  December 30, 2019

      Title 10
      Energy
      Parts 1 to 50
      Revised as of January 1, 2020
      Containing a codification of documents of general applicability and future effect
      As of January 1, 2020

        Published by the Office of the Federal Register National Archives and Records Administration as a Special Edition of the Federal Register

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      Table of Contents
      Page

        Explanation
        v

        Title 10:

          Chapter I—Nuclear Regulatory Commission
          3

        Finding Aids:
        Table of CFR Titles and Chapters
        1065
        Alphabetical List of Agencies Appearing in the CFR
        1085
        List of CFR Sections Affected
        1095

      Cite this Code: CFR

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

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

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

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

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

        HOW TO USE THE CODE OF FEDERAL REGULATIONS
        The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule.
        To determine whether a Code volume has been amended since its revision date (in this case, January 1, 2020), consult the “List of CFR Sections Affected (LSA),” which is issued monthly, and the “Cumulative List of Parts Affected,” which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule.

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

        OMB CONTROL NUMBERS

        The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal agencies to display an OMB control number with their information collection request. Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements.

        PAST PROVISIONS OF THE CODE
        Provisions of the Code that are no longer in force and effect as of the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on any given date in the past by using the appropriate List of CFR Sections Affected (LSA). For the convenience of the reader, a “List of CFR Sections Affected” is published at the end of each CFR volume. For changes to the Code prior to the LSA listings at the end of the volume, consult previous annual editions of the LSA. For changes to the Code prior to 2001, consult the List of CFR Sections Affected compilations, published for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

        “[RESERVED]” TERMINOLOGY
        The term “[Reserved]” is used as a place holder within the Code of Federal Regulations. An agency may add regulatory information at a “[Reserved]” location at any time. Occasionally “[Reserved]” is used editorially to indicate that a portion of the CFR was left vacant and not dropped in error.

        INCORPORATION BY REFERENCE

          What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law.

          What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are:
        (a) The incorporation will substantially reduce the volume of material published in the Federal Register.
        (b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process.
        (c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51.

          What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, or call 202-741-6010.

        CFR INDEXES AND TABULAR GUIDES

        A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR Index and Finding Aids. This volume contains the Parallel Table of Authorities and Rules. A list of CFR titles, chapters, subchapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume.

        An index to the text of “Title 3—The President” is carried within that volume.

        The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the “Contents” entries in the daily Federal Register.
        A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles.

        REPUBLICATION OF MATERIAL
        There are no restrictions on the republication of material appearing in the Code of Federal Regulations.

        INQUIRIES
        For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency's name appears at the top of odd-numbered pages.

        For inquiries concerning CFR reference assistance, call 202-741-6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001 or e-mail fedreg.info@nara.gov.

        SALES
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        ELECTRONIC SERVICES

        The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers of the Presidents of the United States, Compilation of Presidential Documents and the Privacy Act Compilation are available in electronic format via www.govinfo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, ContactCenter@gpo.gov.

        The Office of the Federal Register also offers a free service on the National Archives and Records Administration's (NARA) website for public law numbers, Federal Register finding aids, and related information. Connect to NARA's website at www.archives.gov/federal-register.

        The e-CFR is a regularly updated, unofficial editorial compilation of CFR material and Federal Register amendments, produced by the Office of the Federal Register and the Government Publishing Office. It is available at www.ecfr.gov.

          Oliver A. Potts,

          Director,

          Office of the Federal Register

          January 1, 2020.

      THIS TITLE
      Title 10—Energy is composed of four volumes. The parts in these volumes are arranged in the following order: Parts 1-50, 51-199, 200-499 and part 500-end. The first and second volumes containing parts 1-199 are comprised of chapter I—Nuclear Regulatory Commission. The third and fourth volumes containing part 200-end are comprised of chapters II, III and X—Department of Energy, chapter XIII—Nuclear Waste Technical Review Board, chapter XVII—Defense Nuclear Facilities Safety Board, and chapter XVIII—Northeast Interstate Low-Level Radioactive Waste Commission. The contents of these volumes represent all current regulations codified under this title of the CFR as of January 1, 2020.
      For this volume, Susannah C. Hurley was Chief Editor. The Code of Federal Regulations publication program is under the direction of John Hyrum Martinez, assisted by Stephen J. Frattini.

    10 CFR Ch. I (1-1-20 Edition)
    Nuclear Regulatory Commission

        Title 10—Energy
        (This book contains parts 1 to 50)

        Part

            chapter i—Nuclear Regulatory Commission
          1

          CHAPTER I—NUCLEAR REGULATORY COMMISSION

          Editorial Note:
          Nomenclature changes to chapter I appear at 70 FR 69421, Nov. 16, 2005, and at 72 FR 33386, June 18, 2007.

        Part
        Page

          1
          Statement of organization and general information
          5
          2
          Agency rules of practice and procedure
          17
          4
          Nondiscrimination in federally assisted programs or activities receiving Federal financial assistance from the Commission
          164
          5
          Nondiscrimination on the basis of sex in education programs or activities receiving Federal financial assistance
          196
          7
          Advisory committees
          213
          8
          [Reserved]
          9
          Public records
          224
          10
          Criteria and procedures for determining eligibility for access to restricted data or national security information or an employment clearance
          258
          11
          Criteria and procedures for determining eligibility for access to or control over special nuclear material
          273
          12
          Implementation of the Equal Access to Justice Act in agency proceedings
          281
          13
          Program fraud civil remedies
          287
          14
          Administrative claims under Federal Tort Claims Act
          305
          15
          Debt collection procedures
          311
          16
          Salary offset procedures for collecting debts owed by Federal employees to the Federal Government
          326
          19
          Notices, instructions and reports to workers: Inspection and investigations
          332
          20
          Standards for protection against radiation
          340
          21
          Reporting of defects and noncompliance
          448
          25
          Access authorization
          456
          26
          Fitness for duty programs
          466
          30
          Rules of general applicability to domestic licensing of byproduct material
          565

          31
          General domestic licenses for byproduct material
          610
          32
          Specific domestic licenses to manufacture or transfer certain items containing byproduct material
          620
          33
          Specific domestic licenses of broad scope for byproduct material
          652
          34
          Licenses for industrial radiography and radiation safety requirements for industrial radiographic operations
          657
          35
          Medical use of byproduct material
          674
          36
          Licenses and radiation safety requirements for irradiators
          729
          37
          Physical protection of category 1 and category 2 quantities of radioactive material
          744
          39
          Licenses and radiation safety requirements for well logging
          768
          40
          Domestic licensing of source material
          780
          50
          Domestic licensing of production and utilization facilities
          840

        Pt. 1
        PART 1—STATEMENT OF ORGANIZATION AND GENERAL INFORMATION

            Subpart A—Introduction
            Sec.
            1.1
            Creation and authority.
            1.3
            Sources of additional information.
            1.5
            Location of principal offices and regional offices.

            Subpart B—Headquarters
            1.11
            The Commission.

              Inspector General
              1.12
              Office of the Inspector General.

              Panels, Boards, and Committees
              1.13
              Advisory Committee on Reactor Safeguards.
              1.15
              Atomic Safety and Licensing Board Panel.
              1.18
              [Reserved]
              1.19
              Other committees, boards, and panels.

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

              Chief Financial Officer
              1.31
              Office of the Chief Financial Officer.

              Executive Director for Operations
              1.32
              Office of the Executive Director for Operations.

              Staff Offices
              1.33
              Office of Enforcement.
              1.34
              Office of Administration.
              1.35
              Office of the Chief Information Officer.
              1.36
              Office of Investigations.
              1.37
              Office of Small Business and Civil Rights.
              1.38
              [Reserved]
              1.39
              Office of the Chief Human Capital Officer.
              1.40-1.41
              [Reserved]

              Program Offices
              1.42
              Office of Nuclear Material Safety and Safeguards.
              1.43
              Office of Nuclear Reactor Regulation.
              1.44
              [Reserved]
              1.45
              Office of Nuclear Regulatory Research.
              1.46
              Office of Nuclear Security and Incident Response.
              1.47
              NRC Regional Offices.

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

          Authority:
          Atomic Energy Act of 1954, secs. 23, 25, 29, 161, 191 (42 U.S.C. 2033, 2035, 2039, 2201, 2241); Energy Reorganization Act of 1974, secs. 201, 203, 204, 205, 209 (42 U.S.C. 5841, 5843, 5844, 5845, 5849); Administrative Procedure Act (5 U.S.C. 552, 553); Reorganization Plan No. 1 of 1980, 5 U.S.C. Appendix (Reorganization Plans).

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

          Editorial Note:
          Nomenclature changes to part 1 appear at 78 FR 34247, June 7, 2013.

          Subpart A—Introduction

            § 1.1
            Creation and authority.

            (a) The Nuclear Regulatory Commission was established by the Energy Reorganization Act of 1974, as amended, Pub. L. 93-438, 88 Stat. 1233 (42 U.S.C. 5801 et seq.). This Act abolished the Atomic Energy Commission and, by section 201, transferred to the Nuclear Regulatory Commission all the licensing and related regulatory functions assigned to the Atomic Energy Commission by the Atomic Energy Act of 1954, as amended, Pub. L. 83-703, 68 Stat. 919 (42 U.S.C. 2011 et seq.). These functions included those of the Atomic Safety and Licensing Board Panel. The Energy Reorganization Act became effective January 19, 1975 (E.O. 11834).
            (b) As used in this part:

              Commission means the five members of the Nuclear Regulatory Commission or a quorum thereof sitting as a body, as provided by section 201 of the Energy Reorganization Act of 1974, as amended.

