This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

10781 

Vol. 76, No. 39 

Monday, February 28, 2011 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Parts 2, 51, and 54 

[NRC–2008–0415] 

RIN 3150–AI43 

Amendments to Adjudicatory Process 

Rules and Related Requirements 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC or the Commission) 

is proposing to amend its adjudicatory 

rules of practice. This proposed rule 

would make changes to the NRC’s 

adjudicatory process that NRC believes 

will promote fairness, efficiency, and 

openness in NRC adjudicatory 

proceedings. This proposed rule would 

also correct errors and omissions that 

have been identified since the major 

revisions to the NRC’s Rules of Practice 

in early 2004. 

DATES: Comments on the proposed rule 

must be received on or before May 16, 

2011. Comments received after this date 

will be considered if it is practical to do 

so. However, the NRC is able to ensure 

consideration only of comments 

received on or before this date. 

ADDRESSES: Please include Docket ID 

NRC–2008–0415 in the subject line of 

your comments. For instructions on 

submitting comments and accessing 

documents related to this action, see 

Section I, ‘‘Submitting Comments and 

Accessing Information’’ in the 

SUPPLEMENTARY INFORMATION section of 

this document. You may submit 

comments by any one of the following 

methods: 

Federal rulemaking Web site: Go to 

http://www.regulations.gov and search 

for documents filed under Docket ID 

NRC–2008–0415. Address questions 

about NRC dockets to Carol Gallagher, 

telephone: 301–492–3668; e-mail: 

Carol.Gallagher@nrc.gov. 

Mail comments to: Secretary, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, ATTN: 

Rulemakings and Adjudications Staff. 

E-mail comments to: 

Rulemaking.Comments@nrc.gov. If you 

do not receive a reply e-mail confirming 

that we have received your comments, 

contact us directly at 301–415–1966. 

Hand-deliver comments to: 11555 

Rockville Pike, Rockville, Maryland 

20852 between 7:30 a.m. and 4:15 p.m. 

during Federal workdays (telephone: 

301–415–1966). 

Fax comments to: Secretary, U.S. 

Nuclear Regulatory Commission at 301– 

415–1101. 

FOR FURTHER INFORMATION CONTACT: 

Tison Campbell, Office of the General 

Counsel, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555– 

0001, telephone: 301–415–8579, e-mail: 

Tison.Campbell@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Submitting Comments and Accessing 

Information 

II. Background 

III. The Decision to Issue a Proposed Rule 

IV. Effectiveness of the Final Rule 

V. Discussion of Changes and Corrections of 

Errors 

A. Part 2—Title 

B. Subpart C—Sections 2.300 Through 

2.390 

C. Subpart G—Sections 2.700 Through 

2.713 

D. Subpart L—Sections 2.1200 Through 

2.1213 

E. Subpart M—Sections 2.1300 Through 

2.1331 

F. Subpart N—Sections 2.1400 Through 

2.1407 

G. Other Changes 

VI. Additional Issues for Public Comment 

A. Scope of Mandatory Disclosures 

B. Alternative Approaches on Interlocutory 

Appeals 

VII. Section-by-Section Analysis 

A. Introductory Provisions—Sections 2.1 

Through 2.8 

B. Subpart A—Sections 2.100 Through 

2.111 

C. Subpart C—Sections 2.300 Through 

2.390 

D. Subpart G—Sections 2.700 Through 

2.713 

E. Subpart H—Sections 2.800 Through 

2.819 

F. Subpart L—Sections 2.1200 Through 

2.1213 

G. Subpart M—Sections 2.1300 Through 

2.1331 

H. Subpart N—Sections 2.1400 Through 

2.1407 

I. Parts 51 and 54 

VIII. Plain Language 

IX. Voluntary Consensus Standards 

X. Environmental Impact: Categorical 

Exclusion 

XI. Paperwork Reduction Act Statement 

Public Protection Notification 

XII. Regulatory Analysis 

XIII. Regulatory Flexibility Act Certification 

XIV. Backfit Analysis 

I. Submitting Comments and Accessing 

Information 

Comments submitted in writing or in 

electronic form will be posted on the 

NRC Web site and on the Federal 

rulemaking Web site, http:// 

www.regulations.gov. Because your 

comments will not be edited to remove 

any identifying or contact information, 

the NRC cautions you against including 

any information in your submission that 

you do not want to be publicly 

disclosed. The NRC requests that any 

party soliciting or aggregating comments 

received from other persons for 

submission to the NRC inform those 

persons that the NRC will not edit their 

comments to remove any identifying or 

contact information, and therefore, they 

should not include any information in 

their comments that they do not want 

publicly disclosed. 

You can access publicly available 

documents related to this action using 

the following methods: 

NRC’s Public Document Room (PDR): 

The public may examine and have 

copied for a fee publicly available 

documents at the NRC’s PDR, Room O1– 

F21, One White Flint North, 11555 

Rockville Pike, Rockville, Maryland 

20852. 

NRC’s Agencywide Documents 

Access and Management System 

(ADAMS): Publicly available documents 

created or received at the NRC are 

available electronically at the NRC’s 

Electronic Reading Room at http:// 

www.nrc.gov/reading-rm/adams.html. 

From this page, the public can gain 

entry into ADAMS, which provides text 

and image files of NRC’s public 

documents. If you do not have access to 

ADAMS or if there are problems in 

accessing the documents located in 

ADAMS, contact the NRC’s PDR 

reference staff at 1–800–397–4209, or 

301–415–4737, or by e-mail to 

PDR.Resource@nrc.gov. 

Federal rulemaking Web site: Public 

comments and supporting materials 

related to this proposed rule can be 

found at http://www.regulations.gov by 


srobinson on DSKHWCL6B1PROD with PROPOSALS
10782 Federal Register / Vol. 76, No. 39 / Monday, February 28, 2011 / Proposed Rules 

searching on Docket ID NRC–2008– 

0415. 

II. Background 

In a final rulemaking published in the 

Federal Register on January 14, 2004, 69 

FR 2181 (2004 part 2 revisions), the 

NRC substantially modified its rules of 

practice governing agency 

adjudications—Title 10 of the Code of 

Federal Regulations (10 CFR) part 2. 

Portions of 10 CFR parts 1, 50, 51, 52, 

54, 60, 63, 70, 72, 73, 75, 76 and 110 

also were amended at that time. On May 

11, 2004 (69 FR 25997), the NRC 

corrected errors in 10 CFR part 2, 

Appendix D. 

Since the new rules of practice 

became effective, provisions requiring 

correction or clarification of 

ambiguities, and several areas where 

further improvements could be 

achieved, have been identified. 

Therefore, the NRC is publishing this 

proposed rule to solicit public 

comments on proposed corrections of 

those errors and proposed 

improvements to the rules governing its 

adjudicatory proceedings. Participants 

in NRC adjudicatory proceedings who 

will use these rules should note that 

several revisions to 10 CFR part 2 also 

were adopted in recent years: 

• Licenses, Certifications, and 

Approvals for Nuclear Power Plants (72 

FR 4935; August 28, 2007) (Part 52 

Rule); 

• Use of Electronic Submissions in 

Agency Hearings (72 FR 49139; August 

28, 2007) (E-Filing Rule); 

• Limited Work Authorizations for 

Nuclear Power Plants (72 FR 57415; 

October 9, 2007); 

• Delegated Authority To Order Use 

of Procedures for Access to Certain 

Sensitive Unclassified Information (73 

FR 10978; February 29, 2008); 

• Interlocutory Review of Rulings on 

Requests by Potential Parties for Access 

to Sensitive Unclassified NonSafeguards Information and Safeguards 

Information (73 FR 12627; March 10, 

2008); and 

• Protection of Safeguards 

Information (73 FR 63545; October 24, 

2008). 

III. The Decision To Issue a Proposed 

Rule 

The amendments in this proposed 

rulemaking are procedural rules exempt 

from the notice and comment 

requirements of the Administrative 

Procedure Act (APA) and NRC 

regulations. 5 U.S.C. 553(b)(3)(A) and 10 

CFR 2.804(d)(1). Nonetheless, the NRC 

is issuing this rulemaking as a proposed 

rule for public comment in order to 

benefit from stakeholder input. 

IV. Effectiveness of the Final Rule 

The new and amended requirements 

in the final rule would not be 

retroactively applied to presiding officer 

determinations and decisions issued 

prior to the effective date of the final 

rule (e.g., a presiding officer order in 

response to a petition or motion), nor 

would these requirements be 

retroactively imposed on parties, such 

that a party would have to compensate 

for past activities that were 

accomplished in conformance with the 

requirements in effect at the time, but 

would no longer meet the new or 

amended requirements in the final rule. 

Further, in ongoing adjudicatory 

proceedings if there is a dispute over an 

adjudicatory obligation or situation 

arising prior to the effective date of the 

new rule, such disputes would be 

governed by the former rule provisions. 

However, the new or amended 

requirements would be effective and 

govern all obligations and disputes that 

arise after the effective date of the final 

rule. For example, if a Board issues, 

prior to the effective date of the final 

rule, a scheduling order incorporating 

by reference § 2.336(d), which requires 

parties to update their disclosures every 

14 days, that obligation would change to 

30 days once the effective date of the 

rule is reached. Therefore, Licensing 

Boards should be aware of the 

effectiveness of the final rule and take 

the necessary steps to notify parties of 

their obligations once the final rule 

becomes effective. 

V. Discussion of Changes and 

Corrections of Errors 

A. Part 2—Title 

The current title of 10 CFR part 2, 

Rules of Practice for Domestic Licensing 

Proceedings and Issuance of Orders, 

does not accurately reflect the scope, 

nor does it track the language of the 

APA. The NRC is proposing a new title 

for 10 CFR part 2: Agency Rules of 

Practice and Procedure, which would 

better reflect the scope of its subparts 

and would mirror the language of the 

APA. 

B. Subpart C—Sections 2.300 Through 

2.390 

1. Section 2.305—Service of 

documents; methods; proof. 

Section 2.305(c)(4) currently refers to 

‘‘any paper,’’ which could be interpreted 

to exclude electronic documents filed 

through the NRC’s E-Filing system. The 

NRC is therefore proposing to clarify 

that a signed certificate of service must 

be included with ‘‘any document’’ 

served upon the parties in a proceeding 

under 10 CFR part 2. Under this rule, 

the certificate of service must include 

the name and address of each person 

upon whom service is being made 

(which for electronic submissions under 

the E-Filing system should include, at a 

minimum, the name and e-mail address 

used for service of each person in the 

E-Filing system service list for a 

proceeding upon whom service needs to 

be made) and the date and method of 

service. Because it is the responsibility 

of a participant submitting a document 

to the E-Filing system to comply with 

the service requirements, a certificate of 

service that simply states the document 

is being served ‘‘per the service list in 

the E-Filing system’’ without listing the 

names and addresses of each of those 

being served is insufficient to comply 

with § 2.305(c)(4). The NRC notes that 

§ 2.304 requires that electronic 

documents be signed using a 

participant’s digital certificate; in such 

circumstances it is not necessary to 

submit an electronic copy of the 

document that includes an actual 

signature. 

Paragraph 2.305(g)(1) does not 

currently provide an address for service 

upon the NRC staff when a filing is not 

being made through the E-Filing system 

and no attorney representing the NRC 

staff has filed a notice of appearance in 

the proceeding. The proposed paragraph 

(g)(1) would provide addresses to be 

used to accomplish service on the NRC 

staff in these circumstances. 

2. Section 2.309—Hearing requests, 

petitions to intervene, requirements for 

standing, and contentions. 

Section 2.309 contains the generally 

applicable procedures for requesting 

hearings and submitting petitions to 

intervene in NRC proceedings, and sets 

forth the requirements for submitting 

contentions and establishing legal 

standing to participate in NRC 

proceedings. The NRC is proposing to 

make several changes to § 2.309. 

a. Section 2.309(b)—Timing. 

Section 2.309(b)(5) currently 

references orders issued under § 2.202, 

but does not reference notices of 

violation imposing a civil penalty 

issued under § 2.205. Section 2.205 

notices of violation, like § 2.202 orders, 

provide ‘‘twenty (20) days * * * or 

other time specified in the notice’’ for 

individuals to file an answer. This 

provision does not match the 60 days 

allowed by § 2.309(b), which could be 

interpreted as applying to § 2.205 

notices of violation. The proposed 

§ 2.309(b)(5) would correct this 

omission by adding a reference to 

§ 2.205 to reflect that notices of 

violation issued in § 2.205 civil penalty 

proceedings have timing requirements 

similar to those of § 2.202 orders. 


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b. Sections 2.309(c) and (f)— 

Subsequent Submission of Petition/ 

Request or New or Amended 

Contentions. 

Current § 2.309(c)(1) contains eight 

balancing factors that determine 

whether to grant or admit ‘‘nontimely’’ 

hearing requests, intervention petitions, 

or contentions. These factors include 

the three factors for standing—also 

found at § 2.309(d)(1)(ii) through (iv)— 

and the following five factors: Good 

cause for the failure to file on time; the 

availability of other means to protect the 

requestor’s or petitioner’s interest; the 

extent to which the requestor’s or 

petitioner’s interest will be represented 

by other parties; the extent to which the 

requestor’s or petitioner’s interest will 

broaden the issues or delay the 

proceeding; and the extent to which the 

requestor’s or petitioner’s participation 

may reasonably be expected to assist in 

developing a sound record. The ‘‘good 

cause’’ factor is given the most weight, 

and ‘‘[i]f a petitioner cannot show good 

cause, then its demonstration on the 

other factors must be ‘compelling.’’’ 

Dominion Nuclear Connecticut, Inc. 

(Millstone Nuclear Power Station, Units 

2 and 3), CLI–05–24, 62 NRC 551, 564– 

65 (2005) (footnote with citation 

omitted). 

Good cause is not defined in the 

regulations, but has been defined by the 

NRC in case law as a showing that the 

petitioner ‘‘not only * * * could not 

have filed within the time specified in 

the notice of opportunity for hearing, 

but also that it filed as soon as possible 

thereafter.’’ Id. In addition, § 2.309(f)(2) 

identifies three factors to be considered 

in determining whether to admit a new 

or amended contention. These factors 

include whether the new or amended 

contention is based on information that 

was not previously available. For 

example, if a document has not been 

prepared and is referred to as a 

forthcoming document, the appropriate 

time to file a contention based upon the 

document is after its publication. The 

two remaining factors in § 2.309(f)(2) 

include whether the information that 

was not previously available is 

materially different from information 

that was previously available, and 

whether the new or amended contention 

has been submitted in a timely fashion 

after the availability of the new 

information. The § 2.309(f) three factor 

test appears to be a specific application 

of the case law definition of ‘‘good 

cause.’’ 

Thus, in practice, the admissibility of 

late-filed contentions usually depends 

on whether good cause is found. A 

showing that many of the other factors 

support the admission of a late-filed 

contention is rarely sufficient to 

overcome a lack of good cause. See, e.g., 

Private Fuel Storage (Independent Spent 

Fuel Storage Installation), LBP–00–28, 

52 NRC 226, 239–240 (2000) and 

Tennessee Valley Authority (Watts Bar 

Nuclear Plant, Unit 2), CLI–10–12, __ 

NRC __ (Mar. 26 2010) (slip op.) (the 

Commission noted that ‘‘it would be a 

rare case where we would excuse a nontimely petition absent good cause’’) Id. 

at 2. And in other cases, the NRC’s 

determination on the existence of good 

cause appears to turn on one or two 

factors unique to that proceeding, with 

a generic recitation or cursory 

acknowledgement of the other factors 

and how they offset each other. See, e.g., 

Crow Butte Resources (North Trend 

Expansion Project) LBP–08–06, 67 NRC 

241, 259–260 (2008). 

The proposed rule would simplify the 

requirements governing requests for 

hearing, intervention petitions, or new 

or amended contentions filed after the 

deadlines in § 2.309(b) by: (1) Making 

good cause the sole factor to be 

considered when evaluating whether to 

review the admissibility of a new or 

amended contention, petition, or 

hearing request; (2) defining good cause 

as those factors currently in 

§ 2.309(f)(2)(i) through (iii); (3) adding 

clarifying information regarding the 

need to address interest and standing; 

and (4) referring to ‘‘nontimely’’ 

contentions as ‘‘new or amended.’’ 

Although we would no longer use the 

terms ‘‘late-filed’’ or ‘‘nontimely’’ and 

would use the term ‘‘new or amended’’ 

to refer to contentions filed after the 

initial filing date for contentions had 

expired, the current NRC case law 

would continue to be applied in ruling 

on those requests. 

The proposed amendments to § 2.309 

would apply the good cause factor to all 

filings after the initial filing deadline 

and would adopt the current 

§ 2.309(f)(2)(i) through (iii) factors as the 

standards to be applied when evaluating 

whether good cause exists. This change 

would simplify the review of filings 

after the deadlines in § 2.309(b). These 

changes would allow the parties, 

participants, and the presiding officer to 

focus their resources on the most 

relevant questions related to the 

admissibility of new or amended 

contentions (i.e., whether good cause 

exists and whether the contentions meet 

the admissibility requirements of 

§ 2.309(f)). 

Section 2.309(c)(1) would require a 

requestor or petitioner to provide a 

justification supporting the filing after 

the deadlines in § 2.309(b), consisting of 

‘‘good cause’’ as defined in § 2.309(c)(2). 

Paragraph (c)(2) would treat the three 

criteria for considering new or amended 

contentions that are currently contained 

in paragraph (f)(2) as the factors that 

must be considered under the good 

cause determination of proposed 

paragraph (c)(1). The NRC believes that 

the factors in current § 2.309(f)(2)(i) 

through (iii) are a useful, specific 

application of ‘‘good cause.’’ Presiding 

officers should evaluate whether a filing 

after the deadlines in § 2.309(b) satisfies 

the factors in § 2.309(c)(2)(i) through 

(iii) to determine whether a petitioner 

has demonstrated good cause. 

Proposed paragraph (c)(3) would 

make clear that, apart from 

demonstrating good cause, a petitioner 

seeking admission to the proceeding 

after the deadlines in § 2.309(b) would 

need to satisfy standing and contention 

admissibility requirements. Paragraph 

(c)(4) would apply to a participant or a 

party who seeks admission of a new or 

amended contention, and who has 

already satisfied the standing 

requirements in § 2.309(d). 

This revision would, in part, adopt a 

line of reasoning first proposed by an 

Atomic Safety and Licensing Board in 

the Vermont Yankee power uprate 

proceeding; the Board concluded that 

new or amended contentions filed after 

the initial filing need not satisfy the 

§ 2.309(c)(1) factors if the § 2.309(f)(2)(i) 

through (iii) factors are met. Entergy 

Nuclear Vermont Yankee LLC (Vermont 

Yankee Nuclear Power Station), LBP– 

05–32, 62 NRC 813 (2005). The NRC 

believes that this should be the 

appropriate standard for presiding 

officers to apply when evaluating 

whether good cause exists. 

The NRC invites comments on the 

effect (if any) of eliminating the other 

late-filing factors and relying solely on 

good cause. As discussed above, case 

law has shown that good cause is given 

the most weight when evaluating new or 

amended contentions, and absent good 

cause, the other factors must be—but are 

rarely found to be—compelling. Would 

limiting the late-filing criteria to good 

cause have a detrimental effect on a 

petitioner’s ability to have new or 

amended contentions admitted? How 

often, without showing good cause, 

have petitioners been able to rely on the 

other factors to meet the requirements of 

§ 2.309(c)? Should the NRC consider 

removing only some of the other latefiling requirements? If so, which ones? 

c. Section 2.309(d)—Standing. 

Section 2.309(d) sets forth the 

standing requirements and also contains 

some requirements that do not generally 

relate to standing. To clarify and to 

better articulate the generally applicable 

standing requirements, several revisions 

to § 2.309(d) are being proposed. The 


srobinson on DSKHWCL6B1PROD with PROPOSALS
10784 Federal Register / Vol. 76, No. 39 / Monday, February 28, 2011 / Proposed Rules 

general standing criteria in § 2.309(d)(1) 

would remain the same. A revised 

§ 2.309(d)(2) would adopt the 

requirements of the first sentence of 

current § 2.309(d)(3), which requires the 

presiding officer to consider the 

paragraph (d)(1) factors when 

determining whether the petitioner has 

an interest affected by the proceeding. 

Revised paragraph (d)(3) would retain 

the existing provision that in 

enforcement proceedings the licensee or 

other person against whom the action is 

taken is deemed to have standing. 

