or 63 of this chapter, for a license to receive and possess
high-level radioactive waste at a geologic repository operations area
pursuant to parts 60 or 63 of this chapter, and for a license under part
72 of this chapter to acquire, receive or possess spent fuel for the
purpose of storage in an independent spent fuel storage installation
(ISFSI) to the governor or other appropriate official of the State and
to the chief executive of the municipality in which the facility is to
be located or the activity is to be conducted or, if the facility is not
to be located or the activity conducted within a municipality, to the
chief executive of the county (or to the Tribal organization, if it is
to be so located or conducted within an Indian reservation). The
Secretary will transmit a notice of hearing on an application for a
license under part 72 of this chapter to acquire, receive or possess
spent fuel, high-level radioactive waste or radioactive material
associated with high-level radioactive waste for the purpose of storage
in a monitored retrievable storage installation (MRS) to the same
persons who received the notice of docketing under Sec. 72.16(e) of
this chapter.
[27 FR 377, Jan. 13, 1962]
Editorial Note: For Federal Register citations affecting Sec.
2.104, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 2.105 Notice of proposed action.
(a) If a hearing is not required by the Act or this chapter, and if
the Commission has not found that a hearing is in the public interest,
it will, prior to acting thereon, cause to be published in the Federal
Register a notice of proposed action with respect to an application for:
(1) A license for a facility;
(2) A license for receipt of waste radioactive material from other
persons for the purpose of commercial disposal by the waste disposal
licensee. All licenses issued under part 61 of this chapter shall be so
noticed;
(3) An amendment of a license specified in paragraph (a) (1) or (2)
of this section and which involves a significant hazards consideration;
(4) An amendment to an operating license for a facility licensed
under Sec. 50.21(b) or Sec. 50.22 of this chapter or for a testing
facility, as follows:
[[Page 35]]
(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 Sec. Sec. 50.58 and 50.91
of this chapter that an emergency situation exists or that exigent
circumstances exist and that the amendment involves no significant
hazards consideration, it will provide notice of opportunity for a
hearing pursuant to Sec. 2.106 (if a hearing is requested, it will be
held after issuance of the amendment);
(5) A license to receive and possess high-level radioactive waste at
a geologic repository operations area pursuant to parts 60 or 63 of this
chapter, or an amendment thereto, when the license or amendment would
authorize actions which may significantly affect the health and safety
of the public;
(6) An amendment to a construction authorization for a high-level
radioactive waste at a geologic repository operations area pursuant to
parts 60 or 63 of this chapter, when such an amendment would authorize
actions which may significantly affect the health and safety of the
public;
(7) A license under part 72 of this chapter to acquire, receive or
possess spent fuel for the purpose of storage in an independent spent
fuel storage installation (ISFSI) or to acquire, receive or possess
spent fuel, high-level radioactive waste or radioactive material
associated with high-level radioactive waste for the purpose of storage
in a monitored retrievable storage installation (MRS);
(8) An amendment to a license specified in paragraph (a)(7) of this
section when such an amendment presents a genuine issue as to whether
the health and safety of the public will be significantly affected; or
(9) Any other license or amendment as to which the Commission
determines that an opportunity for a public hearing should be afforded;
(10) In the case of an application for an operating license for a
facility of a type described in Sec. 50.21(b) or Sec. 50.22 of this
chapter or a testing facility, a notice of opportunity for hearing shall
be issued as soon as practicable after the application has been
docketed; or
(11) In the case of an application for a license to receive and
possess high-level radioactive waste at a geologic repository operations
area, a notice of opportunity for hearing, as required by this
paragraph, shall be published prior to Commission action authorizing
receipt of such wastes; this requirement is in addition to the
procedures set out in Sec. Sec. 2.101(f)(8) and 2.104 of this part,
which provide for a hearing on the application prior to issuance of a
construction authorization.
(b) The notice of proposed action will set forth:
(1) The nature of the action proposed;
(2) The manner in which a copy of the safety analysis and of the
ACRS report, if any, may be obtained or examined.
(c) If an application for a license is complete enough to permit all
evaluations, other than completion inspection, necessary for the
issuance of a construction permit and operating license, the notice of
proposed issuance of a construction permit may provide that on
completion of construction and inspection the operating license will be
issued without further prior notice.
(d) The notice of proposed action will provide that, within thirty
(30) days from the date of publication of the notice in the Federal
Register, or such lesser period authorized by law as the Commission may
specify:
(1) The applicant may file a request for a hearing; and
(2) Any person whose interest may be affected by the proceeding may
file a request for a hearing or a petition for leave to intervene if a
hearing has already been requested.
(e)(1) If no request for a hearing or petition for leave to
intervene is filed within the time prescribed in the notice, the
Director of Nuclear Reactor Regulation or the Director of Nuclear
Material Safety and Safeguards, as appropriate, may take the proposed
action, inform the appropriate State and local officials, and publish in
the Federal Register a notice of issuance of the license or other
action.
[[Page 36]]
(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 Sec. Sec. 2.101(b) and 2.102(d).
[27 FR 377, Jan. 13, 1962]
Editorial Note: For Federal Register citations affecting Sec.
2.105, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 2.106 Notice of issuance.
(a) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will cause to be
published in the Federal Register notice of, and will inform the State
and local officials specified in Sec. 2.104(e) of the issuance of:
(1) A license or an amendment of a license for which a notice of
proposed action has been previously published; and
(2) An amendment of a license for a facility of the type described
in Sec. 50.21(b) or Sec. 50.22 of this chapter, or a testing facility,
whether or not a notice of proposed action has been previously
published.
(b) The notice of issuance will set forth:
(1) The nature of the license or amendment;
(2) The manner in which copies of the safety analysis, if any, may
be obtained and examined; and
(3) A finding that the application for the license or amendment
complies with the requirements of the Act and this chapter.
(c) The Director of Nuclear Material Safety and Safeguards will also
cause to be published in the Federal Register notice of, and will inform
the State, local, and Tribal officials specified in Sec. 2.104(e) of
any action with respect to an application for construction authorization
for a high-level radioactive waste repository at a geologic repository
operations area, a license to receive and possess high-level radioactive
waste at a geologic repository operations area pursuant to parts 60 or
63 of this chapter, or an amendment to such license for which a notice
of proposed action has been previously published.
(d) The Director of Nuclear Material Safety and Safeguards will also
cause to be published in the Federal Register notice of, and will inform
the State and local officials or tribal governing body specified in
Sec. 2.104(e) of any licensing action with respect to a license to
receive radioactive waste from other persons for disposal under part 61
of this chapter or the amendment of such a license for which a notice of
proposed action has been previously published.
[37 FR 15131, July 28, 1972, as amended at 38 FR 9586, Apr. 18, 1973; 46
FR 13978, Feb. 25, 1981; 47 FR 57478, Dec. 27, 1982; 66 FR 55787, Nov.
2, 2001; 69 FR 2235, Jan. 14, 2004]
Sec. 2.107 Withdrawal of application.
(a) The Commission may permit an applicant to withdraw an
application prior to the issuance of a notice of hearing on such terms
and conditions as it may prescribe, or may, on receiving a request for
withdrawal of an application, deny the application or dismiss it with
prejudice. If the application is withdrawn prior to issuance of a notice
of hearing, the Commission shall dismiss the proceeding. Withdrawal of
an application after the issuance of a notice of hearing shall be on
such terms as the presiding officer may prescribe.
[[Page 37]]
(b) The withdrawal of an application does not authorize the removal
of any document from the files of the Commission.
(c) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will cause to be
published in the Federal Register a notice of the withdrawal of an
application if notice of receipt of the application has been previously
published.
[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10152, Sept. 17, 1963; 69
FR 2236, Jan. 14, 2004]
Sec. 2.108 Denial of application for failure to supply information.
(a) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, may deny an
application if an applicant fails to respond to a request for additional
information within thirty (30) days from the date of the request, or
within such other time as may be specified.
(b) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will cause to be
published in the Federal Register a notice of denial when notice of
receipt of the application has previously been published, but not notice
of hearing has yet been published. The notice of denial will provide
that, within thirty (30) days after the date of publication in the
Federal Register (1) the applicant may demand a hearing, and (2) any
person whose interest may be affected by the proceeding may file a
petition for leave to intervene.
(c) When both a notice of receipt of the application and a notice of
hearing have been published, the presiding officer, upon a motion made
by the staff under Sec. 2.323, will rule whether an application should
be denied by the Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, under paragraph
(a) of this section.
[27 FR 377, Jan. 13, 1962, as amended at 39 FR 43195, Dec. 11, 1974; 69
FR 2236, Jan. 14, 2004]
Sec. 2.109 Effect of timely renewal application.
(a) Except for the renewal of an operating license for a nuclear
power plant under 10 CFR 50.21(b) or 50.22, if, at least 30 days prior
to the expiration of an existing license authorizing any activity of a
continuing nature, the licensee files an application for a renewal or
for a new license for the activity so authorized, the existing license
will not be deemed to have expired until the application has been
finally determined.
(b) If the licensee of a nuclear power plant licensed under 10 CFR
50.21(b) or 50.22 files a sufficient application for renewal of an
operating license at least 5 years prior to the expiration of the
existing license, the existing license will not be deemed to have
expired until the application has been finally determined.
[56 FR 64975, Dec. 13, 1991]
Sec. 2.110 Filing and administrative action on submittals for design
review or early review of site suitability issues.
(a)(1) A submittal pursuant to appendix O of part 52 of this chapter
shall be subject to Sec. Sec. 2.101(a) and 2.390 to the same extent as
if it were an application for a permit or license.
(2) Except as specifically provided otherwise by the provisions of
appendix Q to part 52 of this chapter, a submittal pursuant to appendix
Q shall be subject to Sec. 2.101(a) (2) through (4) to the same extent
as if it were an application for a permit or license.
(b) Upon initiation of review by the staff of a submittal of a type
described in paragraph (a)(1) of this section, the Director of Nuclear
Reactor Regulation shall publish in the Federal Register a notice of
receipt of the submittal, inviting comments from interested persons
within 60 days of publication or such other time as may be specified,
for consideration by the staff and ACRS in their review.
(c) Upon completion of review by the NRC staff and the ACRS of a
submittal of the type described in paragraph (a)(1) of this section, the
Director of the Office of Nuclear Reactor Regulation shall publish in
the Federal Register a determination as to whether or not the design is
acceptable, subject to conditions as may be appropriate, and shall make
available at the NRC Web
[[Page 38]]
site, http://www.nrc.gov, a report that analyzes the design.
[40 FR 2976, Jan. 17, 1975, as amended at 42 FR 22885, May 5, 1977; 54
FR 15398, Apr. 18, 1989; 64 FR 48948, Sept. 9, 1999; 69 FR 2236, Jan.
14, 2004]
Sec. 2.111 Prohibition of sex discrimination.
No person shall on the ground of sex be excluded from participation
in, be denied a license under, be denied the benefits of, or be
subjected to discrimination under any program or activity carried on or
receiving Federal assistance under the Act or the Energy Reorganization
Act of 1974.
[40 FR 8777, Mar. 3, 1975]
Subpart B_Procedure for Imposing Requirements by Order, or for
Modification, Suspension, or Revocation of a License, or for Imposing
Civil Penalties
Sec. 2.200 Scope of subpart.
(a) This subpart prescribes the procedures in cases initiated by the
staff, or upon a request by any person, to impose requirements by order,
or to modify, suspend, or revoke a license, or to take other action as
may be proper, against any person subject to the jurisdiction of the
Commission. However, with regard to the holder of a part 76 certificate
of compliance or compliance plan, except for civil penalty procedures in
this subpart, the applicable procedures are set forth in Sec. 76.70 of
this chapter.
(b) This subpart also prescribes the procedures in cases initiated
by the staff to impose civil penalties pursuant to section 234 of the
Act and section 206 of the Energy Reorganization Act of 1974.
[36 FR 16896, Aug. 26, 1971, as amended at 42 FR 28893, June 6, 1977; 48
FR 44172, Sept. 28, 1983; 62 FR 6668, Feb. 12, 1997]
Sec. 2.201 Notice of violation.
(a) In response to an alleged violation of any provision of the Act
or this chapter or the conditions of a license or an order issued by the
Commission, the Commission may serve on the licensee or other person
subject to the jurisdiction of the Commission a written notice of
violation; a separate notice may be omitted if an order pursuant to
Sec. 2.202 or demand for information pursuant to Sec. 2.204 is issued
that otherwise identifies the apparent violation. The notice of
violation will concisely state the alleged violation and may require
that the licensee or other person submit, within 20 days of the date of
the notice or other specified time, a written explanation or statement
in reply if the Commission believes that the licensee has not already
addressed all the issues contained in the notice of violation,
including:
(1) Corrective steps which have been taken by the licensee or other
person and the results achieved;
(2) Corrective steps which will be taken; and
(3) The date when full compliance will be achieved.
(b) The notice may require the licensee or other person subject to
the jurisdiction of the Commission to admit or deny the violation and to
state the reasons for the violation, if admitted. It may provide that,
if an adequate reply is not received within the time specified in the
notice, the Commission may issue an order or a demand for information as
to why the license should not be modified, suspended or revoked or why
such other action as may be proper should not be taken.
[56 FR 40684, Aug. 15, 1991, as amended at 61 FR 43408, Aug. 22, 1996]
Sec. 2.202 Orders.
(a) The Commission may institute a proceeding to modify, suspend, or
revoke a license or to take such other action as may be proper by
serving on the licensee or other person subject to the jurisdiction of
the Commission an order that will:
(1) Allege the violations with which the licensee or other person
subject to the Commission's jurisdiction is charged, or the potentially
hazardous conditions or other facts deemed to be sufficient ground for
the proposed action, and specify the action proposed;
(2) Provide that the licensee or other person must file a written
answer to the order under oath or affirmation within twenty (20) days of
its date, or
[[Page 39]]
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.
(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]
[[Page 40]]
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 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
[[Page 41]]
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 the imposition of a
civil penalty in an amount equal to the amount set forth in Section 234,
may not exceed $130,000 for each violation. If any violation is a
continuing one, each day of such violation shall constitute a separate
violation for the purpose of computing the applicable civil penalty.
[36 FR 16896, Aug. 26, 1971, as amended at 52 FR 31608, Aug. 21, 1987;
54 FR 53315, Dec. 28, 1989; 61 FR 53555, Oct. 11, 1996; 62 FR 6668, Feb.
12, 1997; 63 FR 31850, June 10, 1998; 65 FR 59272, Oct. 4, 2000; 69 FR
62394, Oct. 26, 2004]
Sec. 2.206 Requests for action under this subpart.
(a) Any person may file a request to institute a proceeding pursuant
to Sec. 2.202 to modify, suspend, or revoke a license, or for any other
action as may be proper. Requests must be addressed to the Executive
Director for Operations and must be filed either by hand delivery to the
NRC's Offices at 11555 Rockville Pike, Rockville, Maryland;
[[Page 42]]
by mail or telegram addressed to the Executive Director for Operations,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; or by
electronic submissions, for example, via facsimile, Electronic
Information Exchange, e-mail, or CD-ROM. Electronic submissions must be
made in a manner that enables the NRC to receive, read, authenticate,
distribute, and archive the submission, and process and retrieve it a
single page at a time. Detailed guidance on making electronic
submissions can be obtained by visiting the NRC's Web site at http://
www.nrc.gov/site-help/eie.html, by calling (301) 415-6030, by e-mail to
[email protected]; or by writing the Office of the Chief Information Officer,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The
request must specify the action requested and set forth the facts that
constitute the basis for the request. The Executive Director for
Operations will refer the request to the Director of the NRC office with
responsibility for the subject matter of the request for appropriate
action in accordance with paragraph (b) of this section.
(b) Within a reasonable time after a request pursuant to paragraph
(a) of this section has been received, the Director of the NRC office
with responsibility for the subject matter of the request shall either
institute the requested proceeding in accordance with this subpart or
shall advise the person who made the request in writing that no
proceeding will be instituted in whole or in part, with respect to the
request, and the reasons for the decision.
(c)(1) Director's decisions under this section will be filed with
the Office of the Secretary. Within twenty-five (25) days after the date
of the Director's decision under this section that no proceeding will be
instituted or other action taken in whole or in part, the Commission may
on its own motion review that decision, in whole or in part, to
determine if the Director has abused his discretion. This review power
does not limit in any way either the Commission's supervisory power over
delegated staff actions or the Commission's power to consult with the
staff on a formal or informal basis regarding institution of proceedings
under this section.
(2) No petition or other request for Commission review of a
Director's decision under this section will be entertained by the
Commission.
(3) The Secretary is authorized to extend the time for Commission
review on its own motion of a Director's denial under paragraph (c) of
this section.
[39 FR 12353, Apr. 5, 1974, as amended at 42 FR 36240, July 14, 1977; 45
FR 73466, Nov. 5, 1980; 52 FR 31608, Aug. 21, 1987; 53 FR 43419, Oct.
27, 1988; 64 FR 48948, Sept. 9, 1999; 68 FR 58799, Oct. 10, 2003; 69 FR
2236, Jan. 14, 2004; 69 FR 41749, July 12, 2004]
Subpart C_Rules of General Applicability: Hearing Requests, Petitions to
Intervene, Availability of Documents, Selection of Specific Hearing
Procedures, Presiding Officer Powers, and General Hearing Management for
NRC Adjudicatory Hearings
Source: 69 FR 2236, Jan. 14, 2004, unless otherwise noted.
Sec. 2.300 Scope of subpart C.
The provisions of this subpart apply to all adjudications conducted
under the authority of the Atomic Energy Act of 1954, as amended, the
Energy Reorganization Act of 1974, and 10 CFR Part 2, unless
specifically stated otherwise in this subpart.
Sec. 2.301 Exceptions.
Consistent with 5 U.S.C. 554(a)(4) of the Administrative Procedure
Act, the Commission may provide alternative procedures in adjudications
to the extent that the conduct of military or foreign affairs functions
is involved.
Sec. 2.302 Filing of documents.
(a) Documents must be filed with the Commission in adjudications
subject to this part either by:
(1) First class mail addressed to: Office of the Secretary, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention:
Rulemakings and Adjudications Staff;
(2) Courier, express mail, and expedited delivery services: Office
of the
[[Page 43]]
Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike,
Rockville, MD 20852, Attention: Rulemakings and Adjudications Staff;
(3) E-mail addressed to the Office of the Secretary, U.S. Nuclear
Regulatory Commission, [email protected];
(4) By facsimile transmission addressed to the Office of the
Secretary, U.S. Nuclear Regulatory Commission, Washington, DC,
Attention: Rulemakings and Adjudications Staff, at (301) 415-1101;
verification number is (301) 415-1966.
(b) All documents offered for filing must be accompanied by proof of
service on all parties to the proceeding or their attorneys of record as
required by law or by rule or order of the Commission. For purposes of
service of documents, the staff of the Commission is considered a party.
(c) Filing by mail, electronic mail, or facsimile is considered
complete as of the time of deposit in the mail or upon electronic mail
or facsimile transmission.
Sec. 2.303 Docket.
The Secretary shall maintain a docket for each proceeding conducted
under this part, commencing with either the initial notice of hearing,
notice of proposed action, order, request for hearing or petition for
leave to intervene, as appropriate. The Secretary shall maintain all
files and records of proceedings, including transcripts and video
recordings of testimony, exhibits, and all papers, correspondence,
decisions and orders filed or issued. All documents, records, and
exhibits filed in any proceeding must be filed with the Secretary as
described in Sec. Sec. 2.302 and 2.304.
Sec. 2.304 Formal requirements for documents; acceptance for filing.
(a) Each document filed in an adjudication subject to this part to
which a docket number has been assigned must show the docket number and
title of the proceeding.
(b) Each document must be bound on the left side and typewritten,
printed, or otherwise reproduced in permanent form on good unglazed
paper of standard letterhead size. Each page must begin not less than
one inch from the top, with side and bottom margins of not less than one
inch. Text must be double-spaced, except that quotations may be single-
spaced and indented. The requirements of this paragraph do not apply to
original documents or admissible copies offered as exhibits, or to
specifically prepared exhibits.
(c) The original of each document must be signed in ink by the party
or its authorized representative, or by an attorney having authority
with respect to it. The document must state the capacity of the person
signing, his or her address, and the date of signature. The signature of
a person signing in a representative capacity is a representation that
the document has been subscribed in the capacity specified with full
authority that he or she has read it and knows the contents that to the
best of his or her knowledge, information and belief the statements made
in it are true, and that it is not interposed for delay. If a document
is not signed, or is signed with intent to defeat the purpose of this
section, it may be stricken.
(d) Except as otherwise required by this part or by order, a
pleading or other document, other than correspondence, must be filed in
an original and two conformed copies.
(e) The first document filed by any person in a proceeding must
designate the name and address of a person on whom service may be made.
This document must also designate the electronic mail address and
facsimile number, if any, of the person on whom service may be made.
(f) A document filed by electronic mail or facsimile transmission
need not comply with the formal requirements of paragraphs (b), (c), and
(d) of this section if an original and two (2) copies otherwise
complying with all of the requirements of this section are mailed within
two (2) days thereafter to the Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Rulemakings and
Adjudications Staff.
(g) Acceptance for filing. Any document that fails to conform to the
requirements of this section may be refused acceptance for filing and
may be
[[Page 44]]
returned with an indication of the reason for nonacceptance. Any
document that is not accepted for filing will not be entered on the
Commission's docket.
Sec. 2.305 Service of papers, methods, proof.
(a) Service of papers by the Commission. Except for subpoenas, the
Commission will serve all orders, decisions, notices, and other papers
issued by it upon all parties.
(b) Who may be served. Any paper required to be served upon a party
must be served upon that person or upon the representative designated by
the party or by law to receive service of papers. When a party has
appeared by attorney, service must be made upon the attorney of record.
(c) How service may be made. Service may be made by personal
delivery or courier, by express mail or expedited delivery service, by
first class, certified or registered mail, by e-mail or facsimile
transmission, or as otherwise authorized by law. If service is made by
e-mail or facsimile transmission, the original signed copy must be
transmitted to the Secretary by personal delivery, courier, express mail
or expedited delivery service, or first class, certified, or registered
mail. In addition, if service is by e-mail, a paper copy must also be
served by any other service method permitted under this paragraph. Where
there are numerous parties to a proceeding, the Commission may make
special provision regarding the service of papers. The presiding officer
shall require service by the most expeditious means that is available to
all parties in the proceeding, including express mail or expedited
delivery service, and/or electronic or facsimile transmission, unless
the presiding officer finds that this requirement would impose undue
burden or expense on some or all of the parties.
(d) Service on the Secretary. (1) All pleadings must be served on
the Secretary of the Commission in the same or equivalent manner, i.e.,
personal delivery or courier, express mail or expedited delivery
service, facsimile or electronic transmission, that they are served upon
the adjudicatory tribunals and the parties to the proceedings, so that
the Secretary will receive the pleading at approximately the same time
that it is received by the tribunal to which the pleading is directed.
(2) When pleadings are personally delivered to tribunals while they
are conducting proceedings outside the Washington, DC area, service on
the Secretary may be accomplished by courier, express mail or expedited
delivery service, or by electronic or facsimile transmission.
(3) Service of pre-filed testimony and demonstrative evidence (e.g.,
maps and other physical exhibits) on the Secretary may be made by first
class mail in all cases, unless the presiding officer directs otherwise.
(4) The addresses for the Secretary are:
(i) First class mail: Office of the Secretary, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings
and Adjudications Staff.
(ii) Courier, express mail, and expedited delivery services: Office
of the Secretary, Sixteenth Floor, One White Flint North, 11555
Rockville Pike, Rockville, MD 20852, Attention: Rulemakings and
Adjudications Staff.
(iii) E-mail addressed to the Secretary, U.S. Nuclear Regulatory
Commission, [email protected]; and
(iv) Facsimile transmission addressed to the Office of the
Secretary, U.S. Nuclear Regulatory Commission, Washington, DC,
Attention: Rulemakings and Adjudications Staff, at (301) 415-1101;
verification number is (301) 415-1966.
(e) When service is complete. Service upon a party is complete:
(1) By personal delivery, on handing the paper to the individual, or
leaving it at his office with that person's clerk or other person in
charge or, if there is no one in charge, leaving it in a conspicuous
place in the office, or if the office is closed or the person to be
served has no office, leaving it at his usual place of residence with
some person of suitable age and discretion then residing there;
(2) By mail, on deposit in the United States mail, properly stamped
and addressed;
[[Page 45]]
(3) By electronic mail, on transmission thereof, and service of a
copy by another method of service permitted in paragraph (c) of this
section;
(4) By facsimile transmission, on transmission thereof and receipt
of electronic confirmation that one or more of the addressees for a
party has successfully received the transmission. If the sender receives
an electronic message that the facsimile transmission to an addressee
was not deliverable or is otherwise informed that a transmission was
unreadable, transmission to that person is not considered complete. In
such an event, the sender shall reserve the document in accordance with
paragraph (e)(1) through (e)(4) of this section; or
(5) When service cannot be effected in a manner provided by
paragraphs (e)(1) to (4) inclusive of this section, in any other manner
authorized by law.
(f) Service on the NRC staff. (1) Service shall be made upon the NRC
staff of all papers and documents required to be filed with parties and
the presiding officer in all proceedings, including those proceedings
where the NRC staff informs the presiding officer of its determination
not to participate as a party.
(2) If the NRC staff decides not to participate as a party in a
proceeding, it shall, in its notification to the presiding officer and
parties of its determination not to participate, designate a person and
address for service of papers and documents.
Sec. 2.306 Computation of time.
In computing any period of time, the day of the act, event, or
default after which the designated period of time begins to run is not
included. The last day of the period so computed is included unless it
is a Saturday, Sunday, or legal holiday at the place where the action or
event is to occur, in which event the period runs until the end of the
next day which is neither a Saturday, Sunday, nor holiday. Whenever a
party has the right or is required to do some act within a prescribed
period after the service of a notice or other paper upon him or her and
the notice or paper is served upon by first class mail, five (5) days
are added to the prescribed period. Two (2) days are added to the
prescribed period when a document is served by express mail or expedited
delivery service. No time is added when the notice or paper is served in
person, by courier, electronic mail or facsimile transmission. The
period allotted for the recipient's response commences upon confirmation
of receipt under Sec. 2.305(e)(3) or (4), except that if a document is
served in person, by courier, electronic transmission, or facsimile, and
is received by a party after 5 p.m., in the recipient's time zone on the
date of transmission, the recipient's response date is extended by one
(1) business day.
Sec. 2.307 Extension and reduction of time limits.
(a) Except as otherwise provided by law, the time fixed or the
period of time prescribed for an act that is required or allowed to be
done at or within a specified time, may be extended or shortened either
by the Commission or the presiding officer for good cause, or by
stipulation approved by the Commission or the presiding officer.
(b) If this part does not prescribe a time limit for an action to be
taken in the proceeding, the Commission or the presiding officer may set
a time limit for the action.
Sec. 2.308 Treatment of requests for hearing or petitions for leave
to intervene by the Secretary.
Upon receipt of a request for hearing or a petition to intervene,
the Secretary will forward the request or petition and/or proffered
contentions and any answers and replies either to the Commission for a
ruling on the request/petition and/or proffered contentions or to the
Chief Administrative Judge of the Atomic Safety and Licensing Board
Panel for the designation of a presiding officer under Sec. 2.313(a) to
rule on the matter.
Sec. 2.309 Hearing requests, petitions to intervene, requirements
for standing, and contentions.
(a) General requirements. Any person whose interest may be affected
by a proceeding and who desires to participate as a party must file a
written request for hearing or petition for leave to intervene and a
specification of the
[[Page 46]]
contentions which the person seeks to have litigated in the hearing.
Except as provided in paragraph (e) of this section, the Commission,
presiding officer or the Atomic Safety and Licensing Board designated to
rule on the request for hearing and/or petition for leave to intervene
will grant the request/petition if it determines that the requestor/
petitioner has standing under the provisions of paragraph (d) of this
section and has proposed at least one admissible contention that meets
the requirements of paragraph (f) of this section. In ruling on the
request for hearing/petition to intervene submitted by petitioners
seeking to intervene in the proceeding on the HLW repository, the
Commission, the presiding officer or the Atomic Safety and Licensing
Board shall also consider any failure of the petitioner to participate
as a potential party in the pre-license application phase under subpart
J of this part in addition to the factors in paragraph (d) of this
section. If a request for hearing or petition to intervene is filed in
response to any notice of hearing or opportunity for hearing, the
applicant/licensee shall be deemed to be a party.
(b) Timing. Unless otherwise provided by the Commission, the request
and/or petition and the list of contentions must be filed as follows:
(1) In proceedings for the direct or indirect transfer of control of
an NRC license when the transfer requires prior approval of the NRC
under the Commission's regulations, governing statute, or pursuant to a
license condition, twenty (20) days from the date of publication of the
notice in the Federal Register.
(2) In proceedings for the initial authorization to construct a
high-level radioactive waste geologic repository, and the initial
licensee to receive and process high level radioactive waste at a
geological repository operations area, thirty (30) days from the date of
publication of the notice in the Federal Register.
(3) In proceedings for which a Federal Register notice of agency
action is published (other than a proceeding covered by paragraphs
(b)(1) or (b)(2) of this section), not later than:
(i) The time specified in any notice of hearing or notice of
proposed action or as provided by the presiding officer or the Atomic
Safety and Licensing Board designated to rule on the request and/or
petition, which may not, with the exception of a notice provided under
Sec. 2.102(d)(3), be less than 60 days from the date of publication of
the notice in the Federal Register;
(ii) The time provided in Sec. 2.102(d)(3); or
(iii) If no period is specified, sixty (60) days from the date of
publication of the notice.
(4) In proceedings for which a Federal Register notice of agency
action is not published, not later than the latest of:
(i) Sixty (60) days after publication of notice on the NRC Web site
at http://www.nrc.gov/public-involve/major-actions.html, or
(ii) Sixty (60) days after the requestor receives actual notice of a
pending application, but not more than sixty (60) days after agency
action on the application.
(5) For orders issued under Sec. 2.202 the time period provided
therein.
(c) Nontimely filings. (1) Nontimely requests and/or petitions and
contentions will not be entertained absent a determination by the
Commission, the presiding officer or the Atomic Safety and Licensing
Board designated to rule on the request and/or petition and contentions
that the request and/or petition should be granted and/or the
contentions should be admitted based upon a balancing of the following
factors to the extent that they apply to the particular nontimely
filing:
(i) Good cause, if any, for the failure to file on time;
(ii) The nature of the requestor's/petitioner's right under the Act
to be made a party to the proceeding;
(iii) The nature and extent of the requestor's/petitioner's
property, financial or other interest in the proceeding;
(iv) The possible effect of any order that may be entered in the
proceeding on the requestor's/petitioner's interest;
(v) The availability of other means whereby the requestor's/
petitioner's interest will be protected;
[[Page 47]]
(vi) The extent to which the requestor's/petitioner's interests will
be represented by existing parties;
(vii) The extent to which the requestor's/petitioner's participation
will broaden the issues or delay the proceeding; and
(viii) The extent to which the requestor's/petitioner's
participation may reasonably be expected to assist in developing a sound
record.
(2) The requestor/petitioner shall address the factors in paragraphs
(c)(1)(i) through (c)(1)(viii) of this section in its nontimely filing.
(d) Standing. (1) General requirements. A request for hearing or
petition for leave to intervene must state:
(i) The name, address and telephone number of the requestor or
petitioner;
(ii) The nature of the requestor's/petitioner's right under the Act
to be made a party to the proceeding;
(iii) The nature and extent of the requestor's/petitioner's
property, financial or other interest in the proceeding; and
(iv) The possible effect of any decision or order that may be issued
in the proceeding on the requestor's/petitioner's interest.
(2) State, local governmental body, and affected, Federally-
recognized Indian Tribe. (i) A State, local governmental body (county,
municipality or other subdivision), and any affected Federally-
recognized Indian Tribe that desires to participate as a party in the
proceeding shall submit a request for hearing/petition to intervene. The
request/petition must meet the requirements of this section (including
the contention requirements in paragraph (f) of this section), except
that a State, local governmental body or affected Federally-recognized
Indian Tribe that wishes to be a party in a proceeding for a facility
located within its boundaries need not address the standing requirements
under this paragraph. The State, local governmental body, and affected
Federally-recognized Indian Tribe shall, in its request/petition, each
designate a single representative for the hearing.
(ii) The Commission, the presiding officer or the Atomic Safety and
Licensing Board designated to rule on requests for hearings or petitions
for leave to intervene will admit as a party to a proceeding a single
designated representative of the State, a single designated
representative for each local governmental body (county, municipality or
other subdivision), and a single designated representative for each
affected Federally-recognized Indian Tribe. In determining the request/
petition of a State, local governmental body, and any affected
Federally-recognized Indian Tribe that wishes to be a party in a
proceeding for a facility located within its boundaries, the Commission,
the presiding officer or the Atomic Safety and Licensing Board
designated to rule on requests for hearings or petitions for leave to
intervene shall not require a further demonstration of standing.
(iii) In any proceeding on an application for a construction
authorization for a high-level radioactive waste repository at a
geologic repository operations area under parts 60 or 63 of this
chapter, or an application for a license to receive and possess high-
level radioactive waste at a geologic repository operations area under
parts 60 or 63 of this chapter, the Commission shall permit intervention
by the State and local governmental body (county, municipality or other
subdivision) in which such an area is located and by any affected
Federally-recognized Indian Tribe as defined in parts 60 or 63 of this
chapter if the requirements of paragraph (f) of this section are
satisfied with respect to at least one contention. All other petitions
for intervention in any such proceeding must be reviewed under the
provisions of paragraphs (a) through (f) of this section.
(3) The Commission, the presiding officer, or the Atomic Safety and
Licensing Board designated to rule on requests for hearing and/or
petitions for leave to intervene will determine whether the petitioner
has an interest affected by the proceeding considering the factors
enumerated in Sec. 2.309(d)(1)-(2), among other things. In enforcement
proceedings, the licensee or other person against whom the action is
taken shall have standing.
(e) Discretionary Intervention. The presiding officer may consider a
request for discretionary intervention when at least one requestor/
petitioner
[[Page 48]]
has established standing and at least one admissible contention has been
admitted so that a hearing will be held. A requestor/petitioner may
request that his or her petition be granted as a matter of discretion in
the event that the petitioner is determined to lack standing to
intervene as a matter of right under paragraph (d)(1) of this section.