              NRC means the Nuclear Regulatory Commission, the agency established by title II of the Energy Reorganization Act of 1974, as amended, comprising the members of the Commission and all offices, employees, and representatives authorized to act in any case or matter.
            [52 FR 31602, Aug. 21, 1987, as amended at 56 FR 29407, June 27, 1991]

            § 1.3
            Sources of additional information.
            (a) A statement of the NRC's organization, policies, procedures, assignments of responsibility, and delegations of authority is in the Nuclear Regulatory Commission Management Directives System and other NRC issuances, including local directives issued by Regional Offices. Letters and memoranda containing directives, delegations of authority and the like are also issued from time to time and may not yet be incorporated into the Management Directives System, parts of which are revised as necessary. Copies of the Management Directives System and other delegations of authority are available for public inspection and copying for a fee at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852-2738, and at each of NRC's Regional Offices. Information may also be obtained from the Office of Public Affairs or from Public Affairs Officers at the Regional Offices.
            (b) Commission meetings are open to the public, as provided by the Government in the Sunshine Act, unless they fall within an exemption to the Act's openness requirement and the Commission also has determined that the public interest requires that those particular meetings be closed. Information concerning Commission meetings may be obtained from the Office of the Secretary.

            (c) Information regarding the availability of NRC records under the Freedom of Information Act and Privacy Act of 1974 may be obtained from the Office of the Chief Information Officer. NRC's regulations are published in the Federal Register and codified in Title 10, Chapter 1, of the Code of Federal Regulations. They may be viewed electronically at the NRC Web site, http://www.nrc.gov/reading-rm/doc-collections/cfr/. Final opinions made in the adjudication of cases are published in “Nuclear Regulatory Commission Issuances,” and are available on a subscription basis from the National Technical Information Service, 5301 Shawnee Road, Alexandria, VA 22312.
            [52 FR 31602, Aug. 21, 1987, as amended at 53 FR 43419, Oct. 27, 1988; 53 FR 52993, Dec. 30, 1988; 54 FR 53313, Dec. 28, 1989; 57 FR 1639, Jan. 15, 1992; 63 FR 15740, Apr. 1, 1998; 64 FR 48947, Sept. 9, 1999; 67 FR 67097, Nov. 4, 2002; 70 FR 69421, Nov. 16, 2005; 79 FR 75737, Dec. 19, 2014; 80 FR 45842, Aug. 3, 2015; 80 FR 74977, Dec. 1, 2015]

            § 1.5
            Location of principal offices and regional offices.
            (a) The principal NRC offices are located in the Washington, DC, area. Facilities for the service of process and documents are maintained in the State of Maryland at 11555 Rockville Pike, Rockville, Maryland 20852-2738. The agency's official mailing address is U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The locations of NRC offices in the Washington, DC, area are as follows:
            (1) One White Flint North Building, 11555 Rockville Pike, Rockville, Maryland 20852-2738.
            (2) Two White Flint North Building, 11545 Rockville Pike, Rockville, Maryland 20852-2738.
            (3) Three White Flint North Building, 11601 Landsdown Street, North Bethesda, Maryland 20852.
            (b) The addresses of the NRC Regional Offices are as follows:
            (1) Region I, U.S. NRC, 2100 Renaissance Boulevard, Suite 100, King of Prussia, PA 19406-2713.
            (2) Region II, USNRC, 245 Peachtree Center Avenue, NE., Suite 1200, Atlanta, GA 30303-1257.
            (3) Region III, USNRC, 2443 Warrenville Road, Suite 210, Lisle, IL 60532-4352.
            (4) Region IV, US NRC, 1600 E. Lamar Blvd., Arlington, TX 76011-4511.
            [67 FR 67097, Nov. 4, 2002; 67 FR 70835, Nov. 27, 2002, as amended at 67 FR 77652, Dec. 19, 2002; 68 FR 75389, Dec. 31, 2003; 70 FR 69421, Nov. 16, 2005; 71 FR 15007, Mar. 27, 2006; 72 FR 49148, Aug. 28, 2007; 73 FR 5711, Jan. 31, 2008; 73 FR 30457, May 28, 2008; 75 FR 21980, Apr. 27, 2010; 76 FR 72084, Nov. 22, 2011; 77 FR 39903, July 6, 2012; 79 FR 75757, Dec. 19, 2014]

          Subpart B—Headquarters

            § 1.11
            The Commission.

            (a) The Nuclear Regulatory Commission, composed of five members, one of whom is designated by the President as Chairman, is established pursuant to section 201 of the Energy Reorganization Act of 1974, as amended. The Chairman is the principal executive officer of the Commission, and is responsible for the executive and administrative functions with respect to appointment and supervision of personnel, except as otherwise provided by the Energy Reorganization Act of 1974, as amended, and Reorganization Plan No. 1 of 1980 (45 FR 40561); distribution of business; use and expenditures of funds (except that the function of revising budget estimates and purposes is reserved to the Commission); and appointment, subject to approval of the Commission, of heads of major administrative units under the Commission. The Chairman is the official spokesman, as mandated by the Reorganization Plan No. 1 of 1980. The Chairman has ultimate authority for all NRC functions pertaining to an emergency involving an NRC Licensee. The Chairman's actions are governed by the general policies of the Commission.
            (b) The Commission is responsible for licensing and regulating nuclear facilities and materials and for conducting research in support of the licensing and regulatory process, as mandated by the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and the Nuclear Nonproliferation Act of 1978; and in accordance with the National Environmental Policy Act of 1969, as amended, and other applicable statutes. These responsibilities include protecting public health and safety, protecting the environment, protecting and safeguarding nuclear materials and nuclear power plants in the interest of national security, and assuring conformity with antitrust laws. Agency functions are performed through standards setting and rulemaking; technical reviews and studies; conduct of public hearings; issuance of authorizations, permits, and licenses; inspection, investigation, and enforcement; evaluation of operating experience; and confirmatory research. The Commission is composed of five members, appointed by the President and confirmed by the Senate.
            (c) The following staff units and officials report directly to the Commission: Atomic Safety and Licensing Board Panel, Office of the General Counsel, Office of the Secretary, Office of Commission Appellate Adjudication, Office of International Programs, and other committees and boards that are authorized or established specifically by the Act. The Advisory Committee on Reactor Safeguards and the Advisory Committee on Nuclear Waste also report directly to the Commission.
            (d) The Offices of Congressional Affairs and Public Affairs report directly to the Chairman.
            [52 FR 31602, Aug. 21, 1987, as amended at 57 FR 1639, Jan. 15, 1992; 59 FR 63882, Dec. 12, 1994]

            Inspector General

              § 1.12
              Office of the Inspector General.
              The Office of the Inspector General—
              (a) Develops policies and standards that govern NRC's financial and management audit program;
              (b) Plans, directs, and executes the long-range, comprehensive audit program;
              (c) Conducts and reports on investigations and inquiries, as necessary, to ascertain and verify the facts with regard to the integrity of all NRC programs and operations;
              (d) Investigates possible irregularities or alleged misconduct of NRC employees and contractors;
              (e) Refers suspected or alleged criminal violations concerning NRC employees or contractors to the Department of Justice;
              (f) Reviews existing and proposed legislation and regulations for their impact on economy and efficiency in the administration of NRC's programs and operations;
              (g) Keeps the Commission and the Congress fully and currently informed, by means of semiannual and other reports, about fraud, abuse, and other serious deficiencies in NRC's programs and operations; and
              (h) Maintains liaison with audit and inspector general organizations and other law enforcement agencies in regard to all matters relating to the promotion of economy and efficiency and the detection of fraud and abuse in programs and operations.
              [54 FR 53313, Dec. 28, 1989]

            Panels, Boards, and Committees

              § 1.13
              Advisory Committee on Reactor Safeguards.
              The Advisory Committee on Reactor Safeguards (ACRS) was established by section 29 of the Atomic Energy Act of 1954, as amended. Consisting of a maximum of 15 members, it reviews and reports on safety studies and applications for construction permits and facility operating licenses; advises the Commission with regard to hazards of proposed or existing reactor facilities and the adequacy of proposed reactor safety standards; upon request of the Department of Energy (DOE), reviews and advises with regard to the hazards of DOE nuclear activities and facilities; reviews any generic issues or other matters referred to it by the Commission for advice. The Committee, on its own initiative, may conduct reviews of specific generic matters or nuclear facility safety-related items. The ACRS conducts studies of reactor safety research and submits reports thereon to the U.S. Congress and the NRC as appropriate.

              § 1.15
              Atomic Safety and Licensing Board Panel.
              The Atomic Safety and Licensing Board Panel, established pursuant to section 191 of the Atomic Energy Act of 1954, as amended, conducts hearings for the Commission and such other regulatory functions as the Commission authorizes. The Panel is comprised of any number of Administrative Judges (full-time and part-time), who may be lawyers, physicists, engineers, and environmental scientists; and Administrative Law Judges, who hear antitrust, civil penalty, and other cases and serve as Atomic Safety and Licensing Board Chairmen. The Chief Administrative Judge develops and applies procedures governing the activities of Boards, Administrative Judges, and Administrative Law Judges and makes appropriate recommendations to the Commission concerning the rules governing the conduct of hearings. The Panel conducts all licensing and other hearings as directed by the Commission primarily through individual Atomic Safety and Licensing Boards composed of one or three Administrative Judges. Those boards are appointed by either the Commission or the Chief Administrative Judge.

              § 1.18
              [Reserved]

              § 1.19
              Other committees, boards, and panels.
              Under section 161a. of the Atomic Energy Act of 1954, as amended, the Commission may establish advisory bodies to make recommendations to it. Currently, four committees are in existence.
              (a) The Advisory Committee on Medical Uses of Isotopes (ACMUI) was established by the Atomic Energy Commission in July 1958. The ACMUI, composed of physicians and scientists, considers medical questions referred to it by the NRC staff and renders expert opinions regarding medical uses of radioisotopes. The ACMUI also advises the NRC staff, as requested, on matters of policy regarding licensing of medical uses of radioisotopes.
              (b) The Licensing Support Network Advisory Review Panel (LSNARP) was established by the Commission on October 3, 1989, pursuant to 10 CFR 2.1011(e) of the Commission's regulations. The LSNARP provides advice to the Commission on the design, development, and operation of the Licensing Support Network (LSN) an electronic information management system for use in the Commission's high-level radioactive waste (HLW) licensing proceeding. Membership consists of those interests that will be affected by the use of the LSN, and selected Federal agencies with expertise in large-scale electronic information systems. The individual representatives of these interests and agencies possess expertise in management information science and in managing records of the Commission's licensing process for the HLW repository.
              [52 FR 31602, Aug. 21, 1987, as amended at 54 FR 53314, Dec. 28, 1989; 68 FR 75389, Dec. 31, 2003; 79 FR 75737, Dec. 19, 2014]

            Commission Staff

              § 1.23
              Office of the General Counsel.