Current § 2.309(d)(2) contains special 

requirements for States, local 

governmental bodies, and Federallyrecognized Indian Tribes that seek 

status as parties in proceedings. But 

some of these requirements (e.g., the 

need to propose one or more 

contentions; the need to designate a 

single representative) do not relate to 

standing. The present § 2.309(d)(2) 

provisions would be revised and would 

be moved to a new § 2.309(h), which is 

discussed in the next section. 

d. Section 2.309(d)(2) moved to 

2.309(h)—State, local governmental 

body, and Federally-recognized Indian 

Tribe. 

As stated, the present § 2.309(d)(2) 

provisions for government participation, 

which do not contain generally 

applicable standing requirements like 

the rest of § 2.309, would be revised and 

moved to a new § 2.309(h). The 

proposed § 2.309(h)(1), based on the 

existing § 2.309(d)(2)(i), would require 

any State, local governmental body or 

Federally-recognized Indian Tribe 

seeking to participate as a party to 

submit at least one admissible 

contention. This section would also 

include the requirement that each 

governmental entity designate a single 

representative for the hearing. If a 

request for hearing or petition to 

intervene were granted, the NRC would 

admit as a party a single designated 

representative of the State, a single 

designated representative for each local 

governmental body (county, 

municipality, or other subdivision), and 

a single designated representative for 

each Federally-recognized Indian Tribe, 

as applicable. This proposed section 

would also require, as provided in the 

statement of considerations for the 2004 

part 2 revisions, that: 

Where a State’s constitution provides that 

both the Governor and another State official 

or State governmental body may represent 

the interests of the State in a proceeding, the 

Governor and the other State official/ 

government body will be considered separate 

potential parties. Each must separately satisfy 

the relevant contention requirement, and 

each must designate its own representative 

(that is, the Governor must designate a single 

representative, and the State official must 

separately designate a representative). (69 FR 

2182, 2222; January 14, 2004). 

The proposed § 2.309(h)(2) would be 

based on the existing § 2.309(d)(2)(ii), 

which states that in any potential 

proceeding for a facility (the term 

‘‘facility’’ is defined in § 2.4) located 

within its boundaries, the State, local 

governmental body or Federallyrecognized Indian Tribe seeking party 

status need not further establish its 

standing. As revised, proposed 

§ 2.309(h)(1) and (h)(2) would delete the 

word ‘‘affected’’ from the phrase 

‘‘Federally-recognized Indian Tribe.’’ 

The use of ‘‘affected’’ in this context is 

proper only in a high-level radioactive 

waste disposal proceeding. For the same 

reason, the NRC proposes to remove 

‘‘affected’’ from § 2.315(c) (regarding 

interested government participation) 

and from the definition of ‘‘Participant’’ 

added to § 2.4 in the E–Filing Rule 

(August 28, 2007; 49139, 49149). 

Existing § 2.309(d)(2)(iii) would be 

redesignated as § 2.309(h)(3). 

e. Section 2.309(h) moved to 

2.309(i)—Answers to requests for 

hearing and petitions to intervene; 

Replies to answers. 

The present § 2.309(h), governing the 

filing of answers and replies to hearing 

requests and petitions to intervene, 

would be redesignated as § 2.309(i) and 

would be further revised. The current 

§ 2.309(h)(1) refers to ‘‘proffered 

contentions,’’ the preamble of current 

§ 2.309(h) limits paragraph (h) to filing 

deadlines for hearing requests and 

intervention petitions, and there is no 

clear reference to contentions submitted 

after the initial filing. The NRC believes 

that the same deadlines should apply to 

answers and replies for new or amended 

contentions as apply to intervention 

petitions and hearing requests filed after 

the deadlines in § 2.309(b). The NRC is 

therefore proposing to amend this 

section to include answers and replies 

to requests to admit new or amended 

contentions after the initial filing. 

Because this change would cover all 

filings after the deadlines in § 2.309(b), 

the reference to ‘‘proffered contentions’’ 

in paragraph (h)(1) (proposed paragraph 

(i)(1)) would no longer be necessary and 

would be removed. The reference in 

current paragraph (h)(1) to ‘‘paragraphs 

(a) through (g)’’ would be changed to 

‘‘paragraphs (a) through (h)’’ due to the 

addition of proposed new paragraph (h). 

f. Section 2.309(i) moved to new 

2.309(j)—Decision on request/petition. 

The current § 2.309(i) would be 

redesignated as § 2.309(j). The 

redesignated § 2.309(j) would contain a 

new citation reference made necessary 

by the new § 2.309(h). Also, proposed 

§ 2.309(j) would be revised to provide 

that if the presiding officer cannot issue 

a decision on each request for hearing 

or petition to intervene within 45 days 

of the conclusion of the pre-hearing 

conference, the presiding officer shall 

issue a notice advising the Commission 

and the parties as to when the decision 

will issue. If no pre-hearing conference 

is conducted, the 45-day period begins 

after the filing of answers and replies 

under § 2.309(i). 

3. Section 2.311—Interlocutory 

review of rulings on requests for 

hearings/petitions to intervene, 

selection of hearing procedures, and 

requests by potential parties for access 

to sensitive unclassified non-safeguards 

information and safeguards information. 

Section 2.311(b) allows parties to 

appeal orders of the presiding officer to 

the Commission concerning a request 

for hearing, petition to intervene, or a 

request to access SUNSI or SGI within 

ten days after the service of the order. 

Any party who opposes the appeal may 

file a brief in opposition within ten days 

after service of the appeal. Experience 

has demonstrated that the filing time 

provided under this section is 

unnecessarily short, and sometimes 

results in superficial appellate briefs. 

Most adjudicatory bodies allow 

substantially more time for litigants to 

frame appellate arguments and to 

perform the necessary research and 

analysis. Well-considered briefs enable 

the appellate body, here the 

Commission, to make faster and betterreasoned decisions. The NRC is 

therefore proposing to extend the time 

to file an appeal and a brief in 

opposition to an appeal from ten to 25 

days. The NRC does not expect the 

proposed change in appeal deadlines to 

result in any delays in licensing. For 

one thing, higher-quality briefs should 

expedite appellate decision-making. 

Moreover, most of the appellate 

litigation at the NRC is preliminary to 

any final licensing decisions; it takes 

place before the NRC staff finishes its 

safety and environmental reviews and 

generally does not affect the timing of 

those reviews. 

4. Section 2.314—Appearance and 

practice before the Commission in 

adjudicatory proceedings. 

Paragraph 2.314(c)(3) allows anyone 

disciplined under § 2.314(c) to file an 

appeal with the Commission within ten 

days after issuance of the order. 

Experience since the 2004 revisions of 

part 2 has demonstrated that ten days 

frequently is not adequate for parties to 

prepare quality appeals. The NRC is 

therefore proposing to extend the time 

to file an appeal of an order disciplining 


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a party from ten to 25 days. The NRC 

believes that extending the time for 

appeals will result in higher-quality 

appeals. 

5. Section 2.315—Participation by a 

person not a party. 

Current § 2.315(c) allows interested 

State, local governmental bodies, and 

Federally-recognized Indian Tribes that 

have not been admitted as parties under 

§ 2.309 a reasonable opportunity to 

participate in hearings. The NRC is 

proposing to amend § 2.315(c) to clarify 

that States, local governmental bodies, 

or Federally-recognized Indian Tribes 

that are allowed to participate in 

hearings take the proceeding as they 

find it, consistent with longstanding 

NRC case law. See, e.g., Pacific Gas and 

Electric Co. (Diablo Canyon Nuclear 

Power Plant, Units 1 and 2), ALAB–600, 

12 NRC 3, 8 (1980); Long Island Lighting 

Co. (Shoreham Nuclear Power Station, 

Unit 1), LBP–83–13, 17 NRC 469, 471– 

72 (1983), citing 10 CFR 2.714(c) 

(current 2.315(c)); Cincinnati Gas and 

Electric Co. (Wm. H. Zimmer Nuclear 

Station), LBP–80–6, 11 NRC 148, 151 

(1980). 

6. Section 2.319—Power of the 

presiding officer. 

As part of the 2004 revisions to part 

2, the NRC eliminated ‘‘redundant or 

duplicate provisions in Subpart J that 

would be covered by the generally 

applicable provisions in Subpart C’’ (69 

FR 2212; January 14, 2004). Section 

2.319(l) would be updated to clarify the 

scope of the power of the presiding 

officer to refer rulings or certify 

questions to the Commission, consistent 

with the change to § 2.323, discussed in 

the next section. 

7. Section 2.323—Motions. 

The NRC proposes to amend § 2.323(f) 

to clarify the criteria for referrals in this 

paragraph, and to make the referral 

criteria consistent with the 

Commission’s standards for 

consideration of such referrals. The 

criterion on ‘‘prompt decision * * * 

necessary to prevent detriment to the 

public interest or unusual delay or 

expense’’ would be removed to make 

clear that this criterion concerns the 

prompt decision of the Commission. 

The second criterion on ‘‘the decision or 

ruling involves a novel issue that merits 

Commission review’’ would be revised 

to make clear that: (1) This criterion 

concerns the presiding officer’s 

decision, and (2) the presiding officer’s 

decision must raise or create ‘‘significant 

and novel’’ issues that may be either 

‘‘legal or policy’’ in nature. 

8. Section 2.335—Consideration of 

Commission rules and regulations in 

adjudicatory proceedings. 

Section 2.335 details the procedures 

through which a challenge to the 

Commission’s regulations may be raised 

as part of an adjudicatory proceeding. 

The current text of the rule limits these 

challenges to ‘‘a party to an adjudicatory 

proceeding,’’ which would seem to 

exclude petitioners from challenging the 

Commission’s regulations. The 

Commission recognizes that challenges 

to the Commission’s regulations are 

frequently contained in petitions to 

intervene and requests for hearing. 

Further, the Commission recognizes that 

petitioners may have a legitimate 

interest in raising such challenges 

before they are granted party status and 

that Atomic Safety and Licensing 

Boards have allowed petitioners to raise 

these concerns before being admitted as 

parties. See, e.g., Carolina Power and 

Light Co. (Shearon Harris Nuclear Power 

Plant, Unit 1), LBP–07–11, 66 NRC 41, 

57–58 (2007). 

Also, a contention that challenges any 

Commission rule is outside the scope of the 

proceeding because, absent a waiver, ‘no rule 

or regulation of the Commission * * * is 

subject to attack * * * in any adjudicatory 

proceeding.’ Similarly, any contention that 

amounts to an attack on applicable statutory 

requirements must be rejected by a licensing 

board as outside the scope of the proceeding. 

A petitioner may, however, within the 

adjudicatory context submit a request for 

waiver of a rule under 10 CFR 2.335, and 

outside the adjudicatory context file a 

petition for rulemaking under 10 CFR 2.802 

or a request that the NRC Staff take 

enforcement action under 10 CFR 2.206. Id. 

(citations omitted). 

The NRC is therefore proposing to 

amend this section to clarify that, in 

accordance with NRC practice, 

‘‘participants to an adjudicatory 

proceeding,’’ not just parties, may seek 

a waiver or an exception for a particular 

proceeding. 

9. Section 2.336—General Discovery. 

Section 2.336(d) currently requires 

parties to update their mandatory 

disclosures every 14 days. Experience 

with adjudications since early 2004 has 

demonstrated that the current disclosure 

provisions are much more burdensome 

for litigants than was initially 

anticipated. Part of the burden is the 

frequency of required updates to the 

mandatory disclosures. The NRC is 

therefore proposing to replace the 

requirement to disclose information or 

documents within 14 days of discovery 

with a continuing duty to provide a 

disclosure update every 30 days. The 

Commission is also considering an 

alternative timeline to the proposed rule 

for disclosure updates. Like the 

proposed rule, this approach would 

require disclosure updates every thirty 

days, but, as specified hearing 

milestones approach, this would mirror 

the 14-day disclosure requirements of 

the current version of § 2.336(d). This 

hearing-sensitive timeline would 

mitigate the burdens of the current rule, 

while preserving the utility of more 

frequent disclosure updates as hearing 

milestones approach. 

Each update under the proposed 

versions of § 2.336(d) would include 

documents subject to disclosure under 

this section that have not been disclosed 

in a prior update and that are 

developed, obtained, or discovered 

during the period that runs from five 

business days before the last disclosure 

update to five business days before the 

filing of the update. It is anticipated that 

this change to § 2.336(d) would reduce 

the burden and increase the robustness 

of updated disclosures. The NRC also 

proposes to add a sentence to the end 

of § 2.336(d), stating that the duty of 

mandatory disclosure with respect to 

new information or documents relevant 

to a contention ends when the presiding 

officer issues a decision on that 

contention, or when otherwise specified 

by the presiding officer or the 

Commission. 

10. Section 2.340—Initial decision in 

certain contested proceedings; 

immediate effectiveness of initial 

decisions; issuance of authorizations, 

permits, and licenses. 

Sections 2.340(a) and (b) currently 

imply that the presiding officer must 

reach a decision prior to the issuance of 

a license or license amendment. But this 

is not necessarily the case. For operating 

licenses associated with production and 

utilization facilities, both the Atomic 

Energy Act and the NRC’s regulations 

allow for the issuance of a license 

amendment upon a determination of ‘‘no 

significant hazards consideration.’’ See, 

e.g., 42 U.S.C. 2239, 10 CFR 50.91. 

Further, subparts L and N of 10 CFR 

part 2 allow the staff to act on an 

application, including an application for 

an initial or renewed operating license 

or operating license amendment, and in 

proceedings for an initial license or 

license amendment not involving a 

production and utilization facility, prior 

to the completion of any contested 

hearing, assuming that all other relevant 

regulatory requirements are met. 10 CFR 

2.1202(a), 2.1210(c)(3), and 2.1403(a). 

The NRC is proposing to revise § 2.340 

to clarify that production and utilization 

facility applications—for an initial 

license, a renewed license, or a license 

amendment where the NRC has made a 

determination of no significant hazards 

consideration—could be acted upon 

prior to the completion of a contested 

hearing. The NRC also would make 

conforming amendments to paragraphs 


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(d) and (e) of this section to clarify that 

in proceedings involving a 

manufacturing license under subpart C 

of 10 CFR part 52, and in proceedings 

not involving production and utilization 

facilities, the NRC staff—provided it is 

able to make all of the necessary 

findings associated with the licensing 

action—may act on a license, permit, or 

license amendment prior to the 

completion of a contested hearing. 

Finally, this section would be 

amended to clarify that the presiding 

officer could make findings of fact and 

conclusions of law on any matter not 

put into controversy by the parties, but 

only to the extent that the presiding 

officer determines that a serious safety, 

environmental or common defense and 

security matter exists, and only to the 

extent the Commission, upon a required 

referral by the presiding officer, 

approves an examination of and 

decision on the referred matters. 

11. Section 2.341—Review of 

decisions and actions of a presiding 

officer. 

a. Section 2.341(b)—Petitions for 

review. 

Section 2.341 contains requirements 

pertaining to the review of decisions 

and actions of a presiding officer by the 

Commission. Current § 2.341(b)(1) 

allows parties to file a petition for 

review of a full or partial initial decision 

by a presiding officer or any other 

decision or action by a presiding officer 

with respect to which a petition for 

review is authorized by this part. Under 

the current regulations a petition for 

review must be filed with the 

Commission within 15 days of service of 

the decision. Similarly, § 2.341(b)(3) 

allows other parties to file an answer 

supporting or opposing Commission 

review within ten days after service of 

a petition for review. And the 

petitioning party is allowed to file a 

reply brief within five days of service of 

any answer. Experience has 

demonstrated that the time the NRC’s 

rules allow for petitions for review of an 

order of a presiding officer (15 days) is 

unnecessarily short, and sometimes 

results in superficial appellate briefs. 

Most adjudicatory bodies allow 

substantially more time for litigants to 

frame appellate arguments and to 

perform the necessary research and 

analysis. Well-considered briefs enable 

the appellate body, here the 

Commission, to make faster and betterreasoned decisions. The NRC is 

therefore proposing to extend the time 

to file a petition for review and an 

answer to the petition from ten to 25 

days. The NRC also is proposing to 

extend the time to file a reply to an 

answer from five to ten days. 

The NRC does not expect the 

proposed change in appeal deadlines to 

result in any unnecessary delays in 

licensing. For one thing, higher-quality 

briefs should expedite appellate 

decisionmaking. Moreover, most of the 

appellate litigation at the NRC is 

preliminary to any final licensing 

decisions; it takes place before the NRC 

staff finishes its safety and 

environmental reviews and generally 

does not affect the timing of those 

reviews. Finally, even when a final 

presiding officer decision approving a 

license comes before the Commission on 

a petition for review, the license can be 

issued immediately, notwithstanding 

the pendency of a petition for review. 

See 10 CFR 2.340(f), 2.341(e). 

b. Section 2.341(c)—Petitions for 

review not acted upon deemed denied. 

As stated in the 2004 part 2 revisions, 

§ 2.341 was intended to essentially 

restate the provisions of former § 2.786 

(See 69 FR 2225; January 14, 2004). But 

the provisions of former § 2.786(c), 

under which petitions for Commission 

review not acted upon were deemed 

denied, were inadvertently omitted from 

§ 2.341. Accordingly, the NRC proposes 

to add a new § 2.341(c)(1); existing 

§ 2.341(c)(1) would be redesignated as 

§ 2.341(c)(2), and existing § 2.341(c)(2) 

would be redesignated as § 2.341(c)(3). 

Proposed § 2.341(c)(1) would adopt the 

deemed denied provisions of the former 

§ 2.786(c) with the exception of the 30- 

day time limit, which would be 

extended to allow 120 days for 

Commission review. As a practical 

matter, the 30-day timeframe has 

necessitated extensions of time in most 

proceedings, as the prescribed briefing 

period comprehends 30 days. A 120-day 

Commission review period would allow 

for sufficient time to review the filings 

at the outset, without the unintended 

consequence of the frequent need for 

extensions. The NRC therefore is 

proposing to adopt the deemed denied 

provisions of former § 2.786 with a 120- 

day time limit as a new § 2.341(c)(1). 

c. Section 2.341(a)—Time to act on a 

petition for review. 

Section 2.341(a)(2) currently provides 

the Commission with 40 days to act on 

a decision of a presiding officer or a 

petition for review. The current 40-day 

timeframe has necessitated extensions 

of time in most proceedings, as the 

prescribed briefing period comprehends 

30 days, often leaving the Commission 

insufficient time for an effective review 

of the filings. As discussed above with 

respect to the ‘‘deemed denied’’ 

provision, a 120-day Commission 

review period provides for a reasonable 

period to review the filings without the 

unintended consequence of the frequent 

need for extensions. The NRC therefore 

is proposing to extend the time for 

Commission review from 40 days to 120 

days. As has always been the case, the 

Commission may act before that time or 

extend that period as it deems 

necessary. 

d. Section 2.341(f)—Standards for 

Atomic Safety Licensing Board 

certifications and referrals. 

The NRC proposes to revise paragraph 

(f) of this section to address a perceived 

inconsistency in the standards for 

Atomic Safety Licensing Board 

certifications and referrals to the 

Commission and Commission review of 

these issues. Section 2.323(f) currently 

allows a presiding officer to refer a 

ruling to the Commission if 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. Current § 2.341(f) 

states that referred or certified rulings 

‘‘will be reviewed’’ by the Commission 

only if the referral or certification ‘‘raises 

significant and novel legal or policy 

issues, and resolution of the issues 

would materially advance the orderly 

disposition of the proceeding’’ 

(emphasis added). This language has 

been interpreted as allowing the 

Commission to accept referrals or 

certifications only if both standards in 

§ 2.341(f) are met, even though § 2.323(f) 

allows a presiding officer to refer or 

certify a question or ruling if either of 

the comparable criteria in § 2.323(f) is 

met. Tennessee Valley Authority 

(Bellefonte Nuclear Power Plant, Units 3 

and 4), CLI–09–3, 69 NRC 68, 72 (2009). 

The proposed revision to § 2.341(f) 

would provide the Commission with 

maximum flexibility by allowing, but 

not requiring, the Commission to review 

an issue if it raises significant legal or 

policy issues, or if resolution of the 

issue would materially advance the 

orderly disposition of the proceeding, or 

if both standards are met. 

12. Section 2.346—Authority of the 

Secretary. 