Accordingly, in addition to addressing the factors in paragraph (d)(1)
of this section, a petitioner who wishes to seek intervention as a
matter of discretion in the event it is determined that standing as a
matter of right is not demonstrated shall address the following factors
in his/her initial petition, which the Commission, the presiding officer
or the Atomic Safety and Licensing Board will consider and balance:
(1) Factors weighing in favor of allowing intervention--
(i) The extent to which the requestor's/petitioner's participation
may reasonably be expected to assist in developing a sound record;
(ii) The nature and extent of the requestor's/petitioner's property,
financial or other interests in the proceeding; and
(iii) The possible effect of any decision or order that may be
issued in the proceeding on the requestor's/petitioner's interest;
(2) Factors weighing against allowing intervention--
(i) The availability of other means whereby the requestor's/
petitioner's interest will be protected;
(ii) The extent to which the requestor's/petitioner's interest will
be represented by existing parties; and
(iii) The extent to which the requestor's/petitioner's participation
will inappropriately broaden the issues or delay the proceeding.
(f) Contentions. (1) A request for hearing or petition for leave to
intervene must set forth with particularity the contentions sought to be
raised. For each contention, the request or petition must:
(i) Provide a specific statement of the issue of law or fact to be
raised or controverted;
(ii) Provide a brief explanation of the basis for the contention;
(iii) Demonstrate that the issue raised in the contention is within
the scope of the proceeding;
(iv) Demonstrate that the issue raised in the contention is material
to the findings the NRC must make to support the action that is involved
in the proceeding;
(v) Provide a concise statement of the alleged facts or expert
opinions which support the requestor's/petitioner's position on the
issue and on which the petitioner intends to rely at hearing, together
with references to the specific sources and documents on which the
requestor/petitioner intends to rely to support its position on the
issue; and
(vi) Provide sufficient information to show that a genuine dispute
exists with the applicant/licensee on a material issue of law or fact.
This information must include references to specific portions of the
application (including the applicant's environmental report and safety
report) that the petitioner disputes and the supporting reasons for each
dispute, or, if the petitioner believes that the application fails to
contain information on a relevant matter as required by law, the
identification of each failure and the supporting reasons for the
petitioner's belief.
(2) Contentions must be based on documents or other information
available at the time the petition is to be filed, such as the
application, supporting safety analysis report, environmental report or
other supporting document filed by an applicant or licensee, or
otherwise available to a petitioner. On issues arising under the
National Environmental Policy Act, the petitioner shall file contentions
based on the applicant's environmental report. The petitioner may amend
those contentions or file new contentions if there are data or
conclusions in the NRC draft or final environmental impact statement,
environmental assessment, or any supplements relating thereto, that
differ significantly from the data or conclusions in the applicant's
documents. Otherwise, contentions may be amended or new contentions
filed after the initial filing only with leave of the presiding officer
upon a showing that--
[[Page 49]]
(i) The information upon which the amended or new contention is
based was not previously available;
(ii) The information upon which the amended or new contention is
based is materially different than information previously available; and
(iii) The amended or new contention has been submitted in a timely
fashion based on the availability of the subsequent information.
(3) If two or more requestors/petitioners seek to co-sponsor a
contention, the requestors/petitioners shall jointly designate a
representative who shall have the authority to act for the requestors/
petitioners with respect to that contention. If a requestor/petitioner
seeks to adopt the contention of another sponsoring requestor/
petitioner, the requestor/petitioner who seeks to adopt the contention
must either agree that the sponsoring requestor/petitioner shall act as
the representative with respect to that contention, or jointly designate
with the sponsoring requestor/petitioner a representative who shall have
the authority to act for the requestors/petitioners with respect to that
contention.
(g) Selection of hearing procedures. A request for hearing and/or
petition for leave to intervene may also address the selection of
hearing procedures, taking into account the provisions of Sec. 2.310.
If a request/petition relies upon Sec. 2.310(d), the request/petition
must demonstrate, by reference to the contention and the bases provided
and the specific procedures in subpart G of this part, that resolution
of the contention necessitates resolution of material issues of fact
which may be best determined through the use of the identified
procedures.
(h) Answers to requests for hearing and petitions to intervene.
Unless otherwise specified by the Commission, the presiding officer, or
the Atomic Safety and Licensing Board designated to rule on requests for
hearings or petitions for leave to intervene--
(1) The applicant/licensee, the NRC staff, and any other party to a
proceeding may file an answer to a request for a hearing, a petition to
intervene and/or proffered contentions within twenty-five (25) days
after service of the request for hearing, petition and/or contentions.
Answers should address, at a minimum, the factors set forth in
paragraphs (a) through (g) of this section insofar as these sections
apply to the filing that is the subject of the answer.
(2) The requestor/petitioner may file a reply to any answer withing
seven (7) days after service of that answer.
(3) No other written answers or replies will be entertained.
(i) Decision on request/petition. The presiding officer shall,
within forty-five (45) days after the filing of answers and replies
under paragraph (h) of this section, issue a decision on each request
for hearing/petition to intervene, absent an extension from the
Commission.
Sec. 2.310 Selection of hearing procedures.
Upon a determination that a request for hearing/petition to
intervene should be granted and a hearing held, the Commission, the
presiding officer, or the Atomic Safety and Licensing Board designated
to rule on the request/petition will determine and identify the specific
hearing procedures to be used for the proceeding as follows--
(a) Except as determined through the application of paragraphs (b)
through (h) of this section, proceedings for the grant, renewal,
licensee-initiated amendment, or termination of licenses or permits
subject to parts 30, 32 through 36, 39, 40, 50, 52, 54, 55, 61, 70 and
72 of this chapter may be conducted under the procedures of subpart L of
this part.
(b) Proceedings on enforcement matters must be conducted under the
procedures of subpart G of this part, unless all parties agree and
jointly request that the proceedings be conducted under the procedures
of subpart L or subpart N of this part, as appropriate.
(c) Proceedings on the licensing of the construction and operation
of a uranium enrichment facility must be conducted under the procedures
of subpart G of this part.
(d) In proceedings for the grant, renewal, licensee-initiated
amendment, or termination of licenses or permits for nuclear power
reactors, where the presiding officer by order finds that
[[Page 50]]
resolution of the contention or contested matter necessitates resolution
of issues of material fact relating to the occurrence of a past
activity, where the credibility of an eyewitness may reasonably be
expected to be at issue, and/or issues of motive or intent of the party
or eyewitness material to the resolution of the contested matter, the
hearing for resolution of that contention or contested matter will be
conducted under subpart G of this part.
(e) Proceedings on applications for a license or license amendment
to expand the spent nuclear fuel storage capacity at the site of a
civilian nuclear power plant must be conducted under the procedures of
subpart L of this part, unless a party requests that the proceeding be
conducted under the procedures of subpart K of this part, or if all
parties agree and jointly request that the proceeding be conducted under
the procedures of subpart N of this part.
(f) Proceedings on an application for initial construction
authorization for a high-level radioactive waste repository at a
geologic repository operations area noticed pursuant to Sec. Sec.
2.101(f)(8) or 2.105(a)(5), and proceedings on an initial application
for a license to receive and possess high-level radioactive waste at a
geologic repository operations area must be conducted under the
procedures of subparts G and J of this part. Subsequent amendments to a
construction authorization for a high-level radioactive geologic
repository, and amendments to a license to receive and possess high
level radioactive waste at a high level waste geologic repository may be
conducted under the procedures of subpart L of this part, unless all
parties agree and jointly request that the proceeding be conducted under
the procedures of subpart N of this part.
(g) Proceedings on an application for the direct or indirect
transfer of control of an NRC license which transfer requires prior
approval of the NRC under the Commission's regulations, governing
statutes or pursuant to a license condition shall be conducted under the
procedures of subpart M of this part, unless the Commission determines
otherwise in a case-specific order.
(h) Except as determined through the application of paragraphs (b)
through (g) of this section, proceedings for the grant, renewal,
licensee-initiated amendment, or termination of licenses or permits
subject to parts 30, 32 through 36, 39, 40, 50, 52, 54, 55, 61, 70 and
72 of this chapter, and proceedings on an application for the direct or
indirect transfer of control of an NRC license may be conducted under
the procedures of subpart N of this part if--
(1) The hearing itself is expected to take no more than two (2) days
to complete; or
(2) All parties to the proceeding agree that it should be conducted
under the procedures of subpart N of this part.
(i) In design certification rulemaking proceedings under part 52 of
this chapter, any informal hearing held under Sec. 52.51 of this
chapter must be conducted under the procedures of subpart O of this
part.
(j) In proceedings where the Commission grants a petition filed
under Sec. 2.335(b), the Commission may, in its discretion, conduct a
hearing under the procedures of subpart O of this part to assist the
Commission in developing a record on the matters raised in the petition.
Sec. 2.311 Interlocutory review of rulings on requests for
hearing/petitions to intervene and selection of hearing procedures.
(a) An order of the presiding officer or of the Atomic Safety and
Licensing Board on a request for hearing or a petition to intervene may
be appealed to the Commission, only in accordance with the provisions of
this section, within ten (10) days after the service of the order. The
appeal must be initiated by the filing of a notice of appeal and
accompanying supporting brief. Any party who opposes the appeal may file
a brief in opposition to the appeal within ten (10) days after service
of the appeal. The supporting brief and any answer must conform to the
requirements of Sec. 2.341(c)(2). No other appeals from rulings on
requests for hearings are allowed.
(b) An order denying a petition to intervene and/or request for
hearing is appealable by the requestor/petitioner
[[Page 51]]
on the question as to whether the request and/or petition should have
been granted.
(c) An order granting a petition to intervene and/or request for
hearing is appealable by a party other than the requestor/petitioner on
the question as to whether the request/petition should have been wholly
denied.
(d) An order selecting a hearing procedure may be appealed by any
party on the question as to whether the selection of the particular
hearing procedures was in clear contravention of the criteria set forth
in Sec. 2.310. The appeal must be filed with the Commission no later
than ten (10) days after issuance of the order selecting a hearing
procedure.
Sec. 2.312 Notice of hearing.
(a) In a proceeding in which the terms of a notice of hearing are
not otherwise prescribed by this part, the order or notice of hearing
will state:
(1) The nature of the hearing and its time and place, or a statement
that the time and place will be fixed by subsequent order;
(2) The legal authority and jurisdiction under which the hearing is
to be held;
(3) The matters of fact and law asserted or to be considered; and
(4) A statement describing the specific hearing procedures or
subpart that will be used for the hearing.
(b) The time and place of hearing will be fixed with due regard for
the convenience of the parties or their representatives, the nature of
the proceeding and the public interest.
Sec. 2.313 Designation of presiding officer, disqualification,
unavailability, and substitution.
(a) Designation of presiding officer. The Commission may provide in
the notice of hearing that one or more members of the Commission, an
administrative law judge, an administrative judge, an Atomic Safety and
Licensing Board, or a named officer who has been delegated final
authority in the matter, shall be the presiding officer. The Commission
alone shall designate the presiding officer in a hearing conducted under
subpart O. If the Commission does not designate the presiding officer
for a hearing under subparts G, J, K, L, M, or N of this part, then the
Chief Administrative Judge shall issue an order designating:
(1) An Atomic Safety and Licensing Board appointed under Section 191
of the Atomic Energy Act of 1954, as amended, or an administrative law
judge appointed pursuant to 5 U.S.C. 3105, for a hearing conducted under
subparts G, J, K, L, or N of this part; or
(2) An Atomic Safety and Licensing Board, an administrative law
judge, or an administrative judge for a hearing conducted under subpart
M of this part.
(b) Disqualification. (1) If a designated presiding officer or a
designated member of an Atomic Safety and Licensing Board believes that
he or she is disqualified to preside or to participate as a board member
in the hearing, he or she shall withdraw by notice on the record and
shall notify the Commission or the Chief Administrative Judge, as
appropriate, of the withdrawal.
(2) If a party believes that a presiding officer or a designated
member of an Atomic Safety and Licensing Board should be disqualified,
the party may move that the presiding officer or the Licensing Board
member disqualify himself or herself. The motion must be supported by
affidavits setting forth the alleged grounds for disqualification. If
the presiding officer does not grant the motion or the Licensing Board
member does not disqualify himself, the motion must be referred to the
Commission. The Commission will determine the sufficiency of the grounds
alleged.
(c) Unavailability. If a presiding officer or a designated member of
an Atomic Safety and Licensing Board becomes unavailable during the
course of a hearing, the Commission or the Chief Administrative Judge,
as appropriate, will designate another presiding officer or Atomic
Safety and Licensing Board member. If he or she becomes unavailable
after the hearing has been concluded, then:
(1) The Commission may designate another presiding officer;
(2) The Chief Administrative Judge or the Commission, as
appropriate, may designate another Atomic Safety
[[Page 52]]
and Licensing Board member to participate in the decision;
(3) The Commission may direct that the record be certified to it for
decision.
(d) Substitution. If a presiding officer or a designated member of
an Atomic Safety and Licensing Board is substituted for the one
originally designated, any motion predicated upon the substitution must
be made within five (5) days after the substitution.
Sec. 2.314 Appearance and practice before the Commission in adjudicatory
proceedings.
(a) Standards of practice. In the exercise of their functions under
this subpart, the Commission, the Atomic Safety and Licensing Boards,
Administrative Law Judges, and Administrative Judges function in a
quasi-judicial capacity. Accordingly, parties and their representatives
in proceedings subject to this subpart are expected to conduct
themselves with honor, dignity, and decorum as they should before a
court of law.
(b) Representation. A person may appear in an adjudication on his or
her own behalf or by an attorney-at-law. A partnership, corporation, or
unincorporated association may be represented by a duly authorized
member or officer, or by an attorney-at-law. A party may be represented
by an attorney-at-law if the attorney is in good standing and has been
admitted to practice before any Court of the United States, the District
of Columbia, or the highest court of any State, territory, or possession
of the United States. Any person appearing in a representative capacity
shall file with the Commission a written notice of appearance. The
notice must state his or her name, address, telephone number, and
facsimile number and email address, if any; the name and address of the
person or entity on whose behalf he or she appears; and, in the case of
an attorney-at-law, the basis of his or her eligibility as a
representative or, in the case of another representative, the basis of
his or her authority to act on behalf of the party.
(c) Reprimand, censure or suspension from the proceeding. (1) A
presiding officer, or the Commission may, if necessary for the orderly
conduct of a proceeding, reprimand, censure or suspend from
participation in the particular proceeding pending before it any party
or representative of a party who refuses to comply with its directions,
or who is disorderly, disruptive, or engages in contemptuous conduct.
(2) A reprimand, censure, or a suspension that is ordered to run for
one day or less must state the grounds for the action in the record of
the proceeding, and must advise the person disciplined of the right to
appeal under paragraph (c)(3) of this section. A suspension that is
ordered for a longer period must be in writing, state the grounds on
which it is based, and advise the person suspended of the right to
appeal and to request a stay under paragraphs (c)(3) and (c)(4) of this
section. The suspension may be stayed for a reasonable time in order for
an affected party to obtain other representation if this would be
necessary to prevent injustice.
(3) Anyone disciplined under this section may file an appeal with
the Commission within ten (10) days after issuance of the order. The
appeal must be in writing and state concisely, with supporting argument,
why the appellant believes the order was erroneous, either as a matter
of fact or law. The Commission shall consider each appeal on the merits,
including appeals in cases in which the suspension period has already
run. If necessary for a full and fair consideration of the facts, the
Commission may conduct further evidentiary hearings, or may refer the
matter to another presiding officer for development of a record. In the
latter event, unless the Commission provides specific directions to the
presiding officer, that officer shall determine the procedure to be
followed and who shall present evidence, subject to applicable
provisions of law. The hearing must begin as soon as possible. In the
case of an attorney, if no appeal is taken of a suspension, or, if the
suspension is upheld at the conclusion of the appeal, the presiding
officer, or the Commission, as appropriate, shall notify the State
bar(s) to which the attorney is admitted. The notification must include
copies of the order of suspension, and, if an appeal was taken, briefs
of
[[Page 53]]
the parties, and the decision of the Commission.
(4) A suspension exceeding one (1) day is not effective for seventy-
two (72) hours from the date the suspension order is issued. Within this
time, a suspended individual may request a stay of the sanction from the
appropriate reviewing tribunal pending appeal. No responses to the stay
request from other parties will be entertained. If a timely stay request
is filed, the suspension must be stayed until the reviewing tribunal
rules on the motion. The stay request must be in writing and contain the
information specified in Sec. 2.342(b). The Commission shall rule on
the stay request within ten (10) days after the filing of the motion.
The Commission shall consider the factors specified in Sec. 2.342(e)(1)
and (e)(2) in determining whether to grant or deny a stay application.
Sec. 2.315 Participation by a person not a party.
(a) A person who is not a party (including persons who are
affiliated with or represented by a party) may, in the discretion of the
presiding officer, be permitted to make a limited appearance by making
an oral or written statement of his or her position on the issues at any
session of the hearing or any prehearing conference within the limits
and on the conditions fixed by the presiding officer. However, that
person may not otherwise participate in the proceeding. Such statements
of position shall not be considered evidence in the proceeding.
(b) The Secretary will give notice of a hearing to any person who
requests it before the issuance of the notice of hearing, and will
furnish a copy of the notice of hearing to any person who requests it
thereafter. If a communication bears more than one signature, the
Commission will give the notice to the person first signing unless the
communication clearly indicates otherwise.
(c) The presiding officer will afford an interested State, local
governmental body (county, municipality or other subdivision), and
affected, Federally-recognized Indian Tribe, which has not been admitted
as a party under Sec. 2.309, a reasonable opportunity to participate in
a hearing. Each State, local governmental body, and affected Federally-
recognized Indian Tribe shall, in its request to participate in a
hearing, each designate a single representative for the hearing. The
representative shall be permitted to introduce evidence, interrogate
witnesses where cross-examination by the parties is permitted, advise
the Commission without requiring the representative to take a position
with respect to the issue, file proposed findings in those proceedings
where findings are permitted, and petition for review by the Commission
under Sec. 2.341 with respect to the admitted contentions. The
representative shall identify those contentions on which it will
participate in advance of any hearing held.
(d) If a matter is taken up by the Commission under Sec. 2.341 or
sua sponte, a person who is not a party may, in the discretion of the
Commission, be permitted to file a brief ``amicus curiae.'' Such a
person shall submit the amicus brief together with a motion for leave to
do so which identifies the interest of the person and states the reasons
why a brief is desirable. Unless the Commission provides otherwise, the
brief must be filed within the time allowed to the party whose position
the brief will support. A motion of a person who is not a party to
participate in oral argument before the Commission will be granted at
the discretion of the Commission.
Sec. 2.316 Consolidation of parties.
On motion or on its or his own initiative, the Commission or the
presiding officer may order any parties in a proceeding who have
substantially the same interest that may be affected by the proceeding
and who raise substantially the same questions, to consolidate their
presentation of evidence, cross-examination, briefs, proposed findings
of fact, and conclusions of law and argument. However, it may not order
any consolidation that would prejudice the rights of any party. A
consolidation under this section may be for all purposes of the
proceeding, all of the issues of the proceeding, or with respect to any
one or more issues thereof.
[[Page 54]]
Sec. 2.317 Separate hearings; consolidation of proceedings.
(a) Separate hearings. On motion by the parties or upon request of
the presiding officer for good cause shown, or on its own initiative,
the Commission may establish separate hearings in a proceeding if it is
found that the action will be conducive to the proper dispatch of its
business and to the ends of justice and will be conducted in accordance
with the other provisions of this subpart.
(b) Consolidation of proceedings. On motion and for good cause shown
or on its own initiative, the Commission or the presiding officers of
each affected proceeding may consolidate for hearing or for other
purposes two or more proceedings, or may hold joint hearings with
interested States and/or other Federal agencies on matters of concurrent
jurisdiction, if it is found that the action will be conducive to the
proper dispatch of its business and to the ends of justice and will be
conducted in accordance with the other provisions of this subpart.
Sec. 2.318 Commencement and termination of jurisdiction of presiding
officer.
(a) Unless the Commission orders otherwise, the jurisdiction of the
presiding officer designated to conduct a hearing over the proceeding,
including motions and procedural matters, commences when the proceeding
commences. If a presiding officer has not been designated, the Chief
Administrative Judge has jurisdiction or, if he or she is unavailable,
another administrative judge or administrative law judge has
jurisdiction. A proceeding commences when a notice of hearing or a
notice of proposed action under Sec. 2.105 is issued. When a notice of
hearing provides that the presiding officer is to be an administrative
judge or an administrative law judge, the Chief Administrative Judge
will designate by order the administrative judge or administrative law
judge, as appropriate, who is to preside. The presiding officer's
jurisdiction in each proceeding terminates when the period within which
the Commission may direct that the record be certified to it for final
decision expires, when the Commission renders a final decision, or when
the presiding officer withdraws from the case upon considering himself
or herself disqualified, whichever is earliest.
(b) The Director of Nuclear Reactor Regulation or the Director of
Nuclear Material Safety and Safeguards, as appropriate, may issue an
order and take any otherwise proper administrative action with respect
to a licensee who is a party to a pending proceeding. Any order related
to the subject matter of the pending proceeding may be modified by the
presiding officer as appropriate for the purpose of the proceeding.
Sec. 2.319 Power of the presiding officer.
A presiding officer has the duty to conduct a fair and impartial
hearing according to law, to take appropriate action to control the
prehearing and hearing process, to avoid delay and to maintain order.
The presiding officer has all the powers necessary to those ends,
including the powers to:
(a) Administer oaths and affirmations;
(b) Issue subpoenas authorized by law, including subpoenas requested
by a participant for the attendance and testimony of witnesses or the
production of evidence upon the requestor's showing of general relevance
and reasonable scope of the evidence sought;
(c) Consolidate parties and proceedings in accordance with
Sec. Sec. 2.316 and 2.317 and/or direct that common interests be
represented by a single spokesperson;
(d) Rule on offers of proof and receive evidence. In proceedings
under this part, strict rules of evidence do not apply to written
submissions. However, the presiding officer may, on motion or on the
presiding officer's own initiative, strike any portion of a written
presentation or a response to a written question that is irrelevant,
immaterial, unreliable, duplicative or cumulative.
(e) Restrict irrelevant, immaterial, unreliable, duplicative or
cumulative evidence and/or arguments;
(f) Order depositions to be taken as appropriate;
(g) Regulate the course of the hearing and the conduct of
participants;
(h) Dispose of procedural requests or similar matters;
[[Page 55]]
(i) Examine witnesses;
(j) Hold conferences before or during the hearing for settlement,
simplification of contentions, or any other proper purpose;
(k) Set reasonable schedules for the conduct of the proceeding and
take actions reasonably calculated to maintain overall schedules;
(l) Certify questions to the Commission for its determination,
either in the presiding officer's discretion, or on motion of a party or
on direction of the Commission;
(m) Reopen a proceeding for the receipt of further evidence at any
time before the initial decision;
(n) Appoint special assistants from the Atomic Safety and Licensing
Board Panel under Sec. 2.322;
(o) Issue initial decisions as provided in this part;
(p) Dispose of motions by written order or by oral ruling during the
course of a hearing or prehearing conference. The presiding officer
should ensure that parties not present for the oral ruling are notified
promptly of the ruling;
(q) Issue orders necessary to carry out the presiding officer's
duties and responsibilities under this part; and
(r) Take any other action consistent with the Act, this chapter, and
5 U.S.C. 551-558.
Sec. 2.320 Default.
If a party fails to file an answer or pleading within the time
prescribed in this part or as specified in the notice of hearing or
pleading, to appear at a hearing or prehearing conference, to comply
with any prehearing order entered by the presiding officer, or to comply
with any discovery order entered by the presiding officer, the
Commission or the presiding officer may make any orders in regard to the
failure that are just, including, among others, the following:
(a) Without further notice, find the facts as to the matters
regarding which the order was made in accordance with the claim of the
party obtaining the order, and enter the order as appropriate; or
(b) Proceed without further notice to take proof on the issues
specified.
Sec. 2.321 Atomic Safety and Licensing Boards.
(a) The Commission or the Chief Administrative Judge may establish
one or more Atomic Safety and Licensing Boards, each comprised of three
members, one of whom will be qualified in the conduct of administrative
proceedings and two of whom have such technical or other qualifications
as the Commission or the Chief Administrative Judge determines to be
appropriate to the issues to be decided. The members of an Atomic Safety
and Licensing Board shall be designated from the Atomic Safety and
Licensing Board Panel established by the Commission. In proceedings for
granting, suspending, revoking, or amending licenses or authorizations
as the Commission may designate, the Atomic Safety and Licensing Board
shall perform the adjudicatory functions that the Commission determines
are appropriate.
(b) The Commission or the Chief Administrative Judge may designate
an alternate qualified in the conduct of administrative proceedings, or
an alternate having technical or other qualifications, or both, for an
Atomic Safety and Licensing Board established under paragraph (a) of
this section. If a member of a board becomes unavailable, the Commission
or the Chief Administrative Judge may constitute the alternate qualified
in the conduct of administrative proceedings, or the alternate having
technical or other qualifications, as appropriate, as a member of the
board by notifying the alternate who will, as of the date of the
notification, serve as a member of the board. If an alternate is
unavailable or no alternates have been designated, and a member of a
board becomes unavailable, the Commission or Chief Administrative Judge
may appoint a member of the Atomic Safety and Licensing Board Panel who
is qualified in the conduct of administrative proceedings or a member
having technical or other qualifications, as appropriate, as a member of
the Atomic Safety and Licensing Board by notifying the appointee who
will, as of the date of the notification, serve as a member of the
board.
[[Page 56]]
(c) An Atomic Safety and Licensing Board has the duties and may
exercise the powers of a presiding officer as granted by Sec. 2.319 and
otherwise in this part. Any time when a board is in existence but is not
actually in session, any powers which could be exercised by a presiding
officer or by the Chief Administrative Judge may be exercised with
respect to the proceeding by the chairman of the board having
jurisdiction over it. Two members of an Atomic Safety and Licensing
Board constitute a quorum if one of those members is the member
qualified in the conduct of administrative proceedings.
Sec. 2.322 Special assistants to the presiding officer.
(a) In consultation with the Chief Administrative Judge, the
presiding officer may, at his or her discretion, appoint personnel from
the Atomic Safety and Licensing Board Panel established by the
Commission to assist the presiding officer in taking evidence and
preparing a suitable record for review. The appointment may occur at any
appropriate time during the proceeding but must, at the time of the
appointment, be subject to the notice and disqualification provisions as
described in Sec. 2.313. The special assistants may function as:
(1) Technical interrogators in their individual fields of expertise.
The interrogators shall study the written testimony and sit with the
presiding officer to hear the presentation and, where permitted in the
proceeding, the cross-examination by the parties of all witnesses on the
issues of the interrogators' expertise. The interrogators shall take a
leading role in examining the witnesses to ensure that the record is as
complete as possible;
(2) Upon consent of all the parties, special masters to hear
evidentiary presentations by the parties on specific technical matters,
and, upon completion of the presentation of evidence, to prepare a
report that would become part of the record. Special masters may rule on
evidentiary issues brought before them, in accordance with Sec. 2.333.
Appeals from special masters' rulings may be taken to the presiding
officer in accordance with procedures established in the presiding
officer's order appointing the special master. Special masters' reports
are advisory only; the presiding officer retains final authority with
respect to the issues heard by the special master;
(3) Alternate Atomic Safety and Licensing Board members to sit with
the presiding officer, to participate in the evidentiary sessions on the
issue for which the alternate members were designated by examining
witnesses, and to advise the presiding officer of their conclusions
through an on-the-record report. This report is advisory only; the
presiding officer retains final authority on the issue for which the
alternate member was designated; or
(4) Discovery master to rule on the matters specified in Sec.
2.1018(a)(2).
(b) The presiding officer may, as a matter of discretion, informally
seek the assistance of members of the Atomic Safety and Licensing Board
Panel to brief the presiding officer on the general technical background
of subjects involving complex issues that the presiding officer might
otherwise have difficulty in quickly grasping. These briefings take
place before the hearing on the subject involved and supplement the
reading and study undertaken by the presiding officer. They are not
subject to the procedures described in Sec. 2.313.
Sec. 2.323 Motions.
(a) Presentation and disposition. All motions must be addressed to
the Commission or other designated presiding officer. A motion must be
made no later than ten (10) days after the occurrence or circumstance
from which the motion arises. All written motions must be filed with the
Secretary and served on all parties to the proceeding.
(b) Form and content. Unless made orally on-the-record during a
hearing, or the presiding officer directs otherwise, or under the
provisions of subpart N of this part, a motion must be in writing, state
with particularity the grounds and the relief sought, be accompanied by
any affidavits or other evidence relied on, and, as appropriate, a
proposed form of order. A motion must be rejected if it does not include
a certification by the attorney or representative of the moving party
that the movant has made a sincere effort
[[Page 57]]
to contact other parties in the proceeding and resolve the issue(s)
raised in the motion, and that the movant's efforts to resolve the
issue(s) have been unsuccessful.
(c) Answers to motions. Within ten (10) days after service of a
written motion, or other period as determined by the Secretary, the
Assistant Secretary, or the presiding officer, a party may file an
answer in support of or in opposition to the motion, accompanied by
affidavits or other evidence. The moving party has no right to reply,
except as permitted by the Secretary, the Assistant Secretary, or the
presiding officer. Permission may be granted only in compelling
circumstances, such as where the moving party demonstrates that it could
not reasonably have anticipated the arguments to which it seeks leave to
reply.
(d) Accuracy in filing. All parties are obligated, in their filings
before the presiding officer and the Commission, to ensure that their
arguments and assertions are supported by appropriate and accurate
references to legal authority and factual basis, including, as
appropriate, citations to the record. Failure to do so may result in
appropriate sanctions, including striking a matter from the record or,
in extreme circumstances, dismissal of the party.
(e) Motions for reconsideration. Motions for reconsideration may not
be filed except upon leave of the presiding officer or the Commission,
upon a showing of compelling circumstances, such as the existence of a
clear and material error in a decision, which could not have reasonably
been anticipated, that renders the decision invalid. A motion must be
filed within ten (10) days of the action for which reconsideration is
requested. The motion and any responses to the motion are limited to ten
(10) pages.
(f) Referral and certifications to the Commission. (1) If, in the
judgment of the presiding officer, prompt decision is necessary to
prevent detriment to the public interest or unusual delay or expense, or
if the presiding officer determines that the decision or ruling involves
a novel issue that merits Commission review at the earliest opportunity,
the presiding officer may refer the ruling promptly to the Commission.
The presiding officer must notify the parties of the referral either by
announcement on-the-record or by written notice if the hearing is not in
session.
(2) A party may petition the presiding officer to certify an issue
to the Commission for early review. The presiding officer shall apply
the alternative standards of Sec. 2.341(f) in ruling on the petition
for certification. No motion for reconsideration of the presiding
officer's ruling on a petition for certification will be entertained.
(g) Effect of filing a motion, petition, or certification of
question to the Commission. Unless otherwise ordered, neither the filing
of a motion, the filing of a petition for certification, nor the
certification of a question to the Commission stays the proceeding or
extends the time for the performance of any act.
(h) Motions to compel discovery. Parties may file answers to motions
to compel discovery in accordance with paragraph (c) of this section.
The presiding officer, in his or her discretion, may order that the
answer be given orally during a telephone conference or other prehearing
conference, rather than in writing. If responses are given over the
telephone, the presiding officer shall issue a written order on the
motion summarizing the views presented by the parties. This does not
preclude the presiding officer from issuing a prior oral ruling on the
matter effective at the time of the ruling, if the terms of the ruling
are incorporated in the subsequent written order.
Sec. 2.324 Order of procedure.
The presiding officer or the Commission will designate the order of
procedure at a hearing. The proponent of an order will ordinarily open
and close.
Sec. 2.325 Burden of proof.
Unless the presiding officer otherwise orders, the applicant or the
proponent of an order has the burden of proof.
Sec. 2.326 Motions to reopen.
(a) A motion to reopen a closed record to consider additional
evidence will not be granted unless the following criteria are
satisfied:
[[Page 58]]
(1) The motion must be timely. However, an exceptionally grave issue
may be considered in the discretion of the presiding officer even if
untimely presented;
(2) The motion must address a significant safety or environmental
issue; and
(3) The motion must demonstrate that a materially different result
would be or would have been likely had the newly proffered evidence been
considered initially.
(b) The motion must be accompanied by affidavits that set forth the
factual and/or technical bases for the movant's claim that the criteria
of paragraph (a) of this section have been satisfied. Affidavits must be
given by competent individuals with knowledge of the facts alleged, or
by experts in the disciplines appropriate to the issues raised. Evidence
contained in affidavits must meet the admissibility standards of this
subpart. Each of the criteria must be separately addressed, with a
specific explanation of why it has been met. When multiple allegations
are involved, the movant must identify with particularity each issue it
seeks to litigate and specify the factual and/or technical bases which
it believes support the claim that this issue meets the criteria in
paragraph (a) of this section.
(c) A motion predicated in whole or in part on the allegations of a
confidential informant must identify to the presiding officer the source
of the allegations and must request the issuance of an appropriate
protective order.
(d) A motion to reopen which relates to a contention not previously
in controversy among the parties must also satisfy the requirements for
nontimely contentions in Sec. 2.309(c).
Sec. 2.327 Official recording; transcript.
(a) Recording hearings. A hearing will be recorded stenographically
or by other means under the supervision of the presiding officer. If the
hearing is recorded on videotape or some other video medium, before an
official transcript is prepared under paragraph (b) of this section,
that video recording will be considered to constitute the record of
events at the hearing.
(b) Official transcript. For each hearing, a transcript will be
prepared from the recording made in accordance with paragraph (a) of
this section that will be the sole official transcript of the hearing.
The transcript will be prepared by an official reporter who may be
designated by the Commission or may be a regular employee of the
Commission. Except as limited by section 181 of the Act or order of the
Commission, the transcript will be available for inspection in the
agency's public records system.
(c) Availability of copies. Copies of transcripts prepared in
accordance with paragraph (b) of this section are available to the
parties and to the public from the official reporter on payment of the
charges fixed therefor. If a hearing is recorded on videotape or other
video medium, copies of the recording of each daily session of the
hearing may be made available to the parties and to the public from the
presiding officer upon payment of a charge specified by the Chief
Administrative Judge.
(d) Transcript corrections. Corrections of the official transcript
may be made only in the manner provided by this paragraph. Corrections
ordered or approved by the presiding officer must be included in the
record as an appendix. When so incorporated, the Secretary shall make
the necessary physical corrections in the official transcript so that it
will incorporate the changes ordered. In making corrections, pages may
not be substituted but, to the extent practicable, corrections must be
made by running a line through the matter to be changed without
obliteration and writing the matter as changed immediately above. If the
correction consists of an insertion, it must be added by rider or
interlineation as near as possible to the text which is intended to
precede and follow it.
Sec. 2.328 Hearings to be public.
Except as may be requested under section 181 of the Act, all
hearings will be public unless otherwise ordered by the Commission.
[[Page 59]]
Sec. 2.329 Prehearing conference.