              The Office of the General Counsel, established pursuant to section 25 of the Atomic Energy Act of 1954, as amended—
              (a) Directs matters of law and legal policy, providing opinions, advice, and assistance to the agency with respect to all of its activities;
              (b) Reviews and prepares appropriate draft Commission decisions on public petitions seeking direct Commission action and rulemaking proceedings involving hearings, monitors cases pending before presiding officers and reviews draft Commission decisions on Atomic Safety and Licensing Board decisions and rulings;
              (c) Provides interpretation of laws, regulations, and other sources of authority;
              (d) Reviews the legal form and content of proposed official actions;
              (e) As requested, provides the agency with legal advice and opinions on acquisition matters, including agency procurement contracts; placement of work at Department of Energy national laboratories; interagency agreements to acquire supplies and services; and grants and cooperative agreements. Prepares or concurs in all other interagency agreements, delegations of authority, regulations; orders; licenses; and other legal documents and prepares legal interpretations thereof;
              (f) Reviews and directs intellectual property (patent) work;
              (g) Represents and protects the interests of the NRC in legal matters and in court proceedings, and in relation to other government agencies, administrative bodies, committees of Congress, foreign governments, and members of the public; and
              (h) Represents the NRC staff as a party in NRC administrative hearings.
              [52 FR 31602, Aug. 21, 1987, as amended at 56 FR 29407, June 27, 1991; 65 FR 59272, Oct. 4, 2000]

              § 1.24
              Office of Commission Appellate Adjudication.
              The Office of Commission Appellate Adjudication—
              (a) Monitors cases pending before presiding officers;
              (b) Provides the Commission with an analysis of any adjudicatory matter requiring a Commission decision (e.g., petitions for review, certified questions, stay requests) including available options;
              (c) Drafts any necessary decisions pursuant to the Commission's guidance after presentation of options; and
              (d) Consults with the Office of the General Counsel in identifying the options to be presented to the Commission and in drafting the final decision to be presented to the Commission.
              [56 FR 29407, June 27, 1991]

              § 1.25
              Office of the Secretary of the Commission.
              The Office of the Secretary of the Commission—
              (a) Provides general management services to support the Commission and to implement Commission decisions; and advises and assists the Commission and staff on the planning, scheduling, and conduct of Commission business including preparation of internal procedures;
              (b) Prepares the Commission's meeting agenda;
              (c) Manages the Commission Staff Paper and COMSECY systems;
              (d) Receives, processes, and controls Commission mail, communications, and correspondence;
              (e) Maintains the Commission's official records and acts as Freedom of Information administrative coordinator for Commission records;
              (f) Codifies Commission decisions in memoranda directing staff action and monitors compliance;
              (g) Receives, processes, and controls motions and pleadings filed with the Commission; issues and serves adjudicatory orders on behalf of the Commission; receives and distributes public comments in rulemaking proceedings; issues proposed and final rules on behalf of the Commission; maintains the official adjudicatory and rulemaking dockets of the Commission; and exercises responsibilities delegated to the Secretary in 10 CFR 2.303 and 2.346;
              (h) Administers the NRC Historical Program;
              (i) Integrates office automation initiatives into the Commission's administrative system;

              (j) Functions as the NRC Federal Advisory Committee Management Officer; and

              (k) Provides guidance and direction on the use of the NRC seal and flag.
              [52 FR 31602, Aug. 21, 1987, as amended at 63 FR 15741, Apr. 1, 1998; 69 FR 2233, Jan. 14, 2004]

              § 1.26
              [Reserved]

              § 1.27
              Office of Congressional Affairs.
              The Office of Congressional Affairs—
              (a) Advises the Chairman, the Commission, and NRC staff on all NRC relations with Congress and the views of Congress toward NRC policies, plans and activities;
              (b) Maintains liaison with Congressional committees and members of Congress on matters of interest to NRC;
              (c) Serves as primary contact point for all NRC communications with Congress;
              (d) Coordinates NRC internal activities with Congress;
              (e) Plans, develops, and manages NRC's legislative programs; and
              (f) Monitors legislative proposals, bills, and hearings.
              [57 FR 1639, Jan. 15, 1992]

              § 1.28
              Office of Public Affairs.
              The Office of Public Affairs—
              (a) Develops policies, programs, and procedures for the Chairman's approval for informing the public of NRC activities;
              (b) Prepares, clears, and disseminates information to the public and the news media concerning NRC policies, programs, and activities;
              (c) Keeps NRC management informed on media coverage of activities of interest to the agency;
              (d) Plans, directs, and coordinates the activities of public information staffs located at Regional Offices;
              (e) Conducts a cooperative program with schools; and
              (f) Carries out assigned activities in the area of consumer affairs.
              [57 FR 1639, Jan. 15, 1992]

              § 1.29
              Office of International Programs.
              The Office of International Programs—
              (a) Advises the Chairman, the Commission, and NRC staff on international issues;
              (b) Recommends policies concerning nuclear exports and imports, international safeguards, international physical security, nonproliferation matters, and international cooperation and assistance in nuclear safety and radiation protection;
              (c) Plans, develops, and manages international nuclear safety information exchange programs and coordinates international research agreements;
              (d) Obtains, evaluates, and uses pertinent information from other NRC and U.S. Government offices in processing nuclear export and import license applications;
              (e) Establishes and maintains working relationships with individual countries and international nuclear organizations, as well as other involved U.S. Government agencies; and
              (f) Assures that all international activities carried out by the Commission and staff are well coordinated internally and Government-wide and are consistent with NRC and U.S. policies.
              [57 FR 1639, Jan. 15, 1992]

            Chief Financial Officer

              § 1.31
              Office of the Chief Financial Officer.
              The Office of the Chief Financial Officer—
              (a) Oversees all financial management activities relating to NRC's programs and operations and provides advice to the Chairman on financial management matters;
              (b) Develops and transmits the NRC's budget estimates to the Office of Management and Budget (OMB) and Congress;
              (c) Establishes financial management policy including accounting principles and standards for the agency and provides policy guidance to senior managers on the budget and all other financial management activities;

              (d) Provides an agencywide management control program for financial and program managers that establishes internal control processes and provides for timely corrective actions regarding material weaknesses that are disclosed to comply with the Federal Manager's Financial Integrity Act of 1982;
              (e) Develops and manages an agencywide planning, budgeting, and performance management process;
              (f) Develops and maintains an integrated agency accounting and financial management system, including an accounting system, and financial reporting and internal controls;
              (g) Directs, manages, and provides policy guidance and oversight of agency financial management personnel activities and operations;
              (h) Prepares and transmits an annual financial management report to the Chairman and the Director, Office of Management and Budget, including an audited financial statement;
              (i) Monitors the financial execution of NRC's budget in relation to actual expenditures, controls the use of NRC funds to ensure that they are expended in accordance with applicable laws and financial management principles, and prepares and submits to the Chairman timely cost and performance reports;
              (j) Establishes, maintains, and oversees the implementation of license fee polices and regulations; and
              (k) Reviews, on a periodic basis, fees and other charges imposed by NRC for services provided and makes recommendations for revising those charges, as appropriate.
              [63 FR 15741, Apr. 1, 1998]

            Executive Director for Operations

              § 1.32
              Office of the Executive Director for Operations.
              (a) The Executive Director for Operations (EDO) reports for all matters to the Chairman, and is subject to the supervision and direction of the Chairman as provided in Reorganization Plan No. 1 of 1980.
              (b) The EDO supervises and coordinates policy development and operational activities in the following offices: The Office of Nuclear Reactor Regulation, the Office of Nuclear Material Safety and Safeguards, the Office of Nuclear Regulatory Research, the Office of Nuclear Security and Incident Response, and the NRC Regional Offices; and the following staff offices: The Office of Enforcement, the Office of Administration, the Office of the Chief Information Officer, the Office of Investigations, the Office of Small Business and Civil Rights, the Office of the Chief Human Capital Officer, and other organizational units as shall be assigned by the Commission. The EDO is also responsible for implementing the Commission's policy directives pertaining to these offices.
              (c) The EDO exercises powers and functions delegated to the EDO under the Reorganization Plan No. 1 of 1980, this chapter, or otherwise by the Commission or Chairman, as appropriate. The EDO has the authority to perform any function that may be performed by an office director reporting to the EDO.
              [54 FR 53314, Dec. 28, 1989, as amended at 59 FR 63882, Dec. 12, 1994. Redesignated and amended at 63 FR 15741, Apr. 1, 1998; 67 FR 3585, Jan. 25, 2002; 70 FR 69421, Nov. 16, 2005; 73 FR 5711, Jan. 31, 2008; 78 FR 34247, June 7, 2013; 79 FR 75737, Dec. 19, 2014; 80 FR 74978, Dec. 1, 2015; 84 FR 65643, Nov. 29, 2019]

            Staff Offices

              § 1.33
              Office of Enforcement.
              The Office of Enforcement—
              (a) Develops policies and programs for enforcement of NRC requirements;
              (b) Manages major enforcement action;
              (c) Assesses the effectiveness and uniformity of Regional enforcement actions; and
              (d) Manages the NRC allegation program.
              [70 FR 69422, Nov. 16, 2005]