Currently, § 2.346(j) authorizes the 

Secretary to ‘‘[t]ake action on minor 

procedural matters.’’ Since 2004, 

experience with the subpart C hearing 

procedures has shown that greater 

efficiencies could be achieved if the 

Secretary is given explicit authority to 

take action on more than minor 

procedural matters. The NRC is 

therefore proposing to authorize the 

Secretary to ‘‘take action on procedural 

or other minor matters.’’ This change 

would allow the Secretary to take action 

on a variety of non-substantive 


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procedural matters, such as motions 

raising matters that do not explicitly fit 

within the Secretary’s existing authority 

(e.g., a motion to suspend a hearing 

notice or the unopposed withdrawal of 

construction and operating license 

applications). Time is frequently of the 

essence on some minor matters; 

requiring Commission orders and 

affirmation sessions can sometimes 

result in undesirable delay in issuing 

needed procedural directives because of 

the need to schedule affirmation 

sessions. Accordingly, the NRC is 

proposing to amend § 2.346(j) to give the 

Secretary the authority to ‘‘take action 

on procedural or other minor matters.’’ 

The NRC is also proposing removing the 

reference to § 2.311 in paragraph (e). 

Requests for review under § 2.311 are 

termed ‘‘appeals’’ rather than ‘‘petitions 

for review.’’ Moreover, there are no 

deadlines for Commission action on 

appeals under § 2.311. 

13. Section 2.347—Ex parte 

communications. 

Section 2.347 prohibits what are 

known as ex parte communications 

between persons outside the NRC and 

NRC adjudicatory personnel on matters 

relevant to the merits of an ongoing 

hearing; this section currently applies to 

§ 2.204 demands for information. Unlike 

the NRC actions subject to §§ 2.104(a), 

2.105(e)(2), 2.202(c), 2.205(e) and 2.312 

(which would continue to be referenced 

in § 2.347(e)(1)(i) and (ii)), hearing rights 

do not attach to a demand for 

information because it is not an order; 

it is a pre-enforcement document 

requesting information. 56 FR 40663, 

40670, 40682; August 15, 1991. The 

NRC is therefore proposing to amend 

the ex parte communication provisions 

in § 2.347(e)(1)(i) and (ii) by deleting the 

two references to § 2.204. Formerly, 

§ 2.204 pertained to orders for 

modification of licenses and orders to 

show cause, and these orders did 

involve the right to a hearing. (50 FR 

38113; September 20, 1985). Thus, 

when § 2.780—the precursor to 

§ 2.347—was established in 1988, the 

references to § 2.204 were proper. But in 

1991 the references became erroneous 

when the provisions for orders for 

modification of licenses were deleted 

and replaced by the § 2.204 provisions 

regarding demands for information. 

Accordingly, the NRC is proposing 

conforming changes to § 2.347(e)(1)(i) 

and (ii). 

14. Section 2.348—Separation of 

functions. 

The separation of functions 

provisions in § 2.348 prohibit certain 

communications between specified sets 

of NRC personnel on matters relevant to 

the merits of an ongoing adjudicatory 

hearing. Similar to the § 2.347 proposal 

discussed above, the NRC is proposing 

to correct the separation of functions 

provisions in § 2.348(d)(1)(i) and (ii) by 

deleting the two references to § 2.204. 

As explained above, unlike the other 

specified NRC actions, hearing rights do 

not attach to a demand for information. 

When § 2.781—the precursor to 

§ 2.348—was established in 1988, the 

references to § 2.204 were proper. But 

the references became erroneous in 1991 

for the reasons stated above with respect 

to § 2.347(e)(1)(i) and (ii). Accordingly, 

the NRC is now proposing the 

conforming changes to § 2.348(d)(1)(i) 

and (ii). 

C. Subpart G—Sections 2.700 through 

2.713 

1. Section 2.704—Discovery— 

required disclosures. 

Sections 2.704(a) through (c) set forth 

the required disclosures that parties 

other than the NRC staff must make in 

formal NRC adjudications. To conform 

with the timing provisions of § 2.336(d), 

a change in § 2.704(a)(3) is being 

proposed. Presently, § 2.704(a)(3) 

requires that the initial disclosures be 

made within 45 days after a prehearing 

conference order following the initial 

prehearing conference specified in 

§ 2.329. And § 2.704(e) requires a party 

that has made a disclosure under § 2.704 

to supplement its disclosure if the party 

learns that in some material respect the 

information disclosed was incomplete 

or incorrect (provided the additional or 

new information was not made available 

to other parties during the discovery 

process or in writing). In addition, with 

respect to the testimony of an expert 

from whom a report is required under 

§ 2.704(b), the duty to supplement 

under § 2.704(e) extends to both the 

information contained in the report and 

provided through a deposition of the 

expert. The proposed § 2.704(a)(3) 

would require that unless otherwise 

stipulated or directed by order of the 

presiding officer, a party’s initial 

disclosures must be made within 30 

days of the order granting a hearing and 

that parties must provide disclosure 

updates every 30 days. Each update 

would include documents subject to 

disclosure under this section that have 

not been disclosed in a prior update, 

and that are developed, obtained, or 

discovered during the period that runs 

from the last disclosure update to 5 

business days before the filing of the 

update. 

2. Section 2.705—Discovery— 

additional methods. 

Section 2.705(b)(2) allows the 

presiding officer to ‘‘alter the limits in 

these rules on the number of 

depositions and interrogatories.’’ But the 

rules do not limit the number of 

depositions or interrogatories. The NRC 

is therefore proposing to amend this 

section to allow the presiding officer to 

set reasonable limits on the number of 

interrogatories and depositions. This 

proposed change would remove the 

confusion in this section and improve 

the efficiency of NRC adjudicatory 

proceedings. 

3. Sections 2.709—Discovery against 

NRC staff and 2.336—General 

Discovery. 

a. Sections 2.709(a)(6)—Required 

initial disclosures in enforcement 

proceedings and 2.336—General 

Discovery. 

The NRC is proposing to amend the 

NRC staff’s mandatory disclosure 

obligations for enforcement proceedings 

conducted under subpart G of 10 CFR 

part 2. The current regulation that 

applies to these proceedings, § 2.336, 

requires the disclosure of documents 

that are outside of the scope of the 

enforcement proceeding, which results 

in the inclusion of many unrelated 

documents in the mandatory 

disclosures. Therefore, the NRC is 

proposing to amend § 2.336(b) to 

remove subpart G enforcement 

proceedings from the general discovery 

requirements; a corresponding 

amendment would be made to § 2.709 to 

specify the staff’s disclosure obligations 

in a subpart G enforcement proceeding. 

This amended section would limit the 

scope of the staff’s disclosures to 

documents relevant to disputed issues 

alleged with particularity in the 

pleadings. Not only would these 

amended disclosure requirements 

benefit the NRC staff (by reducing the 

resources necessary to review, prepare, 

and provide the required documents), 

but they would also aid the other parties 

to the proceeding (by reducing the 

number of documents they need to 

review to only documents that are 

relevant to the issues in the proceeding). 

Further, this disclosure requirement 

would parallel the initial document 

disclosure requirement in § 2.704(a)(2) 

for parties other than the NRC staff. 

Although parties other than the NRC 

staff are also required by § 2.704(a)(1) to 

identify individuals likely to have 

discoverable information relevant to 

disputed issues, the NRC considers a 

similar disclosure requirement for the 

NRC staff to be unnecessary. The 

discoverable portions of any pertinent 

Office of Investigations report or related 

inspection report should identify many 

of the individuals likely to have 

discoverable information relevant to 

disputed issues. 


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Proposed § 2.709(a)(6)(i) would also 

require that if a claim of privilege or 

protected status is made by the NRC 

staff for any documents, a list of these 

documents must be provided with 

sufficient information for assessing the 

claim of privilege or protected status. 

Finally, proposed § 2.709(a)(6)(ii) would 

require the NRC staff to provide 

disclosure updates every 30 days. Each 

update would include documents 

subject to disclosure under this section 

that have not been disclosed in a prior 

update and that are developed, 

obtained, or discovered during the 

period that runs from 5 business days 

before the last disclosure update to 5 

business days before the filing of the 

update, as would be required of other 

parties by proposed § 2.704(a)(3). 

b. Section 2.709(a)(7)—Form and type 

of NRC staff disclosures. 

Proposed § 2.709(a)(7) would specify 

the manner in which the NRC staff may 

disclose information in subpart G 

proceedings. For publicly available 

documents, data compilations, or other 

tangible things, the NRC staff’s duty to 

disclose such information to the other 

parties and the presiding officer would 

be met by identifying the location, the 

title, and a page reference to the subject 

information. If the publicly available 

documents, data compilations, or other 

tangible things can be accessed at either 

the NRC Web site, http://www.nrc.gov, 

or at the NRC Public Document Room, 

the staff would provide the parties and 

the presiding officer with any citations 

necessary to access this information. 

This addition parallels § 2.704(a)(2) for 

disclosures by parties other than the 

NRC Staff. 

D. Subpart L—Sections 2.1200 Through 

2.1213 

1. Subpart L—Title. 

Subpart L of 10 CFR part 2 contains 

the adjudicatory procedures that the 

NRC uses to conduct most of its 

licensing proceedings. The procedures 

in subpart L were substantially revised 

in 2004 (69 FR 2182; January 14, 2004), 

and are intended to be used with the 

generally applicable provisions in 

subpart C of 10 CFR part 2. Under the 

provisions of 10 CFR part 2 as revised 

in 2004, a hearing conducted under 

subpart L meets the APA requirements 

for an ‘‘on the record’’ or ‘‘formal’’ 

hearing. Citizens Awareness Network, 

Inc. v. NRC, 391 F.3d 338, 351 (2004). 

This is true despite the fact that the NRC 

also provides more formal adjudicatory 

procedures under subpart G of part 2. 

However, the title of subpart L was not 

revised in 2004 to reflect the changed 

(i.e., less formal) character of its 

procedures. To eliminate any confusion 

caused by the current title of subpart L, 

the NRC proposes to revise the title of 

subpart L to ‘‘Simplified Hearing 

Procedures for NRC Adjudications.’’ The 

revised title would reflect that these 

proceedings are less formal than the 

formal part 2 subpart G hearings, but are 

still formal ‘‘on the record’’ hearings 

under the APA, and not ‘‘informal’’ 

hearings as might be inferred from the 

current title. 

2. Section 2.1202—Authority and role 

of NRC staff. 

Section 2.1202 pertains to the 

authority and role of the NRC staff in 

less formal hearings. The introductory 

text of § 2.1202(a) could be erroneously 

interpreted as suggesting that the staff is 

required to advise the presiding officer 

on the merits of contested matters. The 

NRC proposes to revise § 2.1202(a) to 

require that in subpart L proceedings 

the staff’s notice to parties regarding 

relevant staff licensing actions must 

include an explanation of why both the 

public health and safety is protected 

and the action is in accord with the 

common defense and security, despite 

the ‘‘pendency of the contested matter 

before the presiding officer.’’ 

A conforming change to the 

introductory text of § 2.1403(a) also is 

being proposed to require the NRC staff 

to provide this explanation when the 

same situation arises in subpart N 

proceedings. 

3. Sections 2.1205 and 2.710— 

Summary disposition; Motions for 

summary disposition; Authority of the 

presiding officer to dispose of certain 

issues on the pleadings. 

The summary disposition motion 

requirements in § 2.1205 do not require 

the inclusion of a statement of material 

facts. Before the 2004 amendments to 10 

CFR part 2, the NRC’s requirements 

governing motions for summary 

disposition required these motions to be 

accompanied by a ‘‘separate, short and 

concise statement of material facts as to 

which the moving party contends that 

there is no genuine issue to be heard.’’ 

When the summary disposition motion 

requirements were included in the 

hearing procedures in 10 CFR part 2, 

subpart L, the requirement for a 

statement of material facts was 

inadvertently omitted from § 2.1205. 

Proposed § 2.1205 would restore the 

requirement for a statement of material 

facts for which the moving party 

contends that there is no genuine issue. 

This section would not include the 

requirement for a ‘‘separate’’ statement 

of material facts in dispute, as the rule 

already requires that the statement be 

‘‘attached’’ to the motion. The NRC is 

proposing a conforming change to 

§ 2.710 to remove the word, ‘‘separate,’’ 

which would ensure that §§ 2.710 and 

2.1205 are identical in this regard. 

4. Section 2.1209—Findings of fact 

and conclusions of law. 

Section 2.712(c) specifies the format 

for proposed findings of fact and 

conclusions of law in subpart G 

proceedings, but a similar format 

provision does not exist in subpart L. 

The NRC, therefore, is proposing to 

amend § 2.1209 by adding the format 

requirements now contained in 

§ 2.712(c). These format requirements 

would aid presiding officers in subpart 

L proceedings by ensuring that 

proposed findings of fact and 

conclusions of law clearly and precisely 

communicate the parties’ positions on 

the material issues in the proceeding, 

with exact citations to the factual 

record. 

5. Section 2.1213—No significant 

hazards consideration determinations 

not subject to stay provisions. 

The proposed amendment to § 2.1213 

would add a new paragraph (f). The 

proposed paragraph would exclude 

from the stay provisions matters limited 

to whether a no significant hazards 

consideration determination for a power 

reactor license amendment was proper. 

No significant hazards consideration 

determinations may be made in license 

amendment proceedings for production 

or utilization facilities that are subject to 

the 10 CFR part 50 requirements; 

challenges to these determinations are 

not allowed in accordance with 10 CFR 

50.58(b)(6). Excluding no significant 

hazards consideration determinations 

from the stay provisions also is 

consistent with Federal case law 

holding that these findings are final 

agency actions, which are not 

appealable to the Commission. Center 

for Nuclear Responsibility, Inc. v. U.S. 

Nuclear Regulatory Comm’n, 586 

F.Supp. 579, 580–81 (D.DC 1984). 

E. Subpart M—Sections 2.1300 Through 

2.1331 

The following changes are being 

proposed to subpart M of 10 CFR part 

2, which sets forth the procedures that 

are applicable to hearings on license 

transfer applications. 

1. Sections 2.1300 and 2.1304— 

Provisions governing hearing 

procedures for subpart M hearings. 

Section 2.1300 states that the 

provisions of subpart M, together with 

subpart C, govern all adjudicatory 

proceedings on license transfers, but 

current § 2.1304 states that the 

procedures in subpart M ‘‘will constitute 

the exclusive basis for hearings on 

license transfer applications.’’ Section 

2.1304, part of the original subpart M, 

was effectively replaced by § 2.1300 in 


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the 2004 part 2 revisions, and could 

have been removed as part of that 

rulemaking. The NRC is now proposing 

to remove § 2.1304 and amend § 2.1300 

to clarify that, in subpart M hearings on 

license transfers, both the generally 

applicable intervention provisions in 

subpart C and the specific subpart M 

hearing procedures govern. 

2. Section 2.1316—Authority and role 

of NRC staff. 

Section 2.1316(c) provides the 

procedures for the NRC staff to 

participate as a party in subpart M 

hearings. These procedures would be 

updated to mirror the requirements of 

§ 2.1202(b)(2) and (3), which set forth 

the NRC staff’s authority and role in 

subpart L hearings. Proposed 

§ 2.1316(c)(1) would require the NRC 

staff—within 15 days of the issuance of 

an order granting requests for hearing or 

petitions to intervene and admitting 

contentions—to notify the presiding 

officer and the parties whether it desires 

to participate as a party in the 

proceeding. If the staff decides to 

participate as a party, its notice would 

identify the contentions on which it will 

participate as a party. If the NRC staff 

later desires to be a party, the NRC staff 

would notify the presiding officer and 

the parties, and identify the contentions 

on which it wished to participate as a 

party, and would make the disclosures 

required by § 2.336(b)(3) through (5) 

unless accompanied by an affidavit 

explaining why the disclosures cannot 

be provided to the parties with the 

notice. Once the NRC staff chooses to 

participate as a party in a subpart M 

license transfer proceeding, it would 

have all the rights and responsibilities 

of a party with respect to the admitted 

contention or matter in controversy on 

which the staff chose to participate. As 

with § 2.1202, ‘‘the NRC staff must take 

the proceeding in whatever posture the 

hearing may be at the time that it 

chooses to participate as a party.’’ (69 FR 

2228; January 14, 2004). 

F. Subpart N—Sections 2.1400 Through 

2.1407 

Section 2.1407—Appeal and 

Commission review of initial decision. 

Current § 2.1407(a)(1) allows parties 

to appeal orders of the presiding officer 

to the Commission within 15 days after 

the service of the order. Similarly, 

§ 2.1407(a)(3) allows parties that are 

opposed to an appeal to file a brief in 

opposition within 15 days of the filing 

of the appeal. Experience has 

demonstrated that the time the NRC’s 

rules allow for appeals from an order of 

a presiding officer is unnecessarily 

short, and sometimes results in 

superficial appellate briefs. Most 

adjudicatory bodies allow substantially 

more time for litigants to frame 

appellate arguments and to perform the 

necessary research and analysis. Wellconsidered briefs enable the appellate 

body, here the Commission, to make 

faster and better-reasoned decisions. 

The NRC is therefore proposing to 

extend the time to file an appeal and a 

brief in opposition to an appeal from 15 

to 25 days. The NRC does not expect the 

proposed change in appeal deadlines to 

result in any delays in licensing. For 

one thing, higher-quality briefs should 

expedite appellate decision-making. 

Moreover, most of the appellate 

litigation at the NRC is preliminary to 

any final licensing decisions; it takes 

place before the NRC staff finishes its 

safety and environmental reviews and 

generally does not affect the timing of 

those reviews. 

G. Other Changes 

1. Section 2.4—Definitions. 

The current definition of ‘‘Participant’’ 

applies to an ‘‘individual or 

organization,’’ and does not explicitly 

apply to governmental entities that have 

petitioned to intervene in a proceeding. 

The NRC proposes to correct this 

definition by adding a parenthetical 

reference to ‘‘individual or organization’’ 

so that it reads: ‘‘individual or 

organization (including governmental 

entities).’’ 

The current definition of ‘‘NRC 

personnel’’ in § 2.4 contains outdated 

references to §§ 2.336 and 2.1018. The 

proposed revision of ‘‘NRC personnel’’ 

would update this definition by 

removing references to §§ 2.336 and 

2.1018, neither of which references the 

term ‘‘NRC personnel.’’ 

2. Section 2.101—Filing of 

application. 

In 2005, § 2.101 was amended to 

remove paragraph (e) and redesignate (f) 

and (g) as paragraphs (e) and (f). (70 FR 

61887; October 27, 2005) The internal 

references to paragraph (g) were not 

updated to reflect the new paragraph 

designations. References in this section 

to § 2.101(g) would be corrected to 

reference § 2.101(f). There are no 

references to former § 2.101(f) in this 

section. 

3. Section 2.105—Notice of proposed 

action. 

Proposed § 2.105 would make three 

changes to the current regulation: (1) 

The introductory text of paragraph (a) 

would be revised by inserting a 

reference to the NRC’s Web site; (2) The 

introductory text of paragraph (b) would 

be clarified by specifying that the 

referenced notice pertains to one 

published in the Federal Register; and, 

(3) The introductory text of paragraph 

(d) would be corrected to reference the 

time period stated in § 2.309(b). 

4. Section 2.802—Petition for 

rulemaking. 

The proposed § 2.802(d), in 

accordance with the proposed definition 

of ‘‘Participant’’ in § 2.4 and the 

proposed amendment to the procedures 

for challenging the NRC’s regulations in 

§ 2.335, would replace the word ‘‘party’’ 

with ‘‘participant.’’ 

5. Corrections of other outdated and 

incorrect references. 

Section 51.102(c) contains an 

outdated reference to ‘‘Subpart G of Part 

2.’’ The reference would be corrected to 

refer generally to part 2. Also, the 

reference to the former Atomic Safety 

and Licensing Appeal Board would be 

removed from § 51.102. 

Sections 51.4, 51.34, 51.109(f), and 

51.125 contain outdated references to 

the former Appeal Board, which would 

be removed from these sections. 

6. Section 54.27—Hearings. 

Section 54.27 (pertaining to license 

renewal hearings for nuclear power 

reactors) contains an outdated reference 

to a 30-day period to request a hearing. 