(a) Necessity for prehearing conference; timing. The Commission or
the presiding officer may, and in the case of a proceeding on an
application for a construction permit or an operating license for a
facility of a type described in Sec. Sec. 50.21(b) or 50.22 of this
chapter or a testing facility, shall direct the parties or their counsel
to appear at a specified time and place for a conference or conferences
before trial. A prehearing conference in a proceeding involving a
construction permit or operating license for a facility of a type
described in Sec. Sec. 50.21(b) or 50.22 of this chapter must be held
within sixty (60) days after discovery has been completed or any other
time specified by the Commission or the presiding officer.
(b) Objectives. The following subjects may be discussed, as directed
by the Commission or the presiding officer, at the prehearing
conference:
(1) Expediting the disposition of the proceeding;
(2) Establishing early and continuing control so that the proceeding
will not be protracted because of lack of management;
(3) Discouraging wasteful prehearing activities;
(4) Improving the quality of the hearing through more thorough
preparation, and;
(5) Facilitating the settlement of the proceeding or any portions of
it.
(c) Other matters for consideration. As appropriate for the
particular proceeding, a prehearing conference may be held to consider
such matters as:
(1) Simplification, clarification, and specification of the issues;
(2) The necessity or desirability of amending the pleadings;
(3) Obtaining stipulations and admissions of fact and the contents
and authenticity of documents to avoid unnecessary proof, and advance
rulings from the presiding officer on the admissibility of evidence;
(4) The appropriateness and timing of summary disposition motions
under subparts G and L of this part, including appropriate limitations
on the page length of motions and responses thereto;
(5) The control and scheduling of discovery, including orders
affecting disclosures and discovery under the discovery provisions in
subpart G of this part.
(6) Identification of witnesses and documents, and the limitation of
the number of expert witnesses, and other steps to expedite the
presentation of evidence, including the establishment of reasonable
limits on the time allowed for presenting direct and, where permitted,
cross-examination evidence;
(7) The disposition of pending motions;
(8) Settlement and the use of special procedures to assist in
resolving any issues in the proceeding;
(9) The need to adopt special procedures for managing potentially
difficult or protracted proceedings that may involve particularly
complex issues, including the establishment of separate hearings with
respect to any particular issue in the proceeding;
(10) The setting of a hearing schedule, including any appropriate
limitations on the scope and time permitted for cross-examination where
cross-examination is permitted; and
(11) Other matters that the Commission or presiding officer
determines may aid in the just and orderly disposition of the
proceeding.
(d) Reports. Prehearing conferences may be reported stenographically
or by other means.
(e) Prehearing conference order. The presiding officer shall enter
an order that recites the action taken at the conference, the amendments
allowed to the pleadings and agreements by the parties, and the issues
or matters in controversy to be determined in the proceeding. Any
objections to the order must be filed by a party within five (5) days
after service of the order. Parties may not file replies to the
objections unless the presiding officer so directs. The filing of
objections does not stay the decision unless the presiding officer so
orders. The presiding officer may revise the order in the light of the
objections presented and, as permitted by Sec. 2.319(l), may certify
for determination to the Commission any matter raised in the objections
the presiding officer finds appropriate. The order controls
[[Page 60]]
the subsequent course of the proceeding unless modified for good cause.
Sec. 2.330 Stipulations.
Apart from any stipulations made during or as a result of a
prehearing conference, the parties may stipulate in writing at any stage
of the proceeding or orally during the hearing, any relevant fact or the
contents or authenticity of any document. These stipulations may be
received in evidence. The parties may also stipulate as to the procedure
to be followed in the proceeding. These stipulations may, on motion of
all parties, be recognized by the presiding officer to govern the
conduct of the proceeding.
Sec. 2.331 Oral argument before the presiding officer.
When, in the opinion of the presiding officer, time permits and the
nature of the proceeding and the public interest warrant, the presiding
officer may allow, and fix a time for, the presentation of oral
argument. The presiding officer will impose appropriate limits of time
on the argument. The transcript of the argument is part of the record.
Sec. 2.332 General case scheduling and management.
(a) Scheduling order. The presiding officer shall, as soon as
practicable after consulting with the parties by a scheduling
conference, telephone, mail, or other suitable means, enter a scheduling
order that establishes limits for the time to file motions, conclude
discovery, and take other actions in the proceeding. The scheduling
order may also include:
(1) Modifications of the times for disclosures under Sec. Sec.
2.336 and 2.704 and of the extent of discovery to be permitted;
(2) The date or dates for prehearing conferences, and hearings; and
(3) Any other matters appropriate in the circumstances of the
proceeding.
(b) Modification of schedule. A schedule may not be modified except
upon a finding by the presiding officer or the Commission of good cause.
In making such a good cause determination, the presiding officer or the
Commission should take into account the following factors, among other
things:
(1) Whether the requesting party has exercised due diligence to
adhere to the schedule;
(2) Whether the requested change is the result of unavoidable
circumstances; and
(3) Whether the other parties have agreed to the change and the
overall effect of the change on the schedule of the case.
(c) Objectives of scheduling order. The scheduling order must have
as its objectives proper case management purposes such as:
(1) Expediting the disposition of the proceeding;
(2) Establishing early and continuing control so that the proceeding
will not be protracted because of lack of management;
(3) Discouraging wasteful prehearing activities;
(4) Improving the quality of the hearing through more thorough
preparation; and
(5) Facilitating the settlement of the proceeding or any portions
thereof, including the use of Alternative Dispute Resolution, when and
if the presiding officer, upon consultation with the parties, determines
that these types of efforts should be pursued.
(d) Effect of NRC staff's schedule on scheduling order. In
establishing a schedule, the presiding officer shall take into
consideration the NRC staff's projected schedule for completion of its
safety and environmental evaluations to ensure that the hearing schedule
does not adversely impact the staff's ability to complete its reviews in
a timely manner. Hearings on safety issues may be commenced before
publication of the NRC staff's safety evaluation upon a finding by the
presiding officer that commencing the hearings at that time would
expedite the proceeding. Where an environmental impact statement (EIS)
is involved, hearings on environmental issues addressed in the EIS may
not commence before the issuance of the final EIS. In addition,
discovery against the NRC staff on safety or environmental issues,
respectively, should be suspended until the staff has issued the SER or
EIS, unless the presiding officer finds that the
[[Page 61]]
commencement of discovery against the NRC staff (as otherwise permitted
by the provisions of this part) before the publication of the pertinent
document will not adversely affect completion of the document and will
expedite the hearing.
Sec. 2.333 Authority of the presiding officer to regulate procedure
in a hearing.
To prevent unnecessary delays or an unnecessarily large record, the
presiding officer:
(a) May limit the number of witnesses whose testimony may be
cumulative;
(b) May strike argumentative, repetitious, cumulative, unreliable,
immaterial, or irrelevant evidence;
(c) Shall require each party or participant who requests permission
to conduct cross-examination to file a cross-examination plan for each
witness or panel of witnesses the party or participant proposes to
cross-examine;
(d) Must ensure that each party or participant permitted to conduct
cross-examination conducts its cross-examination in conformance with the
party's or participant's cross-examination plan filed with the presiding
officer;
(e) May take necessary and proper measures to prevent argumentative,
repetitious, or cumulative cross-examination; and
(f) May impose such time limitations on arguments as the presiding
officer determines appropriate, having regard for the volume of the
evidence and the importance and complexity of the issues involved.
Sec. 2.334 Schedules for proceedings.
(a) Unless the Commission directs otherwise in a particular
proceeding, the presiding officer or the Atomic Safety and Licensing
Board assigned to the proceeding shall, based on information and
projections provided by the parties and the NRC staff, establish and
take appropriate action to maintain a schedule for the completion of the
evidentiary record and, as appropriate, the issuance of its initial
decision.
(b) The presiding officer or the Atomic Safety and Licensing Board
assigned to the proceeding shall provide written notification to the
Commission any time during the course of the proceeding when it appears
that the completion of the record or the issuance of the initial
decision will be delayed more than sixty (60) days beyond the time
specified in the schedule established under Sec. 2.334(a). The
notification must include an explanation of the reasons for the
projected delay and a description of the actions, if any, that the
presiding officer or the Board proposes to take to avoid or mitigate the
delay.
Sec. 2.335 Consideration of Commission rules and regulations in
adjudicatory proceedings.
(a) Except as provided in paragraphs (b), (c), and (d) of this
section, no rule or regulation of the Commission, or any provision
thereof, concerning the licensing of production and utilization
facilities, source material, special nuclear material, or byproduct
material, is subject to attack by way of discovery, proof, argument, or
other means in any adjudicatory proceeding subject to this part.
(b) A party to an adjudicatory proceeding subject to this part may
petition that the application of a specified Commission rule or
regulation or any provision thereof, of the type described in paragraph
(a) of this section, be waived or an exception made for the particular
proceeding. The sole ground for petition of waiver or exception is that
special circumstances with respect to the subject matter of the
particular proceeding are such that the application of the rule or
regulation (or a provision of it) would not serve the purposes for which
the rule or regulation was adopted. The petition must be accompanied by
an affidavit that identifies the specific aspect or aspects of the
subject matter of the proceeding as to which the application of the rule
or regulation (or provision of it) would not serve the purposes for
which the rule or regulation was adopted. The affidavit must state with
particularity the special circumstances alleged to justify the waiver or
exception requested. Any other party may file a response by counter
affidavit or otherwise.
[[Page 62]]
(c) If, on the basis of the petition, affidavit and any response
permitted under paragraph (b) of this section, the presiding officer
determines that the petitioning party has not made a prima facie showing
that the application of the specific Commission rule or regulation (or
provision thereof) to a particular aspect or aspects of the subject
matter of the proceeding would not serve the purposes for which the rule
or regulation was adopted and that application of the rule or regulation
should be waived or an exception granted, no evidence may be received on
that matter and no discovery, cross-examination or argument directed to
the matter will be permitted, and the presiding officer may not further
consider the matter.
(d) If, on the basis of the petition, affidavit and any response
provided for in paragraph (b) of this section, the presiding officer
determines that the prima facie showing required by paragraph (b) of
this section has been made, the presiding officer shall, before ruling
on the petition, certify the matter directly to the Commission (the
matter will be certified to the Commission notwithstanding other
provisions on certification in this part) for a determination in the
matter of whether the application of the Commission rule or regulation
or provision thereof to a particular aspect or aspects of the subject
matter of the proceeding, in the context of this section, should be
waived or an exception made. The Commission may, among other things, on
the basis of the petition, affidavits, and any response, determine
whether the application of the specified rule or regulation (or
provision thereof) should be waived or an exception be made. The
Commission may direct further proceedings as it considers appropriate to
aid its determination.
(e) Whether or not the procedure in paragraph (b) of this section is
available, a party to an initial or renewal licensing proceeding may
file a petition for rulemaking under Sec. 2.802.
Sec. 2.336 General discovery.
(a) Except for proceedings conducted under subparts G and J of this
part or as otherwise ordered by the Commission, the presiding officer or
the Atomic Safety and Licensing Board assigned to the proceeding, all
parties, other than the NRC staff, to any proceeding subject to this
part shall, within thirty (30) days of the issuance of the order
granting a request for hearing or petition to intervene and without
further order or request from any party, disclose and provide:
(1) The name and, if known, the address and telephone number of any
person, including any expert, upon whose opinion the party bases its
claims and contentions and may rely upon as a witness, and a copy of the
analysis or other authority upon which that person bases his or her
opinion;
(2)(i) A copy, or a description by category and location, of all
documents and data compilations in the possession, custody, or control
of the party that are relevant to the contentions, provided that if only
a description is provided of a document or data compilation, a party
shall have the right to request copies of that document and/or data
compilation, and
(ii) A copy (for which there is no claim of privilege or protected
status), or a description by category and location, of all tangible
things (e.g., books, publications and treatises) in the possession,
custody or control of the party that are relevant to the contention.
(iii) When any document, data compilation, or other tangible thing
that must be disclosed is publicly available from another source, such
as at the NRC Web site, http: //www.nrc.gov, and/or the NRC Public
Document Room, a sufficient disclosure would be the location, the title
and a page reference to the relevant document, data compilation, or
tangible thing.
(3) A list of documents otherwise required to be disclosed for which
a claim of privilege or protected status is being made, together with
sufficient information for assessing the claim of privilege or protected
status of the documents.
(b) Except for proceedings conducted under subpart J of this part or
as otherwise ordered by the Commission, the presiding officer, or the
Atomic Safety and Licensing Board assigned to the proceeding, the NRC
staff shall, within thirty (30) days of the issuance of the order
granting a request for hearing or
[[Page 63]]
petition to intervene and without further order or request from any
party, disclose and/or provide, to the extent available (but excluding
those documents for which there is a claim of privilege or protected
status):
(1) The application and/or applicant/licensee requests associated
with the application or proposed action that is the subject of the
proceeding;
(2) NRC correspondence with the applicant or licensee associated
with the application or proposed action that is the subject of the
proceeding;
(3) All documents (including documents that provide support for, or
opposition to, the application or proposed action) supporting the NRC
staff's review of the application or proposed action that is the subject
of the proceeding;
(4) Any NRC staff documents (except those documents for which there
is a claim of privilege or protected status) representing the NRC
staff's determination on the application or proposal that is the subject
of the proceeding; and
(5) A list of all otherwise-discoverable documents for which a claim
of privilege or protected status is being made, together with sufficient
information for assessing the claim of privilege or protected status of
the documents.
(c) Each party and the NRC staff shall make its initial disclosures
under paragraphs (a) and (b) of this section, based on the information
and documentation then reasonably available to it. A party, including
the NRC staff, is not excused from making the required disclosures
because it has not fully completed its investigation of the case, it
challenges the sufficiency of another entity's disclosures, or that
another entity has not yet made its disclosures. All disclosures under
this section must be accompanied by a certification (by sworn affidavit)
that all relevant materials required by this section have been
disclosed, and that the disclosures are accurate and complete as of the
date of the certification.
(d) The duty of disclosure under this section is continuing, and any
information or documents that are subsequently developed or obtained
must be disclosed within fourteen (14) days.
(e)(1)The presiding officer may impose sanctions, including
dismissal of specific contentions, dismissal of the adjudication, denial
or dismissal of the application or proposed action, or the use of the
discovery provisions in subpart G of this part against the offending
party, for the offending party's continuing unexcused failure to make
the disclosures required by this section.
(2) The presiding officer may impose sanctions on a party that fails
to provide any document or witness name required to be disclosed under
this section, unless the party demonstrates good cause for its failure
to make the disclosure required by this section. A sanction that may be
imposed by the presiding officer is prohibiting the admission into
evidence of documents or testimony of the witness proffered by the
offending party in support of its case.
(f) The disclosures required by this section constitute the sole
discovery permitted for NRC proceedings under this part unless there is
further provision for discovery under the specific subpart under which
the hearing will be conducted or unless the Commission provides
otherwise in a specific proceeding.
Sec. 2.337 Evidence at a hearing.
(a) Admissibility. Only relevant, material, and reliable evidence
which is not unduly repetitious will be admitted. Immaterial or
irrelevant parts of an admissible document will be segregated and
excluded so far as is practicable.
(b) Objections. An objection to evidence must briefly state the
grounds of objection. The transcript must include the objection, the
grounds, and the ruling. Exception to an adverse ruling is preserved
without notation on-the-record.
(c) Offer of proof. An offer of proof, made in connection with an
objection to a ruling of the presiding officer excluding or rejecting
proffered oral testimony, must consist of a statement of the substance
of the proffered evidence. If the excluded evidence is in written
[[Page 64]]
form, a copy must be marked for identification. Rejected exhibits,
adequately marked for identification, must be retained in the record.
(d) Exhibits. A written exhibit will not be received in evidence
unless the original and two copies are offered and a copy is furnished
to each party, or the parties have been previously furnished with copies
or the presiding officer directs otherwise. The presiding officer may
permit a party to replace with a true copy an original document admitted
in evidence.
(e) Official record. An official record of a government agency or
entry in an official record may be evidenced by an official publication
or by a copy attested by the officer having legal custody of the record
and accompanied by a certificate of his custody.
(f) Official notice. (1) The Commission or the presiding officer may
take official notice of any fact of which a court of the United States
may take judicial notice or of any technical or scientific fact within
the knowledge of the Commission as an expert body. Each fact officially
noticed under this paragraph must be specified in the record with
sufficient particularity to advise the parties of the matters which have
been noticed or brought to the attention of the parties before final
decision and each party adversely affected by the decision shall be
given opportunity to controvert the fact.
(2) If a decision is stated to rest in whole or in part on official
notice of a fact which the parties have not had a prior opportunity to
controvert, a party may controvert the fact by filing an appeal from an
initial decision or a petition for reconsideration of a final decision.
The appeal must clearly and concisely set forth the information relied
upon to controvert the fact.
(g) Proceedings involving applications--(1) Facility construction
permits. In a proceeding involving an application for construction
permit for a production or utilization facility, the NRC staff shall
offer into evidence any report submitted by the ACRS in the proceeding
in compliance with section 182(b) of the Act, any safety evaluation
prepared by the NRC staff, and any environmental impact statement
prepared in the proceeding under subpart A of part 51 of this chapter by
the Director of Nuclear Reactor Regulation or Director of Nuclear
Material Safety and Safeguards, as appropriate, or his or her designee.
(2) Other applications where the NRC staff is a party. In a
proceeding involving an application for other than a construction permit
for a production or utilization facility, the NRC staff shall offer into
evidence:
(i) Any report submitted by the ACRS in the proceeding in compliance
with section 182(b) of the Act;
(ii) At the discretion of the NRC staff, a safety evaluation
prepared by the NRC staff and/or NRC staff testimony and evidence on the
contention/controverted matter prepared in advance of the completion of
the safety evaluation;
(iii) Any NRC staff statement of position on the contention/
controverted matter provided to the presiding officer under Sec. Sec.
2.1202(a); and
(iv) Any environmental impact statement or environmental assessment
prepared in the proceeding under subpart A of part 51 of this chapter by
the Director of Nuclear Reactor Regulation or Director of Nuclear
Material Safety and Safeguards, as appropriate, or his or her designee
if there is any, but only if there are contentions/controverted matters
with respect to the adequacy of the environmental impact statement or
environmental assessment.
(3) Other applications where the NRC staff is not a party. In a
proceeding involving an application for other than a construction permit
for a production or utilization facility, the NRC staff shall offer into
evidence, and (with the exception of an ACRS report) provide one or more
sponsoring witnesses, for:
(i) Any report submitted by the ACRS in the proceeding in compliance
with section 182(b) of the Act;
(ii) At the discretion of the NRC staff, a safety evaluation
prepared by the NRC staff and/or NRC staff testimony and evidence on the
contention/controverted matter prepared in advance of the completion of
the safety evaluation;
(iii) Any NRC staff statement of position on the contention/
controverted matter under Sec. 2.1202(a); and
[[Page 65]]
(iv) Any environmental impact statement or environmental assessment
prepared in the proceeding under subpart A of part 51 of this chapter by
the Director of Nuclear Reactor Regulation or Director of Nuclear
Material Safety and Safeguards, as appropriate, or his or her designee
if there is any, but only if there are contentions/controverted matters
with respect to the adequacy of the environmental impact statement or
environmental assessment.
Sec. 2.338 Settlement of issues; alternative dispute resolution.
The fair and reasonable settlement and resolution of issues proposed
for litigation in proceedings subject to this part is encouraged.
Parties are encouraged to employ various methods of alternate dispute
resolution to address the issues without the need for litigation in
proceedings subject to this part.
(a) Availability. The parties shall have the opportunity to submit a
proposed settlement of some or all issues to the Commission or presiding
officer, as appropriate, or submit a request for alternative dispute
resolution under paragraph (b) of this section.
(b) Settlement judge; alternative dispute resolution. (1) The
presiding officer, upon joint motion of the parties, may request the
Chief Administrative Judge to appoint a Settlement Judge to conduct
settlement negotiations or remit the proceeding to alternative dispute
resolution as the Commission may provide or to which the parties may
agree. The order appointing the Settlement Judge may confine the scope
of settlement negotiations to specified issues. The order must direct
the Settlement Judge to report to the Chief Administrative Judge at
specified time periods.
(2) If a Settlement Judge is appointed, the Settlement Judge shall:
(i) Convene and preside over conferences and settlement negotiations
between the parties and assess the practicalities of a potential
settlement;
(ii) Report to the Chief Administrative Judge describing the status
of the settlement negotiations and recommending the termination or
continuation of the settlement negotiations; and
(iii) Not discuss the merits of the case with the Chief
Administrative Judge or any other person, or appear as a witness in the
case.
(3) Settlement negotiations conducted by the Settlement Judge
terminate upon the order of the Chief Administrative Judge issued after
consultation with the Settlement Judge.
(4) No decision concerning the appointment of a Settlement Judge or
the termination of the settlement negotiation is subject to review by,
appeal to, or rehearing by the presiding officer or the Commission.
(c) Availability of parties' attorneys or representatives. The
presiding officer (or Settlement Judge) may require that the attorney or
other representative who is expected to try the case for each party be
present and that the parties, or agents having full settlement
authority, also be present or available by telephone.
(d) Admissibility in subsequent hearing. No evidence, statements, or
conduct in settlement negotiations under this section will be admissible
in any subsequent hearing, except by stipulation of the parties.
Documents disclosed may not be used in litigation unless obtained
through appropriate discovery or subpoena.
(e) Imposition of additional requirements. The presiding officer (or
Settlement Judge) may impose on the parties and persons having an
interest in the outcome of the adjudication additional requirements as
the presiding officer (or Settlement Judge) finds necessary for the fair
and efficient resolution of the case.
(f) Effects of ongoing settlement negotiations. The conduct of
settlement negotiations does not divest the presiding officer of
jurisdiction and does not automatically stay the proceeding. A hearing
must not be unduly delayed because of the conduct of settlement
negotiations.
(g) Form. A settlement must be in the form of a proposed settlement
agreement, a consent order, and a motion for its entry that includes the
reasons why it should be accepted. It must be signed by the consenting
parties or their authorized representatives.
[[Page 66]]
(h) Content of settlement agreement. The proposed settlement
agreement must contain the following:
(1) An admission of all jurisdictional facts;
(2) An express waiver of further procedural steps before the
presiding officer, of any right to challenge or contest the validity of
the order entered into in accordance with the agreement, and of all
rights to seek judicial review or otherwise to contest the validity of
the consent order;
(3) A statement that the order has the same force and effect as an
order made after full hearing; and
(4) A statement that matters identified in the agreement, required
to be adjudicated have been resolved by the proposed settlement
agreement and consent order.
(i) Approval of settlement agreement. Following issuance of a notice
of hearing, a settlement must be approved by the presiding officer or
the Commission as appropriate in order to be binding in the proceeding.
The presiding officer or Commission may order the adjudication of the
issues that the presiding officer or Commission finds is required in the
public interest to dispose of the proceeding. In an enforcement
proceeding under subpart B of this part, the presiding officer shall
accord due weight to the position of the NRC staff when reviewing the
settlement. If approved, the terms of the settlement or compromise must
be embodied in a decision or order. Settlements approved by a presiding
officer are subject to the Commission's review in accordance with Sec.
2.341.
Sec. 2.339 Expedited decisionmaking procedure.
(a) The presiding officer may determine a proceeding by an order
after the conclusion of a hearing without issuing an initial decision,
when:
(1) All parties stipulate that the initial decision may be omitted
and waive their rights to file a petition for review, to request oral
argument, and to seek judicial review;
(2) No unresolved substantial issue of fact, law, or discretion
remains, and the record clearly warrants granting the relief requested;
and
(3) The presiding officer finds that dispensing with the issuance of
the initial decision is in the public interest.
(b) An order entered under paragraph (a) of this section is subject
to review by the Commission on its own motion within forty (40) days
after its date.
(c) An initial decision may be made effective immediately, subject
to review by the Commission on its own motion within thirty (30) days
after its date, except as otherwise provided in this chapter, when:
(1) All parties stipulate that the initial decision may be made
effective immediately and waive their rights to file a petition for
review, to request oral argument, and to seek judicial review;
(2) No unresolved substantial issue of fact, law, or discretion
remains and the record clearly warrants granting the relief requested;
and
(3) The presiding officer finds that it is in the public interest to
make the initial decision effective immediately.
(d) The provisions of this section do not apply to an initial
decision directing the issuance or amendment of a construction permit or
construction authorization, or the issuance of an operating license or
provisional operating authorization.
Sec. 2.340 Initial decision in contested proceedings on applications
for facility operating licenses; immediate effectiveness of initial
decision directing issuance or amendment of construction permit or
operating license.
(a) Production or utilization facility operating license. In any
initial decision in a contested proceeding on an application for an
operating license for a production or utilization facility, the
presiding officer shall make findings of fact and conclusions of law on
the matters put into controversy by the parties to the proceeding and on
matters which have been determined to be the issues in the proceeding by
the Commission or the presiding officer. Matters not put into
controversy by the parties will be examined and decided by the presiding
officer only where he or she determines that a serious safety,
environmental, or common defense and security matter exists, and the
Commission approves such examination and decision upon referral of the
question
[[Page 67]]
by the presiding officer. Depending on the resolution of those matters,
the Director of Nuclear Reactor Regulation or Director of Nuclear
Material Safety and Safeguards, as appropriate, after making the
requisite findings, will issue, deny or appropriately condition the
license.
(b) Immediate effectiveness of certain decisions. Except as provided
in paragraphs (d) through (g) of this section, or as otherwise ordered
by the Commission in special circumstances, an initial decision
directing the issuance or amendment of a construction permit, a
construction authorization, an operating license or a license under 10
CFR Part 72 to store spent fuel in an independent spent fuel storage
installation (ISFSI) at a reactor site is effective immediately upon
issuance unless the presiding officer finds that good cause has been
shown by a party why the initial decision should not become immediately
effective, subject to review thereof and further decision by the
Commission upon petition for review filed by any party under Sec. 2.341
or upon its own motion.
(c) Issuance of license after initial decision. Except as provided
in paragraphs (d) through (g) of this section, or as otherwise ordered
by the Commission in special circumstances, the Director of Nuclear
Reactor Regulation or Director of Nuclear Material Safety and
Safeguards, as appropriate, notwithstanding the filing or granting of a
petition for review, shall issue a construction permit, a construction
authorization, an operating license, or a license under 10 CFR part 72
to store spent fuel in an independent spent fuel storage installation at
a reactor site, or amendments thereto, authorized by an initial
decision, within ten (10) days from the date of issuance of the
decision.
(d) Immediate effectiveness of initial decisions on a ISFSI and MRS.
An initial decision directing the issuance of an initial license for the
construction and operation of an independent spent fuel storage
installation (ISFSI) located at a site other than a reactor site or a
monitored retrievable storage installation (MRS) under 10 CFR Part 72
becomes effective only upon order of the Commission. The Director of
Nuclear Material Safety and Safeguards may not issue an initial license
for the construction and operation of an independent spent fuel storage
installation (ISFSI) located at a site other than a reactor site or a
monitored retrievable storage installation (MRS) under 10 CFR part 72
until expressly authorized to do so by the Commission.
(e) [Reserved].
(f) Nuclear power reactor construction permits--(1) Presiding
officers. Presiding officers shall hear and decide all issues that come
before them, indicating in their decisions the type of licensing action,
if any, which their decision would authorize. The presiding officer's
decisions concerning construction permits are not effective until the
Commission actions outlined in paragraph (f)(2) of this section have
taken place.
(2) Commission. Within sixty (60) days of the service of any
presiding officer decision that would otherwise authorize issuance of a
construction permit, the Commission will seek to issue a decision on any
stay motions that are timely filed. These motions must be filed as
provided by Sec. 2.341. For the purpose of this paragraph, a stay
motion is one that seeks to defer the effectiveness of a presiding
officer decision beyond the period necessary for the Commission action
described herein. If no stay papers are filed, the Commission will,
within the same time period (or earlier if possible), analyze the record
and construction permit decision below on its own motion and will seek
to issue a decision on whether a stay is warranted. However, the
Commission will not decide that a stay is warranted without giving the
affected parties an opportunity to be heard. The initial decision will
be considered stayed pending the Commission's decision. In deciding
these stay questions, the Commission shall employ the procedures set out
in Sec. 2.342.
(g) Nuclear power reactor operating licenses--(1) Presiding
officers. Presiding officers shall hear and decide all issues that come
before them, indicating in their decisions the type of licensing action,
if any, which their decision would authorize. A presiding officer's
decision authorizing issuance of an operating license may not become
[[Page 68]]
effective if it authorizes operating at greater than five (5) percent of
rated power until the Commission actions outlined in paragraph (g)(2) of
this section have taken place. If a decision authorizes operation up to
five (5) percent, the decision is effective and the Director shall issue
the appropriate license in accordance with paragraph (c) of this
section.
(2) The Commission. (i) Reserving the power to step in at an earlier
time, the Commission will, upon receipt of the presiding officer's
decision authorizing issuance of an operating license, other than a
decision authorizing only fuel loading and low power (up to five (5)
percent of rated power) testing, review the matter on its own motion to
determine whether to stay the effectiveness of the decision. An
operating license decision will be stayed by the Commission, insofar as
it authorizes other than fuel loading and low power testing, if it
determines that it is in the public interest to do so, based on a
consideration of the gravity of the substantive issue, the likelihood
that it has been resolved incorrectly below, the degree to which correct
resolution of the issue would be prejudiced by operation pending review,
and other relevant public interest factors.
(ii) For operating license decisions other than those authorizing
only fuel loading and low power testing consistent with the target
schedule set forth below, the parties may file brief comments with the
Commission pointing out matters which, in their view, pertain to the
immediate effectiveness issue. To be considered, these comments must be
received within ten (10) days of the presiding officer's decision.
However, the Commission may dispense with comments by so advising the
parties. An extensive stay will not be issued without giving the
affected parties an opportunity to be heard.
(iii) The Commission intends to issue a stay decision within thirty
(30) days of receipt of the presiding officer's decision. The presiding
officer's initial decision will be considered stayed pending the
Commission's decision insofar as it may authorize operations other than
fuel loading and low power (up to five (5) percent of rated power)
testing.
(iv) In announcing a stay decision, the Commission may allow the
proceeding to run its ordinary course or give instructions as to the
future handling of the proceeding. Furthermore, the Commission may, in a
particular case, determine that compliance with existing regulations and
policies may no longer be sufficient to warrant approval of a license
application and may alter those regulations and policies.
(h) Lack of prejudice of Commission effectiveness decision. The
Commission's effectiveness determination is entirely without prejudice
to proceedings under Sec. Sec. 2.341 or 2.342.
Sec. 2.341 Review of decisions and actions of a presiding officer.
(a)(1) Except for requests for review or appeals of actions under
Sec. 2.311 or in a proceeding on the high-level radioactive waste
repository (which are governed by Sec. 2.1015), review of decisions and
actions of a presiding officer are treated under this section.
(2) Within forty (40) days after the date of a decision or action by
a presiding officer, or within forty (40) days after a petition for
review of the decision or action has been served under paragraph (b) of
this section, whichever is greater, the Commission may review the
decision or action on its own motion, unless the Commission, in its
discretion, extends the time for its review.
(b)(1) Within fifteen (15) days after service of a full or partial
initial decision by a presiding officer, and within fifteen (15) days
after service of any other decision or action by a presiding officer
with respect to which a petition for review is authorized by this part,
a party may file a petition for review with the Commission on the
grounds specified in paragraph (b)(4) of this section. Unless otherwise
authorized by law, a party to an NRC proceeding must file a petition for
Commission review before seeking judicial review of an agency action.
(2) A petition for review under this paragraph may not be longer
than twenty-five (25) pages, and must contain the following:
(i) A concise summary of the decision or action of which review is
sought;
[[Page 69]]
(ii) A statement (including record citation) where the matters of
fact or law raised in the petition for review were previously raised
before the presiding officer and, if they were not, why they could not
have been raised;
(iii) A concise statement why in the petitioner's view the decision
or action is erroneous; and
(iv) A concise statement why Commission review should be exercised.
(3) Any other party to the proceeding may, within ten (10) days
after service of a petition for review, file an answer supporting or
opposing Commission review. This answer may not be longer than twenty-
five (25) pages and should concisely address the matters in paragraph
(b)(2) of this section to the extent appropriate. The petitioning party
may file a reply brief within five (5) days of service of any answer.
This reply brief may not be longer than five (5) pages.
(4) The petition for review may be granted in the discretion of the
Commission, giving due weight to the existence of a substantial question
with respect to the following considerations:
(i) A finding of material fact is clearly erroneous or in conflict
with a finding as to the same fact in a different proceeding;
(ii) A necessary legal conclusion is without governing precedent or
is a departure from or contrary to established law;
(iii) A substantial and important question of law, policy, or
discretion has been raised;
(iv) The conduct of the proceeding involved a prejudicial procedural
error; or
(v) Any other consideration which the Commission may deem to be in
the public interest.
(5) A petition for review will not be granted to the extent that it
relies on matters that could have been but were not raised before the
presiding officer. A matter raised sua sponte by a presiding officer has
been raised before the presiding officer for the purpose of this
section.
(6) A petition for review will not be granted as to issues raised
before the presiding officer on a pending motion for reconsideration.
(c) (1) If a petition for review is granted, the Commission will
issue an order specifying the issues to be reviewed and designating the
parties to the review proceeding. The Commission may, in its discretion,
decide the matter on the basis of the petition for review or it may
specify whether any briefs may be filed.
(2) Unless the Commission orders otherwise, any briefs on review may
not exceed thirty (30) pages in length, exclusive of pages containing
the table of contents, table of citations, and any addendum containing
appropriate exhibits, statutes, or regulations. A brief in excess of ten
(10) pages must contain a table of contents with page references and a
table of cases (alphabetically arranged), cited statutes, regulations
and other authorities, with references to the pages of the brief where
they are cited.
(d) Petitions for reconsideration of Commission decisions granting
or denying review in whole or in part will not be entertained. A
petition for reconsideration of a Commission decision after review may
be filed within ten (10) days, but is not necessary for exhaustion of
administrative remedies. However, if a petition for reconsideration is
filed, the Commission decision is not final until the petition is
decided. Any petition for reconsideration will be evaluated against the
standard in Sec. 2.323(e).
(e) Neither the filing nor the granting of a petition under this
section stays the effect of the decision or action of the presiding
officer, unless the Commission orders otherwise.
(f) Interlocutory review. (1) A question certified to the Commission
under Sec. 2.319(l), or a ruling referred or issue certified to the
Commission under Sec. 2.323(f), will be reviewed if the certification
or referral raises significant and novel legal or policy issues, and
resolution of the issues would materially advance the orderly
disposition of the proceeding.