              § 1.34
              Office of Administration.
              The Office of Administration—
              (a) Develops and implements agencywide contracting policies and procedures;
              (b) Develops policies and procedures and manages the operation and maintenance of NRC offices, facilities, and equipment;
              (c) Plans, develops, establishes, and administers policies, standards, and procedures for the overall NRC security program; and
              (d) Manages the NRC Management Directives Program and provides translation services.
              [63 FR 15741, Apr. 1, 1998, as amended at 70 FR 69422, Nov. 16, 2005; 83 FR 30287, June 28, 2018]

              § 1.35
              Office of the Chief Information Officer.
              The Office of the Chief Information Officer—
              (a) Plans, directs, and oversees the NRC's information resources, including technology infrastructure and delivery of information management services, to meet the mission and goals of the agency;
              (b) Provides principal advice to the Chairman to ensure that information technology (IT) is acquired and information resources across the agency are managed in a manner consistent with Federal information resources management (IRM) laws and regulations;
              (c) Assists senior management in recognizing where information technology can add value while improving NRC operations and service delivery;
              (d) Directs the implementation of a sound and integrated IT architecture to achieve NRC's strategic and IRM goals;
              (e) Monitors and evaluates the performance of information technology and information management programs based on applicable performance measures and assesses the adequacy of IRM skills of the agency;
              (f) Provides guidance and oversight for the selection, control and evaluation of information technology investments;
              (g) Provides oversight and quality assurance for the design and operation of the Licensing Support Network (LSN) services and for the completeness and integrity of the LSN database, ensures that the LSN meets the requirements of 10 CFR part 2, subpart J, concerning the use of the LSN in the Commission's high-level waste licensing proceedings, and provides technical oversight of DOE in the design, development, and operation of the LSN; and
              (h) Plans, recommends, and oversees the NRC's Information Technology (IT) Security Program consistent with applicable laws, regulations, management initiatives, and policies;
              (i) Provides principal advice to the NRC on the infrastructure, as well as the programmatic and administrative aspects of cybersecurity;
              (j) Establishes NRC-wide cybersecurity guidelines;
              (k) Guides security process maturity, as well as formulating and overseeing the cybersecurity program budget; and
              (l) Ensures NRC-wide integration, direction, and coordination of IT security planning and performance within the framework of the NRC IT Security Program.
              [70 FR 69422, Nov. 16, 2005, as amended at 80 FR 74978, Dec. 1, 2015]

              § 1.36
              Office of Investigations.
              The Office of Investigations (OI)—
              (a) Conducts investigations of licensees, applicants, their contractors or vendors, including the investigation of all allegations of wrongdoing by other than NRC employees and contractors;
              (b) Maintains current awareness of inquiries and inspections by other NRC offices to identify the need for formal investigations;
              (c) Makes appropriate referrals to the Department of Justice;
              (d) Maintains liaison with other agencies and organizations to ensure the timely exchange of information of mutual interest; and
              (e) Issues subpoenas where necessary or appropriate for the conduct of investigations.
              [54 FR 53315, Dec. 28, 1989]

              § 1.37
              Office of Small Business and Civil Rights.
              The Office of Small Business and Civil Rights—
              (a) Develops and implements an effective small and disadvantaged business program in accordance with the Small Business Act, as amended, and plans and implements NRC policies and programs relating to equal employment oppportunity and civil rights matters as required by the Equal Employment Opportunity Commission (EEOC) and the Office of Personnel Management (OPM);
              (b) Ensures that appropriate consideration is given to Labor Surplus Area firms and Women Business Enterprises, and conducts an outreach program aimed at contractors desiring to do business with NRC;

              (c) Maintains liaison with other Government agencies and trade associations;

              (d) Coordinates efforts with the Director, Division of Contracts, and Directors of other affected offices;
              (e) Develops and recommends for approval by the Executive Director for Operations, NRC policy providing for equal employment opportunity in all aspects of Federal personnel practice;
              (f) Develops, monitors, and evaluates the agency's equal employment opportunity efforts and affirmative action programs to ensure compliance with NRC policy;
              (g) Serves as the principal contact with local and national public and private organizations to facilitate the NRC equal opportunity program; and
              (h) Coordinates all efforts pertaining to small and disadvantaged business utilization and equal employment opportunity with Office Directors and Regional Administrators.
              [52 FR 31602, Aug. 21, 1987, as amended at 59 FR 63882, Dec. 12, 1994]

              § 1.38
              [Reserved]

              § 1.39
              Office of the Chief Human Capital Officer.
              The Office of the Chief Human Capital Officer—
              (a) Plans and implements NRC policies, programs, and services to provide for the effective organization, utilization, and development of the agency's human resources;
              (b) Provides labor relations and personnel policy guidance and supporting services to NRC managers and employees;
              (c) Provides training, benefits administration, and counseling services for NRC employees;
              (d) Collects, analyzes, and provides data on the characteristics, allocation, utilization, and retention of NRC's workforce;
              (e) Provides staffing advice and services to NRC managers and employees; and
              (f) Provides executive resources management and organizational and managerial development services to the NRC.
              [52 FR 31602, Aug. 21, 1987, as amended at 63 FR 15742, Apr. 1, 1998; 78 FR 34247, June 7, 2013]

              §§ 1.40-1.41
              [Reserved]

            Program Offices

              § 1.42
              Office of Nuclear Material Safety and Safeguards.
              (a) The Office of Nuclear Material Safety and Safeguards (NMSS) is responsible for regulating activities that provide for the safe and secure production of nuclear fuel used in commercial nuclear reactors; the safe storage, transportation, and disposal of low-level and high-level radioactive waste and spent nuclear fuel; the transportation of radioactive materials regulated under the Atomic Energy Act of 1954, as amended (the Act); and all other medical, industrial, academic, and commercial uses of radioactive isotopes. The NMSS ensures safety and security by implementing a regulatory program involving activities including licensing, inspection, assessment of environmental impacts for all nuclear material facilities and activities, assessment of licensee performance, events analysis, enforcement, and identification and resolution of generic issues. The NMSS leads, manages, and facilitates rulemaking activities for new, advanced, and operating power reactors, as well as non-power utilization facilities; nuclear materials, including production of nuclear fuel used in commercial nuclear reactors, as well as storage, transportation, and disposal of high-level radioactive waste and spent nuclear fuel, and the transportation of radioactive materials regulated by the NRC.
              (b) The Office of Nuclear Material Safety and Safeguards—
              (1) Develops and implements NRC policy for the regulation of: Uranium recovery, conversion, and enrichment; fuel fabrication and development; transportation of nuclear materials, including certification of transport containers and reactor spent fuel storage; safe management and disposal of spent fuel and low-level and high-level radioactive waste; and medical, industrial, academic, and commercial uses of radioactive isotopes;

              (2) Has lead responsibility within NRC for domestic and international safeguards policy and regulation for fuel cycle facilities, including material control and accountability;
              (3) Plans and directs NRC's program of cooperation and liaison with States, local governments, interstate and Indian Tribe organizations; and coordinates liaison with other Federal agencies;
              (4) Participates in formulation of policies involving NRC/State cooperation and liaison;
              (5) Develops and directs administrative and contractual programs for coordinating and integrating Federal and State regulatory activities;
              (6) Maintains liaison between NRC and State, interstate, regional, Tribal, and quasi-governmental organizations on regulatory matters;
              (7) Promotes NRC visibility and performs general liaison with other Federal agencies, and keeps NRC management informed of significant developments at other Federal agencies that affect the NRC;
              (8) Monitors nuclear-related State legislative activities;
              (9) Directs regulatory activities of State Liaison and State Agreement Officers located in Regional Offices;
              (10) Participates in policy matters on State Public Utility Commissions (PUCs);
              (11) Administers the State Agreements program in a partnership arrangement with the States;
              (12) Develops staff policy and procedures and implements State Agreements program under the provisions of Section 274b of the Act;
              (13) Provides oversight of the program for reviews of Agreement State programs to determine their adequacy and compatibility as required by Section 274j of the Act and other periodic reviews that may be performed to maintain a current level of knowledge of the status of the Agreement State programs;
              (14) Provides training to the States as provided by Section 274i of the Act and also to NRC staff and staff of the U.S. Navy and U.S. Air Force;
              (15) Provides technical assistance to Agreement States;
              (16) Maintains an exchange of information with the States;
              (17) Conducts negotiations with States expressing an interest in seeking a Section 274b Agreement;
              (18) Supports, consistent with Commission directives, State efforts to improve regulatory control for radiation safety over radioactive materials not covered by the Act;
              (19) Serves as the NRC liaison to the Conference of Radiation Control Program Directors, Inc. (CRCPD) and coordinates NRC technical support of CRCPD committees;
              (20) Conducts high-level waste pre-licensing activities, consistent with direction in the Nuclear Waste Policy Act and the Energy Policy Act, to ensure appropriate standards and regulatory guidance are in place, and interacts with the applicant;
              (21) Is responsible for regulation and licensing of recycling technologies intended to reduce the amount of waste to be disposed through geologic disposal and to reduce proliferation concerns since the technologies do not produce separated plutonium;
              (22) Interacts with the Department of Energy and international experts, in order to develop an appropriate regulatory framework, in recycling during development, demonstration, and deployment of new advanced recycling technologies that recycle nuclear fuel in a manner that does not produce separated plutonium;
              (23) Creates and maintains the regulatory infrastructure to support the agency's role in licensing a reprocessing facility and a related fuel fabrication facility and vitrification and/or waste storage facility;
              (24) Prepares the NRC to perform its regulatory role for new, expanded, and modified commercial fuel cycle facilities that may include recycling, transmutation, and actinide burning. This includes regulatory processes such as licensing, inspection, assessment of license performance assessment, events analysis, and enforcement that will ensure that this technology can be safely and securely implemented commercially in the United States;