As discussed in the 2004 part 2 

revisions, except for license transfer and 

HLW proceedings, the time in which to 

request a hearing was extended to 60 

days from the date a notice of 

opportunity for hearing is published 

(either in the Federal Register or on the 

NRC’s Web site). (January 4, 2004; 69 FR 

2200). The proposed § 54.27 would be 

corrected to reflect the proper 60-day 

period to request a hearing, and a 

reference to 10 CFR 2.309 would be 

added. The proposed § 54.27 would 

retain the provision that in the absence 

of any hearing requests, a renewed 

operating license may be issued without 

a hearing upon 30-day notice and 

publication in the Federal Register. 

7. Part 2—Rules of Practice for 

Domestic Licensing Proceedings and 

Issuance of Orders. 

Throughout 10 CFR part 2, the terms 

‘‘Presiding Officer’’ and ‘‘presiding 

officer’’ are used interchangeably, but 

with different capitalization, unlike 10 

CFR part 51, which uses the term 

‘‘presiding officer’’ uniformly without 

capitalization. This proposed rule 

would change all references to the term 

‘‘Presiding Officer’’ to ‘‘presiding officer’’ 

to bring 10 CFR part 2 into conformance 

with 10 CFR part 51. 

VI. Additional Issues for Public 

Comment 

A. Scope of Mandatory Disclosures 

Section 2.336 contains the general 

procedures governing disclosure of 

information before a hearing in 


srobinson on DSKHWCL6B1PROD with PROPOSALS
10790 Federal Register / Vol. 76, No. 39 / Monday, February 28, 2011 / Proposed Rules 

contested NRC adjudicatory 

proceedings. The NRC is soliciting 

public comment on whether it should 

revise the § 2.336 mandatory disclosures 

to focus the staff’s disclosure obligations 

under § 2.336(b)(3) on documents 

related to the parties’ admitted 

contentions. Section 2.336(b) contains 

the NRC staff’s mandatory disclosure 

obligations. Specifically, under 

§ 2.336(b)(3) the NRC staff must disclose 

all documents supporting the staff’s 

review of the application or proposed 

action that is the subject of the 

proceeding without regard to whether 

the documents are relevant to the 

admitted contentions. 

The 2004 revision to part 2 imposed 

mandatory disclosure provisions on all 

parties that were intended to reduce the 

overall discovery burden in NRC 

adjudicatory proceedings. The NRC is 

concerned that this has not been the 

case and that the overall discovery 

burden has not been reduced. The NRC 

believes that the primary source of the 

burden stems from the disclosure of 

hundreds or thousands of documents by 

the NRC staff that are unrelated to any 

admitted contention; disclosure of 

voluminous material by the staff also 

burdens other parties to the proceeding 

with searching through hundreds or 

thousands of unrelated documents to 

find the material that is relevant to the 

issues in dispute (other parties’ 

disclosures are already limited to 

documents relevant to the admitted 

contentions; the staff’s disclosures are 

not). 

All parties also are required to 

produce privilege logs (a list of 

discoverable documents that are not 

being disclosed because the party 

asserts a privilege to protect the 

documents). Due to the large number of 

documents that are captured by the 

current regulations, the NRC staff must 

prepare a log of privileged documents, 

most of which are entirely unrelated to 

the contentions. Limiting the disclosure 

obligations to the issues in dispute 

would reduce the number of documents 

produced by the NRC staff, and also 

would provide the other parties to the 

proceeding with a list of relevant 

documents that were withheld, which 

would make it easier for the parties to 

identify any withheld documents that 

they may seek to obtain. This change 

would also align the scope of the NRC 

staff’s disclosure obligations with those 

of the other parties to the proceeding. At 

the same time, the parties’ opportunity 

to obtain publicly available documents 

would not be affected, as these proposed 

changes would not affect the full scope 

of documents that will be available to 

parties and other members of the public 

through ADAMS. 

The NRC is also seeking comments on 

whether it should add a new 

requirement to the end of § 2.336(d) to 

clarify that the duty of mandatory 

disclosure with respect to new 

information or documents relevant to a 

contention ends when the presiding 

officer issues a decision on that 

contention or when specified by the 

presiding officer or the Commission. 

1. Specific Questions for Public 

Comment 

(a) Would applying NRC staff 

disclosures under § 2.336(b)(3) to 

documents related only to the admitted 

contentions aid parties other than the 

NRC staff by reducing the scope of 

documents they receive and review 

through the mandatory disclosures? 

(b) Is the broad disclosure obligation 

imposed on the NRC staff by current 

Section 2.336(b) warranted in light of (a) 

the other parties’ more limited 

disclosure obligations and (b) the 

parties’ ability to find these same 

documents in an ADAMS search? 

(c) Would a shorter, more relevant 

privilege log aid parties to the 

proceeding? 

(d) Would potential parties prefer to 

maintain the status quo? 

(e) Would limiting the mandatory 

disclosures of documents as described 

in Federal Rule of Civil Procedure 

26(a)(1)(A)(ii) be the preferred option? 

2. Draft Rule Text That Would Limit the 

Scope of NRC Staff’s Mandatory 

Disclosures 

• 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 must, 

within 30 days of the issuance of the 

order granting a request for hearing or 

petition to intervene and without 

further order or request from any party, 

disclose and make available the 

following documents: 

Æ The application and applicant or 

licensee requests associated with the 

application or proposed action that is 

the subject of the proceeding; 

Æ NRC correspondence (including email) with the applicant or licensee 

associated with the application or 

proposed action that is the subject of the 

proceeding; 

Æ 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 are relevant to the 

contentions that have been admitted 

into the proceeding; 

Æ 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. Documents representing the 

NRC staff’s determination include 

published NRC reports and published 

draft or final environmental impact 

statements or environmental 

assessments; and 

Æ 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. 

B. Alternative Approaches on 

Interlocutory Appeals 

The NRC is seeking public comments 

as to whether to amend 10 CFR part 2 

regarding interlocutory review of rulings 

by a presiding officer granting or 

denying a request for hearing or 

intervention petition, including latefiled requests or petitions. Currently, 

§ 2.311(c) effectively allows the 

requestor or petitioner to appeal an 

order wholly denying an intervention 

petition or request for hearing. 

Therefore, if the presiding officer grants 

the intervention petition and denies the 

admissibility of one or more proposed 

contentions, the petitioner may not 

appeal the denial of any proposed 

contentions until the presiding officer 

issues a final decision at the end of the 

proceeding. Conversely, any party other 

than the petitioner may immediately 

appeal the order on the grounds that the 

requestor or petitioner lacks standing or 

that all of their proposed contentions 

were inadmissible. Although this basic 

scheme for interlocutory review of 

intervention petitions and requests for 

hearing has been in place since 1972 

(see 37 FR 28710; December 29, 1972), 

there have been some suggestions that a 

change to the current practice might be 

warranted to either provide earlier 

appellate review of contention 

admissibility or, alternatively, to 

discourage frivolous appeals. The NRC 

is considering two options for a 

potential amendment. The NRC requests 

comment on the options and on the 

possible rule language that would 

implement each option, including 

comments on the resource implications 

of both options for all parties and for the 

Commission. 


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Option 1 

The first option would amend 

§ 2.311(c) and (d) to allow any party to 

appeal an order granting a request for 

hearing or petition to intervene in whole 

or in part within 25 days of the 

presiding officer’s issuance of the order. 

This amendment would effectively 

allow all parties to immediately appeal 

rulings on the admissibility of any 

particular contention (including latefiled contentions). 

The potential advantage of amending 

§ 2.311 is that it allows early resolution 

of contention admissibility issues. 

Specifically, it eliminates the possibility 

that, after a Board has issued its final 

order in the proceeding, the 

Commission on appeal will remand the 

proceeding to the Board for 

consideration of a contention that the 

Commission has determined should 

have been admitted and thereby prolong 

the proceeding. Consistent with the 

general principles applied by courts and 

agencies that favor limited interlocutory 

review, the disadvantages of departing 

from the current practice under § 2.311 

include the potential increase in the 

Commission’s appellate workload at the 

early stage of a proceeding and the 

attention given to matters that it may 

prove unnecessary to address at all if a 

party decides not to pursue the matter 

at the conclusion of the proceeding or 

if further developments, such as 

settlement, obviate the need to address 

the admissibility question. This 

amendment would not alter a party’s 

ability to appeal orders on the question 

of standing. 

Option 2 

The second option would delete 

§ 2.311(d)(1) in order to remove the right 

of parties other than the petitioner to 

appeal orders granting an intervention 

petition. This would leave all parties 

with the same appellate rights, 

including the right to seek interlocutory 

review under § 2.341(f)(2). The potential 

advantage of this option is that it would 

reduce the Commission’s appellate 

workload by removing any incentive for 

parties other than the petitioner to 

oppose all proffered contentions solely 

to preserve their right to appeal. The 

main disadvantage would be removing 

the means by which an early 

determination can be made as to the 

proper admission of some contentions. 

VII. Section-by-Section Analysis 

A. Introductory Provisions—Sections 2.1 

Through 2.8 

Section 2.4—Definitions. 

This section would modify the 

definition of Participant in § 2.4, which 

currently applies to individuals or 

organizations that petition to intervene 

or request a hearing, but are not yet 

parties. The new definition would 

clarify that any individual or 

organization—including States, local 

governments, and Federally-recognized 

Indian Tribes—that petitions to 

intervene or requests a hearing shall be 

considered a participant. Further, 

Federally-recognized Indian Tribes do 

not have to be ‘‘affected’’ Federallyrecognized Indian Tribes to participate 

in NRC licensing actions. ‘‘Affected’’ is 

reserved for Federally-recognized Indian 

Tribes that seek to participate in the 

high-level waste proceeding; it does not 

apply to the NRC’s other licensing 

actions. The current definition also 

indicates that States, local governmental 

bodies, or affected Federally-recognized 

Indian Tribes that seek to participate 

under § 2.315(c) shall be considered 

participants. This section does not grant 

these governmental bodies § 2.315(c) 

participant status; this status is only 

obtained when the interested 

governmental body is afforded the 

opportunity to participate in the 

proceeding by the presiding officer. 

Governmental bodies that have 

requested § 2.315(c) participant status, 

but have not yet been granted or denied 

such status by the presiding officer, are 

only entitled to participate in a 

proceeding as a § 2.4 participant. This 

section also would modify the 

definition of ‘‘NRC personnel,’’ which 

contains outdated references to §§ 2.336 

and 2.1018; the proposed revision 

would remove these references.’’ 

B. Subpart A—Sections 2.100 Through 

2.111 

1. Section 2.101—Filing of 

application. 

This section would be amended to 

correct references to § 2.101(g), which 

should reference § 2.101(f). These 

changes would not alter the meaning or 

intent of this regulation. 

2. Section 2.105—Notice of proposed 

action. 

This section would be updated to 

include a reference to the NRC’s Web 

site. Paragraph (b) of this section would 

be updated to clarify that the referenced 

‘‘notice’’ is one that is published in the 

Federal Register, and paragraph (d) 

would be amended to include a 

reference to the time period included in 

§ 2.309(b). 

C. Subpart C—Sections 2.300 Through 

2.390 

1. Section 2.305—Service of 

documents; methods; proof. 

Section 2.305, which currently 

requires any paper served in an NRC 

proceeding to include a signed 

certificate of service, would be amended 

to clarify that a signed certificate of 

service must be filed with any 

document filed with the NRC. Under 

§ 2.304(d)(1) persons submitting 

electronic documents to the NRC 

through the E-Filing system do not need 

to physically sign their documents; 

signature with a participant’s digital ID 

certificate satisfies the requirement that 

a document be signed. 

Section 2.305(g)(1), which does not 

currently provide an address for service 

upon the NRC staff when a filing is not 

being made through the E-Filing system 

and no attorney representing the NRC 

staff has filed a notice of appearance, 

would be updated to provide 

participants with an address to use in 

these circumstances. 

2. Section 2.309—Hearing requests, 

petitions to intervene, requirements for 

standing, and contentions. 

a. Section 2.309(b)—Timing. 

Section 2.309(b), which does not 

provide a time for answers to § 2.205(c) 

orders, would be amended to clarify that 

recipients of § 2.205(c) orders have the 

time specified in the order to file their 

answers. 

b. Section 2.309(c) and (f)— 

Subsequent Submission of Petition/ 

Request or New or Amended 

Contentions. 

Section 2.309(c) would be updated to 

consolidate the nontimely filing 

requirements and to clarify the intent of 

the regulations. Amended § 2.309(c) 

would incorporate the § 2.309(f)(2)(i) 

through (iii) factors into amended 

§ 2.309(c)(2)(i) through (iii) as the 

factors to be considered in evaluating a 

filing after the deadlines in § 2.309(b). 

Thus, unlike the current requirement 

where both the § 2.309(c) and 

§ 2.309(f)(2) factors must be individually 

addressed, the proposed amendment 

incorporates the § 2.309(f)(2) factors into 

amended § 2.309(c)(2)(i) through (iii). 

Meeting these three factors would 

provide sufficient justification for the 

filing after the deadlines in § 2.309(b). 

Section 2.309(c)(2)(i) would require the 

requestor or petitioner to demonstrate 

that the information upon which the 

new or amended contention is based 

was not previously available. The 

phrase ‘‘not previously available’’ in this 

paragraph means that a requestor or 

petitioner cannot base a contention on 

a document or a report that does not yet 

exist. For example, if at the time of 

requestor or petitioner’s filing, an 

agency or organization was working on 

a report scheduled for publication in six 

months, the requestor or petitioner 

could not anticipate this publication 

and rely on the report in the submission 


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10792 Federal Register / Vol. 76, No. 39 / Monday, February 28, 2011 / Proposed Rules 

of contentions. Also, § 2.309(c)(2)(ii) 

would require the information that 

supports the filing after the deadlines in 

§ 2.309(b) to be materially different from 

information previously available. And 

§ 2.309(c)(2)(iii) would require a 

requestor or petitioner to submit this 

filing in a timely fashion based on the 

availability of the subsequent 

information. But this interpretation does 

not mean that a petitioner or requestor 

could not submit a filing after the 

publication of a report, provided that 

the report contains information that 

meets both the filing criteria in 

§ 2.309(c) and the admissibility criteria 

in § 2.309(f). 

Section 2.309(c)(3) would clarify that 

any new or amended intervention 

petition must include new or amended 

contentions if the petitioner seeks 

admission as a party, and requires a 

petitioner to meet the standing and 

admissibility requirements in 

§§ 2.309(d) and (f); a petitioner that has 

already satisfied the § 2.309(d) standing 

requirements would not have to do so 

again. 

Section 2.309(c)(4) would require any 

new or amended contentions filed by a 

party to meet the admissibility 

requirements in § 2.309(f), and would 

clarify that a party or a participant who 

has already demonstrated standing does 

not need to satisfy the standing 

requirements in § 2.309(d) again. 

Section 2.309(c)(5) would clarify that 

new or amended contentions arising 

under the National Environmental 

Policy Act also must meet the filing 

requirements of § 2.309(c)(1) through 

(c)(2). 

c. Section 2.309(h)—Requirements 

applicable to States, local governmental 

bodies, and Federally-recognized Indian 

Tribes seeking party status. 

Paragraphs (d)(2)(i) and (ii) apply only 

to ‘‘affected’’ Federally-recognized 

Indian Tribes, which is only proper in 

the context of a high-level radioactive 

waste disposal proceeding. Proposed 

§ 2.309(h), which is the current 

§ 2.309(d)(2), would be revised to clarify 

that, in the case of § 2.309(h)(1) and (2), 

any Federally-recognized Indian Tribe 

that wishes to participate in any 

potential proceeding for a facility 

located within its boundaries does not 

need to further establish its standing. 

Section 2.309(h)(3), which is the current 

§ 2.309(d)(2)(iii), would only apply to a 

high-level waste disposal proceeding 

and would retain the references to 

affected Federally-recognized Indian 

Tribes; the references in this section 

would mirror the language used in the 

§ 2.1001 definition of Party. 

3. Section 2.311—Interlocutory 

review of rulings on requests for 

hearings/petitions to intervene, 

selection of hearing procedures, and 

requests by potential parties for access 

to sensitive unclassified non-safeguards 

information and safeguards information. 

Proposed § 2.311(b) would extend the 

time to file an appeal and a brief in 

opposition to an appeal from ten to 25 

days. 

4. Section 2.314—Appearance and 

practice before the Commission in 

adjudicatory proceedings. 

Proposed § 2.314(c)(3) would extend 

the time to file an appeal to an order 

disciplining a party from ten to 25 days. 

5. Section 2.315—Participation by a 

person not a party. 

Proposed § 2.315(c) would clarify that 

interested States, local government 

bodies, and Federally-recognized Tribes, 

who are not parties admitted to a 

hearing under § 2.309 and seek to 

participate in the hearing, must take the 

proceeding as they find it. Consistent 

with NRC case-law, § 2.315(c) 

participants would not be able to raise 

issues related to contentions or issues 

that were resolved prior to their entry as 

§ 2.315(c) participants in the 

proceeding—if a State, local 

governmental body, or Federallyrecognized Indian Tribe chooses to 

participate in a proceeding late in the 

process, their participation is subject to 

any orders already issued and should 

not interfere with the schedule 

established for the proceeding. 

6. Section 2.319—Power of the 

presiding officer. 

Proposed § 2.319(r) would 

reincorporate former § 2.1014(h) 

without any changes to the original 

language or intent. This section would 

require that an admitted contention that 

constitutes pure issues of law, as 

determined by the presiding officer, 

must be decided on the basis of briefs 

or oral argument. 

7. Section 2.323—Motions. 

Proposed § 2.323(f) would allow the 

presiding officer to independently, or in 

response to a petition from a party, 

certify questions or refer rulings to the 

Commission if the issue satisfies one of 

the two § 2.323(f)(1) criteria. In each 

case, the presiding officer would make 

the initial determination as to whether 

the issue or petition raises significant 

and novel legal or policy issues, or if 

prompt decision by the Commission is 

necessary to materially advance the 

orderly disposition of the proceeding. 

8. Section 2.335—Consideration of 

Commission rules and regulations in 

adjudicatory proceedings. 

Section 2.335 limits the requests for 

waivers or exceptions from NRC 

regulations to parties to a proceeding. 

Proposed § 2.335 would clarify that 

participants to an adjudicatory 

proceeding, including petitioners, may 

seek a waiver or exception to the NRC’s 

regulations for a particular proceeding. 

This change would adopt the NRC’s 

practice of allowing petitions to 

intervene and requests for hearing to 

contain § 2.335 requests for waivers or 

exceptions from the NRC’s regulations. 

9. Section 2.336—General Discovery. 

This section, which currently requires 

an update within 14 days of obtaining 

or discovering disclosable material, 

would be amended to require the filing 

of a mandatory disclosure update every 

30 days. These updates would include 

all disclosable documents and 

information developed during the 

period that runs from five business days 

before the last disclosure update to 5 

business days before the filing of the 

update. Parties not disclosing any 

documents or information are expected 

to file an update informing the presiding 

officer and the other parties that no 

documents or information are being 

disclosed. The duty of mandatory 

disclosure with respect to new 

information or documents relevant to a 

contention would end when the 

presiding officer issues a decision on 

that contention, or as specified by the 

presiding officer or the Commission. 

10. Section 2.340—Initial decision in 

certain contested proceedings; 

immediate effectiveness of initial 

decisions; issuance of authorizations, 

permits, and licenses. 

Proposed § 2.340 would clarify that in 

some circumstances the NRC may act on 

a license, a renewed license, or on a 

license amendment prior to the 

completion of any contested hearing. 

Paragraphs (a) and (b) concern 

construction and operating licenses, 

renewed licenses, combined licenses, 

and amendments to these licenses. 

These paragraphs would be amended to 

clarify that, in the case of a license 

amendment involving a power reactor, 

the NRC may complete action on the 

amendment request without waiting for 

the presiding officer’s initial decision 

once the NRC makes a determination 

that the amendment involves no 

significant hazards consideration. In 

initial power reactor licensing cases and 

in cases where the NRC has not made 

a determination of no significant 

hazards consideration, these paragraphs 

would be amended to clarify that the 

NRC may not act on the application 

until the presiding officer issues an 

initial decision in the contested 

proceeding. 

Paragraph (c), which deals with initial 

decisions under 10 CFR 52.103(g), 

would be amended to clarify that the 

presiding officer may make findings of 


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fact and conclusions of law on the 

matters put into controversy by the 

parties, and any matter designated by 

the Commission to be decided by the 

presiding officer. Further, the amended 

paragraph would clarify that matters not 

put into controversy by the parties shall 

be referred to the Commission for its 

consideration. The Commission could, 

in its discretion, treat any of these 

referred matters as a request for action 

under § 2.206 and would process the 

matter in accordance with § 52.103(f). 