(2) The Commission may, in its discretion, grant interlocutory
review at the request of a party despite the absence of a referral or
certification by the presiding officer. A petition and answer to it must
be filed within the times and in the form prescribed in
[[Page 70]]
paragraph (b) of this section and must be treated in accordance with the
general provisions of this section. The petition for interlocutory
review will be granted only if the party demonstrates that the issue for
which the party seeks interlocutory review:
(i) Threatens the party adversely affected by it with immediate and
serious irreparable impact which, as a practical matter, could not be
alleviated through a petition for review of the presiding officer's
final decision; or
(ii) Affects the basic structure of the proceeding in a pervasive or
unusual manner.
Sec. 2.342 Stays of decisions.
(a) Within ten (10) days after service of a decision or action of a
presiding officer, any party to the proceeding may file an application
for a stay of the effectiveness of the decision or action pending filing
of and a decision on a petition for review. This application may be
filed with the Commission or the presiding officer, but not both at the
same time.
(b) An application for a stay may be no longer than ten (10) pages,
exclusive of affidavits, and must contain the following:
(1) A concise summary of the decision or action which is requested
to be stayed;
(2) A concise statement of the grounds for stay, with reference to
the factors specified in paragraph (e) of this section; and
(3) To the extent that an application for a stay relies on facts
subject to dispute, appropriate references to the record or affidavits
by knowledgeable persons.
(c) Service of an application for a stay on the other parties must
be by the same method, e.g., electronic or facsimile transmission, mail,
as the method for filing the application with the Commission or the
presiding officer.
(d) Within ten (10) days after service of an application for a stay
under this section, any party may file an answer supporting or opposing
the granting of a stay. This answer may not be longer than ten (10)
pages, exclusive of affidavits, and should concisely address the matters
in paragraph (b) of this section to the extent appropriate. Further
replies to answers will not be entertained. Filing of and service of an
answer on the other parties must be by the same method, e.g., electronic
or facsimile transmission, mail, as the method for filing the
application for the stay.
(e) In determining whether to grant or deny an application for a
stay, the Commission or presiding officer will consider:
(1) Whether the moving party has made a strong showing that it is
likely to prevail on the merits;
(2) Whether the party will be irreparably injured unless a stay is
granted;
(3) Whether the granting of a stay would harm other parties; and
(4) Where the public interest lies.
(f) In extraordinary cases, where prompt application is made under
this section, the Commission or presiding officer may grant a temporary
stay to preserve the status quo without waiting for filing of any
answer. The application may be made orally provided the application is
promptly confirmed by electronic or facsimile transmission message. Any
party applying under this paragraph shall make all reasonable efforts to
inform the other parties of the application, orally if made orally.
Sec. 2.343 Oral argument.
In its discretion, the Commission may allow oral argument upon the
request of a party made in a petition for review, brief on review, or
upon its own initiative.
Sec. 2.344 Final decision.
(a) The Commission will ordinarily consider the whole record on
review, but may limit the issues to be reviewed to those identified in
an order taking review.
(b) The Commission may adopt, modify, or set aside the findings,
conclusions and order in the initial decision, and will state the basis
of its action. The final decision will be in writing and will include:
(1) A statement of findings and conclusions, with the basis for them
on all material issues of fact, law or discretion presented;
(2) All facts officially noticed;
[[Page 71]]
(3) The ruling on each material issue; and
(4) The appropriate ruling, order, or denial of relief, with the
effective date.
Sec. 2.345 Petition for reconsideration.
(a)(1) Any petition for reconsideration of a final decision must be
filed by a party within ten (10) days after the date of the decision.
(2) Petitions for reconsideration of Commission decisions are
subject to the requirements in Sec. 2.341(d).
(b) A petition for reconsideration must demonstrate a compelling
circumstance, such as the existence of a clear and material error in a
decision, which could not have been reasonably anticipated, which
renders the decision invalid. The petition must state the relief sought.
Within ten (10) days after a petition for reconsideration has been
served, any other party may file an answer in opposition to or in
support of the petition.
(c) Neither the filing nor the granting of the petition stays the
decision unless the Commission orders otherwise.
Sec. 2.346 Authority of the Secretary.
When briefs, motions or other papers are submitted to the Commission
itself, as opposed to the officers who have been delegated authority to
act for the Commission, the Secretary or the Assistant Secretary is
authorized to:
(a) Prescribe procedures for the filing of briefs, motions, or other
pleadings, when the schedules differ from those prescribed by the rules
of this part or when the rules of this part do not prescribe a schedule;
(b) Rule on motions for extensions of time;
(c) Reject motions, briefs, pleadings, and other documents filed
with the Commission later then the time prescribed by the Secretary or
the Assistant Secretary or established by an order, rule or regulation
of the Commission unless good cause is shown for the late filing;
(d) Prescribe all procedural arrangements relating to any oral
argument to be held before the Commission;
(e) Extend the time for the Commission to rule on a petition for
review under Sec. Sec. 2.311 and 2.341;
(f) Extend the time for the Commission to grant review on its own
motion under Sec. 2.341;
(g) Direct pleadings improperly filed before the Commission to the
appropriate presiding officer for action;
(h) Deny a request for hearings, where the request fails to comply
with the Commission's pleading requirements set forth in this part, and
fails to set forth an arguable basis for further proceedings;
(i) Refer to the Atomic Safety and Licensing Board Panel or an
Administrative Judge, as appropriate requests for hearing not falling
under Sec. 2.104, where the requestor is entitled to further
proceedings; and
(j) Take action on minor procedural matters.
Sec. 2.347 Ex parte communications.
In any proceeding under this subpart--
(a) Interested persons outside the agency may not make or knowingly
cause to be made to any Commission adjudicatory employee, any ex parte
communication relevant to the merits of the proceeding.
(b) Commission adjudicatory employees may not request or entertain
from any interested person outside the agency or make or knowingly cause
to be made to any interested person outside the agency, any ex parte
communication relevant to the merits of the proceeding.
(c) Any Commission adjudicatory employee who receives, makes, or
knowingly causes to be made a communication prohibited by this section
shall ensure that it, and any responses to the communication, are
promptly served on the parties and placed in the public record of the
proceeding. In the case of oral communications, a written summary must
be served and placed in the public record of the proceeding.
(d) Upon receipt of a communication knowingly made or knowingly
caused to be made by a party in violation of this section, the
Commission or other adjudicatory employee presiding in a proceeding may,
to the extent consistent with the interests of justice and
[[Page 72]]
the policy of the underlying statutes, require the party to show cause
why its claim or interest in the proceeding should not be dismissed,
denied, disregarded, or otherwise adversely affected on account of the
violation.
(e) (1) The prohibitions of this section apply--
(i) When a notice of hearing or other comparable order is issued in
accordance with Sec. Sec. 2.104(a), 2.105(e)(2), 2.202(c), 2.204,
2.205(e), or 2.312; or
(ii) Whenever the interested person or Commission adjudicatory
employee responsible for the communication has knowledge that a notice
of hearing or other comparable order will be issued in accordance with
Sec. Sec. 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e), or 2.312.
(2) The prohibitions of this section cease to apply to ex parte
communications relevant to the merits of a full or partial initial
decision when, in accordance with Sec. 2.341, the time has expired for
Commission review of the decision.
(f) The prohibitions in this section do not apply to--
(1) Requests for and the provision of status reports;
(2) Communications specifically permitted by statute or regulation;
(3) Communications made to or by Commission adjudicatory employees
in the Office of the General Counsel regarding matters pending before a
court or another agency; and
(4) Communications regarding generic issues involving public health
and safety or other statutory responsibilities of the agency (e.g.,
rulemakings, congressional hearings on legislation, budgetary planning)
not associated with the resolution of any proceeding under this subpart
pending before the NRC.
Sec. 2.348 Separation of functions.
(a) In any proceeding under this subpart, any NRC officer or
employee engaged in the performance of any investigative or litigating
function in that proceeding or in a factually related proceeding may not
participate in or advise a Commission adjudicatory employee about the
initial or final decision on any disputed issue in that proceeding,
except--
(1) As witness or counsel in the proceeding;
(2) Through a written communication served on all parties and made
on-the-record of the proceeding; or
(3) Through an oral communication made both with reasonable prior
notice to all parties and with reasonable opportunity for all parties to
respond.
(b) The prohibition in paragraph (a) of this section does not apply
to--
(1) Communications to or from any Commission adjudicatory employee
regarding--
(i) The status of a proceeding;
(ii) Matters for which the communications are specifically permitted
by statute or regulation;
(iii) NRC participation in matters pending before a court or another
agency; or
(iv) Generic issues involving public health and safety or other
statutory responsibilities of the NRC (e.g., rulemakings, congressional
hearings on legislation, budgetary planning) not associated with the
resolution of any proceeding under this subpart pending before the NRC.
(2) Communications to or from Commissioners, members of their
personal staffs, Commission adjudicatory employees in the Office of the
General Counsel, and the Secretary and employees of the Office of the
Secretary, regarding--
(i) Initiation or direction of an investigation or initiation of an
enforcement proceeding;
(ii) Supervision of NRC staff to ensure compliance with the general
policies and procedures of the agency;
(iii) NRC staff priorities and schedules or the allocation of agency
resources; or
(iv) General regulatory, scientific, or engineering principles that
are useful for an understanding of the issues in a proceeding and are
not contested in the proceeding.
(3) None of the communications permitted by paragraph (b)(2) (i)
through (iii) of this section is to be associated by the Commission
adjudicatory employee or the NRC officer or employee performing
investigative or litigating functions with the resolution of any
proceeding under this subpart pending before the NRC.
[[Page 73]]
(c) Any Commission adjudicatory employee who receives a
communication prohibited under paragraph (a) of this section shall
ensure that it, and any responses to the communication, are placed in
the public record of the proceeding and served on the parties. In the
case of oral communications, a written summary must be served and placed
in the public record of the proceeding.
(d)(1) The prohibitions in this section apply--
(i) When a notice of hearing or other comparable order is issued in
accordance with Sec. Sec. 2.104(a), 2.105(e)(2), 2.202(c), 2.204,
2.205(e), or 2.312; or
(ii) Whenever an NRC officer or employee who is or has reasonable
cause to believe he or she will be engaged in the performance of an
investigative or litigating function or a Commission adjudicatory
employee has knowledge that a notice of hearing or other comparable
order will be issued in accordance with Sec. Sec. 2.104(a),
2.105(e)(2), 2.202(c), 2.204, 2.205(e), or 2.312.
(2) The prohibitions of this section cease to apply to the disputed
issues pertinent to a full or partial initial decision when the time has
expired for Commission review of the decision in accordance with Sec.
2.341.
(e) Communications to, from, and between Commission adjudicatory
employees not prohibited by this section may not serve as a conduit for
a communication that otherwise would be prohibited by this section or
for an ex parte communication that otherwise would be prohibited by
Sec. 2.347.
(f) If an initial or final decision is stated to rest in whole or in
part on fact or opinion obtained as a result of a communication
authorized by this section, the substance of the communication must be
specified in the record of the proceeding and every party must be
afforded an opportunity to controvert the fact or opinion. If the
parties have not had an opportunity to controvert the fact or opinion
before the decision is filed, a party may controvert the fact or opinion
by filing a petition for review of an initial decision, or a petition
for reconsideration of a final decision that clearly and concisely sets
forth the information or argument relied on to show the contrary. If
appropriate, a party may be afforded the opportunity for cross-
examination or to present rebuttal evidence.
Sec. 2.390 Public inspections, exemptions, requests for withholding.
(a) Subject to the provisions of paragraphs (b), (d), (e), and (f)
of this section, final NRC records and documents,\1\ including but not
limited to correspondence to and from the NRC regarding the issuance,
denial, amendment, transfer, renewal, modification, suspension,
revocation, or violation of a license, permit, or order, or regarding a
rulemaking proceeding subject to this part shall not, in the absence of
an NRC determination of a compelling reason for nondisclosure after a
balancing of the interests of the person or agency urging nondisclosure
and the public interest in disclosure, be exempt from disclosure and
will be made available for inspection and copying at the NRC Web site,
http://www.nrc.gov, and/or at the NRC Public Document Room, except for
matters that are:
---------------------------------------------------------------------------
\1\Such records and documents do not include handwritten notes and
drafts.
---------------------------------------------------------------------------
(1)(i) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy; and
(ii) Are in fact properly classified under that Executive order;
(2) Related solely to the internal personnel rules and practices of
the Commission;
(3) Specifically exempted from disclosure by statute (other than 5
U.S.C. 552(b)), but only if that statute requires that the matters be
withheld from the public in such a manner as to leave no discretion on
the issue, or establishes particular criteria for withholding or refers
to particular types or matters to be withheld.
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Interagency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the Commission;
(6) Personnel and medical files and similar files, the disclosure of
which
[[Page 74]]
would constitute a clearly unwarranted invasion of personal privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority, or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(9) Geological and geophysical information and data, including maps,
concerning wells.
(b) The procedures in this section must be followed by anyone
submitting a document to the NRC who seeks to have the document, or a
portion of it, withheld from public disclosure because it contains trade
secrets, privileged, or confidential commercial or financial
information.
(1) The submitter shall request withholding at the time the document
is submitted and shall comply with the document marking and affidavit
requirements set forth in this paragraph. The NRC has no obligation to
review documents not so marked to determine whether they contain
information eligible for withholding under paragraph (a) of this
section. Any documents not so marked may be made available to the public
at the NRC Web site, http://www.nrc.gov or at the NRC Public Document
Room.
(i) The submitter shall ensure that the document containing
information sought to be withheld is marked as follows:
(A) The top of the first page of the document and the top of each
page containing such information must be marked with language
substantially similar to: ``confidential information submitted under 10
CFR 2.390''; ``withhold from public disclosure under 10 CFR 2.390''; or
``proprietary'' to indicate it contains information the submitter seeks
to have withheld.
(B) Each document, or page, as appropriate, containing information
sought to be withheld from public disclosure must indicate, adjacent to
the information, or at the top if the entire page is affected, the basis
(i.e., trade secret, personal privacy, etc.) for proposing that the
information be withheld from public disclosure under paragraph (a) of
this section.
(ii) The Commission may waive the affidavit requirements on request,
or on its own initiative, in circumstances the Commission, in its
discretion, deems appropriate. Otherwise, except for personal privacy
information, which is not subject to the affidavit requirement, the
request for withholding must be accompanied by an affidavit that--
(A) Identifies the document or part sought to be withheld;
(B) Identifies the official position of the person making the
affidavit;
(C) Declares the basis for proposing the information be withheld,
encompassing considerations set forth in Sec. 2.390(a);
(D) Includes a specific statement of the harm that would result if
the information sought to be withheld is disclosed to the public; and
[[Page 75]]
(E) Indicates the location(s) in the document of all information
sought to be withheld.
(iii) In addition, an affidavit accompanying a withholding request
based on paragraph (a)(4) of this section must contain a full statement
of the reason for claiming the information should be withheld from
public disclosure. Such statement shall address with specificity the
considerations listed in paragraph (b)(4) of this section. In the case
of an affidavit submitted by a company, the affidavit shall be executed
by an officer or upper-level management official who has been
specifically delegated the function of reviewing the information sought
to be withheld and authorized to apply for its withholding on behalf of
the company. The affidavit shall be executed by the owner of the
information, even though the information sought to be withheld is
submitted to the Commission by another person. The application and
affidavit shall be submitted at the time of filing the information
sought to be withheld. The information sought to be withheld shall be
incorporated, as far as possible, into a separate paper. The affiant
must designate with appropriate markings information submitted in the
affidavit as a trade secret, or confidential or privileged commercial or
financial information within the meaning of Sec. 9.17(a)(4) of this
chapter, and such information shall be subject to disclosure only in
accordance with the provisions of Sec. 9.19 of this chapter.
(2) A person who submits commercial or financial information
believed to be privileged or confidential or a trade secret shall be on
notice that it is the policy of the Commission to achieve an effective
balance between legitimate concerns for protection of competitive
positions and the right of the public to be fully apprised as to the
basis for and effects of licensing or rulemaking actions, and that it is
within the discretion of the Commission to withhold such information
from public disclosure.
(3) The Commission shall determine whether information sought to be
withheld from public disclosure under this paragraph:
(i) Is a trade secret or confidential or privileged commercial or
financial information; and (ii) If so, should be withheld from public
disclosure.
(4) In making the determination required by paragraph (b)(3)(i) of
this section, the Commission will consider:
(i) Whether the information has been held in confidence by its
owner;
(ii) Whether the information is of a type customarily held in
confidence by its owner and, except for voluntarily submitted
information, whether there is a rational basis therefor;
(iii) Whether the information was transmitted to and received by the
Commission in confidence;
(iv) Whether the information is available in public sources;
(v) Whether public disclosure of the information sought to be
withheld is likely to cause substantial harm to the competitive position
of the owner of the information, taking into account the value of the
information to the owner; the amount of effort or money, if any,
expended by the owner in developing the information; and the ease or
difficulty with which the information could be properly acquired or
duplicated by others.
(5) If the Commission determines, under paragraph (b)(4) of this
section, that the record or document contains trade secrets or
privileged or confidential commercial or financial information, the
Commission will then determine whether the right of the public to be
fully apprised as to the bases for and effects of the proposed action
outweighs the demonstrated concern for protection of a competitive
position, and whether the information should be withheld from public
disclosure under this paragraph. If the record or document for which
withholding is sought is deemed by the Commission to be irrelevant or
unnecessary to the performance of its functions, it will be returned to
the applicant.
(6) Withholding from public inspection does not affect the right, if
any, of persons properly and directly concerned to inspect the document.
Either before a decision of the Commission on the matter of whether the
information should be made publicly available or after a decision has
been made that the information should be withheld from public
disclosure, the Commission may require information claimed to be a
[[Page 76]]
trade secret or privileged or confidential commercial or financial
information to be subject to inspection under a protective agreement by
contractor personnel or government officials other than NRC officials,
by the presiding officer in a proceeding, and under protective order by
the parties to a proceeding. In camera sessions of hearings may be held
when the information sought to be withheld is produced or offered in
evidence. If the Commission subsequently determines that the information
should be disclosed, the information and the transcript of such in
camera session will be made publicly available.
(c) The Commission either may grant or deny a request for
withholding under this section.
(1) If the request is granted, the Commission will notify the
submitter of its determination to withhold the information from public
disclosure.
(2) If the Commission denies a request for withholding under this
section, it will provide the submitter with a statement of reasons for
that determination. This decision will specify the date, which will be a
reasonable time thereafter, when the document will be available at the
NRC Web site, http://www.nrc.gov. The document will not be returned to
the submitter.
(3) Whenever a submitter desires to withdraw a document from
Commission consideration, it may request return of the document, and the
document will be returned unless the information--
(i) Forms part of the basis of an official agency decision,
including but not limited to, a rulemaking proceeding or licensing
activity;
(ii) Is contained in a document that was made available to or
prepared for an NRC advisory committee;
(iii) Was revealed, or relied upon, in an open Commission meeting
held in accordance with 10 CFR part 9, subpart C;
(iv) Has been requested in a Freedom of Information Act request; or
(v) Has been obtained during the course of an investigation
conducted by the NRC Office of Investigations.
(d) The following information is considered commercial or financial
information within the meaning of Sec. 9.17(a)(4) of this chapter and
is subject to disclosure only in accordance with the provisions of Sec.
9.19 of this chapter.
(1) Correspondence and reports to or from the NRC which contain
information or records concerning a licensee's or applicant's physical
protection, classified matter protection, or material control and
accounting program for special nuclear material not otherwise designated
as Safeguards Information or classified as National Security Information
or Restricted Data.
(2) Information submitted in confidence to the Commission by a
foreign source.
(e) Submitting information to NRC for consideration in connection
with NRC licensing or regulatory activities shall be deemed to
constitute authority for the NRC to reproduce and distribute sufficient
copies to carry out the Commission's official responsibilities.
(f) The presiding officer, if any, or the Commission may, with
reference to the NRC records and documents made available pursuant to
this section, issue orders consistent with the provisions of this
section and Sec. 2.705(c).
Subpart D_Additional Procedures Applicable to Proceedings for the
Issuance of Licenses To Construct or Operate Nuclear Power Plants of
Duplicate Design at Multiple Sites
Source: 40 FR 2976, Jan. 17, 1975, unless otherwise noted.
Sec. 2.400 Scope of subpart.
This subpart describes procedures applicable to licensing
proceedings which involve the consideration in hearings of a number of
applications, filed by one or more applicants pursuant to appendix N of
part 52 of this chapter, for licenses to construct and operate nuclear
power reactors of essentially the same design to be located at different
sites.
[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]
[[Page 77]]
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 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, under Sec. 2.317, consolidate for hearing on that phase
two or more proceedings to consider common issues relating to the
applications involved in the proceedings, if it finds that this action
will be conducive to the proper dispatch of its business and to the ends
of justice. In specifying the place of this consolidated hearing, due
regard will be given to the convenience and necessity of the parties,
petitioners for leave to intervene, or the attorneys or representatives
of such persons, and the public interest.
[40 FR 2976, Jan. 17, 1975, as amended at 43 FR 17801, Apr. 26, 1978; 54
FR 15398, Apr. 18, 1989; 69 FR 2256, Jan. 14, 2004]
Sec. 2.403 Notice of proposed action on applications for operating
licenses pursuant to appendix N of part 52.
In the case of applications pursuant to appendix N of part 52 of
this chapter for operating licenses for nuclear power reactors, if the
Commission has not found that a hearing is in the public interest, the
Director of Nuclear Reactor Regulation will, prior to acting thereon,
cause to be published in the Federal Register, pursuant to Sec. 2.105,
a notice of proposed action with respect to each application as soon as
practicable after the applications have been docketed.
[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]
Sec. 2.404 Hearings on applications for operating licenses pursuant
to appendix N of part 52.
If a request for a hearing and/or petition for leave to intervene is
filed within the time prescribed in the notice of proposed action on an
application for an operating license pursuant to appendix N of part 52
of this chapter with respect to a specific reactor(s) at a specific site
and the Commission or an atomic safety and licensing board designated by
the Commission or by the Chairman of the Atomic Safety and Licensing
Board Panel has issued a notice of hearing or other appropriate order,
the Commission or the atomic safety and licensing board may order
separate hearings on particular phases of the proceeding and/or
consolidate for hearing two or more proceedings in the manner described
in Sec. 2.402.
[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]
Sec. 2.405 Initial decisions in consolidated hearings.
At the conclusion of any hearing held under this subpart, the
presiding officer will render a partial initial decision that may be
appealed under Sec. 2.341. No construction permit or full power
operating license will be issued until an initial decision has been
issued on all phases of the hearing and all issues
[[Page 78]]
under the Act and the National Environmental Policy Act of 1969
appropriate to the proceeding have been resolved.
[69 FR 2256, Jan. 14, 2004]
Sec. 2.406 Finality of decisions on separate issues.
Notwithstanding any other provision of this chapter, in a proceeding
conducted pursuant to this subpart and appendix N of part 52 of this
chapter, no matter which has been reserved for consideration in one
phase of the hearing shall be considered at another phase of the hearing
except on the basis of significant new information that substantially
affects the conclusion(s) reached at the other phase or other good
cause.
[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]
Sec. 2.407 Applicability of other sections.
The provisions of subparts A and G relating to construction permits
and operating licenses apply, respectively, to construction permits and
operating licenses subject to this subpart, except as qualified by the
provisions of this subpart.
Subpart E_Additional Procedures Applicable to Proceedings for the
Issuance of Licenses To Manufacture Nuclear Power Reactors To Be
Operated at Sites Not Identified in the License Application and Related
Licensing Proceedings
Source: 38 FR 30252, Nov. 2, 1973, unless otherwise noted.
Sec. 2.500 Scope of subpart.
This subpart prescribes procedures applicable to licensing
proceedings 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
[[Page 79]]
identified the major features or components incorporated therein for the
protection of the health and safety of the public;
(ii) Whether such further technical or design information as may be
required to complete the design report and which can reasonably be left
for later consideration, will be supplied in a supplement to the design
report;
(iii) Whether safety features or components, if any, which require
research and development have been described by the applicant and the
applicant has identified, and there will be conducted a research and
development program reasonably designed to resolve any safety questions
associated with such features or components;
(iv) Whether on the basis of the foregoing, there is reasonable
assurance that (A) such safety questions will be satisfactorily resolved
before any of the proposed nuclear power reactors are removed from the
manufacturing site, and (B) taking into consideration the site criteria
contained in part 100 of this chapter, the proposed reactor(s) can be
constructed and operated at sites having characteristics that fall
within the site parameters postulated for the design of the reactor(s)
without undue risk to the health and safety of the public;
(v) Whether the applicant is technically and financially qualified
to design and manufacture the proposed reactor(s);
(vi) Whether the issuance of a license for manufacture of the
reactor(s) will be inimical to the common defense and security or to the
health and safety of the public; and
(vii) Whether, in accordance with the requirements of subpart A of
part 51 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
[[Page 80]]
site on which the facility is to be operated falls within the postulated
site parameters specified in the relevant application for a
manufacturing license.
[40 FR 2976, Jan. 17, 1975, as amended at 54 FR 15398, Apr. 18, 1989]
Sec. 2.503 Finality of decisions on separate issues.
Notwithstanding any other provision of this chapter, no matter which
has been resolved at an earlier stage of the licensing process which
involves a manufacturing license, a permit to construct a reactor for
which a manufacturing license is sought, a license to operate such a
reactor, and any amendment to such permit or licenses shall be
determined to be at issue in any subsequent state of the licensing
process except on the basis of significant new information that
substantially affects the conclusion(s) reached at the earlier stage or
other good cause.
Sec. 2.504 Applicability of other sections.
The provisions of subparts A and G relating to construction permits
apply to manufacturing licenses subject to this subpart, with respect to
matters of radiological health and safety, environmental protection, and
the common defense and security, except that Sec. 2.104 (a) and (b) do
not apply to manufacturing licenses. The provisions of subparts A and G
relating to construction permits and operating licenses apply,
respectively, to construction permits and operating licenses subject to
this subpart, except as qualified by the provisions of this subpart.
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
[[Page 81]]
the applicant's site selection process, specifies the extent to which
that process involves the consideration of alternative sites, explains
the relationship between that process and the application for early
review of site suitability issues, and briefly describes the applicant's
long-range plans for ultimate development of the site. Upon assignment
of a docket number, the procedures in Sec. 2.101(a) (3) and (4)
relating to formal docketing and the submission and distribution of
additional copies of the application shall be followed.
(2) Additional parts of the application will be docketed upon a
determination by the Director of Nuclear Reactor Regulation that they
are complete.
(c) If part one of the application is docketed, the Director of
Nuclear Reactor Regulation will cause to be published in the Federal
Register and send to the Governor or other appropriate official of the
State in which the site is located, a notice of docketing of the
application which states the purpose of the application, states the
location of the proposed site, states that a notice of hearing will be
published, requests comments within 120 days or such other time as may
be specified on the initiation or outcome of an early site review from
Federal, State, and local agencies and interested persons, and in the
case of applications filed under section 103 of the Act, states that a
person who wishes to have his views on the antitrust aspects of the
application presented to the Attorney General for consideration shall
submit such views in accordance with a subsequent notice that will be
published in the Federal Register. In the case of a nuclear power
reactor, such subsequent notice will be published following submission
of the information required by Sec. 50.33a.
[42 FR 22885, May 5, 1977, as amended at 49 FR 9401, Mar. 12, 1984]
Sec. 2.604 Notice of hearing on application for early review of site
suitability issues.
(a) Where an applicant for a construction permit for a utilization
facility subject to this subpart requests an early review and hearing
and an early partial decision on issues of site suitability pursuant to
Sec. 2.101(a-1), the provisions in the notice of hearing setting forth
the matters of fact and law to be considered, as required by Sec.
2.104, shall be modified so as to relate only to the site suitability
issue or issues under review.
(b) After docketing of part two of the application, as provided in
Sec. Sec. 2.101(a-1) and 2.603, a supplementary notice of hearing will
be published under Sec. 2.104 with respect to the remaining unresolved
issues in the proceeding within the scope of Sec. 2.104. This
supplementary notice of hearing will provide that any person whose
interest may be affected by the proceeding and who desires to
participate as a party in the resolution of the remaining issues shall
file a petition for leave to intervene pursuant to Sec. 2.309 within
the time prescribed in the notice. This supplementary notice will also
provide appropriate opportunities for participation by a representative
of an interested State under Sec. 2.315(c) and for limited appearances
under Sec. 2.315(a).
(c) Any person who was permitted to intervene as a party under the
initial notice of hearing on site suitability issues and who was not
dismissed or did not withdraw as a party may continue to participate as
a party to the proceeding with respect to the remaining unresolved
issues, provided that within the time prescribed for filing of petitions
for leave to intervene in the supplementary notice of hearing, he or she
files a notice of his intent to continue as a party, along with a
supporting affidavit identifying the specific aspect or aspects of the
subject matter of the proceeding as to which he or she wishes to
continue to participate as a party and setting forth with particularity
the basis for his contentions with regard to each aspect or aspects. A
party who files a non-timely notice of intent to continue as a party may
be dismissed from the proceeding, absent a determination that the party
has made a substantial showing of good cause for failure to file on
time, and with particular reference to the factors specified in
Sec. Sec. 2.309(c)(1)(i) through (iv) and 2.309(d). The notice will be
ruled upon by the Commission or presiding officer designated to rule on
petitions for leave to intervene.
[[Page 82]]
(d) To the maximum extent practicable, the membership of the atomic
safety and licensing board designated to preside in the proceeding on
the remaining unresolved issues pursuant to the supplemental notice of
hearing will be the same as the membership designated to preside in the
initial notice of hearing on site suitability issues.
[42 FR 22885, May 5, 1977, as amended by 69 FR 2256, Jan. 14, 2004]
Sec. 2.605 Additional considerations.
(a) The Commission will not conduct more than one review of site
suitability issues with regard to a particular site prior to filing and
review of part two of the application described in Sec. 2.101(a-1) of
this part.
(b) The Commission, upon its own initiative, or upon the motion of
any party to the proceeding filed at least sixty (60) days prior to the
date of the commencement of the evidentiary hearing on site suitability
issues, may decline to initiate an early hearing or render an early
partial decision on any issue or issues of site suitability:
(1) In cases where no partial decision on the relative merits of the
proposed site and alternative sites under subpart A of part 51 is
requested, upon determination that there is a reasonable likelihood that
further review would identify one or more preferable alternative sites
and the partial decision on one or more site suitability issues would
lead to an irreversible and irretrievable commitment of resources prior
to the submittal of the remainder of the information required by Sec.
50.30(f) of this chapter that would prejudice the later review and
decision on such alternative sites; or
(2) In cases where it appears that an early partial decision on any
issue or issues of site suitability would not be in the public interest
considering (i) the degree of likelihood that any early findings on
those issues would retain their validity in later reviews, (ii) the
objections, if any, of cognizant state or local government agencies to
the conduct of an early review on those issues, and (iii) the possible
effect on the public interest and the parties of having an early, if not
necessarily conclusive, resolution of those issues.
[42 FR 22885, May 5, 1977, as amended at 49 FR 9401, Mar. 12, 1984]
Sec. 2.606 Partial decisions on site suitability issues.
(a) The provisions of Sec. Sec. 2.331, 2.339, 2.340(b), 2.343,
2.712, and 2.713 shall apply to any partial initial decision rendered in
accordance with this subpart. Section 2.340(c) shall not apply to any
partial initial decision rendered in accordance with this subpart. A
limited work authorization may not be issued under 10 CFR 50.10(e) and
no construction permit may be issued without completion of the full
review required by section 102(2) of the National Environmental Policy
Act of 1969, as amended, and subpart A of part 51 of this chapter. The
authority of the Commission to review such a partial initial decision
sua sponte, or to raise sua sponte an issue that has not been raised by
the parties, will be exercised within the same time period as in the
case of a full decision relating to the issuance of a construction
permit.
(b)(1) A partial decision on one or more site suitability issues
pursuant to the applicable provisions of part 50, subpart A of part 51,
and part 100 of this chapter issued in accordance with this subpart
shall (i) clearly identify the site to which the partial decision
applies and (ii) indicate to what extent additional information may be
needed and additional review may be required to enable the Commission to
determine in accordance with the provisions of the Act and the
applicable provisions of the regulations in this chapter whether a
construction permit for a facility to be located on the site identified
in the partial decision should be issued or denied.
(2) Following completion of Commission review of the partial initial
decision of the Atomic Safety and Licensing Board, after hearing, on the
site suitability issues, the partial decision shall remain in effect
either for a period of five years or, where the applicant for the
construction permit has made timely submittal of the information
required to support the application as provided in Sec. 2.101(a-1),
until the proceeding for a permit to construct a
[[Page 83]]
facility on the site identified in the partial decision has been
concluded, \3\ unless the Commission or Atomic Safety and Licensing
Board, upon its own initiative or upon motion by a party to the
proceeding, finds that there exists significant new information that
substantially affects the earlier conclusions and reopens the hearing
record on site suitability issues. Upon good cause shown, the Commission
may extend the five year period during which a partial decision shall
remain in effect for a reasonable period of time not to exceed one year.
---------------------------------------------------------------------------
\3\ The partial decision on site suitability issues shall be
incorporated in the decision regarding issuance of a construction permit
to the extent that it serves as a basis for the decision on a specific
site issue(s).
[42 FR 22885, May 5, 1977, as amended at 49 FR 9401, Mar. 12, 1984; 69
FR 2256, Jan. 14, 2004]
Subpart G_Rules for Formal Adjudications
Source: 69 FR 2256, Jan. 14, 2004, unless otherwise noted.
Sec. 2.700 Scope of subpart G.
The provisions of this subpart apply to and supplement the
provisions set forth in subpart C of this part with respect to
enforcement proceedings initiated under subpart B of this part unless
otherwise agreed to by the parties, proceedings conducted with respect
to the initial licensing of a uranium enrichment facility, proceedings
for the grant, renewal, licensee-initiated amendment, or termination of
licenses or permits for nuclear power reactors, where the presiding
officer by order finds that resolution of the contention necessitates
resolution of: issues of material fact relating to the occurrence of a
past event, where the credibility of an eyewitness may reasonably be
expected to be at issue, and/or issues of motive or intent of the party
or eyewitness material to the resolution of the contested matter,
proceedings for initial applications for construction authorization for
high-level radioactive waste repository noticed under Sec. Sec.
2.101(f)(8) or 2.105(a)(5), proceedings for initial applications for a
license to receive and possess high-level radioactive waste at a
geologic repository operations area, and any other proceeding as ordered
by the Commission. If there is any conflict between the provisions of
this subpart and those set forth in subpart C of this part, the
provisions of this subpart control.
Sec. 2.701 Exceptions.
Consistent with 5 U.S.C. 554(a)(4) of the Administrative Procedure
Act, the Commission may provide alternative procedures in adjudications
to the extent that there is involved the conduct of military or foreign
affairs functions.
Sec. 2.702 Subpoenas.