              (25) Develops, promulgates, and amends regulations generally associated with the materials regulated by NMSS and for all security-related regulations that will be applied to licensees and holders of certificates of compliance issued by NMSS;
              (26) Leads, manages, and facilitates the following rulemaking activities:
              (i) Develops and implements policies and procedures for the review and publication of NRC rulemakings, and ensures compliance with the Regulatory Flexibility Act and the Congressional Review Act;
              (ii) Supports all technical, financial, legal, and administrative rules, including the development of regulatory analyses and the orderly codification of the NRC's regulations in chapter I of this title; and
              (iii) Manages all aspects of the 10 CFR 2.802 Petition for Rulemaking process.
              (27) Supports safeguards activities including—
              (i) Developing overall agency policy;
              (ii) Monitoring and assessing the threat environment, including liaison with intelligence agencies, as appropriate; and
              (iii) Conducting licensing and review activities appropriate to deter and protect against threats of radiological sabotage and threats of theft or diversion of nuclear material at regulated facilities and during transport;
              (28) Regulates medical, industrial, academic, and commercial uses of radioactive isotopes;
              (29) Oversees safe management and disposal of low-level radioactive wastes;
              (30) Plans and directs program for financial assurance of NMSS licensees;
              (31) Manages the decommissioning of facilities and sites when their licensed functions are over; and
              (32) Identifies and takes action for activities under its responsibility, including consulting and coordinating with international, Federal, State, Tribal and local agencies, as appropriate.
              [79 FR 75737, Dec. 19, 2014, as amended at 80 FR 74978, Dec. 1, 2015; 83 FR 30287, June 28, 2018]

              § 1.43
              Office of Nuclear Reactor Regulation.
              The Office of Nuclear Reactor Regulation—
              (a) Develops, promulgates and implements regulations and develops and implements policies, programs, and procedures for all aspects of licensing, inspection, and safeguarding of—
              (1) Manufacturing, production, and utilization facilities, except for those concerning fuel reprocessing plants and isotopic enrichment plants;
              (2) Receipt, possession, and ownership of source, byproduct, and special nuclear material used or produced at facilities licensed under 10 CFR parts 50, 52, and 54;
              (3) Operators of such facilities;
              (4) Emergency preparedness at such facilities; and
              (5) Contractors and suppliers of such facilities.
              (b) Identifies and takes action regarding conditions and licensee performance that may adversely affect public health and safety, the environment, or the safeguarding of nuclear reactor facilities;
              (c) Assesses and recommends or takes action regarding incidents or accidents;
              (d) Provides special assistance as required in matters involving reactor facilities exempt from licensing;
              (e) Provides guidance and implementation direction to Regional Offices on reactor licensing, inspection, and safeguards programs assigned to the Region, and appraises Regional program performance in terms of effectiveness and uniformity;
              (f) Performs other functions required for implementation of the reactor licensing, inspection, and safeguard programs; and
              (g) Performs review and evaluation related to regulated facilities insurance, indemnity, and antitrust matters.
              [70 FR 69422, Nov. 16, 2005, as amended at 72 FR 49470, Aug. 28, 2007]

              § 1.44
              [Reserved]

              § 1.45
              Office of Nuclear Regulatory Research.
              The Office of Nuclear Regulatory Research—

              (a) Plans, recommends, and implements programs of nuclear regulatory research, standards development, and resolution of generic safety issues for nuclear power plants and other facilities regulated by the NRC;

              (b) Coordinates research activities within and outside the agency including appointment of staff to committees and conferences; and
              (c) Coordinates NRC participation in international standards-related activities and national volunteer standards efforts, including appointment of staff to committees.
              [52 FR 31602, Aug. 21, 1987, as amended at 63 FR 69544, Dec. 17, 1998]

              § 1.46
              Office of Nuclear Security and Incident Response.
              The Office of Nuclear Security and Incident Response—
              (a) Develops overall agency policy and provides management direction for evaluation and assessment of technical issues involving security at nuclear facilities, and is the agency safeguards and security interface with the Department of Homeland Security (DHS), the Department of Energy (DOE), other agencies; and the international activities related to the security of radioactive material and nuclear facilities;
              (b) Develops, in participation with domestic and international agencies, foreign policy guidance and provides international assistance in nuclear security and safeguards;
              (c) Develops emergency preparedness policies, regulations, programs, and guidelines for nuclear facilities;
              (d) Provides technical expertise regarding emergency preparedness issues and interpretations; and
              (e) Develops and directs the NRC program for response to incidents, and is the agency emergency preparedness and incident response interface with the DHS, the Federal Emergency Management Agency (FEMA) and other Federal agencies.
              [70 FR 69422, Nov. 16, 2005, as amended at 72 FR 28450, May 21, 2007]

              § 1.47
              NRC Regional Offices.
              Each Regional Administrator executes established NRC policies and assigned programs relating to inspection, enforcement, licensing, State agreements, State liaison, and emergency response within Regional boundaries set out in § 1.5(b) of this part.

          Subpart C—NRC Seal and Flag

            § 1.51
            Description and custody of NRC seal.
            (a) Pursuant to section 201(a) of the Energy Reorganization Act of 1974, the Nuclear Regulatory Commission, has adopted an official seal. Its description is as follows: An American bald eagle (similar to that on the Great Seal of the United States of America) of brown and tan with claws and beak of yellow, behind a shield of red, white, and blue, clutching a cluster of thirteen arrows in its left claw and a green olive branch in its right claw, positioned on a field of white, with the words “United States Nuclear Regulatory Commission” in dark blue encircling the eagle. The eagle represents the United States of America and its interests.
            (b) The Official Seal of the Nuclear Regulatory Commission is illustrated as follows:

              EC02OC91.055

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

            § 1.53
            Use of NRC seal or replicas.
            (a) The use of the seal or replicas is restricted to the following:
            (1) NRC letterhead stationery;
            (2) NRC award certificates and medals;
            (3) Security credentials and employee identification cards;

            (4) NRC documents, including agreements with States, interagency or governmental agreements, foreign patent applications, certifications, special reports to the President and Congress and, at the discretion of the Secretary of the Commission, such other documents as the Secretary finds appropriate;
            (5) Plaques—the design of the seal may be incorporated in plaques for display at NRC facilities in locations such as auditoriums, presentation rooms, lobbies, offices of senior officials, on the fronts of buildings, and other places designated by the Secretary;
            (6) The NRC flag (which incorporates the design of the seal);
            (7) Official films prepared by or for the NRC, if deemed appropriate by the Director of Governmental and Public Affairs;
            (8) Official NRC publications that represent an achievement or mission of NRC as a whole, or that are cosponsored by NRC and other Government departments or agencies; and
            (9) Any other uses as the Secretary of the Commission finds appropriate.
            (b) Any person who uses the official seal in a manner other than as permitted by this section shall be subject to the provisions of 18 U.S.C. 1017, which provides penalties for the fraudulent or wrongful use of an official seal, and to other provisions of law as applicable.

            § 1.55
            Establishment of official NRC flag.
            The official flag is based on the design of the NRC seal. It is 50 inches by 66 inches in size with a 38-inch diameter seal incorporated in the center of a dark blue field with a gold fringe.

            § 1.57
            Use of NRC flag.
            (a) The use of the flag is restricted to the following:
            (1) On or in front of NRC installations;
            (2) At NRC ceremonies;
            (3) At conferences involving official NRC participation (including permanent display in NRC conference rooms);
            (4) At Governmental or public appearances of NRC executives;
            (5) In private offices of senior officials; or
            (6) As the Secretary of the Commission otherwise authorizes.
            (b) The NRC flag must only be displayed together with the U.S. flag.
            When they are both displayed on a speaker's platform, the U.S. flag must occupy the position of honor and be placed at the speaker's right as he or she faces the audience, and the NRC flag must be placed at the speaker's left.

            § 1.59
            Report of violations.
            In order to ensure adherence to the authorized uses of the NRC seal and flag as provided in this subpart, a report of each suspected violation of this subpart, or any questionable use of the NRC seal or flag, should be submitted to the Secretary of the Commission.

        Pt. 2
        PART 2—AGENCY RULES OF PRACTICE AND PROCEDURE

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

            Subpart A—Procedure for Issuance, Amendment, Transfer, or Renewal of a License, and Standard Design Approval
            2.100
            Scope of subpart.
            2.101
            Filing of application.
            2.102
            Administrative review of application.
            2.103
            Action on applications for byproduct, source, special nuclear material, facility and operator licenses.

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

            Subpart B—Procedure for Imposing Requirements by Order, or for Modification, Suspension, or Revocation of a License, or for Imposing Civil Penalties
            2.200
            Scope of subpart.
            2.201
            Notice of violation.
            2.202
            Orders.
            2.203
            Settlement and compromise.
            2.204
            Demand for information.
            2.205
            Civil penalties.