Paragraphs (d) and (e), which concern 

manufacturing licenses under 10 CFR 

part 52 and proceedings not involving 

production or utilization facilities, 

would be amended to clarify that the 

NRC will issue, deny, or condition any 

permit, license, or amendment in 

accordance with a presiding officer’s 

initial decision. These paragraphs also 

would be amended to clarify that the 

NRC may issue a license amendment 

before a presiding officer’s initial 

decision becomes effective. 

This proposed revision would clarify 

that in all cases the presiding officer is 

limited to matters placed into 

controversy by the parties, and serious 

matters not put into controversy by the 

parties that concern safety, common 

defense and security, or the 

environment and that are referred to, 

and consideration of which is approved 

by, the Commission. 

11. Section 2.341—Review of 

decisions and actions of a presiding 

officer. 

a. Extension of time to file a petition 

for review, answer, and reply. 

Proposed § 2.341(b) would extend the 

time to file a petition for review and an 

answer to a petition from 15 to 25 days, 

and the time to file a reply to an answer 

from five to ten days. 

b. Petitions for Commission review not 

acted upon deemed denied. 

Section 2.341 would reincorporate the 

‘‘deemed denied’’ provision of former 

§ 2.786(c), with an additional 90 days 

for Commission review before petitions 

for review are deemed denied. The 

additional 90 days would allow the 

Commission 120 days of review time 

before a petition for review is deemed 

denied. 

Similarly, the time for the 

Commission to act on a decision of a 

presiding officer or a petition for review 

would be expanded to 120 days to bring 

this section into alignment with the new 

timeline in proposed § 2.341(c)(1). 

c. Interlocutory review. 

Section 2.341(f) would allow, but not 

require, the Commission to review 

certifications or referrals that meet any 

of the standards in this paragraph. 

12. Section 2.346—Authority of the 

Secretary. 

This proposed section would make 

explicit the Secretary’s authority under 

§ 2.346(j), which is currently limited to 

minor procedural matters, to include 

non-minor procedural matters—such as 

the unopposed withdrawal of 

construction and operating license 

applications—which would avoid the 

need for formal Commission orders and 

affirmation sessions to issue procedural 

directives. Also, the reference in 

paragraph (e) to § 2.311 has been 

removed because appeals under § 2.311 

do not have, associated with them, 

deadlines for Commission action. 

13. Sections 2.347 and 2.348—Ex 

parte communications; Separation of 

functions. 

These sections currently reference 

§ 2.204 demands for information, which 

are not orders and do not entail hearing 

rights. Because demands for information 

are not adjudicatory matters, the 

restrictions on ex parte communications 

and the separation of functions 

limitations do not apply. The references 

to § 2.204 would be removed from both 

sections. 

D. Subpart G—Sections 2.700 Through 

2.713 

1. Section 2.704—Discovery— 

required disclosures. 

This section, which currently requires 

initial disclosures to be made within 45 

days after the issuance of a prehearing 

conference order following the initial 

prehearing conference, would be 

amended to require the filing of a 

mandatory disclosure update every 30 

days. These updates would include all 

disclosable documents and information 

obtained up to 5 business days before 

the disclosure update. Any documents 

or information obtained or developed 

during the period that runs from the last 

disclosure update to 5 business days 

before the filing of the update would be 

included in the next update. Parties not 

disclosing any documents or 

information are expected to file an 

update informing the presiding officer 

and the other parties that no documents 

or information are being disclosed. 

2. Section 2.705—Discovery— 

additional methods. 

This section, which currently allows 

the presiding officer to ‘‘alter the limits 

* * * on the number of depositions and 

interrogatories,’’ would be amended to 

remove the impression that these rules 

impose a limit on the number of 

depositions and interrogatories—they 

do not. Instead, the new rule would 

clarify that the presiding officer ‘‘may 

set limits on the number of depositions 

and interrogatories.’’ 

3. Section 2.709—Discovery against 

NRC staff. 

a. Section 2.709(a)(6)—Initial 

disclosures. 

This new paragraph would require the 

NRC staff to provide initial disclosures 

within 30 days of the order granting a 

hearing and without awaiting a 

discovery request. The NRC staff 

disclosures would include all NRC staff 

documents relevant to disputed issues 

alleged with particularity in the 

proceedings, including any Office of 

Investigations Report and supporting 

Exhibits, and any Office of Enforcement 

documents regarding the order. The staff 

would also be required to file a 

mandatory disclosure update every 30 

days. These updates would include all 

disclosable documents and information 

obtained or developed during the period 

that runs from the last disclosure update 

to 5 business days before the filing of 

the update. Any documents or 

information obtained or developed 

during the period between the 5 

business day cutoff and the update 

would be included in the next update. 

If the staff does not disclose any 

documents or information, it would be 

expected to file an update informing the 

presiding officer and the other parties 

that no documents or information are 

being disclosed. The staff also would be 

required to provide, with initial 

disclosures and disclosure updates, a 

privilege log listing the withheld 

documents that includes sufficient 

information to assess the claim of 

privilege or protected status. These 

requirements parallel the § 2.704 

requirements for parties other than the 

NRC staff. 

b. Section 2.709(a)(7)—Form and type 

of NRC staff disclosures. 

Section 2.709(a)(7) is a new paragraph 

that would allow the staff to satisfy its 

disclosure obligations for publicly 

available documents by providing the 

title, date, and NRC ADAMS accession 

number for the document. This change 

would mirror the procedures now used 

by parties other than the NRC staff to 

disclose publicly available documents. 

4. Section 2.710—Motions for 

summary disposition. 

This section would be amended to 

conform to the proposed amendments to 

§ 2.1205, which would require parties to 

attach a statement of material facts to a 

motion for summary disposition. This 

proposed change would have no effect 

on the current practice of including a 

statement of material facts with a 

motion; it would clarify that the 

statement needs to be attached to the 

motion and does not have to be 

‘‘separate.’’ 


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E. Subpart H—Sections 2.800 Through 

2.819 

1. Section 2.802—Petition for 

rulemaking. 

This section currently allows 

petitioners for a rulemaking to request 

the suspension of an adjudicatory 

proceeding to which they are a party. 

This section would be amended to allow 

any petitioner for a rulemaking that is 

a participant in a proceeding (as defined 

by § 2.4) to request suspension of that 

proceeding. 

Subpart L—Sections 2.1200 Through 

2.1213 

2. Section 2.1202—Authority and role 

of NRC staff. 

This section currently requires the 

NRC staff to include its position on the 

matters in controversy when it notifies 

the presiding officer of its decision on 

a licensing action, which could be 

incorrectly interpreted as requiring the 

staff to advise the presiding officer on 

the merits of the contested matters. This 

amended section would clarify the 

authority and role of the NRC staff in 

less formal hearings; staff notices 

regarding licensing actions would have 

to include an explanation of why both 

the public health and safety is protected 

and the action is in accord with the 

common defense and security, despite 

the ‘‘pendency of the contested matter 

before the presiding officer.’’ 

3. Section 2.1209—Findings of fact 

and conclusions of law. 

This section currently does not 

specify the formatting requirements for 

findings of fact and conclusions of law. 

Amended § 2.1209 would incorporate 

the § 2.712(c) formatting requirements 

for findings of fact and conclusions of 

law to ensure that proposed findings of 

fact and conclusions of law clearly and 

precisely communicate the parties’ 

positions on the material issues in the 

proceeding, with exact citations to the 

factual record. 

4. Section 2.1213—Application for a 

stay. 

Section 2.1213 does not currently 

exclude matters limited to whether a 

‘‘no significant hazards consideration’’ 

determination for a power reactor 

license amendment was proper from the 

stay provisions. Section 50.58(b)(6) 

prohibits challenges to these 

determinations; section 2.1213 would 

therefore be amended to exclude from 

the stay provisions matters limited to 

whether a no significant hazards 

consideration determination was 

proper. 

F. Subpart M—Sections 2.1300 Through 

2.1331 

1. Section 2.1300—Scope of subpart 

M. 

The NRC is proposing to remove 

§ 2.1304 and to amend § 2.1300 to 

clarify that the generally applicable 

intervention provisions in subpart C and 

the specific provisions in subpart M 

govern in subpart M proceedings. 

2. Section 2.1304—Hearing 

procedures. 

The NRC is proposing to remove 

§ 2.1304 and to amend § 2.1300 to 

clarify that the generally applicable 

intervention provisions in subpart C and 

the specific provisions in subpart M 

govern in subpart M proceedings. 

3. Section 2.1316—Authority and role 

of NRC staff. 

This section currently allows the NRC 

staff to submit a simple notification at 

any point in the proceeding to become 

a party. The NRC is proposing to adopt 

the requirements in § 2.1202(b)(2) and 

(3), which require the NRC staff, within 

15 days of the issuance of an order 

granting requests for hearing or petitions 

to intervene and admitting contentions, 

to notify the presiding officer and the 

parties whether it desires to participate 

as a party in the proceeding. The staff’s 

notice would identify the contentions 

on which it will participate as a party; 

the staff would be allowed to join the 

proceeding at a later stage by providing 

notice to the presiding officer, 

identifying the contentions on which it 

wishes to participate as a party, and 

making the disclosures required by 

§ 2.336(b)(3) through (5). 

G. Subpart N—Sections 2.1400 Through 

2.1407 

1. Section 2.1403—Authority and role 

of the NRC staff. 

This section, which is essentially 

identical to § 2.1202, would be amended 

to mirror the changes to that section. 

This section would also be updated to 

correct the reference to § 2.101(f)(8), 

which should reference § 2.101(e)(8); 

this change would not alter the meaning 

or intent of this regulation. 

2. 2.1407—Appeal and Commission 

review of initial decision. 

Proposed § 2.1407(a) would extend 

the time to file an appeal and an answer 

to an appeal from 15 to 25 days. 

H. Parts 51 and 54 

1. Section 51.4—Definitions. 

This section would be amended to 

remove an outdated reference to the 

former Atomic Safety and Licensing 

Appeal Board in the definition of NRC 

Staff. This change would not alter the 

meaning or intent of this regulation. 

2. Section 51.34—Preparation of 

finding of no significant impact. 

This section would be amended to 

remove outdated references to ‘‘Subpart 

G of Part 2’’ and to the former Atomic 

Safety and Licensing Appeal Board. 

These changes would not alter the 

meaning or intent of this regulation. 

3. Section 51.102—Requirement to 

provide a record of decision; 

preparation. 

This section would be amended to 

remove outdated references to ‘‘Subpart 

G of Part 2’’ and to the former Atomic 

Safety and Licensing Appeal Board. 

These changes would not alter the 

meaning or intent of this regulation. 

4. Section 51.109—Public hearings in 

proceedings for issuance of materials 

licensed with respect to a geologic 

repository. 

This section would be amended to 

remove an outdated reference to the 

former Atomic Safety and Licensing 

Appeal Board. This change would not 

alter the meaning or intent of this 

regulation. 

5. Section 51.125—Responsible 

official. 

This section would be amended to 

remove outdated references to ‘‘Subpart 

G of Part 2’’ and to the former Atomic 

Safety and Licensing Appeal Board. 

These changes would not alter the 

meaning or intent of this regulation. 

6. Section 54.27—Hearings. 

This section would be amended to 

replace an outdated reference to a 30- 

day period to request a hearing with a 

reference to the correct 60-day period to 

request a hearing. This section would 

retain the provision that in the absence 

of any hearing requests, a renewed 

operating license may be issued without 

a hearing upon 30-day notice published 

in the Federal Register. 

VIII. Plain Language 

The Presidential memorandum dated 

June 1, 1998, entitled ‘‘Plain Language in 

Government Writing’’ directed that the 

government’s documents be written in 

clear and accessible language. This 

memorandum was published on June 

10, 1998 (63 FR 31883). In complying 

with this directive, editorial changes 

have been made to 10 CFR part 2 to 

improve the organization and 

readability of the sections being revised. 

These types of changes are not 

discussed further in this document. The 

NRC requests comments on the 

proposed rule specifically with respect 

to the clarity and effectiveness of the 

language used. Comments should be 

sent to the NRC as explained in the 

ADDRESSES Section of this document. 


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IX. Voluntary Consensus Standards 

The National Technology Transfer 

and Advancement Act of 1995, Public 

Law 104–113, requires that Federal 

agencies use technical standards that are 

developed by voluntary, private sector, 

consensus standards bodies unless 

using such a standard is inconsistent 

with applicable law or is otherwise 

impractical. In this rule, the NRC is 

approving changes to its procedures for 

the conduct of hearings in 10 CFR part 

2. This action does not constitute the 

establishment of a government-unique 

standard as defined in Office of 

Management and Budget (OMB) 

Circular A–119 (1998). 

X. Environmental Impact: Categorical 

Exclusion 

The proposed rule involves an 

amendment to 10 CFR part 2, and thus 

qualifies as an action for which no 

environmental review is required under 

the categorical exclusion set forth in 10 

CFR 51.22(c)(1). Therefore, neither an 

environmental impact statement nor an 

environmental assessment has been 

prepared for this rulemaking. 

XI. Paperwork Reduction Act 

Statement 

This rule does not contain any 

information collection requirements 

and, therefore, is not subject to the 

requirements of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). 

Public Protection Notification 

The NRC may not conduct or sponsor, 

and a person is not required to respond 

to, a request for information or an 

information collection requirement 

unless the requesting document 

displays a currently valid OMB control 

number. 

XII. Regulatory Analysis 

The proposed rule emanates from the 

desire to make corrections, 

clarifications, and conforming changes 

to the NRC’s rules of practice and to 

improve the hearing process. Those 

amendments that merely reflect either 

clarifications or corrections to the 

adjudicatory regulations are not changes 

to the existing processes. These 

amendments would not result in a cost 

to the NRC or to participants in NRC 

adjudicatory proceedings, and a benefit 

would accrue to the extent that potential 

confusion over the meaning of the 

NRC’s regulations is removed. 

The more substantial changes 

suggested in the proposed rule would 

likewise not impose costs upon either 

the NRC or participants in NRC 

adjudications, but would instead bring 

benefits. Allowing 30 days for the 

updating of disclosures made under 

§ 2.336(d) would, in fact, reduce 

burdens on the parties. Fairness and 

equitable treatment would be furthered 

by the changes made to the 10 CFR 

2.309 filing provisions and to the 10 

CFR part 2 discovery provisions. These 

discovery amendments would improve 

adjudicatory efficiency, as would the 

amendments made to the format 

requirements for findings in final 

§ 2.1209. 

The NRC does not believe the option 

of preserving the status quo is a 

preferred option. Failing to correct 

errors and clarify ambiguities will result 

in continuing confusion over the 

meaning of the rules, which could lead 

to the unnecessary waste of resources. 

Also, experience has shown that the 

agency hearing process can be improved 

through appropriate rule changes. The 

NRC believes that the proposed rule 

would improve the fairness, efficiency, 

and openness of NRC hearings without 

imposing costs on either the NRC or on 

participants in NRC adjudicatory 

proceedings. This constitutes the 

regulatory analysis for the proposed 

rule. 

XIII. Regulatory Flexibility Act 

Certification 

In accordance with the Regulatory 

Flexibility Act, as amended, 5 U.S.C. 

605(b), the NRC certifies that this 

proposed rule would not have a 

significant economic impact on a 

substantial number of small entities. 

This rule would apply in the context of 

NRC adjudicatory proceedings 

concerning nuclear reactors or nuclear 

materials. Reactor licensees are large 

organizations that do not fall within the 

definition of a small business found in 

Section 3 of the Small Business Act, 15 

U.S.C. 632, within the small business 

standards set forth in 13 CFR part 121, 

or within the size standards established 

by the NRC (10 CFR 2.810). Based upon 

the historically low number of requests 

for hearings involving materials 

licensees, it is not expected that this 

rule would have any significant 

economic impact on a substantial 

number of small businesses. 

XIV. Backfit Analysis 

The NRC has determined that the 

backfit rule does not apply to the 

proposed rule amendments because 

they do not involve any provisions that 

would impose backfits as defined in 10 

CFR Chapter I. Therefore, a backfit 

analysis is not required for this 

proposed rule. 

List of Subjects 

10 CFR Part 2 

Administrative practice and 

procedure, Antitrust, Byproduct 

material, Classified information, 

Environmental protection, Nuclear 

materials, Nuclear power plants and 

reactors, Penalties, Sex discrimination, 

Source material, Special nuclear 

material, Waste treatment and disposal. 

10 CFR Part 51 

Administrative practice and 

procedure, Environmental impact 

statement, Nuclear materials, Nuclear 

power plants and reactors, Reporting 

and recordkeeping requirements. 

10 CFR Part 54 

Administrative practice and 

procedure, Age-related degradation, 

Backfitting, Classified information, 

Criminal penalties, Environmental 

protection, Nuclear power plants and 

reactors, Reporting and recordkeeping 

requirements. 

For the reasons set out in the 

preamble and under the authority of the 

Atomic Energy Act of 1954, as amended; 

the Energy Reorganization Act of 1974, 

as amended; and 5 U.S.C. 552, the NRC 

is proposing to adopt the following 

amendments to 10 CFR parts 2, 51, and 

54. 

PART 2—AGENCY RULES OF 

PRACTICE AND PROCEDURE 

1. The authority citation for part 2 

continues to read as follows: 

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(f); sec. 

102, Pub. L 91–190, 83 Stat. 853, as amended 

(42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 

U.S.C. 5871). 

Sections 2.102, 2.103, 2.104, 2.105, 2.321 

also issued under secs. 102, 103, 104, 105, 

183i, 189, 68 Stat. 936, 937, 938, 954, 955, 

as amended (42 U.S.C. 2132, 2133, 2134, 

2135, 2233, 2239). Section 2.105 also issued 

under Pub. L. 97–415, 96 Stat. 2073 (42 

U.S.C. 2239). Sections 2.200–2.206 also 

issued under secs. 161 b, i, o, 182, 186, 234, 

68 Stat. 948–951, 955, 83 Stat. 444, as 

amended (42 U.S.C. 2201(b), (i), (o), 2236, 

2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 

5846). 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 


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U.S.C. 2239). Section 2.301 also issued under 

5 U.S.C. 554. Sections 2.343, 2.346, 2.712, 

also issued under 5 U.S.C. 557. Section 2.340 

also issued under secs. 135, 141, Pub. L. 97– 

425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 

10161). Section 2.390 also issued under sec. 

103, 68 Stat. 936, as amended (42 U.S.C. 

2133) and 5 U.S.C. 552. Sections 2.600–2.606 

also issued under sec. 102, Pub. L. 91–190, 

83 Stat. 853, as amended (42 U.S.C. 4332). 

Sections 2.800 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. 91–560, 84 Stat. 1472 (42 U.S.C. 

2135). 

2. The heading for part 2 is revised to 

read as set forth above. 

3. In part 2, wherever it may appear, 

revise the phrase ‘‘Presiding Officer’’ to 

read ‘‘presiding officer’’. 

4. In § 2.4, paragraph (2) of the 

definition of ‘‘NRC personnel’’ and the 

definition of ‘‘Participant’’ are revised to 

read as follows: 

§ 2.4 Definitions. 

* * * * * 

NRC personnel means: 

* * * * * 

(2) For the purpose of §§ 2.702 and 

2.709 only, persons acting in the 

capacity of consultants to the 

Commission, regardless of the form of 

the contractual arrangements under 

which such persons act as consultants 

to the Commission; and 

* * * * * 

Participant means an individual or 

organization (including a governmental 

entity) that has petitioned to intervene 

in a proceeding or requested a hearing 

but that has not yet been granted party 

status by an Atomic Safety and 

Licensing Board or other presiding 

officer. Participant also means a party to 

a proceeding and any interested State, 

local governmental body, or Federallyrecognized Indian Tribe that seeks to 

participate in a proceeding under 

§ 2.315(c). For the purpose of service of 

documents, the NRC staff is considered 

a participant even if not participating as 

a party. 

* * * * * 

5. In § 2.101, paragraphs (b), (d), 

(f)(2)(i)(D), (f)(2)(ii), and (f)(5) are 

revised to read as follows: 

§ 2.101 Filing of application. 