(a) On application by any party, the designated presiding officer
or, if he or she is not available, the Chief Administrative Judge, or
other designated officer will issue subpoenas requiring the attendance
and testimony of witnesses or the production of evidence. The officer to
whom application is made may require a showing of general relevance of
the testimony or evidence sought, and may withhold the subpoena if such
a showing is not made. However, the officer may not determine the
admissibility of evidence.
(b) Every subpoena will bear the name of the Commission, the name
and office of the issuing officer and the title of the hearing, and will
command the person to whom it is directed to attend and give testimony
or produce specified documents or other things at a designated time and
place. The subpoena will also advise of the quashing procedure provided
in paragraph (f) of this section.
(c) Unless the service of a subpoena is acknowledged on its face by
the witness or is served by an officer or employee of the Commission, it
must be served by a person who is not a party to the hearing and is not
less than eighteen (18) years of age. Service of a subpoena must be made
by delivery of a copy of the subpoena to the person named in it and
tendering that person the fees for one day's attendance and the mileage
allowed by law. When the subpoena is issued on behalf of the Commission,
fees and mileage need not be tendered and the subpoena may be served by
registered mail.
[[Page 84]]
(d) Witnesses summoned by subpoena must be paid the fees and mileage
paid to witnesses in the district courts of the United States by the
party at whose instance they appear.
(e) The person serving the subpoena shall make proof of service by
filing the subpoena and affidavit or acknowledgment of service with the
officer before whom the witness is required to testify or produce
evidence or with the Secretary. Failure to make proof of service does
not affect the validity of the service.
(f) On motion made promptly, and in any event at or before the time
specified in the subpoena for compliance by the person to whom the
subpoena is directed, and on notice to the party at whose instance the
subpoena was issued, the presiding officer or, if he is unavailable, the
Commission may:
(1) Quash or modify the subpoena if it is unreasonable or requires
evidence not relevant to any matter in issue, or
(2) Condition denial of the motion on just and reasonable terms.
(g) On application and for good cause shown, the Commission will
seek judicial enforcement of a subpoena issued to a party and which has
not been quashed.
(h) The provisions of paragraphs (a) through (g) of this section are
not applicable to the attendance and testimony of the Commissioners or
NRC personnel, or to the production of records or documents in their
custody.
Sec. 2.703 Examination by experts.
(a) A party may request the presiding officer to permit a qualified
individual who has scientific or technical training or experience to
participate on behalf of that party in the examination and cross-
examination of expert witnesses. The presiding officer may permit the
individual to participate on behalf of the party in the examination and
cross-examination of expert witnesses, upon finding:
(1) That cross-examination by that individual would serve the
purpose of furthering the conduct of the proceeding;
(2) That the individual is qualified by scientific or technical
training or experience to contribute to the development of an adequate
decisional record in the proceeding by the conduct of such examination
or cross-examination;
(3) That the individual has read any written testimony on which he
intends to examine or cross-examine and any documents to be used or
referred to in the course of the examination or cross-examination; and
(4) That the individual has prepared himself to conduct a meaningful
and expeditious examination or cross-examination, and has submitted a
cross-examination plan in accordance with Sec. 2.711(c).
(b) Examination or cross-examination conducted under this section
must be limited to areas within the expertise of the individual
conducting the examination or cross-examination. The party on behalf of
whom this examination or cross-examination is conducted and his or her
attorney is responsible for the conduct of examination or cross-
examination by such individuals.
Sec. 2.704 Discovery--required disclosures.
(a) Initial disclosures. Except to the extent otherwise stipulated
or directed by order of the presiding officer or the Commission, a party
other than the NRC staff shall, without awaiting a discovery request,
provide to other parties:
(1) The name and, if known, the address and telephone number of each
individual likely to have discoverable information relevant to disputed
issues alleged with particularity in the pleadings, identifying the
subjects of the information; and
(2) A copy of, or a description by category and location of, all
documents, data compilations, and tangible things in the possession,
custody, or control of the party that are relevant to disputed issues
alleged with particularity in the pleadings. When any document, data
compilation, or other tangible thing that must be disclosed is publicly
available from another source, such as at the NRC Web site, http://
www.nrc.gov, and/or the NRC Public Document Room, a sufficient
disclosure would be the location, the title and a page reference to the
relevant document, data compilation, or tangible thing;
[[Page 85]]
(3) Unless otherwise stipulated or directed by the presiding
officer, these disclosures must be made within forty-five (45) days
after the issuance of a prehearing conference order following the
initial prehearing conference specified in Sec. 2.329. A party shall
make its initial disclosures based on the information then reasonably
available to it. A party is not excused from making its disclosures
because it has not fully completed its investigation of the case,
because it challenges the sufficiency of another party's disclosures, or
because another party has not made its disclosures.
(b) Disclosure of expert testimony. (1) In addition to the
disclosures required by paragraph (a) of this section, a party other
than the NRC staff shall disclose to other parties the identity of any
person who may be used at trial to present evidence under Sec. 2.711.
(2) Except in proceedings with pre-filed written testimony, or as
otherwise stipulated or directed by the presiding officer, this
disclosure must be accompanied by a written report prepared and signed
by the witness, containing: A complete statement of all opinions to be
expressed and the basis and reasons therefor; the data or other
information considered by the witness in forming the opinions; any
exhibits to be used as a summary of or support for the opinions; the
qualifications of the witness, including a list of all publications
authored by the witness within the preceding ten years; and a listing of
any other cases in which the witness has testified as an expert at trial
or by deposition within the preceding four (4) years.
(3) These disclosures must be made at the times and in the sequence
directed by the presiding officer. In the absence of other directions
from the presiding officer, or stipulation by the parties, the
disclosures must be made at least ninety (90) days before the hearing
commencement date or the date the matter is to be presented for hearing.
If the evidence is intended solely to contradict or rebut evidence on
the same subject matter identified by another party under paragraph
(b)(2) of this section, the disclosures must be made within thirty (30)
days after the disclosure made by the other party. The parties shall
supplement these disclosures when required under paragraph (e) of this
section.
(c) Pretrial disclosures. (1) In addition to the disclosures
required in the preceding paragraphs, a party other than the NRC staff
shall provide to other parties the following information regarding the
evidence that it may present at trial other than solely for impeachment
purposes:
(i) The name and, if not previously provided, the address and
telephone number of each witness, separately identifying those whom the
party expects to present and those whom the party may call if the need
arises;
(ii) The designation of those witnesses whose testimony is expected
to be presented by means of a deposition and, when available, a
transcript of the pertinent portions of the deposition testimony; and
(iii) An appropriate identification of each document or other
exhibit, including summaries of other evidence, separately identifying
those which the party expects to offer and those which the party may
offer if the need arises.
(2) Unless otherwise directed by the presiding officer or the
Commission, these disclosures must be made at least thirty (30) days
before commencement of the hearing at which the issue is to be
presented.
(3) A party may object to the admissibility of documents identified
under paragraph (c) of this section. A list of those objections must be
served and filed within fourteen (14) days after service of the
disclosures required by paragraphs (c)(1) and (2) of this section,
unless a different time is specified by the presiding officer or the
Commission. Objections not so disclosed, other than objections as to a
document's admissibility under Sec. 2.711(e), are waived unless excused
by the presiding officer or Commission for good cause shown.
(d) Form of disclosures; filing. Unless otherwise directed by order
of the presiding officer or the Commission, all disclosures under
paragraphs (a) through (c) of this section must be made in writing,
signed, served, and promptly filed with the presiding officer or the
Commission.
(e) Supplementation of responses. A party who has made a disclosure
under
[[Page 86]]
this section is under a duty to supplement or correct the disclosure to
include information thereafter acquired if ordered by the presiding
officer or in the following circumstances:
(1) A party is under a duty to supplement at appropriate intervals
its disclosures under paragraph (a) of this section within a reasonable
time after a party learns that in some material respect the information
disclosed is incomplete or incorrect and if the additional or corrective
information has not otherwise been made known to the other parties
during the discovery process or in writing.
(2) With respect to testimony of an expert from whom a report is
required under paragraph (b) of this section, the duty extends both to
information contained in the report and to information provided through
a deposition of the expert, and any additions or other changes to this
information must be disclosed by the time the party's disclosures under
Sec. 2.704(c) are due.
Sec. 2.705 Discovery--additional methods.
(a) Discovery methods. Parties may obtain discovery by one or more
of the following methods: depositions upon oral examination or written
interrogatories (Sec. 2.706); interrogatories to parties (Sec. 2.706);
production of documents or things or permission to enter upon land or
other property, for inspection and other purposes (Sec. 2.707); and
requests for admission (Sec. 2.708).
(b) Scope of discovery. Unless otherwise limited by order of the
presiding officer in accordance with this section, the scope of
discovery is as follows:
(1) In general. Parties may obtain discovery regarding any matter,
not privileged, that is relevant to the subject matter involved in the
proceeding, whether it relates to the claim or defense of any other
party, including the existence, description, nature, custody, condition,
and location of any books, documents, or other tangible things and the
identity and location of persons having knowledge of any discoverable
matter. When any book, document, or other tangible thing sought is
reasonably available from another source, such as at the NRC Web site,
http://www.nrc.gov, and/or the NRC Public Document Room, sufficient
response to an interrogatory on materials would be the location, the
title and a page reference to the relevant book, document, or tangible
thing. In a proceeding on an application for a construction permit or an
operating license for a production or utilization facility, discovery
begins only after the prehearing conference and relates only to those
matters in controversy which have been identified by the Commission or
the presiding officer in the prehearing order entered at the conclusion
of that prehearing conference. In such a proceeding, discovery may not
take place after the beginning of the prehearing conference held under
Sec. 2.329 except upon leave of the presiding officer upon good cause
shown. It is not a ground for objection that the information sought will
be inadmissible at the hearing if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
(2) Limitations. Upon his or her own initiative after reasonable
notice or in response to a motion filed under paragraph (c) of this
section, the presiding officer may alter the limits in these rules on
the number of depositions and interrogatories, and may also limit the
length of depositions under Sec. 2.706 and the number of requests under
Sec. Sec. 2.707 and 2.708. The presiding officer shall limit the
frequency or extent of use of the discovery methods otherwise permitted
under these rules if he or she determines that:
(i) The discovery sought is unreasonably cumulative or duplicative,
or is obtainable from some other source that is more convenient, less
burdensome, or less expensive;
(ii) The party seeking discovery has had ample opportunity by
discovery in the proceeding to obtain the information sought; or
(iii) The burden or expense of the proposed discovery outweighs its
likely benefit, taking into account the needs of the proceeding, the
parties' resources, the importance of the issue in the proceeding, and
the importance of the proposed discovery in resolving the issues.
(3) Trial preparation materials. A party may obtain discovery of
documents and tangible things otherwise discoverable under paragraph
(b)(1) of
[[Page 87]]
this section and prepared in anticipation of or for the hearing by or
for another party's representative (including his attorney, consultant,
surety, indemnitor, insurer, or agent) only upon a showing that the
party seeking discovery has substantial need of the materials in the
preparation of this case and that he is unable without undue hardship to
obtain the substantial equivalent of the materials by other means. In
ordering discovery of such materials when the required showing has been
made, the presiding officer shall protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of an
attorney for a party concerning the proceeding.
(4) Claims of privilege or protection of trial preparation
materials. When a party withholds information otherwise discoverable
under these rules by claiming that it is privileged or subject to
protection as trial preparation material, the party shall make the claim
expressly and shall describe the nature of the documents,
communications, or things not produced or disclosed in a manner that,
without revealing information itself privileged or protected, will
enable other parties to assess the applicability of the privilege or
protection. Identification of these privileged materials must be made
within the time provided for disclosure of the materials, unless
otherwise extended by order of the presiding officer or the Commission.
(5) Nature of interrogatories. Interrogatories may seek to elicit
factual information reasonably related to a party's position in the
proceeding, including data used, assumptions made, and analyses
performed by the party. Interrogatories may not be addressed to, or be
construed to require:
(i) Reasons for not using alternative data, assumptions, and
analyses where the alternative data, assumptions, and analyses were not
relied on in developing the party's position; or
(ii) Performance of additional research or analytical work beyond
that which is needed to support the party's position on any particular
matter.
(c) Protective order. (1) Upon motion by a party or the person from
whom discovery is sought, accompanied by a certification that the movant
has in good faith conferred or attempted to confer with other affected
parties in an effort to resolve the dispute without action by the
presiding officer, and for good cause shown, the presiding officer may
make any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following:
(i) That the discovery not be had;
(ii) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(iii) That the discovery may be had only by a method of discovery
other than that selected by the party seeking discovery;
(iv) That certain matters not be inquired into, or that the scope of
discovery be limited to certain matters;
(v) That discovery be conducted with no one present except persons
designated by the presiding officer;
(vi) That, subject to the provisions of Sec. Sec. 2.709 and 2.390,
a trade secret or other confidential research, development, or
commercial information not be disclosed or be disclosed only in a
designated way; or
(vii) That studies and evaluations not be prepared.
(2) If the motion for a protective order is denied in whole or in
part, the presiding officer may, on such terms and conditions as are
just, order that any party or person provide or permit discovery.
(d) Sequence and timing of discovery. Except when authorized under
these rules or by order of the presiding officer, or agreement of the
parties, a party may not seek discovery from any source before the
parties have met and conferred as required by paragraph (f) of this
section, nor may a party seek discovery after the time limit established
in the proceeding for the conclusion of discovery. Unless the presiding
officer upon motion, for the convenience of parties and witnesses and in
the interests of justice, orders otherwise, methods of discovery may be
used in any sequence and the fact that a party is conducting discovery,
whether by deposition or otherwise, does not
[[Page 88]]
operate to delay any other party's discovery.
(e) Supplementation of responses. A party who responded to a request
for discovery with a response is under a duty to supplement or correct
the response to include information thereafter acquired if ordered by
the presiding officer or, with respect to a response to an
interrogatory, request for production, or request for admission, within
a reasonable time after a party learns that the response is in some
material respect incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the other
parties during the discovery process or in writing.
(f) Meeting of parties; planning for discovery. Except when
otherwise ordered, the parties shall, as soon as practicable and in any
event no more than thirty (30) days after the issuance of a prehearing
conference order following the initial prehearing conference specified
in Sec. 2.329, meet to discuss the nature and basis of their claims and
defenses and the possibilities for a prompt settlement or resolution of
the proceeding or any portion thereof, to make or arrange for the
disclosures required by Sec. 2.704, and to develop a proposed discovery
plan.
(1) The plan must indicate the parties' views and proposals
concerning:
(i) What changes should be made in the timing, form, or requirement
for disclosures under Sec. 2.704, including a statement as to when
disclosures under Sec. 2.704(a)(1) were made or will be made;
(ii) The subjects on which discovery may be needed, when discovery
should be completed, and whether discovery should be conducted in phases
or be limited to or focused upon particular issues;
(iii) What changes should be made in the limitations on discovery
imposed under these rules, and what other limitations should be imposed;
and
(iv) Any other orders that should be entered by the presiding
officer under paragraph (c) of this section.
(2) The attorneys of record and all unrepresented parties that have
appeared in the proceeding are jointly responsible for arranging and
being present or represented at the meeting, for attempting in good
faith to agree on the proposed discovery plan, and for submitting to the
presiding officer within ten (10) days after the meeting a written
report outlining the plan.
(g) Signing of disclosures, discovery requests, responses, and
objections. (1) Every disclosure made in accordance with Sec. 2.704
must be signed by at least one attorney of record in the attorney's
individual name, whose address must be stated. An unrepresented party
shall sign the disclosure and state the party's address. The signature
of the attorney or party constitutes a certification that to the best of
the signer's knowledge, information, and belief, formed after a
reasonable inquiry, the disclosure is complete and correct as of the
time it is made.
(2) Every discovery request, response, or objection made by a party
represented by an attorney must be signed by at least one attorney of
record in the attorney's individual name, whose address must be stated.
An unrepresented party shall sign the request, response, or objection
and state the party's address. The signature of the attorney or party
constitutes a certification that to the best of the signer's knowledge,
information, and belief, formed after a reasonable inquiry, the request,
response, or objection is:
(i) Consistent with these rules and warranted by existing law or a
good faith argument for the extension, modification, or reversal of
existing law;
(ii) Not interposed for any improper purpose, such as to harass or
to cause unnecessary delay or needless increase in the cost of
litigation; and
(iii) Not unreasonable or unduly burdensome or expensive, given the
needs of the case, the discovery already had in the case, the amount in
controversy, and the importance of the issues at stake in the
litigation.
(3) If a request, response, or objection is not signed, it must be
stricken unless it is signed promptly after the omission is called to
the attention of the party making the request, response, or objection,
and a party shall not be obligated to take any action with respect to it
until it is signed.
(4) If a certification is made in violation of the rule without
substantial justification, the presiding officer,
[[Page 89]]
upon motion or upon its own initiative, shall impose upon the person who
made the certification, the party on whose behalf the disclosure,
request, response, or objection is made, or both, an appropriate
sanction, which may, in appropriate circumstances, include termination
of that person's right to participate in the proceeding.
(h) Motion to compel discovery. (1) If a deponent or party upon whom
a request for production of documents or answers to interrogatories is
served fails to respond or objects to the request, or any part thereof,
or fails to permit inspection as requested, the deposing party or the
party submitting the request may move the presiding officer, within ten
(10) days after the date of the response or after failure of a party to
respond to the request, for an order compelling a response or inspection
in accordance with the request. The motion must set forth the nature of
the questions or the request, the response or objection of the party
upon whom the request was served, and arguments in support of the
motion. The motion must be accompanied by a certification that the
movant has in good faith conferred or attempted to confer with other
affected parties in an effort to resolve the dispute without action by
the presiding officer. Failure to answer or respond may not be excused
on the ground that the discovery sought is objectionable unless the
person or party failing to answer or respond has applied for a
protective order pursuant to paragraph (c) of this section. For purposes
of this paragraph, an evasive or incomplete answer or response will be
treated as a failure to answer or respond.
(2) In ruling on a motion made under this section, the presiding
officer may issue a protective order under paragraph (c) of this
section.
(3) This section does not preclude an independent request for
issuance of a subpoena directed to a person not a party for production
of documents and things. This section does not apply to requests for the
testimony or interrogatories of the NRC staff under Sec. 2.709(a), or
the production of NRC documents under Sec. Sec. 2.709(b) or Sec.
2.390, except for paragraphs (c) and (e) of this section.
Sec. 2.706 Depositions upon oral examination and written
interrogatories; interrogatories to parties.
(a) Depositions upon oral examination and written interrogatories.
(1) Any party desiring to take the testimony of any party or other
person by deposition on oral examination or written interrogatories
shall, without leave of the Commission or the presiding officer, give
reasonable notice in writing to every other party, to the person to be
examined and to the presiding officer of the proposed time and place of
taking the deposition; the name and address of each person to be
examined, if known, or if the name is not known, a general description
sufficient to identify him or the class or group to which he belongs;
the matters upon which each person will be examined and the name or
descriptive title and address of the officer before whom the deposition
is to be taken.
(2) [Reserved]
(3) Within the United States, a deposition may be taken before any
officer authorized to administer oaths by the laws of the United States
or of the place where the examination is held. Outside of the United
States, a deposition may be taken before a secretary of an embassy or
legation, a consul general, vice consul or consular agent of the United
States, or a person authorized to administer oaths designated by the
Commission.
(4) Before any questioning, the deponent shall either be sworn or
affirm the truthfulness of his or her answers. Examination and cross-
examination must proceed as at a hearing. Each question propounded must
be recorded and the answer taken down in the words of the witness.
Objections on questions of evidence must be noted in short form without
the arguments. The officer may not decide on the competency,
materiality, or relevancy of evidence but must record the evidence
subject to objection. Objections on questions of evidence not made
before the officer will not be considered waived unless the ground of
the objection is one which might have been obviated or removed if
presented at that time.
[[Page 90]]
(5) When the testimony is fully transcribed, the deposition must be
submitted to the deponent for examination and signature unless he or she
is ill, cannot be found, or refuses to sign. The officer shall certify
the deposition or, if the deposition is not signed by the deponent,
shall certify the reasons for the failure to sign, and shall promptly
forward the deposition by registered mail to the Commission.
(6) Where the deposition is to be taken on written interrogatories,
the party taking the deposition shall serve a copy of the
interrogatories, showing each interrogatory separately and consecutively
numbered, on every other party with a notice stating the name and
address of the person who is to answer them, and the name, description,
title, and address of the officer before whom they are to be taken.
Within ten (10) days after service, any other party may serve cross-
interrogatories. The interrogatories, cross-interrogatories, and answers
must be recorded and signed, and the deposition certified, returned, and
filed as in the case of a deposition on oral examination.
(7) A deposition will not become a part of the record in the hearing
unless received in evidence. If only part of a deposition is offered in
evidence by a party, any other party may introduce any other parts. A
party does not make a person his or her own witness for any purpose by
taking his deposition.
(8) A deponent whose deposition is taken and the officer taking a
deposition are entitled to the same fees as are paid for like services
in the district courts of the United States. The fees must be paid by
the party at whose instance the deposition is taken.
(9) The witness may be accompanied, represented, and advised by
legal counsel.
(10) The provisions of paragraphs (a)(1) through (a)(9) of this
section are not applicable to NRC personnel. Testimony of NRC personnel
by oral examination and written interrogatories addressed to NRC
personnel are subject to the provisions of Sec. 2.709.
(b) Interrogatories to parties. (1) Any party may serve upon any
other party (other than the NRC staff) written interrogatories to be
answered in writing by the party served, or if the party served is a
public or private corporation or a partnership or association, by any
officer or agent, who shall furnish such information as is available to
the party. A copy of the interrogatories, answers, and all related
pleadings must be filed with the Secretary of the Commission, and must
be served on the presiding officer and all parties to the proceeding.
(2) Each interrogatory must be answered separately and fully in
writing under oath or affirmation, unless it is objected to, in which
event the reasons for objection must be stated in lieu of an answer. The
answers must be signed by the person making them, and the objections by
the attorney making them. The party upon whom the interrogatories were
served shall serve a copy of the answers and objections upon all parties
to the proceeding within fourteen (14) days after service of the
interrogatories, or within such shorter or longer period as the
presiding officer may allow. Answers may be used in the same manner as
depositions (see Sec. 2.706(a)(7)).
Sec. 2.707 Production of documents and things; entry upon land for
inspections and other purposes.
(a) Request for discovery. Any party may serve on any other party a
request to:
(1) Produce and permit the party making the request, or a person
acting on his or her behalf, to inspect and copy any designated
documents, or to inspect and copy, test, or sample any tangible things
which are within the scope of Sec. 2.704 and which are in the
possession, custody, or control of the party upon whom the request is
served; or
(2) Permit entry upon designated land or other property in the
possession or control of the party upon whom the request is served for
the purpose of inspection and measuring, surveying, photographing,
testing, or sampling the property or any designated object or operation
on the property, within the scope of Sec. 2.704.
(b) Service. The request may be served on any party without leave of
the Commission or the presiding officer. Except as otherwise provided in
[[Page 91]]
Sec. 2.704, the request may be served after the proceeding is set for
hearing.
(c) Contents. The request must identify the items to be inspected
either by individual item or by category, and describe each item and
category with reasonable particularity. The request must specify a
reasonable time, place, and manner of making the inspection and
performing the related acts.
(d) Response. The party upon whom the request is served shall serve
on the party submitting the request a written response within thirty
(30) days after the service of the request. The response must state,
with respect to each item or category, that inspection and related
activities will be permitted as requested, unless the request is
objected to, in which case the reasons for objection must be stated. If
objection is made to part of an item or category, the part must be
specified.
(e) NRC records and documents. The provisions of paragraphs (a)
through (d) of this section do not apply to the production for
inspection and copying or photographing of NRC records or documents.
Production of NRC records or documents is subject to the provisions of
Sec. Sec. 2.709 and 2.390.
Sec. 2.708 Admissions.
(a) Apart from any admissions made during or as a result of a
prehearing conference, at any time after his or her answer has been
filed, a party may file a written request for the admission of the
genuineness and authenticity of any relevant document described in or
attached to the request, or for the admission of the truth of any
specified relevant matter of fact. A copy of the document for which an
admission of genuineness and authenticity is requested must be delivered
with the request unless a copy has already been furnished.
(b)(1) Each requested admission is considered made unless, within a
time designated by the presiding officer or the Commission, and not less
than ten (10) days after service of the request or such further time as
may be allowed on motion, the party to whom the request is directed
serves on the requesting party either:
(i) A sworn statement denying specifically the relevant matters of
which an admission is requested or setting forth in detail the reasons
why he can neither truthfully admit nor deny them; or
(ii) Written objections on the ground that some or all of the
matters involved are privileged or irrelevant or that the request is
otherwise improper in whole or in part.
(2) Answers on matters to which such objections are made may be
deferred until the objections are determined. If written objections are
made to only a part of a request, the remainder of the request must be
answered within the time designated.
(c) Admissions obtained under the procedure in this section may be
used in evidence to the same extent and subject to the same objections
as other admissions.
Sec. 2.709 Discovery against NRC staff.
(a)(1) In a proceeding in which the NRC staff is a party, the NRC
staff will make available one or more witnesses, designated by the
Executive Director for Operations or a delegee of the Executive Director
for Operations, for oral examination at the hearing or on deposition
regarding any matter, not privileged, that is relevant to the issues in
the proceeding. The attendance and testimony of the Commissioners and
named NRC personnel at a hearing or on deposition may not be required by
the presiding officer, by subpoena or otherwise. However, the presiding
officer may, upon a showing of exceptional circumstances, such as a case
in which a particular named NRC employee has direct personal knowledge
of a material fact not known to the witnesses made available by the
Executive Director for Operations or a delegee of the Executive Director
for Operations, require the attendance and testimony of named NRC
personnel.
(2) A party may file with the presiding officer written
interrogatories to be answered by NRC personnel with knowledge of the
facts, as designated by the Executive Director for Operations, or a
delegee of the Executive Director for Operations. Upon a finding by the
presiding officer that answers to the interrogatories are necessary to a
proper decision in the proceeding and that answers to the
interrogatories are
[[Page 92]]
not reasonably obtainable from any other source, the presiding officer
may require that the NRC staff answer the interrogatories.
(3) A deposition of a particular named NRC employee or answer to
interrogatories by NRC personnel under paragraphs (a)(1) and (2) of this
section may not be required before the matters in controversy in the
proceeding have been identified by order of the Commission or the
presiding officer, or after the beginning of the prehearing conference
held in accordance with Sec. 2.329, except upon leave of the presiding
officer for good cause shown.
(4) The provisions of Sec. 2.704(c) and (e) apply to
interrogatories served under this paragraph.
(5) Records or documents in the custody of the Commissioners and NRC
personnel are available for inspection and copying or photographing
under paragraph (b) of this section and Sec. 2.390.
(b) A request for the production of an NRC record or document not
available under Sec. 2.390 by a party to an initial licensing
proceeding may be served on the Executive Director for Operations or a
delegee of the Executive Director for Operations, without leave of the
Commission or the presiding officer. The request must identify the
records or documents requested, either by individual item or by
category, describe each item or category with reasonable particularity,
and state why that record or document is relevant to the proceeding.
(c) If the Executive Director for Operations, or a delegee of the
Executive Director for Operations, objects to producing a requested
record or document on the ground that it is not relevant or it is
exempted from disclosure under Sec. 2.390 and the disclosure is not
necessary to a proper decision in the proceeding or the document or the
information therein is reasonably obtainable from another source, the
Executive Director for Operations, or a delegee of the Executive
Director for Operations, shall advise the requesting party.
(d) If the Executive Director for Operations, or a delegee of the
Executive Director for Operations, objects to producing a record or
document, the requesting party may apply to the presiding officer, in
writing, to compel production of that record or document. The
application must set forth the relevancy of the record or document to
the issues in the proceeding. The application will be processed as a
motion in accordance with Sec. 2.323 (a) through (d). The record or
document covered by the application must be produced for the in camera
inspection of the presiding officer, exclusively, if requested by the
presiding officer and only to the extent necessary to determine:
(1) The relevancy of that record or document;
(2) Whether the document is exempt from disclosure under Sec.
2.390;
(3) Whether the disclosure is necessary to a proper decision in the
proceeding; and
(4) Whether the document or the information therein is reasonably
obtainable from another source.
(e) Upon a determination by the presiding officer that the
requesting party has demonstrated the relevancy of the record or
document and that its production is not exempt from disclosure under
Sec. 2.390 or that, if exempt, its disclosure is necessary to a proper
decision in the proceeding, and the document or the information therein
is not reasonably obtainable from another source, the presiding officer
shall order the Executive Director for Operations, or a delegee of the
Executive Director for Operations, to produce the document.
(f) In the case of requested documents and records (including
Safeguards Information referred to in sections 147 and 181 of the Atomic
Energy Act, as amended) exempt from disclosure under Sec. 2.390, but
whose disclosure is found by the presiding officer to be necessary to a
proper decision in the proceeding, any order to the Executive Director
for Operations or a delegee of the Executive Director for Operations, to
produce the document or records (or any other order issued ordering
production of the document or records) may contain any protective terms
and conditions (including affidavits of non-disclosure) as may be
necessary and appropriate to limit the disclosure to parties in the
proceeding, to interested States and other governmental entities
participating under Sec. 2.315(c), and to
[[Page 93]]
their qualified witnesses and counsel. When Safeguards Information
protected from disclosure under section 147 of the Atomic Energy Act, as
amended, is received and possessed by a party other than the Commission
staff, it must also be protected according to the requirements of Sec.
73.21 of this chapter. The presiding officer may also prescribe
additional procedures to effectively safeguard and prevent disclosure of
Safeguards Information to unauthorized persons with minimum impairment
of the procedural rights which would be available if Safeguards
Information were not involved. In addition to any other sanction that
may be imposed by the presiding officer for violation of an order issued
pursuant to this paragraph, violation of an order pertaining to the
disclosure of Safeguards Information protected from disclosure under
section 147 of the Atomic Energy Act, as amended, may be subject to a
civil penalty imposed under Sec. 2.205. For the purpose of imposing the
criminal penalties contained in Section 223 of the Atomic Energy Act, as
amended, any order issued pursuant to this paragraph with respect to
Safeguards Information is considered to be an order issued under Section
161.b of the Atomic Energy Act.
(g) A ruling by the presiding officer or the Commission for the
production of a record or document will specify the time, place, and
manner of production.
(h) A request under this section may not be made or entertained
before the matters in controversy have been identified by the Commission
or the presiding officer, or after the beginning of the prehearing
conference held under Sec. 2.329 except upon leave of the presiding
officer for good cause shown.
(i) The provisions of Sec. 2.705 (c) and (e) apply to production of
NRC records and documents under this section.
Sec. 2.710 Motions for summary disposition.
(a) Any party to a proceeding may move, with or without supporting
affidavits, for a decision by the presiding officer in that party's
favor as to all or any part of the matters involved in the proceeding.
Summary disposition motions must be filed no later than twenty (20) days
after the close of discovery. The moving party shall attach to the
motion a separate, short, and concise statement of the material facts as
to which the moving party contends that there is no genuine issue to be
heard. Any other party may serve an answer supporting or opposing the
motion, with or without affidavits, within twenty (20) days after
service of the motion. The party shall attach to any answer opposing the
motion a separate, short, and concise statement of the material facts as
to which it is contended there exists a genuine issue to be heard. All
material facts set forth in the statement required to be served by the
moving party will be considered to be admitted unless controverted by
the statement required to be served by the opposing party. The opposing
party may, within ten (10) days after service, respond in writing to new
facts and arguments presented in any statement filed in support of the
motion. No further supporting statements or responses thereto will be
entertained.
(b) Affidavits must set forth the facts that would be admissible in
evidence, and must demonstrate affirmatively that the affiant is
competent to testify to the matters stated in the affidavit. The
presiding officer may permit affidavits to be supplemented or opposed by
depositions, answers to interrogatories or further affidavits. When a
motion for summary decision is made and supported as provided in this
section, a party opposing the motion may not rest upon the mere
allegations or denials of his answer. The answer by affidavits or as
otherwise provided in this section must set forth specific facts showing
that there is a genuine issue of fact. If no answer is filed, the
decision sought, if appropriate, must be rendered.
(c) Should it appear from the affidavits of a party opposing the
motion that he or she cannot, for reasons stated, present by affidavit
facts essential to justify the party's opposition, the presiding officer
may refuse the application for summary decision, order a continuance to
permit affidavits to be obtained, or make an order as is appropriate. A
determination to that effect must be made a matter of record.
[[Page 94]]
(d)(1) The presiding officer need not consider a motion for summary
disposition unless its resolution will serve to expedite the proceeding
if the motion is granted. The presiding officer may dismiss summarily or
hold in abeyance untimely motions filed shortly before the hearing
commences or during the hearing if the other parties or the presiding
officer would be required to divert substantial resources from the
hearing in order to respond adequately to the motion and thereby extend
the proceeding.
(2) The presiding officer shall render the decision sought if the
filings in the proceeding, depositions, answers to interrogatories, and
admissions on file, together with the statements of the parties and the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a decision as a
matter of law. However, in any proceeding involving a construction
permit for a production or utilization facility, the procedure described
in this section may be used only for the determination of specific
subordinate issues and may not be used to determine the ultimate issue
as to whether the permit shall be issued.
(e) The presiding officer shall issue an order no later than forty
(40) days after any responses to the summary disposition motion are
filed, indicating whether the motion is granted, or denied, and the
bases therefore.
Sec. 2.711 Evidence.
(a) General. Every party to a proceeding has the right to present
oral or documentary evidence and rebuttal evidence and to conduct, in
accordance with an approved cross-examination plan that contains the
information specified in paragraph (c) of this section, any cross-
examination required for full and true disclosure of the facts.
(b) Testimony. The parties shall submit direct testimony of
witnesses in written form, unless otherwise ordered by the presiding
officer on the basis of objections presented. In any proceeding in which
advance written testimony is to be used, each party shall serve copies
of its proposed written testimony on every other party at least fifteen
(15) days in advance of the session of the hearing at which its
testimony is to be presented. The presiding officer may permit the
introduction of written testimony not so served, either with the consent
of all parties present or after they have had a reasonable opportunity
to examine it. Written testimony must be incorporated into the
transcript of the record as if read or, in the discretion of the
presiding officer, may be offered and admitted in evidence as an
exhibit.
(c) Cross-examination. (1) The presiding officer shall require a
party seeking an opportunity to cross-examine to request permission to
do so in accordance with a schedule established by the presiding
officer. A request to conduct cross-examination must be accompanied by a
cross-examination plan containing the following information:
(i) A brief description of the issue or issues on which cross-
examination will be conducted;
(ii) The objective to be achieved by cross-examination; and
(iii) The proposed line of questions that may logically lead to
achieving the objective of the cross-examination.