            2.206
            Requests for action under this subpart.

            Subpart C—Rules of General Applicability: Hearing Requests, Petitions To Intervene, Availability of Documents, Selection of Specific Hearing Procedures, Presiding Officer Powers, and General Hearing Management for NRC Adjudicatory Hearings
            2.300
            Scope of subpart C.
            2.301
            Exceptions.
            2.302
            Filing of documents.
            2.303
            Docket.
            2.304
            Formal requirements for documents; signatures; acceptance for filing.
            2.305
            Service of documents, methods, proof.
            2.306
            Computation of time.
            2.307
            Extension and reduction of time limits; delegated authority to order use of procedures for access by potential parties to certain sensitive unclassified information.
            2.308
            Treatment of requests for hearing or petitions for leave to intervene by the Secretary.
            2.309
            Hearing requests, petitions to intervene, requirements for standing, and contentions.
            2.310
            Selection of hearing procedures.
            2.311
            Interlocutory review of rulings on requests for hearings/petitions to intervene, selection of hearing procedures, and requests by potential parties for access to sensitive unclassified non-safeguards information and safeguards information.
            2.312
            Notice of hearing.
            2.313
            Designation of presiding officer, disqualification, unavailability, and substitution.
            2.314
            Appearance and practice before the Commission in adjudicatory proceedings.
            2.315
            Participation by a person not a party.
            2.316
            Consolidation of parties.
            2.317
            Separate hearings; consolidation of proceedings.
            2.318
            Commencement and termination of jurisdiction of presiding officer.
            2.319
            Power of the presiding officer.
            2.320
            Default.
            2.321
            Atomic Safety and Licensing Boards.
            2.322
            Special assistants to the presiding officer.
            2.323
            Motions.
            2.324
            Order of procedure.
            2.325
            Burden of proof.
            2.326
            Motions to reopen.
            2.327
            Official recording; transcript.
            2.328
            Hearings to be public.
            2.329
            Prehearing conference.
            2.330
            Stipulations.
            2.331
            Oral argument before the presiding officer.
            2.332
            General case scheduling and management.
            2.333
            Authority of the presiding officer to regulate procedure in a hearing.
            2.334
            Implementing hearing schedule for proceeding.
            2.335
            Consideration of Commission rules and regulations in adjudicatory proceedings.
            2.336
            General discovery.
            2.337
            Evidence at a hearing.
            2.338
            Settlement of issues; alternative dispute resolution.
            2.339
            Expedited decisionmaking procedure.
            2.340
            Initial decision in certain contested proceedings; immediate effectiveness of initial decisions; issuance of authorizations, permits, and licenses.
            2.341
            Review of decisions and actions of a presiding officer.
            2.342
            Stays of decisions.
            2.343
            Oral argument.
            2.344
            Final decision.
            2.345
            Petition for reconsideration.
            2.346
            Authority of the Secretary.
            2.347
            Ex parte communications.
            2.348
            Separation of functions.
            2.390
            Public inspections, exemptions, requests for withholding.

            Subpart D—Additional Procedures Applicable to Proceedings for the Issuance of Licenses To Construct and/or Operate Nuclear Power Plants of Identical Design at Multiple Sites
            2.400
            Scope of subpart.
            2.401
            Notice of hearing on construction permit or combined license applications pursuant to appendix N of 10 CFR parts 50 or 52.
            2.402
            Separate hearings on separate issues; consolidation of proceedings.
            2.403
            Notice of proposed action on applications for operating licenses pursuant to appendix N of 10 CFR part 50.
            2.404
            Hearings on applications for operating licenses pursuant to appendix N of 10 CFR part 50.
            2.405
            Initial decisions in consolidated hearings.
            2.406
            Finality of decisions on separate issues.
            2.407
            Applicability of other sections.

            Subpart E—Additional Procedures Applicable to Proceedings for the Issuance of Licenses To Manufacture Nuclear Power Reactors To Be Operated at Sites Not Identified in the License Application and Related Licensing Proceedings
            2.500
            Scope of subpart.
            2.501

            Notice of hearing on application under subpart F of 10 CFR part 52 for a license to manufacture nuclear power reactors.

            2.502-2.504
            [Reserved]

            Subpart F—Additional Procedures Applicable to Early Partial Decisions on Site Suitability Issues in Connection With an Application for a Construction Permit or Combined License To Construct Certain Utilization Facilities; and Advance Issuance of Limited Work Authorizations
            2.600
            Scope of subpart.
            2.601
            Applicability of other sections.

              Early Partial Decisions on Site Suitability—Construction Permit
              2.602
              Filing Fees.
              2.603
              Acceptance and docketing of application for early review of site suitability issues in a construction permit proceeding.
              2.604
              Notice of hearing on application for early review of site suitability issues in construction permit proceeding.
              2.605
              Additional considerations.
              2.606
              Partial decision on site suitability issues in construction permit proceeding.

              Early Partial Decisions on Site Suitability—Combined License Under 10 CFR Part 52
              2.621
              Acceptance and docketing of application for early review of site suitability issues in a combined license proceeding.
              2.623
              Notice of hearing on application for early review of site suitability issues in combined license proceeding.
              2.625
              Additional considerations.
              2.627
              Partial decision on site suitability issues in combined license proceeding.
              2.629
              Finality of partial decision on site suitability issues in combined license proceeding.

              Phased Applications Involving Limited Work Authorizations
              2.641
              Filing fees.
              2.643
              Acceptance and docketing of application for limited work authorization.
              2.645
              Notice of hearing.
              2.647
              [Reserved]
              2.649
              Partial decisions on limited work authorization.

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

            Subpart H—Rulemaking
            2.800
            Scope and applicability.
            2.801
            Initiation of rulemaking.
            2.802
            Petition for rulemaking—requirements for filing.
            2.803
            Petition for rulemaking—NRC action.
            2.804
            Notice of proposed rulemaking.
            2.805
            Participation by interested persons.
            2.806
            Commission action.
            2.807
            Effective date.
            2.808
            Authority of the Secretary to rule on procedural matters.
            2.809
            Participation by the Advisory Committee on Reactor Safeguards.
            2.810
            NRC size standards.
            2.811
            Filing of standard design certification application; required copies.
            2.813
            Written communications.
            2.815
            Docketing and acceptance review.
            2.817
            Withdrawal of application.
            2.819
            Denial of application for failure to supply information.

            Subpart I—Special Procedures Applicable to Adjudicatory Proceedings Involving Restricted Data and/or National Security Information
            2.900
            Purpose.
            2.901
            Scope of subpart I.
            2.902
            Definitions.
            2.903
            Protection of restricted data and national security information.
            2.904
            Classification assistance.
            2.905
            Access to restricted data and national security information for parties; security clearances.
            2.906
            Obligation of parties to avoid introduction of restricted data or national security information.
            2.907
            Notice of intent to introduce restricted data or national security information.
            2.908
            Contents of notice of intent to introduce restricted data or other national security information.
            2.909
            Rearrangement or suspension of proceedings.
            2.910
            Unclassified statements required.
            2.911
            Admissibility of restricted data or other national security information.
            2.912

            Weight to be attached to classified evidence.

            2.913
            Review of Restricted Data or other National Security Information received in evidence.

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

            Subpart K—Hybrid Hearing Procedures for Expansion of Spent Nuclear Fuel Storage Capacity at Civilian Nuclear Power Reactors
            2.1101
            Purpose.
            2.1103
            Scope of subpart K.
            2.1105
            Definitions.
            2.1107
            Notice of proposed action.
            2.1109
            Requests for oral argument.
            2.1113
            Oral argument.
            2.1115
            Designation of issues for adjudicatory hearing.
            2.1117
            Burden of proof.
            2.1119
            Applicability of other sections.

            Subpart L—Simplified Hearing Procedures for NRC Adjudications
            2.1201
            Definitions.
            2.1202
            Authority and role of NRC staff.
            2.1203
            Hearing file; prohibition on discovery.
            2.1204
            Motions and requests.
            2.1205
            Summary disposition.
            2.1206
            Informal hearings.
            2.1207
            Process and schedule for submissions and presentations in an oral hearing.
            2.1208
            Process and schedule for a hearing consisting of written presentations.
            2.1209
            Findings of fact and conclusions of law.
            2.1210
            Initial decision and its effect.
            2.1212
            Petitions for Commission review of initial decisions.
            2.1213
            Application for a stay.

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

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

            Subpart O—Legislative Hearings
            2.1500
            Purpose and scope.
            2.1501
            Definitions.
            2.1502

            Commission decision to hold legislative hearing.

            2.1503
            Authority of presiding officer.
            2.1504
            Request to participate in legislative hearing.
            2.1505
            Role of the NRC staff.
            2.1506
            Written statements and submission of information.
            2.1507
            Oral hearing.
            2.1508
            Recommendation of presiding officer.
            2.1509
            Ex parte communications and separation of functions.
            Appendix A to Part 2 [Reserved]
            Appendix B to Part 2—Model Milestones To Be Used By a Presiding Officer as a Guideline in Developing a Hearing Schedule for the Conduct of an Adjudicatory Proceeding in Accordance With 10 CFR 2.332.
            Appendix C to Part 2 [Reserved]
            Appendix D to Part 2—Schedule for the Proceeding on Consideration of Construction Authorization for a High-Level Waste Geologic Repository.

          Authority:
          Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81, 102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42 U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201, 2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846); Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42 U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act (5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note.
          Section 2.205(j) also issued under 28 U.S.C. 2461 note.
          Section 2.205(j) also issued under Sec. 31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).

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

          Editorial Note:
          Nomenclature changes to part 2 appear at 79 FR 75739, Dec. 19, 2014.

          § 2.1
          Scope.
          This part governs the conduct of all proceedings, other than export and import licensing proceedings described in part 110, under the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, for—
          (a) Granting, suspending, revoking, amending, or taking other action with respect to any license, construction permit, or application to transfer a license;
          (b) Issuing orders and demands for information to persons subject to the Commission's jurisdiction, including licensees and persons not licensed by the Commission;
          (c) Imposing civil penalties under Section 234 of the Act;
          (d) Rulemaking under the Act and the Administrative Procedure Act; and
          (e) Standard design approvals under part 52 of this chapter.
          [56 FR 40684, Aug. 15, 1991, as amended at 72 FR 49470, Aug. 28, 2007]

          § 2.2
          Subparts.
          Each subpart other than subpart C of this part sets forth special rules applicable to the type of proceeding described in the first section of that subpart. Subpart C sets forth general rules applicable to all types of proceedings except rulemaking, and should be read in conjunction with the subpart governing a particular proceeding. Subpart I of this part sets forth special procedures to be followed in proceedings in order to safeguard and prevent disclosure of Restricted Data.
          [69 FR 2233, Jan. 14, 2004]

          § 2.3
          Resolution of conflict.
          (a) In any conflict between a general rule in subpart C of this part and a special rule in another subpart or other part of this chapter applicable to a particular type of proceeding, the special rule governs.
          (b) Unless otherwise specifically referenced, the procedures in this part do not apply to hearings in 10 CFR parts 4, 9, 10, 11, 12, 13, 15, 16, and subparts H and I of 10 CFR part 110.
          [69 FR 2233, Jan. 14, 2004]

          § 2.4
          Definitions.
          As used in this part,

            ACRS means the Advisory Committee on Reactor Safeguards established by the Act.