* * * * * 

(b) After the application has been 

docketed each applicant for a license for 

receipt of waste radioactive material 

from other persons for the purpose of 

commercial disposal by the waste 

disposal licensee, except applicants 

under part 61 of this chapter, which 

must comply with paragraph (f) of this 

section, shall serve a copy of the 

application and environmental report, 

as appropriate, on the chief executive of 

the municipality in which the activity is 

to be conducted or, if the activity is not 

to be conducted within a municipality 

on the chief executive of the county, 

and serve a notice of availability of the 

application or environmental report on 

the chief executives of the 

municipalities or counties which have 

been identified in the application or 

environmental report as the location of 

all or part of the alternative sites, 

containing the docket number of the 

application; a brief description of the 

proposed site and facility; the location 

of the site and facility as primarily 

proposed and alternatively listed; the 

name, address, telephone number, and 

e-mail 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 § 2.390(d). The 

applicant shall submit to the Director, 

Office of Nuclear Material Safety and 

Safeguards or Director, Office of Federal 

and State Materials and Environmental 

Management Programs, as appropriate, 

an affidavit that service of the notice of 

availability of the application or 

environmental report has been 

completed along with a list of names 

and addresses of those executives upon 

whom the notice was served. 

* * * * * 

(d) The Director, Office of Nuclear 

Reactor Regulation, Director, Office of 

New Reactors, Director, Office of 

Federal and State Materials and 

Environmental Management Programs, 

or Director, Office of Nuclear Material 

Safety and Safeguards, as appropriate, 

will give notice of the docketing of the 

public health and safety, common 

defense and security, and 

environmental parts of an application 

for a license for a facility or for receipt 

of waste radioactive material from other 

persons for the purpose of commercial 

disposal by the waste disposal licensee, 

except that for applications pursuant to 

part 61 of this chapter, paragraph (f) of 

this section applies to the Governor or 

other appropriate official of the State in 

which the facility is to be located or the 

activity is to be conducted and will 

publish in the Federal Register a notice 

of docketing of the application which 

states the purpose of the application and 

specifies the location at which the 

proposed activity would be conducted. 

* * * * * 

(f) * * * 

(2)(i) * * * 

(D) Serve a notice of availability of the 

application and environmental report 

on the chief executives or governing 

bodies of the municipalities or counties 

which have been identified in the 

application and environmental report as 

the location of all or part of the 

alternative sites if copies are not 

distributed under paragraph (f)(2)(i)(C) 

of this section to the executives or 

bodies. 

(ii) All distributed copies shall be 

completely assembled documents 

identified by docket number. However, 

subsequently distributed amendments 

may include revised pages to previous 

submittals and, in these cases, the 

recipients will be responsible for 

inserting the revised pages. In 

complying with the requirements of 

paragraph (f) of this section the 

applicant may not make public 

distribution of those parts of the 

application subject to § 2.390(d). 

* * * * * 

(5) The Director, Office of Nuclear 

Material Safety and Safeguards or 

Director, Office of Federal and State 

Materials and Environmental 

Management Programs, as appropriate, 

will cause to be published in the 

Federal Register a notice of docketing 

which identifies the State and location 

of the proposed waste disposal facility 

and will give notice of docketing to the 

governor of that State and other officials 

listed in paragraph (f)(3) of this section 

and will, in a reasonable period 

thereafter, publish in the Federal 

Register a notice under § 2.105 offering 

an opportunity to request a hearing to 

the applicant and other potentially 

affected persons. 

6. In § 2.105, the introductory text of 

paragraphs (a), (b), and (d) are revised 

to read as follows: 


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§ 2.105 Notice of proposed action. 

(a) If a hearing is not required by the 

Act or this chapter, and if the 

Commission has not found that a 

hearing is in the public interest, it will, 

before acting thereon, publish in the 

Federal Register, as applicable, or on 

the NRC Web site, http://www.nrc.gov, 

or both, at the Commission’s discretion, 

either a notice of intended operation 

under § 52.103(a) of this chapter and a 

proposed finding that inspections, tests, 

analysis, and acceptance criteria for a 

combined license under subpart C of 

part 52 have been or will be met, or a 

notice of proposed action with respect 

to an application for: 

* * * * * 

(b) A notice of proposed action 

published in the Federal Register will 

set forth: 

* * * * * 

(d) The notice of proposed action will 

provide that, within the time period 

provided under § 2.309(b): 

* * * * * 

7. In § 2.305, the heading is revised, 

and paragraphs (c)(4) and (g)(1) are 

revised to read as follows: 

§ 2.305 Service of documents, methods, 

proof. 

* * * * * 

(c) * * * 

(4) To provide proof of service, any 

document served upon participants to 

the proceeding as may be required by 

law, rule, or order of the presiding 

officer must be accompanied by a signed 

certificate of service stating the names 

and addresses of the persons served as 

well as the method and date of service. 

* * * * * 

(g) * * * 

(1) Service shall be made upon the 

NRC staff of all documents required to 

be filed with participants and the 

presiding officer in all proceedings, 

including those proceedings where the 

NRC staff informs the presiding officer 

of its determination not to participate as 

a party. Service upon the NRC staff shall 

be by the same or equivalent method as 

service upon the Office of the Secretary 

and the presiding officer, e.g., 

electronically, personal delivery or 

courier, express mail, or expedited 

delivery service. If no attorney 

representing the NRC Staff has filed a 

notice of appearance in the proceeding 

and service is not being made through 

the E-Filing System, service will be 

made using the following addresses, as 

applicable: By delivery to the Associate 

General Counsel for Hearings, 

Enforcement & Administration, One 

White Flint North, 11555–0001 

Rockville Pike, Rockville, MD 20852; by 

mail addressed to the Associate General 

Counsel for Hearings, Enforcement & 

Administration, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555– 

0001; by e-mail to 

OgcMailCenter.Resource@nrc.gov; or by 

facsimile to 301–415–3725. 

* * * * * 

8. In § 2.309, paragraph (b)(5), (c), 

(d)(2), and (d)(3) are revised, paragraphs 

(h) and (i) are redesignated as 

paragraphs (i) and (j), respectively, and 

revised, and a new paragraph (h) is 

added to read as follows: 

§ 2.309 Hearing requests, petitions to 

intervene, requirements for standing, and 

contentions. 

* * * * * 

(b) * * * 

(5) For orders issued under §§ 2.202 

or 2.205 the time period provided 

therein. 

(c) Subsequent submission of petition/ 

request or new or amended contentions. 

(1) Determination by presiding officer. 

Hearing requests, intervention petitions, 

and new or amended contentions filed 

after the deadlines in paragraph (b) of 

this section, will not be entertained 

absent a determination by the presiding 

officer that there is good cause for its 

submission after the deadlines in 

paragraph (b) of this section. 

(2) Good cause. To show good cause 

for a request for hearing, petition to 

intervene, or a new or amended 

contention filed after the deadlines in 

paragraph (b) of this section, the 

requestor or petitioner must 

demonstrate that: 

(i) The information upon which the 

filing is based was not previously 

available; 

(ii) The information upon which the 

filing is based is materially different 

from information previously available; 

and 

(iii) The filing has been submitted in 

a timely fashion based on the 

availability of the subsequent 

information. 

(3) New petitioner. A hearing request 

or intervention petition filed after the 

deadlines in paragraph (b) of this 

section must include a specification of 

contentions if the petitioner seeks 

admission as a party, and must also 

demonstrate that the petitioner meets 

the applicable standing and contention 

admissibility requirements in 

paragraphs (d) and (f) of this section. 

(4) Party or participant. A new or 

amended contention filed by a party or 

participant to the proceeding must also 

meet the applicable contention 

admissibility requirements in paragraph 

(f) of this section. If the party or 

participant has already addressed the 

requirements for standing under 

paragraph (d) of this section in the same 

proceeding in which the new or 

amended contentions are filed, it does 

not need to do so again. 

(5) Environmental contentions. For a 

new or amended contention arising 

under the National Environmental 

Policy Act and based on conclusions in 

an NRC draft or final environmental 

impact statement, environmental 

assessment, or any supplements relating 

thereto, the party or participant also 

must show that the data or conclusions 

in the NRC’s documents differ 

significantly from the data or 

conclusions in the applicant’s 

environmental report. 

(d) * * * 

(2) Rulings. In ruling on a request for 

hearing or petition for leave to 

intervene, the Commission, the 

presiding officer, or the Atomic Safety 

and Licensing Board designated to rule 

on such requests must determine, 

among other things, whether the 

petitioner has an interest affected by the 

proceeding considering the factors 

enumerated in paragraph (d)(1) of this 

section. 

(3) Standing in enforcement 

proceedings. In enforcement 

proceedings, the licensee or other 

person against whom the action is taken 

shall have standing. 

* * * * * 

(h) Requirements applicable to States, 

local governmental bodies, and 

Federally-recognized Indian Tribes 

seeking party status. (1) If a State, local 

governmental body (county, 

municipality or other subdivision), or 

Federally-recognized Indian Tribe seeks 

to participate as a party in a proceeding, 

it must submit a request for hearing or 

a petition to intervene containing at 

least one admissible contention, and 

must designate a single representative 

for the hearing. If a request for hearing 

or petition to intervene is granted, the 

Commission, the presiding officer or the 

Atomic Safety and Licensing Board 

ruling on the request will admit as a 

party to the proceeding a single 

designated representative of the State, a 

single designated representative for each 

local governmental body (county, 

municipality or other subdivision), and 

a single designated representative for 

each Federally-recognized Indian Tribe. 

Where a State’s constitution provides 

that both the Governor and another 

State official or State governmental body 

may represent the interests of the State 

in a proceeding, the Governor and the 

other State official/government body 

will be considered separate potential 

parties. 


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(2) If the proceeding pertains to a 

production or utilization facility (as 

defined in § 50.2 of this chapter) located 

within the boundaries of the State, local 

governmental body, or Federallyrecognized Indian Tribe seeking to 

participate as a party, no further 

demonstration of standing is required. If 

the production or utilization facility is 

not located within the boundaries of the 

State, local governmental body, or 

Federally-recognized Indian Tribe 

seeking to participate as a party, the 

State, local governmental body, or 

Federally-recognized Indian Tribe also 

must demonstrate standing. 

(3) In any proceeding on an 

application for a construction 

authorization for a high-level 

radioactive waste repository at a 

geologic repository operations area 

under parts 60 or 63 of this chapter, or 

an application for a license to receive 

and possess high-level radioactive waste 

at a geologic repository operations area 

under parts 60 or 63 of this chapter, the 

Commission shall permit intervention 

by the State and local governmental 

body (county, municipality or other 

subdivision) in which such an area is 

located and by any affected Federallyrecognized 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. 

(i) Answers to hearing requests, 

intervention petitions, and requests to 

admit new or amended contentions after 

the initial filing. Unless otherwise 

specified by the Commission, the 

presiding officer, or the Atomic Safety 

and Licensing Board designated to rule 

on the request/petition— 

(1) The applicant/licensee, the NRC 

staff, and other parties to a proceeding 

may file an answer to a hearing request, 

intervention petition, or a request to 

admit amended or new contentions after 

the initial filing within 25 days after 

service of the request or petition. 

Answers should address, at a minimum, 

the factors set forth in paragraphs (a) 

through (h) of this section insofar as 

these sections apply to the filing that is 

the subject of the answer. 

(2) Except in a proceeding under 

§ 52.103 of this chapter, the requestor/ 

petitioner may file a reply to any 

answer. The reply must be filed within 

7 days after service of that answer. 

(3) No other written answers or 

replies will be entertained. 

(j) Decision on request/petition. (1) In 

all proceedings other than a proceeding 

under § 52.103 of this chapter, the 

presiding officer shall issue a decision 

on each request for hearing or petition 

to intervene within 45 days of the 

conclusion of the initial pre-hearing 

conference or, if no pre-hearing 

conference is conducted, within 45 days 

after the filing of answers and replies 

under paragraph (i) of this section. With 

respect to a request to admit amended 

or new contentions, the presiding officer 

shall issue a decision on each such 

request within 45 days of the conclusion 

of any pre-hearing conference that may 

be conducted regarding the proposed 

amended or new contentions or, if no 

pre-hearing conference is conducted, 

within 45 days after the filing of 

answers and replies, if any. In the event 

the presiding officer cannot issue a 

decision within 45 days, the presiding 

officer shall issue a notice advising the 

Commission and the parties, and the 

notice shall include the expected date of 

when the decision will issue. 

(2) The Commission, acting as the 

presiding officer, shall expeditiously 

grant or deny the request for hearing in 

a proceeding under § 52.103 of this 

chapter. The Commission’s decision 

may not be the subject of any appeal 

under § 2.311. 

9. In § 2.311, paragraph (b) is revised 

to read as follows: 

§ 2.311 Interlocutory review of rulings on 

requests for hearings/petitions to intervene, 

selection of hearing procedures, and 

requests by potential parties for access to 

sensitive unclassified non-safeguards 

information and safeguards information. 

* * * * * 

(b) These appeals must be made as 

specified by the provisions of this 

section, within 25 days after the service 

of the order. The appeal must be 

initiated by the filing of a notice of 

appeal and accompanying supporting 

brief. Any party who opposes the appeal 

may file a brief in opposition to the 

appeal within 25 days after service of 

the appeal. The supporting brief and 

any answer must conform to the 

requirements of § 2.341(c)(2). No other 

appeals from rulings on requests for 

hearings are allowed. 

* * * * * 

10. In § 2.314, paragraph (c)(3) is 

revised to read as follows: 

§ 2.314 Appearance and practice before 

the Commission in adjudicatory 

proceedings. 

* * * * * 

(c) * * * 

(3) Anyone disciplined under this 

section may file an appeal with the 

Commission within 25 days after 

issuance of the order. The appeal must 

be in writing and state concisely, with 

supporting argument, why the appellant 

believes the order was erroneous, either 

as a matter of fact or law. The 

Commission shall consider each appeal 

on the merits, including appeals in 

cases in which the suspension period 

has already run. If necessary for a full 

and fair consideration of the facts, the 

Commission may conduct further 

evidentiary hearings, or may refer the 

matter to another presiding officer for 

development of a record. In the latter 

event, unless the Commission provides 

specific directions to the presiding 

officer, that officer shall determine the 

procedure to be followed and who shall 

present evidence, subject to applicable 

provisions of law. The hearing must 

begin as soon as possible. In the case of 

an attorney, if no appeal is taken of a 

suspension, or, if the suspension is 

upheld at the conclusion of the appeal, 

the presiding officer, or the 

Commission, as appropriate, shall notify 

the State bar(s) to which the attorney is 

admitted. The notification must include 

copies of the order of suspension, and, 

if an appeal was taken, briefs of the 

parties, and the decision of the 

Commission. 

* * * * * 

11. In § 2.315, paragraph (c) is revised 

to read as follows: 

§ 2.315 Participation by a person not a 

party. 

* * * * * 

(c) The presiding officer will afford an 

interested State, local governmental 

body (county, municipality or other 

subdivision), and Federally-recognized 

Indian Tribe that has not been admitted 

as a party under § 2.309, a reasonable 

opportunity to participate in a hearing. 

The participation of any State, local 

governmental body, or Federallyrecognized Indian Tribe shall be limited 

to unresolved issues and contentions, 

and issues and contentions that are 

raised after the State, local 

governmental body, or Federallyrecognized Indian Tribe becomes a 

participant. Each State, local 

governmental body, and Federallyrecognized Indian Tribe shall, in its 

request to participate in a hearing, 

designate a single representative for the 

hearing. The representative shall be 

permitted to introduce evidence, 

interrogate witnesses where cross 

examination by the parties is permitted, 

advise the Commission without 

requiring the representative to take a 

position with respect to the issue, file 

proposed findings in those proceedings 

where findings are permitted, and 

petition for review by the Commission 

under § 2.341 with respect to the 

admitted contentions. The 


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representative shall identify those 

contentions on which they will 

participate in advance of any hearing 

held. 

* * * * * 

12. In § 2.319, paragraph (l) is revised, 

paragraph (r) is redesignated as 

paragraph (s), and a new paragraph (r) 

is added to read as follows: 

§ 2.319 Power of the presiding officer. 

* * * * * 

(l) Refer rulings to the Commission 

under § 2.323(f)(1), or certify questions 

to the Commission for its determination, 

either in the presiding officer’s 

discretion, or on petition of a party 

under § 2.323(f)(2), or on direction of 

the Commission. 

* * * * * 

(r) Establish a schedule for briefs and 

oral arguments to decide any admitted 

contentions that, as determined by the 

presiding officer, constitute pure issues 

of law. 

* * * * * 

13. In § 2.323, paragraph (f) is revised 

to read as follows: 

§ 2.323 Motions. 

* * * * * 

(f) Referral and certifications to the 

Commission. (1) If, in the judgment of 

the presiding officer, the presiding 

officer’s decision raises significant and 

novel legal or policy issues, or prompt 

decision by the Commission is 

necessary to materially advance the 

orderly disposition of the proceeding, 

then the presiding officer may promptly 

refer the ruling to the Commission. The 

presiding officer shall 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 a question to the 

Commission for early review. The 

presiding officer shall apply the criteria 

in § 2.341(f)(1) in determining whether 

to grant the petition for certification. No 

motion for reconsideration of the 

presiding officer’s ruling on a petition 

for certification will be entertained. 

* * * * * 

14. In § 2.335, paragraphs (b), (c), and 

(e) are revised to read as follows: 

§ 2.335 Consideration of Commission 

rules and regulations in adjudicatory 

proceedings. 

* * * * * 

(b) A participant to an adjudicatory 

proceeding subject to this part may 

petition that the application of a 

specified Commission rule or regulation 

or any provision thereof, of the type 

described in paragraph (a) of this 

section, be waived or an exception be 

made for the particular proceeding. The 

sole ground for petition of waiver or 

exception is that special circumstances 

with respect to the subject matter of the 

particular proceeding are such that the 

application of the rule or regulation (or 

a provision of it) would not serve the 

purposes for which the rule or 

regulation was adopted. The petition 

must be accompanied by an affidavit 

that identifies the specific aspect or 

aspects of the subject matter of the 

proceeding as to which the application 

of the rule or regulation (or provision of 

it) would not serve the purposes for 

which the rule or regulation was 

adopted. The affidavit must state with 

particularity the special circumstances 

alleged to justify the waiver or 

exception requested. Any other 

participant may file a response by 

counter-affidavit or otherwise. 

(c) If, on the basis of the petition, 

affidavit, and any response permitted 

under paragraph (b) of this section, the 

presiding officer determines that the 

petitioning participant has not made a 

prima facie showing that the application 

of the specific Commission rule or 

regulation (or provision thereof) to a 

particular aspect or aspects of the 

subject matter of the proceeding would 

not serve the purposes for which the 

rule or regulation was adopted and that 

application of the rule or regulation 

should be waived or an exception 

granted, no evidence may be received 

on that matter and no discovery, cross 

examination, or argument directed to 

the matter will be permitted, and the 

presiding officer may not further 

consider the matter. 

* * * * * 

(e) Whether or not the procedure in 

paragraph (b) of this section is available, 

a participant to an initial or renewal 

licensing proceeding may file a petition 

for rulemaking under § 2.802. 

15. In § 2.336, the introductory text to 

paragraph (b) and paragraph (d) are 

revised to read as follows: 

§ 2.336 General discovery. 

* * * * * 

(b) Except for enforcement 

proceedings initiated under subpart B of 

this part and conducted under subpart 

G of this part, and 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 must, within 30 days of the 

issuance of the order granting a request 

for hearing or petition to intervene and 

without further order or request from 

any party, disclose or provide to the 

extent available (but excluding those 

documents for which there is a claim of 

privilege or protected status): 

* * * * * 

(d) The duty of disclosure under this 

section is continuing. A disclosure 

update must be made every thirty (30) 

days after initial disclosures. The 

disclosure update is limited to 

documents subject to disclosure under 

this section that have not been disclosed 

in a prior update and that are 

developed, obtained, or discovered 

during the period that runs from the 5 

business days before last disclosure 

update to 5 business days before the 

filing of the update. The duty of 

mandatory disclosure with respect to 

new information or documents relevant 

to a contention ends when presiding 

officer issues a decision on that 

contention, or at such other time as may 

be specified by the presiding officer or 

the Commission. 

* * * * * 

16. Section 2.340 is revised to read as 

follows: 

§ 2.340 Initial decision in certain contested 

proceedings; immediate effectiveness of 

initial decisions; issuance of authorizations, 

permits, and licenses. 