(2) The cross-examination plan may be submitted only to the
presiding officer and must be kept by the presiding officer in
confidence until issuance of the initial decision on the issue being
litigated. The presiding officer shall then provide each cross-
examination plan to the Commission's Secretary for inclusion in the
official record of the proceeding.
(d) Non-applicability to subpart B proceedings. Paragraphs (b) and
(c) of this section do not apply to proceedings initiated under subpart
B of this part for modification, suspension, or revocation of a license
or to proceedings for imposition of a civil penalty, unless otherwise
directed by the presiding officer.
(e) Admissibility. Only relevant, material, and reliable evidence
which is not unduly repetitious will be admitted. Immaterial or
irrelevant parts of an admissible document will be segregated and
excluded so far as is practicable.
(f) Objections. An objection to evidence must briefly state the
grounds of objection. The transcript must include
[[Page 95]]
the objection, the grounds, and the ruling. Exception to an adverse
ruling is preserved without notation on-the-record.
(g) Offer of proof. An offer of proof, made in connection with an
objection to a ruling of the presiding officer excluding or rejecting
proffered oral testimony, must consist of a statement of the substance
of the proffered evidence. If the excluded evidence is in written form,
a copy must be marked for identification. Rejected exhibits, adequately
marked for identification, must be retained in the record.
(h) Exhibits. A written exhibit will not be received in evidence
unless the original and two copies are offered and a copy is furnished
to each party, or the parties have been previously furnished with copies
or the presiding officer directs otherwise. The presiding officer may
permit a party to replace with a true copy an original document admitted
in evidence.
(i) Official record. An official record of a government agency or
entry in an official record may be evidenced by an official publication
or by a copy attested by the officer having legal custody of the record
and accompanied by a certificate of his custody.
(j) Official notice. (1) The Commission or the presiding officer may
take official notice of any fact of which a court of the United States
may take judicial notice or of any technical or scientific fact within
the knowledge of the Commission as an expert body. Each fact officially
noticed under this paragraph must be specified in the record with
sufficient particularity to advise the parties of the matters which have
been noticed or brought to the attention of the parties before final
decision and each party adversely affected by the decision shall be
given opportunity to controvert the fact.
(2) If a decision is stated to rest in whole or in part on official
notice of a fact which the parties have not had a prior opportunity to
controvert, a party may controvert the fact by filing an appeal from an
initial decision or a petition for reconsideration of a final decision.
The appeal must clearly and concisely set forth the information relied
upon to controvert the fact.
Sec. 2.712 Proposed findings and conclusions.
(a) Any party to a proceeding may, or if directed by the presiding
officer shall, file proposed findings of fact and conclusions of law,
briefs and a proposed form of order or decision within the time provided
by this section, except as otherwise ordered by the presiding officer:
(1) The party who has the burden of proof shall, within thirty (30)
days after the record is closed, file proposed findings of fact and
conclusions of law and briefs, and a proposed form of order or decision.
(2) Other parties may file proposed findings, conclusions of law and
briefs within forty (40) days after the record is closed.
(3) A party who has the burden of proof may reply within five (5)
days after filing of proposed findings and conclusions of law and briefs
by other parties.
(b) Failure to file proposed findings of fact, conclusions of law,
or briefs when directed to do so may be considered a default, and an
order or initial decision may be entered accordingly.
(c) Proposed findings of fact must be clearly and concisely set
forth in numbered paragraphs and must be confined to the material issues
of fact presented on-the-record, with exact citations to the transcript
of record and exhibits in support of each proposed finding. Proposed
conclusions of law must be set forth in numbered paragraphs as to all
material issues of law or discretion presented on-the-record. An
intervenor's proposed findings of fact and conclusions of law must be
confined to issues which that party placed in controversy or sought to
place in controversy in the proceeding.
Sec. 2.713 Initial decision and its effect.
(a) After hearing, the presiding officer will render an initial
decision which will constitute the final action of the Commission forty
(40) days after its date unless any party petitions for Commission
review in accordance with Sec. 2.341 or the Commission takes review sua
sponte.
(b) Where the public interest so requires, the Commission may direct
that the presiding officer certify the
[[Page 96]]
record to it without an initial decision, and may:
(1) Prepare its own decision which will become final unless the
Commission grants a petition for reconsideration under Sec. 2.345; or
(2) Omit an initial decision on a finding that due and timely
execution of its functions imperatively and unavoidably so requires.
(c) An initial decision will be in writing and will be based on the
whole record and supported by reliable, probative, and substantial
evidence. The initial decision will include:
(1) Findings, conclusions, and rulings, with the reasons or basis
for them, on all material issues of fact, law, or discretion presented
on-the-record;
(2) All facts officially noticed and relied on in making the
decision;
(3) The appropriate ruling, order, or denial of relief with the
effective date;
(4) The time within which a petition for review of the decision may
be filed, the time within which answers in support of or in opposition
to a petition for review filed by another party may be filed and, in the
case of an initial decision which may become final in accordance with
paragraph (a) of this section, the date when it may become final.
Subpart H_Rulemaking
Sec. 2.800 Scope of rulemaking.
This subpart governs the issuance, amendment and repeal of
regulations in which participation by interested persons is prescribed
under section 553 of title 5 of the U.S. Code.
[35 FR 11459, July 17, 1970]
Sec. 2.801 Initiation of rulemaking.
Rulemaking may be initiated by the Commission at its own instance,
on the recommendation of another agency of the United States, or on the
petition of any other interested person.
Sec. 2.802 Petition for rulemaking.
(a) Any interested person may petition the Commission to issue,
amend or rescind any regulation. The petition should be addressed to the
Secretary, Attention: Rulemakings and Adjudications Staff, and sent
either by mail addressed to the U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001; by facsimile; by hand delivery to the NRC's
offices at 11555 Rockville Pike, Rockville, Maryland; or, where
practicable, by electronic submission, for example, via Electronic
Information Exchange, e-mail, or CD-ROM. Electronic submissions must be
made in a manner that enables the NRC to receive, read, authenticate,
distribute, and archive the submission, and process and retrieve it a
single page at a time. Detailed guidance on making electronic
submissions can be obtained by visiting the NRC's Web site at http://
www.nrc.gov/site-help/eie.html, by calling (301) 415-6030, by e-mail to
[email protected], or by writing the Office of the Chief Information Officer,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The
guidance discusses, among other topics, the formats the NRC can accept,
the use of electronic signatures, and the treatment of nonpublic
information.
(b) A prospective petitioner may consult with the NRC before filing
a petition for rulemaking by writing to the Chief, Rules and Directives
Branch, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. A
prospective petitioner also may telephone the Rules and Directives
Branch on (301) 415-7163, or toll free on (800) 368-5642, or send e-mail
to [email protected].
(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
[[Page 97]]
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 Director,
Division of Administrative Services, Office of Administration, or
designee, will assign a docket number to the petition, will cause the
petition to be formally docketed, and will make a copy of the docketed
petition available at the NRC Web site, http://www.nrc.gov. Public
comment may be requested by publication of a notice of the docketing of
the petition in the Federal Register, or, in appropriate cases, may be
invited for the first time upon publication in the Federal Register of a
proposed rule developed in response to the petition. Publication will be
limited by the requirements of Section 181 of the Atomic Energy Act of
1954, as amended, and may be limited by order of the Commission.
(f) If it is determined by the Executive Director for Operations
that the petition does not include the information required by paragraph
(c) of this section and is incomplete, the petitioner will be notified
of that determination and the respects in which the petition is
deficient and will be accorded an opportunity to submit additional data.
Ordinarily this determination will be made within 30 days from the date
of receipt of the petition by the Office of the Secretary of the
Commission. If the petitioner does not submit additional data to correct
the deficiency within 90 days from the date of notification to the
petitioner that the petition is incomplete, the petition may be returned
to the petitioner without prejudice to the right of the petitioner to
file a new petition.
(g) The Director, Division of Administrative Services, Office of
Administration, will prepare on a semiannual basis a summary of
petitions for rulemaking before the Commission, including the status of
each petition. A copy of the report will be available for public
inspection and copying at the NRC Web site, http://www.nrc.gov, and/or
at the NRC Public Document Room.
[44 FR 61322, Oct. 25, 1979, as amended at 46 FR 35487, July 9, 1981; 52
FR 31609, Aug. 21, 1987; 53 FR 52993, Dec. 30, 1988; 54 FR 53315, Dec.
28, 1989; 56 FR 10360, Mar. 12, 1991; 59 FR 44895, Aug. 31, 1994; 59 FR
60552, Nov. 25, 1994; 62 FR 27495, May 20, 1997; 63 FR 15742, Apr. 1,
1998; 64 FR 48949, Sept. 9, 1999; 68 FR 58799, Oct. 10, 2003]
Sec. 2.803 Determination of petition.
No hearing will be held on the petition unless the Commission deems
it advisable. If the Commission determines that sufficient reason
exists, it will publish a notice of proposed rulemaking. In any other
case, it will deny the petition and will notify the petitioner with a
simple statement of the grounds of denial.
Sec. 2.804 Notice of proposed rulemaking.
(a) Except as provided by paragraph (d) of this section, when the
Commission proposes to adopt, amend, or repeal a regulation, it will
cause to be published in the Federal Register a notice of proposed
rulemaking, unless all persons subject to the notice are named and
either are personally served or otherwise have actual notice in
accordance with law.
(b) The notice will include:
[[Page 98]]
(1) Either the terms or substance of the proposed rule, or a
specification of the subjects and issues involved;
(2) The manner and time within which interested members of the
public may comment, and a statement that copies of comments may be
examined will be made available at the NRC Web site, http://www.nrc.gov;
(3) The authority under which the regulation is proposed;
(4) The time, place, and nature of the public hearing, if any;
(5) If a hearing is to be held, designation of the presiding officer
and any special directions for the conduct of the hearing; and
(6) Such explanatory statement as the Commission may consider
appropriate.
(c) The publication or service of notice will be made not less than
fifteen (15) days prior to the time fixed for hearing, if any, unless
the Commission for good cause stated in the notice provides otherwise.
(d) The notice and comment provisions contained in paragraphs (a),
(b), and (c) of this section will not be required to be applied--
(1) To interpretative rules, general statements of policy, or rules
of agency organization, procedure, or practice; or
(2) When the Commission for good cause finds that notice and public
comment are impracticable, unnecessary, or contrary to the public
interest, and are not required by statute. This finding, and the reasons
therefor, will be incorporated into any rule issued without notice and
comment for good cause.
(e) The Commission shall provide for a 30-day post-promulgation
comment period for--
(1) Any rule adopted without notice and comment under the good cause
exception on paragraph (d)(2) of this section where the basis is that
notice and comment is ``impracticable'' or ``contrary to the public
interest.''
(2) Any interpretative rule, or general statement of policy adopted
without notice and comment under paragraph (d)(1) of this section,
except for those cases for which the Commission finds that such
procedures would serve no public interest, or would be so burdensome as
to outweigh any foreseeable gain.
(f) For any post-promulgation comments received under paragraph (e)
of this section, the Commission shall publish a statement in the Federal
Register containing an evaluation of the significant comments and any
revisions of the rule or policy statement made as a result of the
comments and their evaluation.
[27 FR 377, Jan. 13, 1962, as amended at 50 FR 13010, Apr. 2, 1985; 64
FR 48949, Sept. 9, 1999]
Sec. 2.805 Participation by interested persons.
(a) In all rulemaking proceedings conducted under the provisions of
Sec. 2.804(a), the Commission will afford interested persons an
opportunity to participate through the submission of statements,
information, opinions, and arguments in the manner stated in the notice.
The Commission may grant additional reasonable opportunity for the
submission of comments.
(b) The Commission may hold informal hearings at which interested
persons may be heard, adopting procedures which in its judgment will
best serve the purpose of the hearing.
[27 FR 377, Jan. 13, 1962, as amended at 50 FR 13010, Apr. 2, 1985; 50
FR 15865, Apr. 22, 1985]
Sec. 2.806 Commission action.
The Commission will incorporate in the notice of adoption of a
regulation a concise general statement of its basis and purpose, and
will cause the notice and regulation to be published in the Federal
Register or served upon affected persons.
Sec. 2.807 Effective date.
The notice of adoption of a regulation will specify the effective
date. Publication or service of the notice and regulation, other than
one granting or recognizing exemptions or relieving from restrictions,
will be made not less than thirty (30) days prior to the effective date
unless the Commission directs otherwise on good cause found and
published in the notice of rule making.
[[Page 99]]
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 made available at the NRC Web site, http://www.nrc.gov,
following transmittal of the Commission's response to the ACRS.
(b) When a rule involving nuclear safety matters within the purview
of the ACRS is under development by the NRC Staff, the Staff will ensure
that the ACRS is given an opportunity to provide advice at appropriate
stages and to identify issues to be considered during rulemaking
hearings.
[46 FR 22358, Apr. 17, 1981, as amended at 64 FR 48949, Sept. 9, 1999]
Sec. 2.810 NRC size standards.
The NRC shall use the size standards contained in this section to
determine whether a licensee qualifies as a small entity in its
regulatory programs.
(a) A small business is a for-profit concern and is a--
(1) Concern that provides a service or a concern not engaged in
manufacturing with average gross receipts of $5 million or less over its
last 3 completed fiscal years; or
(2) Manufacturing concern with an average number of 500 or fewer
employees based upon employment during each pay period for the preceding
12 calendar months.
(b) A small organization is a not-for-profit organization which is
independently owned and operated and has annual gross receipts of $5
million or less.
(c) A small governmental jurisdiction is a government of a city,
county, town, township, village, school district, or special district
with a population of less than 50,000.
(d) A small educational institution is one that is--
(1) Supported by a qualifying small governmental jurisdiction; or
(2) Not state or publicly supported and has 500 or fewer employees.
(e) For the purposes of this section, the NRC shall use the Small
Business Administration definition of receipts (13 CFR 121.402(b)(2)). A
licensee who is a subsidiary of a large entity does not qualify as a
small entity for purposes of this section.
(f) Whenever appropriate in the interest of administering statutes
and regulations within its jurisdiction, it is the practice of the NRC
to answer inquiries from small entities concerning information on and
advice about compliance with the statutes and regulations that affect
them. To help small entities obtain information quickly, the NRC has
established a toll-free telephone number at 1-800-368-5642.
[60 FR 18346, Apr. 11, 1995, as amended at 62 FR 26220, May 13, 1997]
[[Page 100]]
Subpart I_Special Procedures Applicable to Adjudicatory Proceedings
Involving Restricted Data and/or National Security Information
Source: 41 FR 53329, Dec. 6, 1976, unless otherwise noted.
Sec. 2.900 Purpose.
This subpart is issued pursuant to section 181 of the Atomic Energy
Act of 1954, as amended, and section 201 of the Energy Reorganization
Act of 1974, as amended, to provide such procedures in proceedings
subject to this part as will effectively safeguard and prevent
disclosure of Restricted Data and National Security Information to
unauthorized persons, with minimum impairment of procedural rights.
Sec. 2.901 Scope of subpart I.
This subpart applies, as applicable, to all proceedings under
subparts G, J, K, L, M, and N of this part.
[69 FR 2264, Jan. 14, 2004]
Sec. 2.902 Definitions.
As used in this subpart:
(a) Government agency means any executive department, commission,
independent establishment, corporation, wholly or partly owned by the
United States of America, which is an instrumentality of the United
States, or any board, bureau, division, service, office, officer,
authority, administration, or other establishment in the executive
branch of the Government.
(b) Interested party means a party having an interest in the issue
or issues to which particular Restricted Data or National Security
Information is relevant. Normally the interest of a party in an issue
may be determined by examination of the notice of hearing, the answers
and replies.
(c) The phrase introduced into a proceeding refers to the
introduction or incorporation of testimony or documentary matter into
any part of the official record of a proceeding subject to this part.
(d) National Security Information means information that has been
classified pursuant to Executive Order 12356.
(e) Party, in the case of proceedings subject to this subpart
includes a person admitted as a party under Sec. 2.309 or an interested
State admitted under Sec. 2.315(c).
[41 FR 53329, Dec. 6, 1976, as amended at 47 FR 56314, Dec. 16, 1982; 69
FR 2264, Jan. 14, 2004]
Sec. 2.903 Protection of restricted data and national security information.
Nothing in this subpart shall relieve any person from safeguarding
Restricted Data or National Security Information in accordance with the
applicable provisions of laws of the United States and rules,
regulations or orders of any Government Agency.
Sec. 2.904 Classification assistance.
On request of any party to a proceeding or of the presiding officer,
the Commission will designate a representative to advise and assist the
presiding officer and the parties with respect to security
classification of information and the safeguards to be observed.
Sec. 2.905 Access to restricted data and national security information
for parties; security clearances.
(a) Access to restricted data and national security information
introduced into proceedings. Except as provided in paragraph (h) of this
section, restricted data or national security information introduced
into a proceeding subject to this part will be made available to any
interested party having the required security clearance; to counsel for
an interested party provided the counsel has the required security
clearance; and to such additional persons having the required security
clearance as the Commission or the presiding officer determined are
needed by such party for adequate preparation or presentation of his
case. Where the interest of such party will not be prejudiced, the
Commission or presiding officer may postpone action upon an application
for access under this paragraph until after a notice of hearing,
answers, and replies have been filed.
(b) Access to Restricted Data or National Security Information not
introduced into proceedings.
[[Page 101]]
(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 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
[[Page 102]]
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 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
[[Page 103]]
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.
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.
[[Page 104]]
Sec. 2.1000 Scope of subpart J.
The rules in this subpart, together with the rules in subparts C and
G of this part, govern the procedure for an application for
authorization to construct a high-level radioactive waste repository at
a geologic repository operations area noticed under Sec. Sec.
2.101(f)(8) or 2.105(a)(5), and for an application for a license to
receive and possess high level radioactive waste at a geologic
repository operations area. The procedures in this subpart take
precedence over those in 10 CFR part 2, subpart C, except for the
following provisions: Sec. Sec. 2.301; 2.303; 2.307; 2.309; 2.312;
2.313; 2.314; 2.315; 2.316; 2.317(a); 2.318; 2.319; 2.320; 2.321; 2.322;
2.323; 2.324; 2.325; 2.326; 2.327; 2.328; 2.330; 2.331; 2.333; 2.335;
2.338; 2.339; 2.342; 2.343; 2.344; 2.345; 2.346; 2.348; and 2.390. The
procedures in this subpart take precedence over those in 10 CFR part 2,
subpart G, except for the following provisions: Sec. Sec. 2.701, 2.702;
2.703; 2.708; 2.709; 2.710; 2.711; 2.712.
[69 FR 2264, Jan. 14, 2004]
Sec. 2.1001 Definitions.
Bibliographic header means the minimum series of descriptive fields
that a potential party, interested governmental participant, or party
must submit with a document or other material.
Circulated draft means a nonfinal document circulated for
supervisory concurrence or signature in which the original author or
others in the concurrence process have non-concurred. A ``circulated
draft'' meeting the above criterion includes a draft of a document that
eventually becomes a final document, and a draft of a document that does
not become a final document due to either a decision not to finalize the
document or the passage of a substantial period of time in which no
action has been taken on the document.
Complex document means a document that consists (entirely or in
part) of electronic files having substantial portions that are neither
textual nor image in nature, and graphic or other Binary Large Objects
that exceed 50 megabytes and cannot logically be divided. For example,
specialized submissions may include runtime executable software, viewer
or printer executables, dynamic link library (.dll) files, large data
sets associated with an executable, and actual software code for
analytical programs that a party may intend to introduce into the
proceeding.
Document means any written, printed, recorded, magnetic, graphic
matter, or other documentary material, regardless of form or
characteristic.
Documentary material means:
(1) Any information upon which a party, potential party, or
interested governmental participant intends to rely and/or to cite in
support of its position in the proceeding for a construction
authorization for a high-level radioactive waste repository at a
geologic repository operations area pursuant to parts 60 or 63 of this
chapter, a license to receive and possess high-level radioactive waste
at a geologic repository operations area pursuant to parts 60 or 63 of
this chapter;
(2) Any information that is known to, and in the possession of, or
developed by the party that is relevant to, but does not support, that
information or that party's position; and
(3) All reports and studies, prepared by or on behalf of the
potential party, interested governmental participant, or party,
including all related ``circulated drafts,'' relevant to both the
license application and the issues set forth in the Topical Guidelines
in Regulatory Guide 3.69, regardless of whether they will be relied upon
and/or cited by a party. The scope of documentary material shall be
guided by the topical guidelines in the applicable NRC Regulatory Guide.
DOE means the U.S. Department of Energy or its duly authorized
representatives.
Electronic docket means the NRC information system that receives,
distributes, stores, and retrieves the Commission's adjudicatory docket
materials.
Image means a visual likeness of a document, presented on a paper
copy, microform, or a bit-map on optical or magnetic media.
Interested governmental participant means any person admitted under
Sec. 2.315(c) of this part to the proceeding on an application for a
construction authorization for a high-level radioactive waste repository
at a geologic repository operations area under parts
[[Page 105]]
60 or 63 of this chapter, and an application for a license to receive
and possess high level radioactive waste at a geologic repository
operations area under parts 60 and 63 of this chapter.
Large document means a document that consists of electronic files
that are larger than 50 megabytes.
Licensing Support Network means the combined system that makes
documentary material available electronically to parties, potential
parties, and interested governmental participants to a proceeding for a
construction authorization for a high-level radioactive waste repository
at a geologic repository operations area, and an application for a
license to receive and possess high level radioactive waste at a
geologic repository operations area under parts 60 and 63 of this
chapter.
LSN Administrator means the person within the U.S. Nuclear
Regulatory Commission responsible for coordinating access to and the
integrity of data available on the Licensing Support Network. The LSN
Administrator shall not be in any organizational unit that either
represents the U.S. Nuclear Regulatory Commission staff as a party to
the high-level waste repository licensing proceeding or is a part of the
management chain reporting to the Director, Office of Nuclear Material
Safety and Safeguards. For the purposes of this subpart, the
organizational unit within the NRC selected to be the LSN Administrator
shall not be considered to be a party to the proceeding.
Marginalia means handwritten, printed, or other types of notations
added to a document excluding underlining and highlighting.
NRC means the U.S. Nuclear Regulatory Commission or its duly
authorized representatives.
Party for the purpose of this subpart means the DOE, the NRC staff,
the host State, any affected unit of local government as defined in
Section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C.
10101), any affected Indian Tribe as defined in section 2 of the Nuclear
Waste Policy Act of 1982, as amended (42 U.S.C. 10101), and a person
admitted under Sec. 2.309 to the proceeding on an application for
construction authorization for a high-level radioactive waste repository
at a geologic repository operations area under parts 60 or 63 of this
chapter, and an application for a license to receive and possess high
level radioactive waste at a geologic repository operations area under
parts 60 and 63 of this chapter; provided that a host State, affected
unit of local government, or affected Indian Tribe files a list of
contentions in accordance with the provisions of Sec. 2.309.
Personal record means a document in the possession of an individual
associated with a party, interested governmental participant, or
potential party that was not required to be created or retained by the
party, interested governmental participant, or potential party, and can
be retained or discarded at the possessor's sole discretion, or
documents of a personal nature that are not associated with any business
of the party, interested governmental participant, or potential party.
Potential party means any person who, during the period before the
issuance of the first pre-hearing conference order under Sec.
2.1021(d), is given access to the Licensing Support Network and who
consents to comply with the regulations set forth in subpart J of this
part, including the authority of the Pre-License Application Presiding
Officer designated pursuant to Sec. 2.1010.
Pre-license application electronic docket means the NRC's electronic
information system that receives, distributes, stores, and maintains NRC
pre-license application docket materials during the pre-license
application phase.
Pre-license application phase means the time period before a
construction authorization for a high-level radioactive waste repository
at a geologic repository operations area under parts 60 or 63 of this
chapter is docketed under Sec. 2.101(f)(3), and the time period before
a license application to receive and possess high-level radioactive
waste at a geologic repository operations area under parts 60 or 63 is
docketed under Sec. 2.101(f)(3).
Pre-License Application Presiding Officer means one or more members
of the Commission, or an atomic safety and licensing board, or a named
officer who has been delegated final authority in the pre-license
application phase with
[[Page 106]]
jurisdiction specified at the time of designation.
Preliminary draft means any nonfinal document that is not a
circulated draft.
Presiding Officer means one or more members of the Commission, or an
atomic safety and licensing board, or a named officer who has been
delegated final authority in the matter, designated in the notice of
hearing to preside.
Searchable full text means the electronic indexed entry of a
document that allows the identification of specific words or groups of
words within a text file.
Simple document means a document that consists of electronic files
that are 50 megabytes or less.
Topical Guidelines means the set of topics set forth in Regulatory
Guide 3.69, Topical Guidelines for the Licensing Support System, which
are intended to serve as guidance on the scope of ``documentary
material''.
[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7795, Feb. 26, 1991; 63
FR 71736, Dec. 30, 1998; 66 FR 29465, May 31, 2001; 66 FR 55788, Nov. 2,
2001; 69 FR 2264, Jan. 14, 2004; 69 FR 32848, June 14, 2004]
Sec. 2.1002 [Reserved]
Sec. 2.1003 Availability of material.
(a) Subject to the exclusions in Sec. 2.1005 and paragraphs (b),
(c), and (e) of this section, DOE shall make available, no later than
six months in advance of submitting its license application for a
geologic repository, the NRC shall make available no later than thirty
days after the DOE certification of compliance under Sec. 2.1009(b),
and each other potential party, interested governmental participant or
party shall make available no later than ninety days after the DOE
certification of compliance under Sec. 2.1009(b)--
(1) An electronic file including bibliographic header for all
documentary material (including circulated drafts but excluding
preliminary drafts) generated by, or at the direction of, or acquired
by, a potential party, interested governmental participant or party;
provided, however, that an electronic file need not be provided for
acquired documentary material that has already been made available by
the potential party, interested governmental participant or party that
originally created the documentary material. Concurrent with the
production of the electronic files will be an authentication statement
for posting on the LSN Web site that indicates where an authenticated
image copy of the documents can be obtained.
(2) In electronic image format, subject to the claims of privilege
in Sec. 2.1006, graphic-oriented documentary material that includes raw
data, computer runs, computer programs and codes, field notes,
laboratory notes, maps, diagrams and photographs, which have been
printed, scripted, or hand written. Text embedded within these documents
need not be separately entered in searchable full text. A bibliographic
header must be provided for all graphic-oriented documentary material.
Graphic-oriented documents may include--
(i) Calibration procedures, logs, guidelines, data and
discrepancies;
(ii) Gauge, meter and computer settings;
(iii) Probe locations;
(iv) Logging intervals and rates;
(v) Data logs in whatever form captured;
(vi) Text data sheets;
(vii) Equations and sampling rates;
(viii) Sensor data and procedures;
(ix) Data Descriptions;
(x) Field and laboratory notebooks;
(xi) Analog computer, meter or other device print-outs;
(xii) Digital computer print-outs;
(xiii) Photographs;
(xiv) Graphs, plots, strip charts, sketches;
(xv) Descriptive material related to the information identified in
this paragraph.
(3) In an electronic file, subject to the claims of privilege in
Sec. 2.1006, only a bibliographic header for each item of documentary
material that is not suitable for image or searchable full text.
(4) An electronic bibliographic header for each documentary
material--
(i) For which a claim of privilege is asserted;
(ii) Which constitutes confidential financial or commercial
information; or
[[Page 107]]
(iii) Which constitutes safeguards information under Sec. 73.21 of
this chapter.
(b) Basic licensing documents generated by DOE, such as the Site
Characterization Plan, the Environmental Impact Statement, and the
license application, or by NRC, such as the Site Characterization
Analysis, and the Safety Evaluation Report, shall be made available in
electronic form by the respective agency that generated the document.
(c) The participation of the host State in the pre-license
application phase shall not affect the State's ability to exercise its
disapproval rights under section 116(b)(2) of the Nuclear Waste Policy
Act, as amended, 42 U.S.C. 10136(b)(2).
(d) This subpart shall not affect any independent right of a
potential party, interested governmental participant or party to receive
information.
(e) Each potential party, interested governmental participant or
party shall continue to supplement its documentary material made
available to other participants via the LSN with any additional material
created after the time of its initial certification in accordance with
paragraph (a)(1) through (a)(4) of this section until the discovery
period in the proceeding has concluded.
[63 FR 71737, Dec. 30, 1998, as amended at 66 FR 29465, May 31, 2001; 69
FR 2264, Jan. 14, 2004; 69 FR 32848, June 14, 2004]
Sec. 2.1004 Amendments and additions.
Any document that has not been provided to other parties in
electronic form must be identified in an electronic notice and made
available for inspection and copying by the potential party, interested
governmental participant, or party responsible for the submission of the
document within five days after it has been requested unless some other
time is approved by the Pre-License Application Presiding Officer or the
Presiding Officer designated for the high-level waste proceeding. The
time allowed under this paragraph will be stayed pending Officer action
on a motion to extend the time.
[63 FR 71737, Dec. 30, 1998]
Sec. 2.1005 Exclusions.
The following material is excluded from the requirement to provide
electronic access, either pursuant to Sec. 2.1003, or through
derivative discovery pursuant to Sec. 2.1019(i)--
(a) Official notice materials;
(b) Reference books and text books;
(c) Material pertaining exclusively to administration, such as
material related to budgets, financial management, personnel, office
space, general distribution memoranda, or procurement, except for the
scope of work on a procurement related to repository siting,
construction, or operation, or to the transportation of spent nuclear
fuel or high-level waste;
(d) Press clippings and press releases;
(e) Junk mail;
(f) References cited in contractor reports that are readily
available;
(g) Classified material subject to subpart I of this part;
(h) Readily available references, such as journal articles and
proceedings, which may be subject to copyright.
(i) Correspondence between a potential party, interested
governmental participant, or party and the Congress of the United
States.
[63 FR 71738, Dec. 30, 1998, as amended at 69 FR 32848, June 14, 2004]
Sec. 2.1006 Privilege.
(a) Subject to the requirements in Sec. 2.1003(a)(4), the
traditional discovery privileges recognized in NRC adjudicatory
proceedings and the exceptions from disclosure in Sec. 2.390 may be
asserted by potential parties, interested States, local governmental
bodies, Federally-recognized Indian Tribes, and parties. In addition to
Federal agencies, the deliberative process privilege may also be
asserted by States, local governmental bodies, and Federally-recognized
Indian Tribes.
(b) Any document for which a claim of privilege is asserted, but is
denied in whole or in part by the Pre-License Application Presiding
Officer or the Presiding Officer, must be provided in electronic form by
the party, interested governmental participant, or potential party that
asserted the claim to--
(1) The other participants; or
[[Page 108]]
(2) To the Pre-License Application Presiding Officer or to the
Presiding Officer, for entry into a Protective Order file, if the Pre-
License Application Presiding Officer or the Presiding Officer so
directs under Sec. Sec. 2.1010(b) or 2.1018(c).
(c) Notwithstanding any availability of the deliberative process
privilege under paragraph (a) of this section, circulated drafts not
otherwise privileged shall be provided for electronic access pursuant to
Sec. 2.1003(a).
[63 FR 71738, Dec. 30, 1998; 64 FR 15920, Apr. 2, 1999, as amended at 69
FR 2265, Jan. 14, 2004]
Sec. 2.1007 Access.
(a)(1) A system to provide electronic access to the Licensing
Support Network shall be provided at the headquarters of DOE, and at all
DOE Local Public Document Rooms established in the vicinity of the
likely candidate site for a geologic repository, beginning in the pre-
license application phase.
(2) A system to provide electronic access to the Licensing Support
Network shall be provided at the NRC Web site, http://www.nrc.gov, and/
or at the NRC Public Document Room beginning in the pre-license
application phase.
(3) [Reserved]
(b) Public availability of paper and electronic copies of the
records of NRC and DOE, as well as duplication fees, and fee waiver for
those records, is governed by the regulations of the respective
agencies.
[63 FR 71738, Dec. 30, 1998, as amended at 64 FR 48949, Sept. 9, 1999]
Sec. 2.1008 [Reserved]
Sec. 2.1009 Procedures.
(a) Each potential party, interested governmental participant, or
party shall--
(1) Designate an official who will be responsible for administration
of its responsibility to provide electronic files of documentary
material ;
(2) Establish procedures to implement the requirements in Sec.
2.1003;
(3) Provide training to its staff on the procedures for
implementation of the responsibility to provide electronic files of
documentary material;
(4) Ensure that all documents carry the submitter's unique
identification number;
(5) Cooperate with the advisory review process established by the
NRC under Sec. 2.1011(d).
(b) The responsible official designated under paragraph (a)(1) of
this section shall certify to the Pre-License Application Presiding
Officer that the procedures specified in paragraph (a)(2) of this
section have been implemented, and that to the best of his or her
knowledge, the documentary material specified in Sec. 2.1003 has been
identified and made electronically available. The initial certification
must be made at the time the participant is required to comply with
Sec. 2.1003. The responsible official for the DOE shall also update
this certification at the time DOE submits the license application.
[63 FR 71738, Dec. 30, 1998, as amended at 66 FR 29466, May 31, 2001]
Sec. 2.1010 Pre-License Application Presiding Officer.
(a)(1) The Commission may designate one or more members of the
Commission, or an atomic safety and licensing board, or a named officer
who has been delegated final authority on the matter to serve as the
Pre-License Application Presiding Officer to rule on disputes over the
electronic availability of documents during the pre-license application
phase, including disputes relating to privilege, and disputes relating
to the implementation of the recommendations of the Advisory Review
Panel established under Sec. 2.1011(d).
(2) The Pre-License Application Presiding Officer shall be
designated at such time during the pre-license application phase as the
Commission finds it appropriate, but in any event no later than fifteen
days after the DOE certification of initial compliance under Sec.
2.1009(b).
(b) The Pre-License Application Presiding Officer shall rule on any
claim of document withholding to determine--
(1) Whether it is documentary material within the scope of this
subpart;
(2) Whether the material is excluded under Sec. 2.1005;
[[Page 109]]
(3) Whether the material is privileged or otherwise excepted from
disclosure under Sec. 2.1006;
(4) If privileged, whether it is an absolute or qualified privilege;
(5) If qualified, whether the document should be disclosed because
it is necessary to a proper decision in the proceeding;
(6) Whether the material should be disclosed under a protective
order containing such protective terms and conditions (including
affidavits of nondisclosure) as may be necessary and appropriate to
limit the disclosure to potential participants, interested governmental
participants and parties in the proceeding, or to their qualified
witnesses and counsel. When Safeguards Information protected from
disclosure under section 147 of the Atomic Energy Act of 1954, as
amended, is received and possessed by a potential party, interested
governmental participant, or party, other than the Commission staff, it
shall also be protected according to the requirements of Sec. 73.21 of
this chapter. The Pre-License Application Presiding Officer may also
prescribe such additional procedures as will effectively safeguard and
prevent disclosure of Safeguards Information to unauthorized persons
with minimum impairment of the procedural rights which would be
available if Safeguards Information were not involved. In addition to
any other sanction that may be imposed by the Pre-License Application
Presiding Officer for violation of an order pertaining to the disclosure
of Safeguards Information protected from disclosure under section 147 of
the Atomic Energy Act of 1954, as amended, the entity in violation may
be subject to a civil penalty imposed pursuant to Sec. 2.205. For the
purpose of imposing the criminal penalties contained in section 223 of
the Atomic Energy Act of 1954, as amended, any order issued pursuant to
this paragraph with respect to Safeguards Information shall be deemed to
be an order issued under section 161b of the Atomic Energy Act of 1954,
as amended.