            Act means the Atomic Energy Act of 1954, as amended (68 Stat. 919).

            Adjudication means the process for the formulation of an order for the final disposition of the whole or any part of any proceeding subject to this part, other than rule making.

            Administrative Law Judge means an individual appointed pursuant to section 11 of the Administrative Procedure Act to conduct proceedings subject to this part.

            Commission means the Commission of five members or a quorum thereof sitting as a body, as provided by section 201 of the Energy Reorganization Act of 1974 (88 Stat. 1242), or any officer to whom has been delegated authority pursuant to section 161n of the Act.

            Commission adjudicatory employee means—
          (1) The Commissioners and members of their personal staffs;
          (2) The employees of the Office of Commission Appellate Adjudication;
          (3) The members of the Atomic Safety and Licensing Board Panel and staff assistants to the Panel;
          (4) A presiding officer appointed under § 2.313, and staff assistants to a presiding officer;
          (5) Special assistants (as defined in § 2.322);
          (6) The General Counsel, the Solicitor, the Deputy General Counsel for Rulemaking and Policy Support, and employees of the Office of the General Counsel under the supervision of the Solicitor;
          (7) The Secretary and employees of the Office of the Secretary; and
          (8) Any other Commission officer or employee who is appointed by the Commission, the Secretary, or the General Counsel to participate or advise in the Commission's consideration of an initial or final decision in a proceeding. Any other Commission officer or employee who, as permitted by § 2.348, participates or advises in the Commission's consideration of an initial or final decision in a proceeding must be appointed as a Commission adjudicatory employee under this paragraph and the parties to the proceeding must be given written notice of the appointment.

            Contested proceeding means—(1) A proceeding in which there is a controversy between the NRC staff and the applicant for a license or permit concerning the issuance of the license or permit or any of the terms or conditions thereof;
          (2) A proceeding in which the NRC is imposing a civil penalty or other enforcement action, and the subject of the civil penalty or enforcement action is an applicant for or holder of a license or permit, or is or was an applicant for a standard design certification under part 52 of this chapter; and
          (3) A proceeding in which a petition for leave to intervene in opposition to an application for a license or permit has been granted or is pending before the Commission.

            Department means the Department of Energy established by the Department of Energy Organization Act (Pub. L. 95-91, 91 Stat. 565 42 U.S.C. 7101 et seq.) to the extent that the Department, or its duly authorized representatives, exercises functions formerly vested in the U.S. Atomic Energy Commission, its Chairman, members, officers and components and transferred to the U.S. Energy Research and Development Administration and to the Administrator thereof pursuant to sections 104 (b), (c) and (d) of the Energy Reorganization Act of 1974 (Pub. L. 93-438, 88 Stat. 1233 at 1237, 42 U.S.C. 5814) and retransferred to the Secretary of Energy pursuant to section 301(a) of the Department of Energy Organization Act (Pub. L. 95-91, 91 Stat. 565 at 577-578, 42 U.S.C. 7151).

            Digital ID certificate means a file stored on a participant's computer that contains the participant's name, e-mail address, and participant's digital signature, proves the participant's identity when filing documents and serving participants electronically through the E-Filing system, and contains public keys, which allow for the encryption and decryption of documents so that the documents can be securely transferred over the Internet.

            Electric utility means any entity that generates or distributes electricity and which recovers the costs of this electricity, either directly or indirectly through rates established by the entity itself or by a separate regulatory authority. Investor-owned utilities including generation or distribution subsidiaries, public utility districts, municipalities, rural electric cooperatives, and State and Federal agencies, including associations of any of the foregoing, are included within the meaning of “electric utility.”

            Electronic acknowledgment means a communication transmitted electronically from the E-Filing system to the submitter confirming receipt of electronic filing and service.

            Electronic Hearing Docket means the publicly available Web site which houses a visual presentation of the docket and a link to its files.

            E-Filing System means an electronic system that receives, stores, and distributes documents filed in proceedings for which an electronic hearing docket has been established.

            Ex parte communication means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given.

            Facility means a production facility or a utilization facility as defined in § 50.2 of this chapter.

            Guidance for Electronic Submissions to the NRC means the document issued by the Commission that sets forth the transmission methods and formatting standards for filing and service under E-Filing. The document can be obtained by visiting the NRC's Web site at http://www.nrc.gov.

            Investigative or litigating function means—
          (1) Personal participation in planning, conducting, or supervising an investigation; or
          (2) Personal participation in planning, developing, or presenting, or in supervising the planning, development or presentation of testimony, argument, or strategy in a proceeding.

            License means a license, including an early site permit, construction permit, operating license, combined license, manufacturing license, or renewed license issued by the Commission.

            Licensee means a person who is authorized to conduct activities under a license.

            NRC personnel means:
          (1) NRC employees;
          (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
          (3) Members of advisory boards, committees, and panels of the NRC; members of boards designated by the Commission to preside at adjudicatory proceedings; and officers or employees of Government agencies, including military personnel, assigned to duty at the NRC.

            NRC Public Document Room means the facility at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, where certain public records of the NRC that were made available for public inspection in paper or microfiche prior to the implementation of the NRC Agencywide Documents Access and Management System, commonly referred to as ADAMS, will remain available for public inspection. It is also the place where NRC makes computer terminals available to access the Publicly Available Records System (PARS) component of ADAMS on the NRC Web site, http://www.nrc.gov, and where copies of publicly available documents can be viewed or ordered for a fee as set forth in § 9.35 of this chapter. The facility is staffed with reference librarians to assist the public in identifying and locating documents and in using the NRC Web site and ADAMS. The NRC Public Document Room is open from 7:45 am to 4:15 pm, Monday through Friday, except on Federal holidays. Reference service and access to documents may also be requested by telephone (301-415-4737 or 800-397-4209) between 8:30 am and 4:15 pm, or by e-mail (PDR@nrc.gov), facsimile (301-415-3548), or letter (NRC Public Document Room, One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852-2738).

            NRC records and documents means any book, paper, map, photograph, brochure, punch card, magnetic tape, paper tape, sound recording, pamphlet, slide, motion picture, or other documentary material regardless of form or characteristics, made by, in the possession of, or under the control of the NRC pursuant to Federal law or in connection with the transaction of public business as evidence of NRC organization, functions, policies, decisions, procedures, operations, programs or other activities. “NRC records and documents” do not include objects or articles such as structures, furniture, tangible exhibits or models, or vehicles and equipment.
          NRC Web site, http://www.nrc.gov, is the Internet uniform resource locator name for the Internet address of the Web site where NRC will ordinarily make available its public records for inspection.

            Optical Storage Media means any physical computer component that meets E-Filing Guidance standards for storing, saving, and accessing electronic documents.

            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 Federally-recognized 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.

            Person means (1) any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, government agency other than the Commission or the Department, except that the Department shall be considered a person with respect to those facilities of the Department specified in section 202 of the Energy Reorganization Act of 1974 (88 Stat. 1244), any State or any political subdivision of, or any political entity within a State, any foreign government or nation or any political subdivision of any such government or nation, or other entity; and (2) any legal successor, representative, agent, or agency of the foregoing.

            Potential party means any person who has requested, or who may intend to request, a hearing or petition to intervene in a hearing under 10 CFR part 2, other than hearings conducted under Subparts J and M of 10 CFR part 2.

            Presiding officer means the Commission, an administrative law judge, an administrative judge, an Atomic Safety and Licensing Board, or other person designated in accordance with the provisions of this part, presiding over the conduct of a hearing conducted under the provisions of this part.

            Public Document Room means the place at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852-2738, at which public records of the Commission will ordinarily be made available for inspection.

            Safeguards Information means information not classified as National Security Information or Restricted Data which specifically identifies a licensee's or applicant's detailed control and accounting procedures for the physical protection of special nuclear material in quantities determined by the Commission through order or regulation to be significant to the public health and safety or the common defense and security; detailed security measures (including security plans, procedures, and equipment) for the physical protection of source, byproduct, or special nuclear material in quantities determined by the Commission through order or regulation to be significant to the public health and safety or the common defense and security; security measures for the physical protection and location of certain plant equipment vital to the safety of production or utilization facilities; and any other information within the scope of Section 147 of the Atomic Energy Act of 1954, as amended, the unauthorized disclosure of which, as determined by the Commission through order or regulation, could reasonably be expected to have a significant adverse effect on the health and safety of the public or the common defense and security by significantly increasing the likelihood of sabotage or theft or diversion of source, byproduct, or special nuclear material.

            Secretary means the Secretary to the Commission.
          Except as redefined in this section, words and phrases which are defined in the Act and in this chapter have the same meaning when used in this part.
          [27 FR 377, Jan. 13, 1962]

            Editorial Note:
            For Federal Register citations affecting § 2.4, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

          § 2.8
          Information collection requirements: OMB approval.

          This part contains no information collection requirements and therefore is not subject to requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
          [61 FR 43408, Aug. 22, 1996]

          Subpart A—Procedure for Issuance, Amendment, Transfer, or Renewal of a License, and Standard Design Approval

            § 2.100
            Scope of subpart.
            This subpart prescribes the procedure for issuance of a license; amendment of a license at the request of the licensee; transfer and renewal of a license; and issuance of a standard design approval under subpart E of part 52 of this chapter.
            [72 FR 49470, Aug. 28, 2007]

            § 2.101
            Filing of application.
            (a)(1) An application for a permit, a license, a license transfer, a license amendment, a license renewal, or a standard design approval, shall be filed with the Director, Office of Nuclear Reactor Regulation, or the Director, Office of Nuclear Material Safety and Safeguards, as prescribed by the applicable provisions of this chapter. A prospective applicant may confer informally with the NRC staff before filing an application.