(a) Initial decision—production or 

utilization facility operating license. 

(1) Matters in controversy; presiding 

officer consideration of matters not put 

in controversy by parties. In any initial 

decision in a contested proceeding on 

an application for an operating license 

or renewed license (including an 

amendment to or renewal of an 

operating license or renewed license) for 

a production or utilization facility, the 

presiding officer shall make findings of 

fact and conclusions of law on the 

matters put into controversy by the 

parties and any matter designated by the 

Commission to be decided by the 

presiding officer. The presiding officer 

shall also make findings of fact and 

conclusions of law on any matter not 

put into controversy by the parties, but 

only to the extent that the presiding 

officer determines that a serious safety, 

environmental, or common defense and 

security matter exists, and the 

Commission approves of an 

examination of and decision on the 

matter upon its referral by the presiding 

officer under, inter alia, the provisions 

of §§ 2.323 and 2.341. 

(2) Presiding officer initial decision 

and issuance of permit or license. (i) In 

a contested proceeding for the initial 

issuance or renewal of a construction 

permit, operating license, or renewed 

license, or the amendment of an 

operating or renewed license where the 

NRC has not made a determination of no 

significant hazards consideration, the 


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Commission, the Director, Office of 

Nuclear Reactor Regulation, or the 

Director, Office of New Reactors, as 

appropriate, after making the requisite 

findings, shall issue, deny, or 

appropriately condition the permit or 

license in accordance with the presiding 

officer’s initial decision once that 

decision becomes effective. 

(ii) In a contested proceeding for the 

amendment of a construction permit, 

operating license, or renewed license 

where the NRC has made a 

determination of no significant hazards 

consideration, the Commission, the 

Director, Office of Nuclear Reactor 

Regulation, or the Director, Office of 

New Reactors, as appropriate 

(appropriate official), after making the 

requisite findings and complying with 

any applicable provisions of § 2.1202(a) 

or § 2.1403(a), may issue the 

amendment before the presiding 

officer’s initial decision becomes 

effective. Once the presiding officer’s 

initial decision becomes effective, the 

appropriate official shall take action 

with respect to that amendment in 

accordance with the initial decision. If 

the presiding officer’s initial decision 

becomes effective before the appropriate 

official issues the amendment, then the 

appropriate official, after making the 

requisite findings, shall issue, deny, or 

appropriately condition the amendment 

in accordance with the presiding 

officer’s initial decision. 

(b) Initial decision—combined license 

under 10 CFR part 52. (1) Matters in 

controversy; presiding officer 

consideration of matters not put in 

controversy by parties. In any initial 

decision in a contested proceeding on 

an application for a combined license 

under part 52 of this chapter (including 

an amendment to or renewal of 

combined license), the presiding officer 

shall make findings of fact and 

conclusions of law on the matters put 

into controversy by the parties and any 

matter designated by the Commission to 

be decided by the presiding officer. The 

presiding officer shall also make 

findings of fact and conclusions of law 

on any matter not put into controversy 

by the parties, but only to the extent that 

the presiding officer determines that a 

serious safety, environmental, or 

common defense and security matter 

exists, and the Commission approves of 

an examination of and decision on the 

matter upon its referral by the presiding 

officer under, inter alia, the provisions 

of §§ 2.323 and 2.341. 

(2) Presiding officer initial decision 

and issuance of permit or license. (i) In 

a contested proceeding for the initial 

issuance or renewal of a combined 

license under part 52 of this chapter, or 

the amendment of a combined license 

where the NRC has not made a 

determination of no significant hazards 

consideration, the Commission, the 

Director, Office of Nuclear Reactor 

Regulation, or the Director, Office of 

New Reactors, as appropriate, after 

making the requisite findings, shall 

issue, deny, or appropriately condition 

the permit or license in accordance with 

the presiding officer’s initial decision 

once that decision becomes effective. 

(ii) In a contested proceeding for the 

amendment of a combined license 

under part 52 of this chapter where the 

NRC has made a determination of no 

significant hazards consideration, the 

Commission, the Director, Office of 

Nuclear Reactor Regulation, or the 

Director, Office of New Reactors, as 

appropriate (appropriate official), after 

making the requisite findings and 

complying with any applicable 

provisions of § 2.1202(a) or § 2.1403(a), 

may issue the amendment before the 

presiding officer’s initial decision 

becomes effective. Once the presiding 

officer’s initial decision becomes 

effective, the appropriate official shall 

take action with respect to that 

amendment in accordance with the 

initial decision. If the presiding officer’s 

initial decision becomes effective before 

the appropriate official issues the 

amendment, then the appropriate 

official, after making the requisite 

findings, shall issue, deny, or 

appropriately condition the amendment 

in accordance with the presiding 

officer’s initial decision. 

(c) Initial decision on findings under 

10 CFR 52.103 with respect to 

acceptance criteria in nuclear power 

reactor combined licenses. In any initial 

decision under § 52.103(g) of this 

chapter with respect to whether 

acceptance criteria have been or will be 

met, the presiding officer shall make 

findings of fact and conclusions of law 

on the matters put into controversy by 

the parties, and any matter designated 

by the Commission to be decided by the 

presiding officer. Matters not put into 

controversy by the parties, but 

identified by the presiding officer as 

matters requiring further examination, 

shall be referred to the Commission for 

its determination; the Commission may, 

in its discretion, treat any of these 

referred matters as a request for action 

under § 2.206 and process the matter in 

accordance with § 52.103(f) of this 

chapter. 

(d) Initial decision—manufacturing 

license under 10 CFR part 52. (1) 

Matters in controversy; presiding officer 

consideration of matters not put in 

controversy by parties. In any initial 

decision in a contested proceeding on 

an application for a manufacturing 

license under subpart C of part 52 of 

this chapter (including an amendment 

to or renewal of a manufacturing 

license), the presiding officer shall make 

findings of fact and conclusions of law 

on the matters put into controversy by 

the parties and any matter designated by 

the Commission to be decided by the 

presiding officer. The presiding officer 

also shall make findings of fact and 

conclusions of law on any matter not 

put into controversy by the parties, but 

only to the extent that the presiding 

officer determines that a serious safety, 

environmental, or common defense and 

security matter exists, and the 

Commission approves of an 

examination of and decision on the 

matter upon its referral by the presiding 

officer under, inter alia, the provisions 

of §§ 2.323 and 2.341. 

(2) Presiding officer initial decision 

and issuance of permit or license. (i) In 

a contested proceeding for the initial 

issuance or renewal of a manufacturing 

license under subpart C of part 52 of 

this chapter, or the amendment of a 

manufacturing license, the Commission, 

the Director, Office of Nuclear Reactor 

Regulation, or the Director, Office of 

New Reactors, as appropriate, after 

making the requisite findings, shall 

issue, deny, or appropriately condition 

the permit or license in accordance with 

the presiding officer’s initial decision 

once that decision becomes effective. 

(ii) In a contested proceeding for the 

initial issuance or renewal of a 

manufacturing license under subpart C 

of part 52 of this chapter, or the 

amendment of a manufacturing license, 

the Commission, the Director, Office of 

Nuclear Reactor Regulation, or the 

Director, Office of New Reactors, as 

appropriate, may issue the license, 

permit, or license amendment in 

accordance with § 2.1202(a) or 

§ 2.1403(a) before the presiding officer’s 

initial decision becomes effective. If, 

however, the presiding officer’s initial 

decision becomes effective before the 

license, permit, or license amendment is 

issued under § 2.1202 or § 2.1403, then 

the Commission, the Director, Office of 

Nuclear Reactor Regulation, or the 

Director, Office of New Reactors, as 

appropriate, shall issue, deny, or 

appropriately condition the license, 

permit, or license amendment in 

accordance with the presiding officer’s 

initial decision. 

(e) Initial decision—other proceedings 

not involving production or utilization 

facilities. (1) Matters in controversy; 

presiding officer consideration of 

matters not put in controversy by 

parties. In a proceeding not involving 

production or utilization facilities, the 


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presiding officer shall make findings of 

fact and conclusions of law on the 

matters put into controversy by the 

parties to the proceeding, and on any 

matters designated by the Commission 

to be decided by the presiding officer. 

Matters not put into controversy by the 

parties, but identified by the presiding 

officer as requiring further examination, 

must be referred to the Director, Office 

of Nuclear Material Safety and 

Safeguards, or the Director, Office of 

Federal and State Materials and 

Environmental Management Programs, 

as appropriate. Depending on the 

resolution of those matters, the Director, 

Office of Nuclear Material Safety and 

Safeguards or the Director, Office of 

Federal and State Materials and 

Environmental Management Programs, 

as appropriate, after making the 

requisite findings, shall issue, deny, 

revoke or appropriately condition the 

license, or take other action as necessary 

or appropriate. 

(2) Presiding officer initial decision 

and issuance of permit or license. (i) In 

a contested proceeding under this 

paragraph, the Commission, the 

Director, Office of Nuclear Material 

Safety and Safeguards, or the Director, 

Office of Federal and State Materials 

and Environmental Management 

Programs, as appropriate, shall issue, 

deny, or appropriately condition the 

permit, license, or license amendment 

in accordance with the presiding 

officer’s initial decision once that 

decision becomes effective. 

(ii) In a contested proceeding under 

this paragraph, the Commission, the 

Director, Office of Nuclear Material 

Safety and Safeguards, or the Director, 

Office of Federal and State Materials 

and Environmental Management 

Programs, as appropriate, may issue the 

permit, license, or amendment in 

accordance with § 2.1202(a) or 

§ 2.1403(a) before the presiding officer’s 

initial decision becomes effective. If, 

however, the presiding officer’s initial 

decision becomes effective before the 

permit, license, or amendment is issued 

under § 2.1202 or § 2.1403, then the 

Commission, the Director, Office of 

Nuclear Material Safety and Safeguards, 

or the Director, Office of Federal and 

State Materials and Environmental 

Management Programs, as appropriate, 

shall issue, deny, or appropriately 

condition the permit, license, or 

amendment in accordance with the 

presiding officer’s initial decision. 

(f) Immediate effectiveness of certain 

presiding officer decisions. A presiding 

officer’s initial decision directing the 

issuance or amendment of a limited 

work authorization under § 50.10 of this 

chapter, an early site permit under 

subpart A of part 52 of this chapter, a 

construction permit or construction 

authorization under part 50 of this 

chapter, an operating license under part 

50 of this chapter, a combined license 

under subpart C of part 52 of this 

chapter, a manufacturing license under 

subpart F of part 52 of this chapter, or 

a license under part 72 of this chapter 

to store spent fuel in an independent 

spent fuel storage facility (ISFSI) or a 

monitored retrievable storage 

installation (MRS), an initial decision 

directing issuance of a license under 

part 61 of this chapter, or an initial 

decision under § 52.103(g) of this 

chapter that acceptance criteria in a 

combined license have been met, is 

immediately effective upon issuance 

unless the presiding officer finds that 

good cause has been shown by a party 

why the initial decision should not 

become immediately effective. 

(g)–(h) [Reserved] 

(i) Issuance of authorizations, 

permits, and licenses—production and 

utilization facilities. The Commission, 

the Director, Office of New Reactors, or 

the Director, Office of Nuclear Reactor 

Regulation, as appropriate, shall issue a 

limited work authorization under 

§ 50.10 of this chapter, an early site 

permit under subpart A of part 52 of this 

chapter, a construction permit or 

construction authorization under part 

50 of this chapter, an operating license 

under part 50 of this chapter, a 

combined license under subpart C of 

part 52 of this chapter, or a 

manufacturing license under subpart F 

of part 52 of this chapter within 10 days 

from the date of issuance of the initial 

decision: 

(1) If the Commission or the 

appropriate Director has made all 

findings necessary for issuance of the 

authorization, permit or license, not 

within the scope of the initial decision 

of the presiding officer; and 

(2) Notwithstanding the pendency of 

a petition for reconsideration under 

§ 2.345, a petition for review under 

§ 2.341, or a motion for stay under 

§ 2.342, or the filing of a petition under 

§ 2.206. 

(j) Issuance of finding on acceptance 

criteria under 10 CFR 52.103. The 

Commission, the Director, Office of New 

Reactors, or the Director, Office of 

Nuclear Reactor Regulation, as 

appropriate, shall make the finding 

under § 52.103(g) of this chapter that the 

acceptance criteria in a combined 

license have been, or will be met, within 

10 days from the date of issuance of the 

initial decision: 

(1) If the Commission or the 

appropriate Director has made the 

finding under § 52.103(g) of this chapter 

that acceptance criteria have been, or 

will be met, for those acceptance criteria 

which are not within the scope of the 

initial decision of the presiding officer; 

and 

(2) Notwithstanding the pendency of 

a petition for reconsideration under 

§ 2.345, a petition for review under 

§ 2.341, or a motion for stay under 

§ 2.342, or the filing of a petition under 

§ 2.206. 

(k) Issuance of other licenses. The 

Commission or the Director, Office of 

Nuclear Material Safety and Safeguards, 

or the Director, Office of Federal and 

State Materials and Environmental 

Management Programs, as appropriate, 

shall issue a license, including a license 

under part 72 of this chapter to store 

spent fuel in either an independent 

spent fuel storage facility (ISFSI) located 

away from a reactor site or at a 

monitored retrievable storage 

installation (MRS), within 10 days from 

the date of issuance of the initial 

decision: 

(1) If the Commission or the 

appropriate Director has made all 

findings necessary for issuance of the 

license, not within the scope of the 

initial decision of the presiding officer; 

and 

(2) Notwithstanding the pendency of 

a petition for reconsideration under 

§ 2.345, a petition for review under 

§ 2.341, or a motion for stay under 

§ 2.342, or the filing of a petition under 

§ 2.206. 

17. In § 2.341, paragraphs (a), (b)(1), 

(b)(3), (c), and (f)(1) are revised to read 

as follows: 

§ 2.341 Review of decisions and actions of 

a presiding officer. 

(a)(1) Review of decisions and actions 

of a presiding officer are treated under 

this section; provided, however, that no 

party may request a further Commission 

review of a Commission determination 

to allow a period of interim operation 

under § 52.103(c) of this chapter. This 

section does not apply to appeals under 

§ 2.311 or to appeals in the high-level 

waste proceeding, which are governed 

by § 2.1015. 

(2) Within 120 days after the date of 

a decision or action by a presiding 

officer, or within 120 days after a 

petition for review of the decision or 

action has been served under paragraph 

(b) of this section, whichever is greater, 

the Commission may review the 

decision or action on its own motion, 

unless the Commission, in its 

discretion, extends the time for its 

review. 

(b)(1) Within 25 days after service of 

a full or partial initial decision by a 

presiding officer, and within 25 days 


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after service of any other decision or 

action by a presiding officer with 

respect to which a petition for review is 

authorized by this part, a party may file 

a petition for review with the 

Commission on the grounds specified in 

paragraph (b)(4) of this section. Unless 

otherwise authorized by law, a party to 

an NRC proceeding must file a petition 

for Commission review before seeking 

judicial review of an agency action. 

* * * * * 

(3) Any other party to the proceeding 

may, within 25 days after service of a 

petition for review, file an answer 

supporting or opposing Commission 

review. This answer may not be longer 

than 25 pages and should concisely 

address the matters in paragraph (b)(2) 

of this section to the extent appropriate. 

The petitioning party may file a reply 

brief within 10 days of service of any 

answer. This reply brief may not be 

longer than 5 pages. 

* * * * * 

(c)(1) If within 120 days after the 

filing of a petition for review the 

Commission does not grant the petition, 

in whole or in part, the petition is 

deemed to be denied, unless the 

Commission, in its discretion, extends 

the time for its consideration of the 

petition and any answers to the petition. 

(2) If a petition for review is granted, 

the Commission may issue an order 

specifying the issues to be reviewed and 

designating the parties to the review 

proceeding. The Commission may, in its 

discretion, decide the matter on the 

basis of the petition for review or it may 

specify whether any briefs may be filed. 

(3) Unless the Commission orders 

otherwise, any briefs on review may not 

exceed 30 pages in length, exclusive of 

pages containing the table of contents, 

table of citations, and any addendum 

containing appropriate exhibits, 

statutes, or regulations. A brief in excess 

of 10 pages must contain a table of 

contents with page references and a 

table of cases (alphabetically arranged), 

cited statutes, regulations, and other 

authorities, with references to the pages 

of the brief where they are cited. 

* * * * * 

(f) * * * 

(1) A ruling referred or question 

certified to the Commission under 

§§ 2.319(l) or 2.323(f) may be reviewed 

if the certification or referral raises 

significant and novel legal or policy 

issues, or resolution of the issues would 

materially advance the orderly 

disposition of the proceeding. 

* * * * * 

18. In § 2.346, paragraphs (e) and (j) 

are revised to read as follows: 

§ 2.346 Authority of the Secretary. 

* * * * * 

(e) Extend the time for the 

Commission to grant review on its own 

motion under § 2.341; 

* * * * * 

(j) Take action on procedural or other 

minor matters. 

19. In § 2.347, paragraphs (e)(1)(i) and 

(e)(1)(ii) are revised to read as follows: 

§ 2.347 Ex parte communications. 

* * * * * 

(e)(1) * * * 

(i) When a notice of hearing or other 

comparable order is issued in 

accordance with §§ 2.104(a), 2.105(e)(2), 

2.202(c), 2.205(e), or 2.312; or 

(ii) Whenever the interested person or 

Commission adjudicatory employee 

responsible for the communication has 

knowledge that a notice of hearing or 

other comparable order will be issued in 

accordance with §§ 2.104(a), 2.105(e)(2), 

2.202(c), 2.205(e), or 2.312. 

* * * * * 

20. In § 2.348, paragraphs (d)(1)(i) and 

(d)(1)(ii) are revised to read as follows: 

§ 2.348 Separation of functions. 

* * * * * 

(d)(1) * * * 

(i) When a notice of hearing or other 

comparable order is issued in 

accordance with §§ 2.104(a), 2.105(e)(2), 

2.202(c), 2.205(e), or 2.312; or 

(ii) Whenever an NRC officer or 

employee who is or has reasonable 

cause to believe he or she will be 

engaged in the performance of an 

investigative or litigating function or a 

Commission adjudicatory employee has 

knowledge that a notice of hearing or 

other comparable order will be issued in 

accordance with §§ 2.104(a), 2.105(e)(2), 

2.202(c), 2.205(e), or 2.312. 

* * * * * 

21. In § 2.704, paragraph (a)(3) is 

revised to read as follows: 

§ 2.704 Discovery-required disclosures. 

(a) * * * 

(3) Unless otherwise stipulated by the 

parties or directed by order of the 

presiding officer, these disclosures must 

be made within 30 days of the order 

granting a hearing. A party must make 

its initial disclosures based on the 

information then reasonably available to 

it. A party is not excused from making 

its disclosures because it has not fully 

completed its investigation of the case, 

because it challenges the sufficiency of 

another party’s disclosures, or because 

another party has not made its 

disclosures. The duty of disclosure 

under this section is continuing. A 

disclosure update must be made every 

30 days after initial disclosures. The 

disclosure update must contain any 

information or documents subject to 

disclosure under this section that have 

not been disclosed in a prior update and 

that are developed, obtained, or 

discovered during the period that runs 

from the last disclosure update to 5 

business days before the filing of the 

update. The duty of mandatory 

disclosure with respect to new 

information or documents relevant to a 

contention ends when the hearing with 

respect to that contention has 

concluded, or at such other time as may 

be specified by the presiding officer or 

the Commission. 

* * * * * 

22. In § 2.705, the introductory text to 

paragraph (b)(2) is revised to read as 

follows: 

§ 2.705 Discovery-additional methods. 

* * * * * 

(b) * * * 

(2) Upon his or her own initiative 

after reasonable notice or in response to 

a motion filed under paragraph (c) of 

this section, the presiding officer may 

set limits on the number of depositions 

and interrogatories, and may also limit 

the length of depositions under § 2.706 

and the number of requests under 

§§ 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: 

* * * * * 

23. In § 2.709, paragraphs (a)(6) and 

(a)(7) are added to read as follows: 

§ 2.709 Discovery against NRC staff. 