(c) Upon a final determination that the material is relevant, and
not privileged, exempt from disclosure, or otherwise exempt from
production under Sec. 2.1005, the potential party, interested
governmental participant, or party who asserted the claim of withholding
must make the document available in accordance with the provisions of
this subpart within five days.
(d) The service of all pleadings and answers, orders, and decisions
during the pre-license application phase shall be made according to the
procedures specified in Sec. 2.1013(c) and entered into the pre-license
application electronic docket.
(e) The Pre-License Application presiding officer possesses all the
general powers specified in Sec. Sec. 2.319 and 2.321(c).
(f) The Commission, in designating the Pre-License Application
Presiding Officer in accordance with paragraphs (a) (1) and (2) of this
section, shall specify the jurisdiction of the Officer.
[63 FR 71738, Dec. 30, 1998, as amended at 66 FR 29466, May 31, 2001; 69
FR 2265, Jan. 14, 2004]
Sec. 2.1011 Management of electronic information.
(a) Electronic document production and the electronic docket are
subject to the provisions of this subpart.
(b)(1) The NRC, DOE, parties, and potential parties participating in
accordance with the provision of this subpart shall be responsible for
obtaining the computer system necessary to comply with the requirements
for electronic document production and service.
(2) The NRC, DOE, parties, and potential parties participating in
accordance with the provision of this subpart shall comply with the
following standards in the design of the computer systems necessary to
comply with the requirements for electronic document production and
service:
(i) The participants shall make textual (or, where non-text, image)
versions of their documents available on a web accessible server which
is able to be canvassed by web indexing software (i.e., a ``robot'',
``spider'', ``crawler'') and the participant system must make both data
files and log files accessible to this software.
(ii) The participants shall make bibliographic header data available
in an HTTP (Hypertext Transfer Protocol) accessible, ODBC (Open Database
Connectivity) and SQL (Structured Query Language)-compliant (ANSI
[[Page 110]]
IX3.135-1992/ISO 9075-1992) database management system (DBMS).
Alternatively, the structured data containing the bibliographic header
may be made available in a standard database readable (e.g., XML
(Extensible Markup Language http://www.w3.org/xml/), comma delimited, or
comma separated value (.csv)) file.
(iii) Textual material must be formatted to comply with the ISO/IEC
8859-1 character set and be in one of the following acceptable formats:
ASCII, native word processing (Word, WordPerfect), PDF Normal, or HTML.
(iv) Image files must be formatted as TIFF CCITT G4 for bi-tonal
images or PNG (Portable Network Graphics) per [http://www.w3.org/TR/REC-
png-multi.html]) format for grey-scale or color images, or PDF (Portable
Document Format--Image). TIFF, PDF, or PNG images will be stored at 300
dpi (dots per inch) or greater, grey scale images at 150 dpi or greater
with eight bits of tonal depth, and color images at 150 dpi or greater
with 24 bits of color depth. Images found on participant machines will
be stored as single image-per-page to facilitate retrieval of no more
than a single page, or alternatively, images may be stored in an image-
per-document format if software is incorporated in the web server that
allows image-per-page representation and delivery.
(v) The participants shall programmatically link, preferably via
hyperlink or some other automated process, the bibliographic header
record with the text or image file it represents. Each participant's
system must afford the LSN software enough information to allow a text
or image file to be identified to the bibliographic data that describes
it.
(vi) To facilitate data exchange, participants shall adhere to
hardware and software standards, including, but not limited to:
(A) Network access must be HTTP/1.1 [http://www.faqs.org/rfcs/
rfc2068.html] over TCP (Transmission Control Protocol, [http://
www.faqs.org/rfcs/rfc793.html]) over IP (Internet Protocol, [http://
www.faqs.org/rfcs/rfc791.html]).
(B) Associating server names with IP addresses must follow the DNS
(Domain Name System), [http://www.faqs.org/rfcs/rfc1034.html] and
[http://www.faqs.org/rfcs/rfc1035.html].
(C) Web page construction must be HTML [http://www.w3.org/TR/REC-
html40/].
(D) Electronic mail (e-mail) exchange between e-mail servers must be
SMTP (Simple Mail Transport Protocol, [http://www.faqs.org/rfcs/
rfc821.html]).
(E) Format of an electronic mail message must be per [http://
www.faqs.org/rfcs/rfc822.html] optionally extended by MIME (Multipurpose
Internet Mail Extensions) per [http://www.faqs.org/rfcs/rfc2045.html])
to accommodate multipurpose e-mail.
(c) The Licensing Support Network shall be coordinated by the LSN
Administrator, who shall be designated before the start of the pre-
license application phase. The LSN Administrator shall have the
responsibility to--
(1) Identify technical and policy issues related to implementation
of the LSN for LSN Advisory Review Panel and Commission consideration;
(2) Address the consensus advice of the LSN Advisory Review Panel
under paragraph (e)(1) of this section that is consistent with the
requirements of this subpart;
(3) Identify any problems experienced by participants regarding LSN
availability, including the availability of individual participant's
data, and provide a recommendation to resolve any such problems to the
participant(s) and the Pre-License Application Presiding Officer
relative to the resolution of any disputes regarding LSN availability,
including disputes on the availability of an individual participant's
data;
(4) Identify any problems regarding the integrity of documentary
material certified in accordance with Sec. 2.1009(b) by the
participants to be in the LSN, and provide a recommendation to resolve
any such problems to the participant(s) and the Pre-License Application
Presiding Officer relative to the resolution of any disputes regarding
the integrity of documentary material;
(5) Provide periodic reports to the Commission on the status of LSN
functionality and operability.
(6) Evaluate LSN participant compliance with the basic design
standards in
[[Page 111]]
paragraph (b)(2) of this section, and provide for individual variances
from the design standards to accommodate changes in technology or
problems identified during initial operability testing of the individual
documentary collection websites or the ``central LSN site''.
(7) Issue guidance for LSN participants on how best to comply with
the design standards in paragraph (b)(2) of this section.
(d) The Secretary of the Commission shall reconstitute the LSS
Advisory Review Panel as the LSN Advisory Review Panel, composed of the
interests currently represented on the LSS Advisory Review Panel. The
Secretary of the Commission shall have the authority to appoint
additional representatives to the LSN Advisory Review Panel consistent
with the requirements of the Federal Advisory Committee Act, 5 U.S.C.
app. I, giving particular consideration to potential parties, parties,
and interested governmental participants who were not members of the NRC
HLW Licensing Support System Advisory Review Panel.
(e)(1) The LSN Advisory Review Panel shall provide advice to--
(i) NRC on the fundamental issues of the type of computer system
necessary to access the Licensing Support Network effectively under
paragraph (b) of this section; and
(ii) The Secretary of the Commission on the operation and
maintenance of the electronic docket established for the HLW geologic
repository licensing proceeding under the Commission's Rules of Practice
(10 CFR part 2).
(iii) The LSN Administrator on solutions to improve the functioning
of the LSN;
(2) The responsibilities of the LSN Advisory Review Panel shall
include advice on--
(i) Format standards for providing electronic access to the
documentary material certified by each participant to be made available
in the LSN to the other parties, interested governmental participants,
or potential parties;
(ii) The procedures and standards for the electronic transmission of
filings, orders, and decisions during both the pre-license application
phase and the high-level waste licensing proceeding;
(iii) Other duties as specified in this subpart or as directed by
the Secretary of the Commission.
[63 FR 71739, Dec. 30, 1998, as amended at 66 FR 29466, May 31, 2001]
Sec. 2.1012 Compliance.
(a) If the Department of Energy fails to make its initial
certification at least six months prior to tendering the application,
upon receipt of the tendered application, notwithstanding the provisions
of Sec. 2.101(f)(3), the Director of the NRC's Office of Nuclear
Material Safety and Safeguards will not docket the application until at
least six months have elapsed from the time of the certification. The
Director may determine that the tendered application is not acceptable
for docketing under this subpart if the application is not accompanied
by an updated certification pursuant to Sec. 2.1009(b), or if the
Secretary of the Commission determines that the application is not
submitted on optical storage media in a format consistent with NRC
regulations and guidance, or for non-compliance with any other
requirements identified in this subpart.
(b)(1) A person, including a potential party given access to the
Licensing Support Network under this subpart, may not be granted party
status under Sec. 2.309, or status as an interested governmental
participant under Sec. 2.315, if it cannot demonstrate substantial and
timely compliance with the requirements of Sec. 2.1003 at the time it
requests participation in the HLW licensing proceeding under Sec. 2.309
or Sec. 2.315.
(2) A person denied party status or interested governmental
participant status under paragraph (b)(1) of this section may request
party status or interested governmental participant status upon a
showing of subsequent compliance with the requirements of Sec. 2.1003.
Admission of such a party or interested governmental participant under
Sec. Sec. 2.309 or 2.315, respectively, is conditioned on accepting the
status of the proceeding at the time of admission.
(c) The Presiding Officer shall not make a finding of substantial
and timely compliance pursuant to paragraph (b) of this section for any
person who is not in compliance with all applicable
[[Page 112]]
orders of the Pre-License Application Presiding Officer designated
pursuant to Sec. 2.1010.
[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7796, Feb. 26, 1991; 63
FR 71739, Dec. 30, 1998; 66 FR 29466, May 31, 2001; 69 FR 2265, Jan. 14,
2004; 69 FR 32848, June 14, 2004]
Sec. 2.1013 Use of the electronic docket during the proceeding.
(a)(1) As specified in Sec. 2.303, the Secretary of the Commission
will maintain the official docket of the proceeding on the application
for construction authorization for a high-level radioactive waste
repository at a geologic repository operations area under parts 60 or 63
of this chapter, and for applications for a license to receive and
possess high level radioactive waste at a geologic repository operations
area under parts 60 or 63 of this Chapter.
(2) The Secretary of the Commission will establish an electronic
docket to contain the official record materials of the high-level
radioactive waste repository licensing proceeding in searchable full
text, or, for material that is not suitable for entry in searchable full
text, by header and image, as appropriate.
(b) Absent good cause, all exhibits tendered during the hearing must
have been made available to the parties in electronic form before the
commencement of that portion of the hearing in which the exhibit will be
offered. The electronic docket will contain a list of all exhibits,
showing where in the transcript each was marked for identification and
where it was received into evidence or rejected. For any hearing
sessions recorded stenographically or by other means, transcripts will
be entered into the electronic docket on a daily basis in order to
afford next-day availability at the hearing. However, for any hearing
sessions recorded on videotape or other video medium, if a copy of the
video recording is made available to all parties on a daily basis that
affords next-day availability at the hearing, a transcript of the
session prepared from the video recording will be entered into the
electronic docket within twenty-four (24) hours of the time the
transcript is tendered to the electronic docket by the transcription
service.
(c)(1) All filings in the adjudicatory proceeding on the application
for a high-level radioactive waste geologic repository under part 60 or
63 of this chapter shall be transmitted by the submitter to the
Presiding Officer, parties, and Secretary of the Commission, according
to the following requirements--
(i) ``Simple documents'' must be transmitted electronically via EIE;
(ii) ``Large documents'' must be transmitted electronically in
multiple transmissions of 50 megabytes or less each via EIE;
(iii) ``Complex documents'':
(A) Those portions that can be electronically submitted through the
EIE, in 50 MB or less segments, must be transmitted electronically,
along with a transmittal letter; and
(B) Those portions that are not capable of being transmitted
electronically must be submitted on optical storage media which must
also include those portions of the document that had been or will be
transmitted electronically.
(iv) Electronic submissions must have the following resolution--
(A) Electronic submissions of files created after January 1, 2004
must have 300 dots per inch (dpi) as the minimum resolution for bi-
tonal, color, and grayscale, except in limited circumstances where
submitters may need to use an image scanned before January 1, 2004, in a
document created after January 1, 2004, or the scanning process for a
large, one-page image may not successfully complete at the 300 dpi
standard resolution.
(B) Electronic submissions of files created before January 1, 2004,
or electronic submissions created after January 1, 2004, which cannot
meet the 300 dpi standard for color and grayscale, must meet the
standard for documents placed on LSN participant Web sites in Sec.
2.1011(b)(2)(iv) of this subpart, which is 150 dpi for color and
grayscale documents and 300 dpi for bi-tonal documents.
(v) Electronic submissions must be generated in the appropriate PDF
output format by using:
[[Page 113]]
(A) PDF--Formatted Text and Graphics for textual documents converted
from native applications;
(B) PDF--Searchable Image (Exact) for textual documents converted
from scanned documents; and
(C) PDF--Image Only for graphic-, image-, and forms-oriented
documents. In addition, Tagged Image File Format (TIFF) images and the
results of spreadsheet applications must to be converted to PDF, except
in those rare instances where PDF conversion is not practicable.
(vi) Electronic submissions must not rely on hyperlinks to other
documents or Web sites for completeness or access except for hyperlinks
that link to material within the same PDF file. If the submittal
contains hyperlinks to other documents or Web sites, then it must
include a disclaimer to the effect that the hyperlinks may be inoperable
or are not essential to the use of the filing. Information contained in
hyperlinks to a Web site on the Internet or to another PDF file, that is
necessary for the completeness of a filing, must be submitted in its
entirety in the filing or as an attachment to the filing.
(vii) All electronic submissions must be free of author-imposed
security restrictions.
(2) Filings required to be served shall be served upon either the
parties and interested governmental participants, or their designated
representatives. When a party or interested governmental participant has
appeared by attorney, service must be made upon the attorney of record.
(3) Service upon a party or interested governmental participant is
completed when the sender receives electronic acknowledgment (``delivery
receipt'') that the electronic submission has been placed in the
recipient's electronic mailbox.
(4) Proof of service, stating the name and address of the person on
whom served and the manner and date of service, shall be shown for each
document filed, by--
(i) Electronic acknowledgment (``delivery receipt'');
(ii) The affidavit of the person making the service; or
(iii) The certificate of counsel.
(5) All Presiding Officer and Commission issuances and orders will
be transmitted electronically to the parties and interested governmental
participants.
(d) Online access to the electronic docket, including a Protective
Order File if authorized by a Presiding Officer, shall be provided to
the Presiding Officer, the representatives of the parties and interested
governmental participants, and the witnesses while testifying, for use
during the hearing. Use of paper copy and other images will also be
permitted at the hearing.
[63 FR 71739, Dec. 30, 1998, as amended at 66 FR 55788, Nov. 2, 2001; 69
FR 2265, Jan. 14, 2004; 69 FR 32849, June 14, 2004]
Sec. 2.1015 Appeals.
(a) No appeals from any Pre-License Application Presiding Officer or
Presiding Officer order or decision issued under this subpart are
permitted, except as prescribed in paragraphs (b), (c), and (d) of this
section.
(b) A notice of appeal from a Pre-License Application presiding
officer order issued under Sec. 2.1010, a presiding officer prehearing
conference order issued under Sec. 2.1021, a presiding officer order
granting or denying a motion for summary disposition issued in
accordance with Sec. 2.1025, or a presiding officer order granting or
denying a petition to amend one or more contentions under Sec. 2.309,
must be filed with the Commission no later than ten (10) days after
service of the order. A supporting brief must accompany the notice of
appeal. Any other party, interested governmental participant, or
potential party may file a brief in opposition to the appeal no later
than ten (10) days after service of the appeal.
(c) Appeals from a Presiding Officer initial decision or partial
initial decision must be filed and briefed before the Commission in
accordance with the following requirements.
(1) Notice of appeal. Within ten (10) days after service of an
initial decision, any party may take an appeal to the Commission by
filing a notice of appeal. The notice shall specify:
(i) The party taking the appeal; and
(ii) The decision being appealed.
[[Page 114]]
(2) Filing appellant's brief. Each appellant shall file a brief
supporting its position on appeal within thirty (30) days (40 days if
Commission staff is the appellant) after the filing of notice required
by paragraph (a) of this section.
(3) Filing responsive brief. Any party who is not an appellant may
file a brief in support of or in opposition to the appeal within thirty
(30) days after the period has expired for the filing and service of the
brief of all appellants. Commission staff may file a responsive brief
within forty (40) days after the period has expired for the filing and
service of the briefs of all appellants. A responding party shall file a
single responsive brief regardless of the number of appellants' briefs
filed.
(4) Brief content. A brief in excess of ten (10) pages must contain
a table of contents, with page references, and a table of cases
(alphabetically arranged), statutes, regulations, and other authorities
cited, with references to the pages of the brief where they are cited.
(i) An appellant's brief must clearly identify the errors of fact or
law that are the subject of the appeal. An intervenor-appellant's brief
must be confined to issues which the intervenor-appellant placed in
controversy or sought to place in controversy in the proceeding. For
each issue appealed, the precise portion of the record relied upon in
support of the assertion of error must also be provided.
(ii) Each responsive brief must contain a reference to the precise
portion of the record which supports each factual assertion made.
(5) Brief length. A party shall not file a brief in excess of
seventy (70) pages in length, exclusive of pages containing the table of
contents, table of citations and any addendum containing statutes,
rules, regulations, etc. A party may request an increase of this page
limit for good cause. Such a request shall be made by motion submitted
at least seven (7) days before the date upon which the brief is due for
filing and shall specify the enlargement requested.
(6) Certificate of service. All documents filed under this section
must be accompanied by a certificate reflecting service upon all other
parties to the proceeding.
(7) Failure to comply. A brief which in form or content is not in
substantial compliance with the provisions of this section may be
stricken, either on motion of a party or by the Commission on its own
initiative.
(d) When, in the judgment of a Pre-License Application presiding
officer or presiding officer, prompt appellate review of an order not
immediately appealable under paragraph (b) of this section is necessary
to prevent detriment to the public interest or unusual delay or expense,
the Pre-License Application presiding officer or presiding officer may
refer the ruling promptly to the Commission, and shall provide notice of
this referral to the parties, interested governmental participants, or
potential parties. The parties, interested governmental participants, or
potential parties may also request that the Pre-License Application
presiding officer or presiding officer certify under Sec. 2.319 rulings
not immediately appealable under paragraph (b) of this section.
(e) Unless otherwise ordered, the filing of an appeal, petition for
review, referral, or request for certification of a ruling shall not
stay the proceeding or extend the time for the performance of any act.
[56 FR 7797, Feb. 26, 1991, as amended at 56 FR 29410, June 27, 1991; 69
FR 2265, Jan. 14, 2004]
Sec. 2.1017 Computation of time.
In computing any period of time, the day of the act, event, or
default after which the designated period of time begins to run is not
included. The last day of the period so computed is included unless it
is a Saturday, Sunday, or legal holiday at the place where the action or
event is to occur, in which event the period runs until the end of the
next day which is neither a Saturday, Sunday, nor holiday. Whenever a
party, potential party, or interested governmental participant, has the
right or is required to do some act within a prescribed period after the
service of a notice or other document upon it, one day shall be added to
the prescribed period. If the electronic docket is unavailable for more
than
[[Page 115]]
four access hours of any day that would be counted in the computation of
time, that day will not be counted in the computation of time.
[63 FR 71740, Dec. 30, 1998]
Sec. 2.1018 Discovery.
(a)(1) Parties, potential parties, and interested governmental
participants in the high-level waste licensing proceeding may obtain
discovery by one or more of the following methods:
(i) Access to the documentary material made available pursuant to
Sec. 2.1003;
(ii) Entry upon land for inspection, access to raw data, or other
purposes pursuant to Sec. 2.1020;
(iii) Access to, or the production of, copies of documentary
material for which bibliographic headers only have been submitted
pursuant to Sec. 2.1003(a);
(iv) Depositions upon oral examination pursuant to Sec. 2.1019;
(v) Requests for admissions pursuant to Sec. 2.708;
(vi) Informal requests for information not made electronically
available, such as the names of witnesses and the subjects they plan to
address; and
(vii) Interrogatories and depositions upon written questions, as
provided in paragraph (a)(2) of this section.
(2) Interrogatories and depositions upon written questions may be
authorized by order of the discovery master appointed under paragraph
(g) of this section, or if no discovery master has been appointed, by
order of the Presiding Officer, in the event that the parties are
unable, after informal good faith efforts, to resolve a dispute in a
timely fashion concerning the production of information.
(b)(1) Parties, potential parties, and interested governmental
participants, pursuant to the methods set forth in paragraph (a) of this
section, may obtain discovery regarding any matter, not privileged,
which is relevant to the licensing of the likely candidate site for a
geologic repository, whether it relates to the claim or defense of the
person seeking discovery or to the claim or defense of any other person.
Except for discovery pursuant to Sec. Sec. 2.1018(a)(2) and 2.1019 of
this subpart, all other discovery shall begin during the pre-license
application phase. Discovery pursuant to Sec. Sec. 2.1018(a)(2) and
2.1019 of this subpart shall begin after the issuance of the first pre-
hearing conference order under Sec. 2.1021 of this subpart, and shall
be limited to the issues defined in that order or subsequent amendments
to the order. It is not ground for objection that the information sought
will be inadmissible at the hearing if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
(2) A party, potential party, or interested governmental participant
may obtain discovery of documentary material otherwise discoverable
under paragraph (b)(1) of this section and prepared in anticipation of,
or for the hearing by, or for another party's, potential party's, or
interested governmental participant's representative (including its
attorney, surety, indemnitor, insurer, or similar agent) only upon a
showing that the party, potential party, or interested governmental
participant seeking discovery has substantial need of the materials in
the preparation of its case and that it is unable without undue hardship
to obtain the substantial equivalent of the materials by other means. In
ordering discovery of these materials when the required showing has been
made, the Presiding Officer shall protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party, potential party, or
interested governmental participant concerning the proceeding.
(c)(1) Upon motion by a party, potential party, interested
governmental participant, or the person from whom discovery is sought,
and for good cause shown, the presiding officer may make any order that
justice requires to protect a party, potential party, interested
governmental participant, or other person from annoyance, embarrassment,
oppression, or undue burden, delay, or expense, including one or more of
the following:
(i) That the discovery not be had;
(ii) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(iii) That the discovery may be had only by a method of discovery
other
[[Page 116]]
than that selected by the party, potential party, or interested
governmental participant seeking discovery;
(iv) That certain matters not be inquired into, or that the scope of
discovery be limited to certain matters;
(v) That discovery be conducted with no one present except persons
designated by the presiding officer;
(vi) That, subject to the provisions of Sec. 2.390 of this part, a
trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way;
or
(vii) That studies and evaluations not be prepared.
(2) If the motion for a protective order is denied in whole or in
part, the presiding officer may, on such terms and conditions as are
just, order that any party, potential party, interested governmental
participant or other person provide or permit discovery.
(d) Except as provided in paragraph (b) of this section, and unless
the Presiding Officer upon motion, for the convenience of parties,
potential parties, interested governmental participants, and witnesses
and in the interest of justice, orders otherwise, methods of discovery
may be used in any sequence, and the fact that a party, potential party,
or interested governmental participant is conducting discovery, whether
by deposition or otherwise, shall not operate to delay any other
party's, potential party's, or interested governmental participant's
discovery.
(e) A party, potential party, or interested governmental participant
who has made available in electronic form all material relevant to any
discovery request or who has responded to a request for discovery with a
response that was complete when made is under no duty to supplement its
response to include information thereafter acquired, except as follows:
(1) To the extent that written interrogatories are authorized
pursuant to paragraph (a)(2) of this section, a party or interested
governmental participant is under a duty to seasonably supplement its
response to any question directly addressed to (i) the identity and
location of persons having knowledge of discoverable matters, and (ii)
the identity of each person expected to be called as an expert witness
at the hearing, the subject matter on which the witness is expected to
testify, and the substance of the witness' testimony.
(2) A party, potential party, or interested governmental participant
is under a duty seasonably to amend a prior response if it obtains
information upon the basis of which (i) it knows that the response was
incorrect when made, or (ii) it knows that the response though correct
when made is no longer true and the circumstances are such that a
failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the
Presiding Officer or agreement of the parties, potential parties, and
interested governmental participants.
(f)(1) If a deponent of a party, potential party, or interested
governmental participant upon whom a request for discovery is served
fails to respond or objects to the request, or any part thereof, the
party, potential party, or interested governmental participant
submitting the request or taking the deposition may move the Presiding
Officer, within five days after the date of the response or after
failure to respond to the request, for an order compelling a response in
accordance with the request. The motion shall set forth the nature of
the questions or the request, the response or objection of the party,
potential party, interested governmental participant, or other person
upon whom the request was served, and arguments in support of the
motion. For purposes of this paragraph, an evasive or incomplete answer
or response shall be treated as a failure to answer or respond. Failure
to answer or respond shall not be excused on the ground that the
discovery sought is objectionable unless the person, party, potential
party, or interested governmental participant failing to answer or
respond has applied for a protective order pursuant to paragraph (c) of
this section.
(2) In ruling on a motion made pursuant to this section, the
Presiding Officer may make such a protective order as it is authorized
to make on a motion made pursuant to paragraph (c) of this section.
[[Page 117]]
(3) An independent request for issuance of a subpoena may be
directed to a nonparty for production of documents. This section does
not apply to requests for the testimony of the NRC regulatory staff
under Sec. 2.709.
(g) The presiding officer, under Sec. 2.322, may appoint a
discovery master to resolve disputes between parties concerning informal
requests for information as provided in paragraphs (a)(1) and (a)(2) of
this section.
[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 63
FR 71740, Dec. 30, 1998; 69 FR 2266, Jan. 14, 2004]
Sec. 2.1019 Depositions.
(a) Any party or interested governmental participant desiring to
take the testimony of any person by deposition on oral examination
shall, without leave of the Commission or the Presiding Officer, give
reasonable notice in writing to every other party and interested
governmental participant, to the person to be examined, and to the
Presiding Officer of the proposed time and place of taking the
deposition; the name and address of each person to be examined, if
known, or if the name is not known, a general description sufficient to
identify him or her or the class or group to which he or she belongs,
the matters upon which each person will be examined and the name or
descriptive title and address of the officer before whom the deposition
is to be taken.
(b) Within the United States, a deposition may be taken before any
officer authorized to administer oaths by the laws of the United States
or of the place where the examination is held. Outside of the United
States, a deposition may be taken before a secretary of an embassy or
legation, a consul general, vice consul or consular agent of the United
States, or a person authorized to administer oaths designated by the
Commission. Depositions may be conducted by telephone or by video
teleconference at the option of the party or interested governmental
participant taking the deposition.
(c) The deponent shall be sworn or shall affirm before any questions
are put to him or her. Examination and cross-examination shall proceed
as at a hearing. Each question propounded shall be recorded and the
answer taken down in the words of the witness. Objections on questions
of evidence shall be noted in short form without the arguments. The
officer shall not decide on the competency, materiality, or relevancy of
evidence but shall record the evidence subject to objection. Objections
on questions of evidence not made before the officer shall not be deemed
waived unless the ground of the objection is one which might have been
obviated or removed if presented at that time.
(d) When the testimony is fully transcribed, the deposition shall be
submitted to the deponent for examination and signature unless the
deponent is ill or cannot be found or refuses to sign. The officer shall
certify the deposition or, if the deposition is not signed by the
deponent, shall certify the reasons for the failure to sign, and shall
promptly transmit an electronic copy of the deposition to the Secretary
of the Commission for entry into the electronic docket.
(e) Where the deposition is to be taken on written questions as
authorized under Sec. 2.1018(a)(2), the party or interested
governmental participant taking the deposition shall electronically
serve a copy of the questions, showing each question separately and
consecutively numbered, on every other party and interested governmental
participant with a notice stating the name and address of the person who
is to answer them, and the name, description, title, and address of the
officer before whom they are to be asked. Within ten days after service,
any other party or interested governmental participant may serve cross-
questions. The questions, cross-questions, and answers shall be recorded
and signed, and the deposition certified, returned, and transmitted in
electronic form to the Secretary of the Commission for entry into the
electronic docket as in the case of a deposition on oral examination.
(f) A deposition will not become a part of the evidentiary record in
the hearing unless received in evidence. If only part of a deposition is
offered in evidence by a party or interested governmental participant,
any other party or interested governmental participant
[[Page 118]]
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 deposition taken on
written questions pursuant to paragraph (e) of this section, shall
submit such documents with the certified deposition.
(5) Subject to paragraph (i)(6) of this section, a party or
interested governmental participant may request that any or all
documents on the index that have not already been provided
electronically, and on which it intends to rely at hearing, be made
electronically available by the deponent.
(6) The deposing party or interested governmental participant shall
assume the responsibility for the obligations set forth in paragraphs
(i)(1), (i)(3), (i)(4), and (i)(5) of this section when deposing someone
other than a party or interested governmental participant.
[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 63
FR 71740, Dec. 30, 1998; 69 FR 2266, Jan. 14, 2004]
Sec. 2.1020 Entry upon land for inspection.
(a) Any party, potential party, or interested governmental
participant may serve on any other party, potential party, or interested
governmental participant a request to permit entry upon designated land
or other property in the possession or control of the party, potential
party, or interested governmental participant upon whom the request is
served for the purpose of access to raw data, inspection and measuring,
surveying, photographing, testing, or sampling the property or any
designated object or operation thereon, within the scope of Sec. 2.1018
of this subpart.
(b) The request may be served on any party, potential party, or
interested governmental participant without leave of the Commission or
the Presiding Officer.
(c) The request shall describe with reasonable particularity the
land or other property to be inspected either by individual item or by
category. The request shall specify a reasonable time, place, and manner
of making the inspection and performing the related acts.
(d) The party, potential party, or interested governmental
participant
[[Page 119]]
upon whom the request is served shall serve on the party, potential
party, or interested governmental participant submitting the request a
written response within ten days after the service of the request. The
response shall state, with respect to each item or category, that
inspection and related activities will be permitted as requested, unless
the request is objected to, in which case the reasons for objection
shall be stated. If objection is made to part of an item or category,
the part shall be specified.
[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991]
Sec. 2.1021 First prehearing conference.
(a) In any proceeding involving an application for a construction
authorization for a HLW repository at a geologic repository operations
area under parts 60 or 63 of this chapter, or an application for a
license to receive and possess high-level radioactive waste at a
geologic repository operations area pursuant to parts 60 or 63 of this
chapter, the Commission or the presiding officer will direct the
parties, interested governmental participants and any petitioners for
intervention, or their counsel, to appear at a specified time and place,
within seventy days after the notice of hearing is published, or such
other time as the Commission or the presiding officer may deem
appropriate, for a conference to:
(1) Permit identification of the key issues in the proceeding;
(2) Take any steps necessary for further identification of the
issues;
(3) Consider all intervention petitions to allow the Presiding
Officer to make such preliminary or final determination as to the
parties and interested governmental participants, as may be appropriate;
(4) Establish a schedule for further actions in the proceeding; and
(5) Establish a discovery schedule for the proceeding taking into
account the objective of meeting the three year time schedule specified
in section 114(d) of the Nuclear Waste Policy Act of 1982, as amended,
42 U.S.C. 10134(d).
(b) The Presiding Officer may order any further formal and informal
conferences among the parties and interested governmental participants
including teleconferences, to the extent that it considers that such a
conference would expedite the proceeding.
(c) A prehearing conference held pursuant to this section shall be
stenographically reported.
(d) The Presiding Officer shall enter an order which recites the
action taken at the conference, the schedule for further actions in the
proceeding, and any agreements by the parties, and which identifies the
key issues in the proceeding, makes a preliminary or final determination
as to the parties and interested governmental participants in the
proceeding, and provides for the submission of status reports on
discovery.
[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 66
FR 55788, Nov. 2, 2001; 69 FR 2266, Jan. 14, 2004]
Sec. 2.1022 Second prehearing conference.
(a) The Commission or the presiding officer in a proceeding on
either an application for construction authorization for a high-level
radioactive waste repository at a geologic repository operations area
under parts 60 or 63 of this chapter, or an application for a license to
receive and possess high-level radioactive waste at a geologic
repository operations area under parts 60 or 63 of this chapter, shall
direct the parties, interested governmental participants, or their
counsel to appear at a specified time and place not later than thirty
days after the Safety Evaluation Report is issued by the NRC staff for a
conference to consider:
(1) Any amended contentions submitted, which must be reviewed under
the criteria in Sec. 2.309(c) of this part;
(2) Simplification, clarification, and specification of the issues;
(3) The obtaining of stipulations and admissions of fact and of the
contents and authenticity of documents to avoid unnecessary proof;
(4) Identification of witnesses and the limitation of the number of
expert witnesses, and other steps to expedite the presentation of
evidence;
(5) The setting of a hearing schedule;
(6) Establishing a discovery schedule for the proceeding taking into
account the objective of meeting the three year time schedule specified
in section
[[Page 120]]
114(d) of the Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C.
10134(d); and
(7) Such other matters as may aid in the orderly disposition of the
proceeding.
(b) A prehearing conference held pursuant to this section shall be
stenographically reported.
(c) The Presiding Officer shall enter an order which recites the
action taken at the conference and the agreements by the parties, limits
the issues or defines the matters in controversy to be determined in the
proceeding, sets a discovery schedule, and sets the hearing schedule.
[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 69
FR 2266, Jan. 14, 2004]
Sec. 2.1023 Immediate effectiveness.
(a) Pending review and final decision by the Commission, and initial
decision resolving all issues before the presiding officer in favor of
issuance or amendment of either an authorization to construct a high-
level radioactive waste repository at a geologic repository operations
area under parts 60 or 63 of this chapter, or a license to receive and
possess high-level radioactive waste at a geologic repository operations
area under parts 60 or 63 of this chapter will be immediately effective
upon issuance except:
(1) As provided in any order issued in accordance with Sec. 2.342
that stays the effectiveness of an initial decision; or
(2) As otherwise provided by the Commission in special
circumstances.
(b) The Director of Nuclear Material Safety and Safeguards,
notwithstanding the filing or pendency of an appeal or a petition for
review pursuant to Sec. 2.1015 of this subpart, promptly shall issue a
construction authorization or a license to receive and possess high-
level radioactive waste at a geologic respository operations area, or
amendments thereto, following an initial decision resolving all issues
before the Presiding Officer in favor of the licensing action, upon
making the appropriate licensing findings, except--
(1) As provided in paragraph (c) of this section; or
(2) As provided in any order issued in accordance with Sec. 2.342
of this part that stays the effectiveness of an initial decision; or
(3) As otherwise provided by the Commission in special
circumstances.
(c)(1) Before the Director of Nuclear Material Safety and Safeguards
may issue a construction authorization or a license to receive and
possess waste at a geologic repository operations area in accordance
with paragraph (b) of this section, the Commission, in the exercise of
its supervisory authority over agency proceedings, shall undertake and
complete a supervisory examination of those issues contested in the
proceeding before the Presiding Officer to consider whether there is any
significant basis for doubting that the facility will be constructed or
operated with adequate protection of the public health and safety, and
whether the Commission should take action to suspend or to otherwise
condition the effectiveness of a Presiding Officer decision that
resolves contested issues in a proceeding in favor of issuing a
construction authorization or a license to receive and possess high-
level radioactive waste at a geologic repository operations area. This
supervisory examination is not part of the adjudicatory proceeding. The
Commission shall notify the Director in writing when its supervisory
examination conducted in accordance with this paragraph has been
completed.
(2) Before the Director of Nuclear Material Safety and Safeguards
issues a construction authorization or a license to receive and possess
high-level radioactive waste at a geologic repository operations area,
the Commission shall review those issues that have not been contested in
the proceeding before the Presiding Officer but about which the Director
must make appropriate findings prior to the issuance of such a license.
The Director shall issue a construction authorization or a license to
receive and possess high-level radioactive waste at a geologic
repository operations area only after written notification from the
Commission of its completion of its review under this paragraph and of
its determination that it is appropriate for the Director
[[Page 121]]
to issue such a construction authorization or license. This Commission
review of uncontested issues is not part of the adjudicatory proceeding.
(3) No suspension of the effectiveness of a Presiding Officer's
initial decision or postponement of the Director's issuance of a
construction authorization or license that results from a Commission
supervisory examination of contested issues under paragraph (c)(1) of
this section or a review of uncontested issues under paragraph (c)(2) of
this section will be entered except in writing with a statement of the
reasons. Such suspension or postponement will be limited to such period
as is necessary for the Commission to resolve the matters at issue. If
the supervisory examination results in a suspension of the effectiveness
of the Presiding Officer's initial decision under paragraph (c)(1) of
this section, the Commission will take review of the decision sua sponte
and further proceedings relative to the contested matters at issue will
be in accordance with procedures for participation by the DOE, the NRC
staff, or other parties and interested governmental participants to the
Presiding Officer proceeding established by the Commission in its
written statement of reasons. If a postponement results from a review
under paragraph (c)(2) of this section, comments on the uncontested
matters at issue may be filed by the DOE within ten days of service of
the Commission's written statement.
[54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 66
FR 55789, Nov. 2, 2001; 69 FR 2266, Jan. 14, 2004]
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
[[Page 122]]
whether the authorization must be issued.
[56 FR 7798, Feb. 26, 1991]
Sec. 2.1026 Schedule.
(a) Subject to paragraphs (b) and (c) of this section, the Presiding
Officer shall adhere to the schedule set forth in appendix D of this
part.
(b)(1) Pursuant to Sec. 2.307, the presiding officer may approve
extensions of no more than fifteen (15) days beyond any required time
set forth in this subpart for a filing by a party to the proceeding.
Except in the case of exceptional and unforseen circumstances, requests
for extensions of more than fifteen (15) days must be filed no later
than five (5) days in advance of the required time set forth in this
subpart for a filing by a party to the proceeding.
(2) Extensions beyond 15 days must be referred to the Commission. If
the Commission does not disapprove the extension within 10 days of
receiving the request, the extension will be effective. If the
Commission disapproves the extension, the date which was the subject of
the extension request will be set for 5 days after the Commission's
disapproval action.
(c)(1) The Presiding Officer may delay the issuance of an order up
to thirty days beyond the time set forth for the issuance in appendix D.
(2) If the Presiding Officer anticipates that the issuance of an
order will not occur until after the thirty day extension specified in
paragraph (c)(1) of this section, the Presiding Officer shall notify the
Commission at least ten days in advance of the scheduled date for the
milestone and provide a justification for the delay.
[56 FR 7798, Feb. 26, 1991, as amended at 69 FR 2266, Jan. 14, 2004]
Sec. 2.1027 Sua sponte.
In any initial decision in a proceeding on an application for a
construction authorization for a high-level radioactive waste repository
at a geologic repository operations area under parts 60 or 63 of this
chapter, or an application for a license to receive and possess high-
level radioactive waste at a geologic repository operations area under
parts 60 or 63 of this chapter, the Presiding Officer, other than the
Commission, shall make findings of fact and conclusions of law on, and
otherwise give consideration to, only those matters put into controversy
by the parties and determined to be litigable issues in the proceeding.
[69 FR 2266, Jan. 14, 2004]
Subpart K_Hybrid Hearing Procedures for Expansion of Spent Nuclear Fuel
Storage Capacity at Civilian Nuclear Power Reactors
Source: 50 FR 41670, Oct. 15, 1985, unless otherwise noted.
Sec. 2.1101 Purpose.
The regulations in this subpart establish hybrid hearing procedures,
as authorized by section 134 of the Nuclear Waste Policy Act of 1982 (96
Stat. 2230), to be used at the request of any party in certain contested
proceedings on applications for a license or license amendment to expand
the spent nuclear fuel storage capacity at the site of a civilian
nuclear power plant. These procedures are intended to encourage and
expedite onsite expansion of spent nuclear fuel storage capacity.
Sec. 2.1103 Scope of subpart K.
The provisions of this subpart, together with subpart C and
applicable provisions of subparts G and L of this part, govern all
adjudicatory proceedings on applications filed after January 7, 1983,
for a license or license amendment under part 50 of this chapter, to
expand the spent fuel storage capacity at the site of a civilian nuclear
power plant, through the use of high density fuel storage racks, fuel
rod compaction, the transshipment of spent nuclear fuel to another
civilian nuclear power reactor within the same utility system, the
construction of additional spent nuclear fuel pool capacity or dry
storage capacity, or by other means. This subpart also applies to
proceedings on applications for a license under part 72 of this chapter
to store spent nuclear fuel in an independent spent fuel storage
installation located at the site of a civilian nuclear
[[Page 123]]
power reactor. This subpart shall not apply to the first application for
a license or license amendment to expand the spent fuel storage capacity
at a particular site through the use of a new technology not previously
approved by the Commission for use at any other nuclear power plant.
This subpart shall not apply to proceedings on applications for transfer
of a license issued under part 72 of this chapter. Subpart M of this
part applies to license transfer proceedings.
[69 FR 2266, Jan. 14, 2004]
Sec. 2.1105 Definitions.
As used in this part:
(a) Civilian nuclear power reactor means a civilian nuclear power
plant required to be licensed as a utilization facility under section
103 or 104(b) of the Atomic Energy Act of 1954.
(b) Spent nuclear fuel means fuel that has been withdrawn from a
nuclear reactor following irradiation, the constituent elements of which
have not been separated by reprocessing.
Sec. 2.1107 Notice of proposed action.
In connection with each application filed after January 7, 1983, for
a license or an amendment to a license to expand the spent nuclear fuel
storage capacity at the site of a civilian nuclear power plant, for
which the Commission has not found that a hearing is required in the
public interest, for which an adjudicatory hearing has not yet been
convened, and for which a notice of proposed action has not yet been
published as of the effective date of this subpart, the Commission will,
prior to acting thereon, cause to be published in the Federal Register a
notice of proposed action in accordance with Sec. 2.105. The notice of
proposed action will identify the availability of the hybrid hearing
procedures in this subpart, specify that any party may invoke these
procedures by filing a timely request for oral argument under Sec.
2.1109, and provide that if a request for oral argument is granted, any
hearing held on the application shall be conducted in accordance with
the procedures in this subpart.
Sec. 2.1109 Requests for oral argument.
(a)(1) In its request for hearing/petition to intervene filed in
accordance with Sec. 2.309 or in the applicant's or the NRC staff's
response to a request for a hearing/petition to intervene, any party may
invoke the hybrid hearing procedures in this Subpart by requesting an
oral argument. If it is determined that a hearing will be held, the
presiding officer shall grant a timely request for oral argument.
(2) The presiding officer may grant an untimely request for oral
argument only upon a showing of good cause by the requesting party for
failure to file on time and after providing the other parties an
opportunity to respond to the untimely request.
(b) The presiding officer shall issue a written order ruling on any
requests for oral argument. If the presiding officer grants a request
for oral argument, the order shall include a schedule for discovery and
subsequent oral argument with respect to the admitted contentions.
(c) If no party to the proceeding requests oral argument, or if all
untimely requests for oral argument are denied, the presiding officer
shall conduct the proceeding in accordance with the subpart under which
the proceeding was initially conducted as determined in accordance with
Sec. 2.310.
[50 FR 41670, Oct. 15, 1985, as amended at 69 FR 2267, Jan. 14, 2004]
Sec. 2.1113 Oral argument.
(a) Twenty-five (25) days prior to the date set for oral argument,
each party, including the NRC staff, shall submit to the presiding
officer a detailed written summary of all the facts, data, and arguments
which are known to the party at such time and on which the party
proposes to rely at the oral argument either to support or to refute the
existence of a genuine and substantial dispute of fact. Each party shall
also submit all supporting facts and data in the form of sworn written
testimony or other sworn written submission. Each party's written
summary and supporting information shall be simultaneously served on all
other parties to the proceeding.
[[Page 124]]
(b) Ten (10) days prior to the date set for oral argument, each
party, including the NRC staff, may submit to the presiding officer a
reply limited to addressing whether the written summaries, facts, data,
and arguments filed under paragraph (a) of this section support or
refute the existence of a genuine and substantial dispute of fact. Each
party's reply shall be simultaneously served on all other parties to the
proceeding.
(c) Only facts and data in the form of sworn written testimony or
other sworn written submission may be relied on by the parties during
oral argument, and the presiding officer shall consider those facts and
data only if they are submitted in that form.
[50 FR 41670, Oct. 15, 1985, as amended at 69 FR 2267, Jan. 14, 2004]
Sec. 2.1115 Designation of issues for adjudicatory hearing.
(a) After due consideration of the oral presentation and the written
facts and data submitted by the parties and relied on at the oral
argument, the presiding officer shall promptly by written order:
(1) Designate any disputed issues of fact, together with any
remaining issues of law, for resolution in an adjudicatory hearing; and
(2) Dispose of any issues of law or fact not designated for
resolution in an adjudicatory hearing.
With regard to each issue designated for resolution in an adjudicatory
hearing, the presiding officer shall identify the specific facts that
are in genuine and substantial dispute, the reason why the decision of
the Commission is likely to depend on the resolution of that dispute,
and the reason why an adjudicatory hearing is likely to resolve the
dispute. With regard to issues not designated for resolution in an
adjudicatory hearing, the presiding officer shall include a brief
statement of the reasons for the disposition. If the presiding officer
finds that there are no disputed issues of fact or law requiring
resolution in an adjudicatory hearing, the presiding officer shall also
dismiss the proceeding.
(b) No issue of law or fact shall be designated for resolution in an
adjudicatory hearing unless the presiding officer determines that:
(1) There is a genuine and substantial dispute of fact which can
only be resolved with sufficient accuracy by the introduction of
evidence in an adjudicatory hearing; and
(2) The decision of the Commission is likely to depend in whole or
in part on the resolution of that dispute.
(c) In making a determination under paragraph (b) of this section,
the presiding officer shall not consider:
(1) Any issue relating to the design, construction, or operation of
any civilian nuclear power reactor already licensed to operate at the
site, or any civilian nuclear power reactor for which a construction
permit has been granted at the site, unless the presiding officer
determines that any such issue substantially affects the design,
construction, or operation of the facility or activity for which a
license application, authorization, or amendment to expand the spent
nuclear fuel storage capacity is being considered; or
(2) Any siting or design issue fully considered and decided by the
Commission in connection with the issuance of a construction permit or
operating license for a civilian nuclear power reactor at that site,
unless (i) such issue results from any revision of siting or design
criteria by the Commission following such decision; and (ii) the
presiding officer determines that such issue substantially affects the
design, construction, or operation of the facility or activity for which
a license application, authorization, or amendment to expand the spent
nuclear fuel storage capacity is being considered.
(d) The provisions of paragraph (c) of this section shall apply only
with respect to licenses, authorizations, or amendments to licenses or
authorizations applied for under the Atomic Energy Act of 1954, as
amended, before December 31, 2005.
(e) Unless the presiding officer disposes of all issues and
dismisses the proceeding, appeals from the presiding officer's order
disposing of issues and designating one or more issues for resolution in
an adjudicatory hearing are
[[Page 125]]
interlocutory and must await the end of the proceeding.
[50 FR 41671, Oct. 15, 1985; 50 FR 45398, Oct. 31, 1985]
Sec. 2.1117 Burden of proof.
The applicant bears the ultimate burden of proof (risk of non-
persuasion) with respect to the contention in the proceeding. The
proponent of the request for an adjudicatory hearing bears the burden of
demonstrating under Sec. 2.1115(b) that an adjudicatory hearing should
be held.
[69 FR 2267, Jan. 14, 2004]
Sec. 2.1119 Applicability of other sections.
In proceedings subject to this part, the provisions of subparts A,
C, and L of this part are also applicable, except where inconsistent
with the provisions of this subpart.
[69 FR 2267, Jan. 14, 2004]
Subpart L_Informal Hearing Procedures for NRC Adjudications
Source: 69 FR 2267, Jan. 14, 2004, unless otherwise noted.
Sec. 2.1200 Scope of subpart L.
The provisions of this subpart, together with subpart C of this
part, govern all adjudicatory proceedings conducted under the authority
of the Atomic Energy Act of 1954, as amended, the Energy Reorganization
Act, and 10 CFR part 2, except for proceedings on the licensing of the
construction and operation of a uranium enrichment facility, proceedings
on an initial application for construction authorization for a high-
level radioactive waste geologic repository at a geologic repository
operations area noticed under Sec. Sec. 2.101(f)(8) or 2.105(a)(5),
proceedings on an initial application for a license to receive and
possess high-level radioactive waste at a geologic repository operations
area, proceedings on enforcement matters unless all parties otherwise
agree and request the application of Subpart L procedures, and
proceedings for the direct or indirect transfer of control of an NRC
license when the transfer requires prior approval of the NRC under the
Commission's regulations, governing statutes, or pursuant to a license
condition.
Sec. 2.1201 Definitions.
The definitions of terms contained in Sec. 2.4 apply to this
subpart unless a different definition is provided in this subpart.
Sec. 2.1202 Authority and role of NRC staff.
(a) During the pendency of any hearing under this subpart,
consistent with the NRC staff's findings in its own review of the
application or matter which is the subject of the hearing and as
authorized by law, the NRC staff is expected to issue its approval or
denial of the application promptly, or take other appropriate action on
the underlying regulatory matter for which a hearing was provided. When
the NRC staff takes its action, it shall notify the presiding officer
and the parties to the proceeding of its action. That notice must
include the NRC staff's position on the matters in controversy before
the presiding officer with respect to the staff action. The NRC staff's
action on the matter is effective upon issuance by the staff, except in
matters involving:
(1) An application to construct and/or operate a production or
utilization facility;
(2) An application for an amendment to a construction authorization
for a high-level radioactive waste repository at a geologic repository
operations area falling under either 10 CFR 60.32(c)(1) or 10 CFR part
63;
(3) An application for the construction and operation of an
independent spent fuel storage installation (ISFSI) located at a site
other than a reactor site or a monitored retrievable storage
installation (MRS) under 10 CFR part 72; and
(4) Production or utilization facility licensing actions that
involve significant hazards considerations as defined in 10 CFR 50.92.
(b)(1) The NRC staff is not required to be a party to a proceeding
under this subpart, except where:
(i) The proceeding involves an application denied by the NRC staff
or an enforcement action proposed by the NRC staff; or
[[Page 126]]
(ii) The presiding officer determines that the resolution of any
issue in the proceeding would be aided materially by the NRC staff's
participation in the proceeding as a party and orders the staff to
participate as a party for the identified issue. In the event that the
presiding officer determines that the NRC staff's participation is
necessary, the presiding officer shall issue an order identifying the
issue(s) on which the staff is to participate as well as setting forth
the basis for the determination that staff participation will materially
aid in resolution of the issue(s).
(2) Within fifteen (15) days of the issuance of the order granting
requests for hearing/petitions to intervene and admitting contentions,
the NRC staff shall notify the presiding officer and the parties whether
it desires to participate as a party, and identify the contentions on
which it wishes to participate as a party. If the NRC staff desires to
be a party thereafter, the NRC staff shall notify the presiding officer
and the parties, identify the contentions on which it wishes to
participate as a party, and make the disclosures required by Sec.
2.336(b)(3) through (5) unless accompanied by an affidavit explaining
why the disclosures cannot be provided to the parties with the notice.
(3) Once the NRC staff chooses to participate as a party, it shall
have all the rights and responsibilities of a party with respect to the
admitted contention/matter in controversy on which the staff chooses to
participate.
Sec. 2.1203 Hearing file; prohibition on discovery.
(a)(1) Within thirty (30) days of the issuance of the order granting
requests for hearing/petitions to intervene and admitting contentions,
the NRC staff shall file in the docket, present to the presiding
officer, and make available to the parties to the proceeding a hearing
file.
(2) The hearing file must be made available to the parties either by
service of hard copies or by making the file available at the NRC Web
site, http://www.nrc.gov.
(3) The hearing file also must be made available for public
inspection and copying at the NRC Web site, http://www.nrc.gov, and/or
at the NRC Public Document Room.
(b) The hearing file consists of the application, if any, and any
amendment to the application, and, when available, any NRC environmental
impact statement or assessment and any NRC report related to the
proposed action, as well as any correspondence between the applicant/
licensee and the NRC that is relevant to the proposed action. Hearing
file documents already available at the NRC Web site and/or the NRC
Public Document Room when the hearing request/petition to intervene is
granted may be incorporated into the hearing file at those locations by
a reference indicating where at those locations the documents can be
found. The presiding officer shall rule upon any issue regarding the
appropriate materials for the hearing file.
(c) The NRC staff has a continuing duty to keep the hearing file up
to date with respect to the materials set forth in paragraph (b) of this
section and to provide those materials as required in paragraphs (a) and
(b) of this section.
(d) Except as otherwise permitted by subpart C of this part, a party
may not seek discovery from any other party or the NRC or its personnel,
whether by document production, deposition, interrogatories or
otherwise.
Sec. 2.1204 Motions and requests.
(a) General requirements. In proceedings under this subpart,
requirements for motions and requests and responses to them are as
specified in Sec. 2.323.
(b) Requests for cross-examination by the parties. (1) In any oral
hearing under this subpart, a party may file a motion with the presiding
officer to permit cross-examination by the parties on particular
admitted contentions or issues. The motion must be accompanied by a
cross-examination plan containing the following information:
(i) A brief description of the issue or issues on which cross-
examination will be conducted;
(ii) The objective to be achieved by cross-examination; and
(iii) The proposed line of questions that may logically lead to
achieving the objective of the cross-examination.
[[Page 127]]
(2) The cross-examination plan may be submitted only to the
presiding officer and must be kept by the presiding officer in
confidence until issuance of the initial decision on the issue being
litigated. The presiding officer shall then provide each cross-
examination plan to the Commission's Secretary for inclusion in the
official record of the proceeding.
(3) The presiding officer shall allow cross-examination by the
parties only if the presiding officer determines that cross-examination
by the parties is necessary to ensure the development of an adequate
record for decision.
Sec. 2.1205 Summary disposition.
(a) Unless the presiding officer or the Commission directs
otherwise, motions for summary disposition may be submitted to the
presiding officer by any party no later than forty-five (45) days before
the commencement of hearing. The motions must be in writing and must
include a written explanation of the basis of the motion, and affidavits
to support statements of fact. Motions for summary disposition must be
served on the parties and the Secretary at the same time that they are
submitted to the presiding officer.
(b) Any other party may serve an answer supporting or opposing the
motion within twenty (20) days after service of the motion.
(c) The presiding officer shall issue a determination on each motion
for summary disposition no later than fifteen (15) days before the date
scheduled for commencement of hearing. In ruling on motions for summary
disposition, the presiding officer shall apply the standards for summary
disposition set forth in subpart G of this part.
Sec. 2.1206 Informal hearings.
Hearings under this subpart will be oral hearings as described in
Sec. 2.1207, unless, within fifteen (15) days of the service of the
order granting the request for hearing, the parties unanimously agree
and file a joint motion requesting a hearing consisting of written
submissions. A motion to hold a hearing consisting of written
submissions will not be entertained unless there is unanimous consent of
the parties.
Sec. 2.1207 Process and schedule for submissions and presentations
in an oral hearing.
(a) Unless otherwise limited by this subpart or by the presiding
officer, participants in an oral hearing may submit and sponsor in the
hearings:
(1) Initial written statements of position and written testimony
with supporting affidavits on the admitted contentions. These materials
must be filed on the dates set by the presiding officer.
(2) Written responses and rebuttal testimony with supporting
affidavits directed to the initial statements and testimony of other
participants. These materials must be filed within twenty (20) days of
the service of the materials submitted under paragraph (a)(1) of this
section unless the presiding officer directs otherwise.
(3)(i) Proposed questions for the presiding officer to consider for
propounding to the persons sponsoring the testimony. Unless the
presiding officer directs otherwise, these questions must be received by
the presiding officer no later than twenty (20) days after the service
of the materials submitted under paragraph (a)(1) of this section,
unless that date is less than five (5) days before the scheduled
commencement of the oral hearing, in which case the questions must be
received by the presiding officer no later than five (5) days before the
scheduled commencement of the hearing. Proposed questions need not be
filed with any other party.
(ii) Proposed questions directed to rebuttal testimony for the
presiding officer to consider for propounding to persons sponsoring the
testimony. Unless the presiding officer directs otherwise, these
questions must be received by the presiding officer no later than seven
(7) days after the service of the rebuttal testimony submitted under
paragraph (a)(2) of this section, unless that date is less than five (5)
days before the scheduled commencement of the oral hearing, in which
case the questions must be received by the presiding officer no later
than five (5) days before the scheduled commencement of the hearing.
Proposed questions directed to rebuttal need not be filed with any other
party.
[[Page 128]]
(iii) Questions submitted under paragraphs (a)(3)(i) and (ii) of
this section may be propounded at the discretion of the presiding
officer. All questions must be kept by the presiding officer in
confidence until they are either propounded by the presiding officer, or
until issuance of the initial decision on the issue being litigated. The
presiding officer shall then provide all proposed questions to the
Commission's Secretary for inclusion in the official record of the
proceeding.
(b) Oral hearing procedures. (1) The oral hearing must be
transcribed.
(2) Written testimony will be received into evidence in exhibit
form.
(3) Participants may designate and present their own witnesses to
the presiding officer.
(4) Testimony for the NRC staff will be presented only by persons
designated by the Executive Director for Operations or his delegee for
that purpose.
(5) The presiding officer may accept written testimony from a person
unable to appear at the hearing, and may request that person to respond
in writing to questions.
(6) Participants and witnesses will be questioned orally or in
writing and only by the presiding officer or the presiding officer's
designee (e.g., a Special Assistant appointed under Sec. 2.322). The
presiding officer will examine the participants and witnesses using
questions prepared by the presiding officer or the presiding officer's
designee, questions submitted by the participants at the discretion of
the presiding officer, or a combination of both. Questions may be
addressed to individuals or to panels of participants or witnesses. No
party may submit proposed questions to the presiding officer at the
hearing, except upon request by, and in the sole discretion of, the
presiding officer.
Sec. 2.1208 Process and schedule for a hearing consisting of written
presentations.
(a) Unless otherwise limited by this subpart or by the presiding
officer, participants in a hearing consisting of written presentations
may submit:
(1) Initial written statements of position and written testimony
with supporting affidavits on the admitted contentions. These materials
must be filed on the dates set by the presiding officer;
(2) Written responses, rebuttal testimony with supporting affidavits
directed to the initial statements and testimony of witnesses and other
participants, and proposed written questions for the presiding officer
to consider for submission to the persons sponsoring testimony under
paragraph (a)(1) of this section. These materials must be filed within
twenty (20) days of the service of the materials submitted under
paragraph (a)(1) of this section unless the presiding officer directs
otherwise;
(3) Written questions on the written responses and rebuttal
testimony submitted under paragraph (a)(2) of this section, which the
presiding officer may, in his or her discretion, require the persons
offering the written responses and rebuttal testimony to provide
responses. These questions must be filed within seven (7) days of
service of the materials submitted under paragraph (a)(2) of this
section unless the presiding officer directs otherwise; and
(4) Written concluding statements of position on the contentions.
These statements shall be filed within twenty (20) days of the service
of written responses to the presiding officer's questions to the
participants or, in the absence of questions from the presiding officer,
within twenty (20) days of the service of the materials submitted under
paragraph (a)(2) of this section unless the presiding officer directs
otherwise.
(b) The presiding officer may formulate and submit written questions
to the participants that he or she considers appropriate to develop an
adequate record.
Sec. 2.1209 Findings of fact and conclusions of law.
Each party shall file written post-hearing proposed findings of fact
and conclusions of law on the contentions addressed in an oral hearing
under Sec. 2.1207 or a written hearing under Sec. 2.1208 within thirty
(30) days of the close of the hearing or at such other time as the
presiding officer directs.
[[Page 129]]
Sec. 2.1210 Initial decision and its effect.
(a) Unless the Commission directs that the record be certified to it
in accordance with paragraph (b) of this section, the presiding officer
shall render an initial decision after completion of an informal hearing
under this subpart. That initial decision constitutes the final action
of the Commission on the contested matter forty (40) days after the date
of issuance, unless:
(1) Any party files a petition for Commission review in accordance
with Sec. 2.1212;
(2) The Commission, in its discretion, determines that the presiding
officer's initial decision is inconsistent with the staff's action as
described in the notice required by Sec. 2.1202(a) and that the
inconsistency warrants Commission review, in which case the Commission
will review the initial decision; or
(3) The Commission takes review of the decision sua sponte.
(b) The Commission may direct that the presiding officer certify the
record to it without an initial decision and prepare a final decision if
the Commission finds that due and timely execution of its functions
warrants certification.
(c) An initial decision must be in writing and must be based only
upon information in the record or facts officially noticed. The record
must include all information submitted in the proceeding with respect to
which all parties have been given reasonable prior notice and an
opportunity to comment as provided in Sec. Sec. 2.1207 or 2.1208. The
initial decision must include:
(1) Findings, conclusions, and rulings, with the reasons or basis
for them, on all material issues of fact or law admitted as part of the
contentions in the proceeding;
(2) The appropriate ruling, order, or grant or denial of relief with
its effective date;
(3) The action the NRC staff shall take upon transmittal of the
decision to the NRC staff under paragraph (e) of this section, if the
initial decision is inconsistent with the NRC staff action as described
in the notice required by Sec. 2.1202(a); and
(4) The time within which a petition for Commission review may be
filed, the time within which any answers to a petition for review may be
filed, and the date when the decision becomes final in the absence of a
petition for Commission review or Commission sua sponte review.
(d) Pending review and final decision by the Commission, an initial
decision resolving all issues before the presiding officer is
immediately effective upon issuance except:
(1) As provided in any order issued in accordance with Sec. 2.1211
that stays the effectiveness of an initial decision; or
(2) As otherwise provided by this part (e.g., Sec. 2.340) or by the
Commission in special circumstances.
(e) Once an initial decision becomes final, the Secretary shall
transmit the decision to the NRC staff for action in accordance with the
decision.
Sec. 2.1211 Immediate effectiveness of initial decision directing
issuance or amendment of licenses under part 61 of this chapter.
An initial decision directing the issuance of a license under part
61 of this chapter (relating to land disposal of radioactive waste or
any amendments to such a license authorizing actions which may
significantly affect the health and safety of the public) will become
effective only upon order of the Commission. The Director of Nuclear
Material Safety and Safeguards may not issue a license under part 61 of
this chapter, or any amendment to such a license that may significantly
affect the health and safety of the public until expressly authorized to
do so by the Commission.
Sec. 2.1212 Petitions for Commission review of initial decisions.
Parties may file petitions for review of an initial decision under
this subpart in accordance with the procedures set out in Sec. 2.341.
Unless otherwise authorized by law, a party to an NRC proceeding must
file a petition for Commission review before seeking judicial review of
an agency action.
Sec. 2.1213 Application for a stay.
(a) Any application for a stay of the effectiveness of the NRC
staff's action on a matter involved in a hearing under this subpart must
be filed with the presiding officer within five (5)
[[Page 130]]
days of the issuance of the notice of the NRC staff's action under Sec.
2.1202(a) and must be filed and considered in accordance with paragraphs
(b), (c) and (d) of this section.
(b) An application for a stay of the NRC staff's action may not be
longer than ten (10) pages, exclusive of affidavits, and must contain:
(1) A concise summary of the action which is requested to be stayed;
and
(2) A concise statement of the grounds for a stay, with reference to
the factors specified in paragraph (d) of this section.
(c) Within ten (10) days after service of an application for a stay
of the NRC staff's action under this section, any party and/or the NRC
staff may file an answer supporting or opposing the granting of a stay.
Answers may not be longer than ten (10) pages, exclusive of affidavits,
and must concisely address the matters in paragraph (b) of this section
as appropriate. Further replies to answers will not be entertained.
(d) In determining whether to grant or deny an application for a
stay of the NRC staff's action, the following will be considered:
(1) Whether the requestor will be irreparably injured unless a stay
is granted;
(2) Whether the requestor has made a strong showing that it is
likely to prevail on the merits;
(3) Whether the granting of a stay would harm other participants;
and
(4) Where the public interest lies.
(e) Any application for a stay of the effectiveness of the presiding
officer's initial decision or action under this subpart shall be filed
with the Commission in accordance with Sec. 2.342.
Subpart M_Procedures for Hearings on License Transfer Applications
Source: 63 FR 66730, Dec. 3, 1998, unless otherwise noted.
Sec. 2.1300 Scope of subpart M.
The provisions of this subpart, together with subpart C of this
part, govern all adjudicatory proceedings on an application for the
direct or indirect transfer of control of an NRC license when the
transfer requires prior approval of the NRC under the Commission's
regulations, governing statutes, or pursuant to a license condition.
This subpart provides the only mechanism for requesting hearings on
license transfer requests, unless contrary case specific orders are
issued by the Commission.
[69 FR 2270, Jan. 14, 2004]
Sec. 2.1301 Public notice of receipt of a license transfer application.
(a) The Commission will notice the receipt of each application for
direct or indirect transfer of a specific NRC license by placing a copy
of the application at the NRC Web site, http://www.nrc.gov.
(b) The Commission will also publish in the Federal Register a
notice of receipt of an application for approval of a license transfer
involving 10 CFR part 50 and part 52 licenses, major fuel cycle facility
licenses issued under part 70, or part 72 licenses. This notice
constitutes the notice required by Sec. 2.105 with respect to all
matters related to the application requiring NRC approval.
(c) Periodic lists of applications received may be obtained upon
request addressed to the NRC Public Document Room, US Nuclear Regulatory
Commission, Washington, DC 20555-0001.
[63 FR 66730, Dec. 3, 1998, as amended at 64 FR 48949, Sept. 9, 1999]
Sec. 2.1302 Notice of withdrawal of an application.
The Commission will notice the withdrawal of an application by
publishing the notice of withdrawal in the same manner as the notice of
receipt of the application was published under Sec. 2.1301.
Sec. 2.1303 Availability of documents.
Unless exempt from disclosure under part 9 of this chapter, the
following documents pertaining to each application for a license
transfer requiring Commission approval will be placed at the NRC Web
site, http://www.nrc.gov, when available:
(a) The license transfer application and any associated requests;
[[Page 131]]
(b) Commission correspondence with the applicant or licensee related
to the application;
(c) Federal Register notices;
(d) The NRC staff Safety Evaluation Report (SER).
(e) Any NRC staff order which acts on the license transfer
application; and
(f) If a hearing is held, the hearing record and decision.
[63 FR 66730, Dec. 3, 1998, as amended at 64 FR 48949, Sept. 9, 1999]
Sec. 2.1304 Hearing procedures.
The procedures in this subpart will constitute the exclusive basis
for hearings on license transfer applications for all NRC specific
licenses.
Sec. 2.1305 Written comments.
(a) As an alternative to requests for hearings and petitions to
intervene, persons may submit written comments regarding license
transfer applications. The Commission will consider and, if appropriate,
respond to these comments, but these comments do not otherwise
constitute part of the decisional record.
(b) These comments should be submitted within 30 days after public
notice of receipt of the application and addressed to the Secretary,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
Attention: Rulemakings and Adjudications Staff.
(c) The Commission will provide the applicant with a copy of the
comments. Any response the applicant chooses to make to the comments
must be submitted within 10 days of service of the comments on the
applicant. Such responses do not constitute part of the decisional
record.
Sec. 2.1308 Oral hearings.
Hearings under this subpart will be oral hearings, unless, within 15
days of the service of the notice or order granting the hearing, the
parties unanimously agree and file a joint motion requesting a hearing
consisting of written comments. No motion to hold a hearing consisting
of written comments will be entertained absent consent of all the
parties.
[69 FR 2270, Jan. 14, 2004]
Sec. 2.1309 Notice of oral hearing.
(a) A notice of oral hearing will--
(1) State the time, place, and issues to be considered;
(2) Provide names and addresses of participants,
(3) Specify the time limit for participants and others to indicate
whether they wish to present views;
(4) Specify the schedule for the filing of written testimony,
statements of position, proposed questions for the Presiding Officer to
consider, and rebuttal testimony consistent with the schedule provisions
of Sec. 2.1321.
(5) Specify that the oral hearing shall commence within 15 days of
the date for submittal of rebuttal testimony unless otherwise ordered;
(6) State any other instructions the Commission deems appropriate;
(7) If so determined by the NRC staff or otherwise directed by the
Commission, direct that the staff participate as a party with respect to
some or all issues.
(b) If the Commission is not the Presiding Officer, the notice of
oral hearing will also state:
(1) When the jurisdiction of the Presiding Officer commences and
terminates;
(2) The powers of the Presiding Officer;
(3) Instructions to the Presiding Officer to certify promptly the
completed hearing record to the Commission without a recommended or
preliminary decision.
Sec. 2.1310 Notice of hearing consisting of written comments.
A notice of hearing consisting of written comments will:
(a) State the issues to be considered;
(b) Provide the names and addresses of participants;
(c) Specify the schedule for the filing of written testimony,
statements of position, proposed questions for the Presiding Officer to
consider for submission to the other parties, and rebuttal testimony,
consistent with the schedule provisions of Sec. 2.1321.
(d) State any other instructions the Commission deems appropriate.
[[Page 132]]