(a) * * * 

(6)(i) In a proceeding arising from an 

order issued under §§ 2.202 or 2.205, 

the NRC staff must, except to the extent 

otherwise stipulated or directed by 

order of the presiding officer or the 

Commission, provide to the other 

parties within thirty (30) days of the 

order granting a hearing and without 

awaiting a discovery request: 

(A) All NRC staff documents relevant 

to disputed issues alleged with 

particularity in the pleadings, including 

any Office of Investigations report and 

supporting exhibits, and any Office of 

Enforcement documents regarding the 

order; and 

(B) A list of all documents otherwise 

responsive to paragraph (a)(6)(i)(A) of 

this section for which a claim of 

privilege or protected status is being 

made, together with sufficient 

information for assessing the claim of 

privilege or protected status of the 

documents. 

(ii) The duty of disclosure under this 

section is continuing. A disclosure 


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update must be made every thirty (30) 

days after initial disclosures. The 

disclosure update must contain any 

information or documents subject to 

disclosure under this section that have 

not been disclosed in a prior update and 

that are developed, obtained, or 

discovered during the period that runs 

from the last disclosure update to five 

(5) business days before the filing of the 

update. The duty of mandatory 

disclosure with respect to new 

information or documents relevant to a 

contention ends when the hearing with 

respect to that contention has 

concluded, or at such other time as may 

be specified by the presiding officer or 

the Commission. 

(7) When any document, data 

compilation, or other tangible thing that 

must be disclosed is publicly available 

from another source, such as at the NRC 

Web site, http://www.nrc.gov, and/or the 

NRC Public Document Room, a 

sufficient disclosure would be the 

location (including the ADAMS 

accession number, when available), the 

title and a page reference to the relevant 

document, data compilation, or tangible 

thing. 

* * * * * 

24. In § 2.710, paragraph (a) is revised 

to read as follows: 

§ 2.710 Motions for summary disposition. 

(a) Any party to a proceeding may 

move, with or without supporting 

affidavits, for a decision by the 

presiding officer in that party’s favor as 

to all or any part of the matters involved 

in the proceeding. Summary disposition 

motions must be filed no later than 20 

days after the close of discovery. The 

moving party shall attach to the motion 

a short and concise statement of the 

material facts as to which the moving 

party contends that there is no genuine 

issue to be heard. Any other party may 

serve an answer supporting or opposing 

the motion, with or without affidavits, 

within 20 days after service of the 

motion. The party shall attach to any 

answer opposing the motion a short and 

concise statement of the material facts 

as to which it is contended there exists 

a genuine issue to be heard. All material 

facts set forth in the statement required 

to be served by the moving party will be 

considered to be admitted unless 

controverted by the statement required 

to be served by the opposing party. The 

opposing party may, within 10 days 

after service, respond in writing to new 

facts and arguments presented in any 

statement filed in support of the motion. 

No further supporting statements or 

responses to the motion will be 

entertained. 

* * * * * 

25. In § 2.802, paragraph (d) is revised 

to read as follows: 

§ 2.802 Petition for rulemaking. 

* * * * * 

(d) The petitioner may request the 

Commission to suspend all or any part 

of any licensing proceeding to which 

the petitioner is a participant pending 

disposition of the petition for 

rulemaking. 

* * * * * 

Subpart L—Simplified Hearing 

Procedures for NRC Adjudications 

26. The heading of subpart L is 

revised to read as set forth above: 

27. In § 2.1202, the introductory text 

of paragraph (a) is revised to read as 

follows: 

§ 2.1202 Authority and role of NRC staff. 

(a) During the pendency of any 

hearing under this subpart, consistent 

with the NRC staff’s findings in its 

review of the application or matter 

which is the subject of the hearing and 

as authorized by law, the NRC staff is 

expected to promptly issue its approval 

or denial of the application, or take 

other appropriate action on the 

underlying regulatory matter for which 

a hearing was provided. When the NRC 

staff takes its action, it must notify the 

presiding officer and the parties to the 

proceeding of its action. That notice 

must include the NRC staff’s 

explanation why the public health and 

safety is protected and why the action 

is in accord with the common defense 

and security despite the pendency of the 

contested matter before the presiding 

officer. The NRC staff’s action on the 

matter is effective upon issuance by the 

staff, except in matters involving: 

* * * * * 

28. In § 2.1205, paragraph (a) is 

revised to read as follows: 

§ 2.1205 Summary disposition. 

(a) Unless the presiding officer or the 

Commission directs otherwise, motions 

for summary disposition may be 

submitted to the presiding officer by any 

party no later than 45 days before the 

commencement of hearing. The motions 

must be in writing and must include a 

written explanation of the basis of the 

motion. The moving party must attach 

a short and concise statement of 

material facts for which the moving 

party contends that there is no genuine 

issue to be heard, 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. 

* * * * * 

29. Section 2.1209 is revised to read 

as follows: 

§ 2.1209 Findings of fact and conclusions 

of law. 

Each party shall file written posthearing proposed findings of fact and 

conclusions of law on the contentions 

addressed in an oral hearing under 

§ 2.1207 or a written hearing under 

§ 2.1208 within 30 days of the close of 

the hearing or at such other time as the 

presiding officer directs. Proposed 

findings of fact and conclusions of law 

must conform to the format 

requirements in § 2.712(c). 

30. In § 2.1213, paragraph (f) is added 

to read as follows: 

§ 2.1213 Application for a stay. 

* * * * * 

(f) Stays are not available on matters 

limited to whether a no significant 

hazards consideration determination 

was proper in proceedings on power 

reactor license amendments. 

31. Section 2.1300 is revised to read 

as follows: 

§ 2.1300 Scope of subpart M. 

The provisions of this subpart, 

together with the generally applicable 

intervention provisions in subpart C of 

this part, govern all adjudicatory 

proceedings on an application for the 

direct or indirect transfer of control of 

an NRC license when the transfer 

requires prior approval of the NRC 

under the Commission’s regulations, 

governing statutes, or pursuant to a 

license condition. This subpart provides 

the only mechanism for requesting 

hearings on license transfer requests, 

unless contrary case specific orders are 

issued by the Commission. 

§ 2.1304 [Removed] 

32. Section 2.1304 is removed. 

33. In § 2.1316, paragraph (c) is 

revised to read as follows: 

§ 2.1316 Authority and role of NRC staff. 

* * * * * 

(c)(1) Within 15 days of the issuance 

of the order granting requests for 

hearing/petitions to intervene and 

admitting contentions, the NRC staff 

must notify the presiding officer and the 

parties whether it desires to participate 

as a party, and identify the contentions 

on which it wishes to participate as a 

party. If the NRC staff desires to be a 

party thereafter, the NRC staff must 

notify the presiding officer and the 

parties, and identify the contentions on 

which it wishes to participate as a party, 


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and make the disclosures required by 

§ 2.336(b)(3) through (b)(5) unless 

accompanied by an affidavit explaining 

why the disclosures cannot be provided 

to the parties with the notice. 

(2) Once the NRC staff chooses to 

participate as a party, it will have all the 

rights and responsibilities of a party 

with respect to the admitted contention/ 

matter in controversy on which the staff 

chooses to participate. 

34. In § 2.1403, the introductory text 

of paragraph (a) is revised to read as 

follows: 

§ 2.1403 Authority and role of the NRC 

staff. 

(a) During the pendency of any 

hearing under this subpart, consistent 

with the NRC staff’s findings in its 

review of the application or matter that 

is the subject of the hearing and as 

authorized by law, the NRC staff is 

expected to promptly issue its approval 

or denial of the application, or take 

other appropriate action on the matter 

that is the subject of the hearing. When 

the NRC staff takes its action, it must 

notify the presiding officer and the 

parties to the proceeding of its action. 

That notice must include the NRC staff’s 

explanation why the public health and 

safety is protected and why the action 

is in accord with the common defense 

and security despite the pendency of the 

contested matter before the presiding 

officer. The NRC staff’s action on the 

matter is effective upon issuance, except 

in matters involving: 

* * * * * 

35. In § 2.1407, paragraphs (a)(1) and 

(a)(3) are revised to read as follows: 

§ 2.1407 Appeal and Commission review 

of initial decision. 

(a)(1) Within 25 days after service of 

a written initial decision, a party may 

file a written appeal seeking the 

Commission’s review on the grounds 

specified in paragraph (b) of this 

section. Unless otherwise authorized by 

law, a party must file an appeal with the 

Commission before seeking judicial 

review. 

* * * * * 

(3) Any other party to the proceeding 

may, within 25 days after service of the 

appeal, file an answer supporting or 

opposing the appeal. The answer may 

not be longer than 20 pages and should 

concisely address the matters specified 

in paragraph (a)(2) of this section. The 

appellant does not have a right to reply. 

Unless it directs additional filings or 

oral arguments, the Commission will 

decide the appeal on the basis of the 

filings permitted by this paragraph. 

* * * * * 

PART 51—ENVIRONMENTAL 

PROTECTION REGULATIONS FOR 

DOMESTIC LICENSING AND RELATED 

REGULATORY FUNCTIONS 

36. The authority citation for part 51 

continues to read as follows: 

Authority: Sec. 161, 68 Stat. 948, as 

amended, sec. 1701, 106 Stat. 2951, 2952, 

2953, (42 U.S.C. 2201, 2297f); secs. 201, as 

amended, 202, 88 Stat. 1242, as amended, 

1244 (42 U.S.C. 5841, 5842); sec. 1704, 112 

Stat. 2750 (44 U.S.C. 3504 note). Subpart A 

also issued under National Environmental 

Policy Act of 1969, secs. 102, 104, 105, 83 

Stat. 853–854, as amended (42 U.S.C. 4332, 

4334, 4335); and Pub. L. 95–604, Title II, 92 

Stat. 3033–3041; and sec. 193, Pub. L. 101– 

575, 104 Stat. 2835 (42 U.S.C. 2243). Sections 

51.20, 51.30, 51.60, 51.80. and 51.97 also 

issued under secs. 135, 141, Pub. L. 97–425, 

96 Stat. 2232, 2241, and sec. 148, Pub. L. 

100–203, 101 Stat. 1330–223 (42 U.S.C. 

10155, 10161, 10168). Section 51.22 also 

issued under sec. 274, 73 Stat. 688, as 

amended by 92 Stat. 3036–3038 (42 U.S.C. 

2021) and under Nuclear Waste Policy Act of 

1982, sec. 121, 96 Stat. 2228 (42 U.S.C. 

10141). Sections 51.43, 51.67, and 51.109 

also under Nuclear Waste Policy Act of 1982, 

sec. 114(f), 96 Stat. 2216, as amended (42 

U.S.C. 10134(f)). 

37. In § 51.4, the definition of NRC 

staff is revised to read as follows: 

§ 51.4 Definitions. 

* * * * * 

NRC staff means any NRC officer or 

employee or his/her authorized 

representative, except a Commissioner, 

a member of a Commissioner’s 

immediate staff, an Atomic Safety and 

Licensing Board, a presiding officer, an 

administrative judge, an administrative 

law judge, or any other officer or 

employee of the Commission who 

performs adjudicatory functions. 

* * * * * 

38. In § 51.34, paragraph(b) is revised 

to read as follows: 

§ 51.34 Preparation of finding of no 

significant impact. 

* * * * * 

(b) When a hearing is held on the 

proposed action under the regulations 

in subpart G of part 2 of this chapter or 

when the action can only be taken by 

the Commissioners acting as a collegial 

body, the appropriate NRC staff director 

will prepare a proposed finding of no 

significant impact, which may be 

subject to modification as a result of 

review and decision as appropriate to 

the nature and scope of the proceeding. 

In such cases, the presiding officer, or 

the Commission acting as a collegial 

body, as appropriate, will issue the final 

finding of no significant impact. 

39. In § 51.102, paragraph (c) is 

revised to read as follows: 

§ 51.102 Requirement to provide a record 

of decision; preparation. 

* * * * * 

(c) When a hearing is held on the 

proposed action under the regulations 

in part 2 of this chapter or when the 

action can only be taken by the 

Commissioners acting as a collegial 

body, the initial decision of the 

presiding officer or the final decision of 

the Commissioners acting as a collegial 

body will constitute the record of 

decision. An initial or final decision 

constituting the record of decision will 

be distributed as provided in § 51.93. 

40. In § 51.109, paragraph (f) is 

revised to read as follows: 

§ 51.109 Public hearings in proceedings 

for issuance of materials license with 

respect to a geologic repository. 

* * * * * 

(f) In making the determinations 

described in paragraph (e) of this 

section, the environmental impact 

statement will be deemed modified to 

the extent that findings and conclusions 

differ from those in the final statement 

prepared by the Secretary of Energy, as 

it may have been supplemented. The 

initial decision will be distributed to 

any persons not otherwise entitled to 

receive it who responded to the request 

in the notice of docketing, as described 

in § 51.26(c). If the Commission reaches 

conclusions different from those of the 

presiding officer with respect to such 

matters, the final environmental impact 

statement will be deemed modified to 

that extent and the decision will be 

similarly distributed. 

* * * * * 

41. Section 51.125 is revised to read 

as follows: 

§ 51.125 Responsible official. 

The Executive Director for Operations 

shall be responsible for overall review of 

NRC NEPA compliance, except for 

matters under the jurisdiction of a 

presiding officer, administrative judge, 

administrative law judge, Atomic Safety 

and Licensing Board, or the Commission 

acting as a collegial body. 

PART 54—REQUIREMENTS FOR 

RENEWAL OF OPERATING LICENSES 

FOR NUCLEAR POWER PLANTS 

42. The authority citation for part 54 

continues to read as follows: 

Authority: Secs. 102, 103, 104, 161, 181, 

182, 183, 186, 189, 68 Stat. 936, 937, 938, 

948, 953, 954, 955, as amended, sec. 234, 83 

Stat. 1244, as amended (42 U.S.C. 2132, 2133, 

2134, 2135, 2201, 2232, 2233, 2236, 2239, 

2282); secs. 201, 202, 206, 88 Stat. 1242, 

1244, as amended (42 U.S.C. 5841, 5842). 

Section 54.17 also issued under E.O. 12829, 

3 CFR, 1993 Comp., p.570; E.O. 12958, as 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 39 / Monday, February 28, 2011 / Proposed Rules 10805 

amended, 3 CFR, 1995 Comp., p. 333; E.O. 

12968, 3 CFR, 1995 Comp., p.391. 

43. Section 54.27 is revised to read as 

follows: 

§ 52.27 Hearings. 

A notice of an opportunity for a 

hearing will be published in the Federal 

Register in accordance with 10 CFR 

2.105 and 2.309. In the absence of a 

request for a hearing filed within 60 

days by a person whose interest may be 

affected, the Commission may issue a 

renewed operating license or renewed 

combined license without a hearing 

upon a 30-day notice and publication in 

the Federal Register of its intent to do 

so. 

Dated at Rockville, Maryland, this 22nd 

day of February 2011. 

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. 2011–4345 Filed 2–25–11; 8:45 am] 

BILLING CODE 7590–01–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 51 

[Docket No. PRM–51–13; NRC–2010–0088] 

Dan Kane; Denial of Petition for 

Rulemaking 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Petition for rulemaking; Denial. 

SUMMARY: The Nuclear Regulatory 

Commission (NRC) is denying a petition 

for rulemaking (PRM) submitted by Dan 

Kane. Mr. Kane requested that the NRC 

rescind the Waste Confidence Rule, 

suspend all ongoing reactor licensing 

proceedings, and phase out operations 

at all operating nuclear power plants. 

The NRC is denying the petition 

because, contrary to the assertions made 

in the PRM, the Commission’s Waste 

Confidence Decision and Rule consider 

the political uncertainty discussed in 

the petition and do not depend on the 

availability of a repository at Yucca 

Mountain, Nevada. 

ADDRESSES: You can access publicly 

available documents related to this 

petition for rulemaking using the 

following methods: 

• NRC’s Public Document Room 

(PDR): The public may examine, and 

have copied for a fee, publicly available 

documents at the NRC’s PDR, Room O1– 

F21, One White Flint North, 11555 

Rockville Pike, Rockville, Maryland 

20852. 

• NRC’s Agencywide Documents 

Access and Management System 

(ADAMS): Publicly available documents 

created or received at the NRC are 

available electronically at the NRC’s 

electronic Reading Room at http:// 

www.nrc.gov/reading-rm/adams.html. 

From this page, the public can gain 

entry into ADAMS, which provides text 

and image files of NRC’s public 

documents. If you do not have access to 

ADAMS or if there are problems in 

accessing the documents located in 

ADAMS, contact the NRC PDR reference 

staff at 1–800–397–4209, 301–415–4737, 

or by e-mail to pdr.resource@nrc.gov. 

• Federal rulemaking Web site: Public 

comments and supporting materials 

related to this petition for rulemaking 

can be found at http:// 

www.regulations.gov by searching on 

Docket ID: NRC–2010–0088. Address 

questions about NRC dockets to Carol 

Gallagher 301–492–3668; e-mail 

Carol.Gallagher@nrc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Tison Campbell, Office of the General 

Counsel, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555, 

telephone: 301–415–8579, e-mail: 

tison.campbell@nrc.gov; or Lisa London, 

Office of the General Counsel, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555, telephone: 301– 

415–3233, e-mail: lisa.london@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

The Petition 

Title 10 of the Code of Federal 

Regulations (10 CFR), Section 2.802, 

Petition for rulemaking, provides an 

opportunity for any interested person to 

petition the Commission to issue, 

amend, or rescind any regulation. On 

February 2, 2010, Dan Kane submitted 

a PRM requesting that the NRC rescind 

10 CFR 51.23, Temporary storage of 

spent fuel after cessation of reactor 

operation—generic determination of no 

significant environmental impact, also 

known as the Waste Confidence Rule. 

(ADAMS Accession No. ML100570095 

(Petition)). 

Mr. Kane believes that rescinding 10 

CFR 51.23 would require the NRC to 

cease licensing new nuclear power 

plants and to suspend the licenses of 

existing power plants. He argues that 

the Waste Confidence Rule is no longer 

valid because the Department of Energy 

has filed a motion to withdraw its 

application for a spent nuclear fuel 

(SNF) and high-level waste (HLW) 

disposal facility at Yucca Mountain and 

because he believes that the 

Commission must ‘‘adequately 

anticipate and address future political 

considerations with regard to waste 

disposal’’ as part of its Waste Confidence 

Decision and Rule. (Petition at 3). The 

NRC reviewed Mr. Kane’s petition and 

determined that the petition met the 

minimum sufficiency requirements of 

10 CFR 2.802. Accordingly, the NRC 

docketed the request as PRM–51–13 on 

February 25, 2010; the NRC notified the 

public of the opportunity to submit 

comments on the petition in the Federal 

Register notice announcing the 

docketing of the petition. (75 FR 16360; 

April 1, 2010). The NRC received 10 

comments on the PRM: five comments 

supported granting the petition, one 

asked the NRC to provide additional 

information on the basis for the Waste 

Confidence Decision and Rule, and four 

argued that the petition should be 

denied. 

Background 

In his February 2, 2010 PRM, Dan 

Kane requested that the NRC ‘‘[c]ease 

licensing of new nuclear power plants 

and begin an orderly phase out of 

existing operating nuclear power plants 

until the Commission can be assured 

not only of the technical and economic 

certainties of a waste disposition 

decision, but also of the political 

certainties associated with that 

disposition.’’ (Petition at 3). Mr. Kane 

believes that the uncertainty regarding 

the licensing of a nuclear waste 

repository at Yucca Mountain 

undermines the basis for the NRC’s 

regulations at 10 CFR 51.23, which he 

believes provide the basis for the 

continued operation and licensing of 

nuclear power plants. (Id.) He contends 

that the then proposed revisions to 

Finding 2 (of the five findings in the 

Waste Confidence Decision), which 

provides part of the basis for 10 CFR 

51.23, ‘‘was grounded in the belief that 

the Yucca Mountain repository would 

become available within the first quarter 

of the twenty-first century or perhaps a 

few years later.’’ (Id. at 2). Mr. Kane also 

believes that the NRC has not complied 

with its obligations under the National 

Environmental Policy Act (NEPA) 

because ‘‘[t]he spirit of NEPA 

compliance cannot be satisfied by 

assuming some unknown future 

solution to an existing challenge.’’ (Id.) 

As discussed above, Mr. Kane believes 

that this existing challenge is political. 

(Id. at 2–3). Further, Mr. Kane argues 

that the deficiency in the Waste 

Confidence Decision and Rule results 

from the inability of the Commission to 

‘‘adequately anticipate and address 

future political considerations with 

regard to waste disposal.’’ (Id. at 3). 

NRC Evaluation 

The NRC does not agree with Mr. 

Kane that 10 CFR 51.23 should be 

rescinded. 


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