            (2) Each application for a license for a facility or for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee will be assigned a docket number. However, to allow a determination as to whether an application for a limited work authorization, construction permit, operating license, early site permit, standard design approval, combined license, or manufacturing license for a production or utilization facility is complete and acceptable for docketing, it will be initially treated as a tendered application. A copy of the tendered application will be available for public inspection at the NRC Web site, http://www.nrc.gov, and/or at the NRC PDR. Generally, the determination on acceptability for docketing will be made within a period of 30 days. However, in selected applications, the Commission may decide to determine acceptability based on the technical adequacy of the application as well as its completeness. In these cases, the Commission, under § 2.104(a), will direct that the notice of hearing be issued as soon as practicable after the application has been tendered, and the determination of acceptability will be made generally within a period of 60 days. For docketing and other requirements for applications under part 61 of this chapter, see paragraph (f) of this section.
            (3) If the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, determines that a tendered application for a construction permit or operating license for a production or utilization facility, and/or any environmental report required pursuant to subpart A of part 51 of this chapter, or part thereof as provided in paragraphs (a)(5) or (a-1) of this section are complete and acceptable for docketing, a docket number will be assigned to the application or part thereof, and the applicant will be notified of the determination. With respect to the tendered application and/or environmental report or part thereof that is acceptable for docketing, the applicant will be requested to:
            (i) Submit to the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, such additional copies as the regulations in part 50 and subpart A of part 51 of this chapter require;

            (ii) Serve a copy on the chief executive of the municipality in which the facility or site which is the subject of an early site permit is to be located or, if the facility or site which is the subject of an early site permit is not to be located within a municipality, on the chief executive of the county, and serve a notice of availability of the application or environmental report on the chief executives of the municipalities or counties which have been identified in the application or environmental report as the location of all or part of the alternative sites, containing as applicable, 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 these 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 Reactor Regulation, an affidavit that service of the notice of availability of the application or environmental report has been completed along with a list of names and addresses of those executives upon whom the notice was served; and
            (iii) Make direct distribution of additional copies to Federal, State, and local officials in accordance with the requirements of this chapter and written instructions furnished to the applicant by the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate. Such written instructions will be furnished as soon as practicable after all or any part of the application, or environmental report, is tendered. The copies submitted to the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, and distributed by the applicant shall be completely assembled documents, identified by docket number. Subsequently distributed amendments to applications, however, may include revised pages to previous submittals and, in such cases, the recipients will be responsible for inserting the revised pages.
            (4) The tendered application for a construction permit, operating license, early site permit, standard design approval, combined license, or manufacturing license will be formally docketed upon receipt by the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, of the required additional copies. Distribution of the additional copies shall be deemed to be complete as of the time the copies are deposited in the mail or with a carrier prepaid for delivery to the designated addresses. The date of docketing shall be the date when the required copies are received by the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate. Within 10 days after docketing, the applicant shall submit to the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, an affidavit that distribution of the additional copies to Federal, State, and local officials has been completed in accordance with requirements of this chapter and written instructions furnished to the applicant by the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate. Amendments to the application and environmental report shall be filed and distributed and an affidavit shall be furnished to the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, in the same manner as for the initial application and environmental report. If it is determined that all or any part of the tendered application and/or environmental report is incomplete and therefore not acceptable for processing, the applicant will be informed of this determination, and the respects in which the document is deficient.

            (5) An applicant for a construction permit under part 50 of this chapter or a combined license under part 52 of this chapter for a production or utilization facility which is subject to § 51.20(b) of this chapter, and is of the type specified in § 50.21(b)(2) or (b)(3) or § 50.22 of this chapter or is a testing facility may submit the information required of applicants by part 50 or part 52 of this chapter in two parts. One part shall be accompanied by the information required by § 50.30(f) of this chapter, or § 52.80(b) of this chapter, as applicable. The other part shall include any information required by § 50.34(a) and, if applicable, § 50.34a of this chapter, or §§ 52.79 and 52.80(a), as applicable. One part may precede or follow other parts by no longer than 6 months. If it is determined that either of the parts as described above is incomplete and not acceptable for processing, the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, will inform the applicant of this determination and the respects in which the document is deficient. Such a determination of completeness will generally be made within a period of 30 days. Whichever part is filed first shall also include the fee required by §§ 50.30(e) and 170.21 of this chapter and the information required by §§ 50.33, 50.34(a)(1), or 52.79(a)(1), as applicable, and § 50.37 of this chapter. The Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, will accept for docketing an application for a construction permit under part 52 of this chapter for a production or utilization facility which is subject to § 51.20(b) of this chapter, and is of the type specified in § 50.21(b)(2) or (b)(3) or § 50.22 of this chapter or is a testing facility where one part of the application as described above is complete and conforms to the requirements of part 50 of this chapter. The additional parts will be docketed upon a determination by the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, that it is complete.
            (6)-(8) [Reserved]
            (9) An applicant for a construction permit for a utilization facility which is subject to § 51.20(b) of this chapter and is of the type specified in § 50.21(b)(2) or (b)(3) or § 50.22 of this chapter, an applicant for or holder of an early site permit under part 52 of this chapter, or an applicant for a combined license under part 52 of this chapter, who seeks to conduct the activities authorized under § 50.10(d) of this chapter may submit a complete application under paragraphs (a)(1) through (a)(4) of this section which includes the information required by § 50.10(d) of this chapter. Alternatively, the applicant (other than an applicant for or holder of an early site permit) may submit its application in two parts:
            (i) Part one must include the information required by § 50.33(a) through (f) of this chapter, and the information required by § 50.10(d)(2) and (d)(3) of this chapter.

            (ii) Part two must include the remaining information required by the Commission's regulations in this chapter which was not submitted in part one, provided, however, that this information may be submitted in accordance with the applicable provisions of paragraph (a)(5) of this section, or, for a construction permit applicant, paragraph (a)(1) of this section. Part two of the application must be submitted no later than 18 months after submission of part one.
            (a-1) Early consideration of site suitability issues. An applicant for a construction permit under part 50 of this chapter or a combined license under part 52 of this chapter for a utilization facility which is subject to § 51.20(b) of this chapter and is of the type specified in § 50.21(b)(2) or (3) or § 50.22 of this chapter or is a testing facility, may request that the Commission conduct an early review and hearing and render an early partial decision in accordance with subpart F of this part on issues of site suitability within the purview of the applicable provisions of parts 50, 51, 52, and 100 of this chapter.
            (1) Construction permit. The applicant for the construction permit may submit the information required of applicants by the provisions of this chapter in three parts:
            (i) Part one shall include or be accompanied by any information required by §§ 50.34(a)(1) and 50.30(f) of this chapter which relates to the issue(s) of site suitability for which an early review, hearing, and partial decision are sought, except that information with respect to operation of the facility at the projected initial power level need not be supplied, and shall include the information required by §§ 50.33(a) through (e) and 50.37 of this chapter. The information submitted shall also include:

            (A) Proposed findings on the issues of site suitability on which the applicant has requested review and a statement of the bases or the reasons for those findings,

            (B) A range of postulated facility design and operation parameters that is sufficient to enable the Commission to perform the requested review of site suitability issues under the applicable provisions of parts 50, 51, and 100, and
            (C) Information concerning the applicant's site selection process and long-range plans for ultimate development of the site required by § 2.603(b)(1).
            (ii) Part two shall include or be accompanied by the remaining information required by §§ 50.30(f), 50.33, and 50.34(a)(1) of this chapter.
            (iii) Part three shall include the remaining information required by §§ 50.34a and (in the case of a nuclear power reactor) 50.34(a) of this chapter.
            (iv) The information required for part two or part three shall be submitted during the period the partial decision on part one is effective. Submittal of the information required for part three may precede by no more than 6 months or follow by no more than 6 months the submittal of the information required for part two.
            (2) Combined license under part 52. An applicant for a combined license under part 52 of this chapter may submit the information required of applicants by the provisions of this chapter in three parts:
            (i) Part one shall include or be accompanied by any information required by §§ 52.79(a)(1) and 50.30(f) of this chapter which relates to the issue(s) of site suitability for which an early review, hearing, and partial decision are sought, except that information with respect to operation of the facility at the projected initial power level need not be supplied, and shall include the information required by §§ 50.33(a) through (e) and 50.37 of this chapter. The information submitted shall also include:
            (A) Proposed findings on the issues of site suitability on which the applicant has requested review and a statement of the bases or the reasons for those findings;
            (B) A range of postulated facility design and operation parameters that is sufficient to enable the Commission to perform the requested review of site suitability issues under the applicable provisions of parts 50, 51, 52, and 100; and
            (C) Information concerning the applicant's site selection process and long-range plans for ultimate development of the site required by § 2.621(b)(1).
            (ii) Part two shall include or be accompanied by the remaining information required by §§ 50.30(f), 50.33, and 52.79(a)(1) of this chapter.
            (iii) Part three shall include the remaining information required by §§ 52.79 and 52.80 of this chapter.
            (iv) The information required for part two or part three shall be submitted during the period the partial decision on part one is effective. Submittal of the information required for part three may precede by no more than 6 months or follow by no more than 6 months the submittal of the information required for part two.

            (b) After the application has been docketed, each applicant for a license for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee, except applicants under part 61 of this chapter, which must comply with paragraph (f) of this section, shall serve a copy of the application and environmental report, as appropriate, on the chief executive of the municipality in which the activity is to be conducted or, if the activity is not to be conducted within a municipality on the chief executive of the county, and serve a notice of availability of the application or environmental report on the chief executives of the municipalities or counties which have been identified in the application or environmental report as the location of all or part of the alternative sites, containing the docket number of the application; a brief description of the proposed site and facility; the location of the site and facility as primarily proposed and alternatively listed; the name, address, telephone number, and email address (if available) of the applicant's representative who may be contacted for further information; notification that a draft environmental impact statement will be issued by the Commission and will be made available upon request to the Commission; and notification that if a request is received from the appropriate chief executive, the applicant will transmit a copy of the application and environmental report, and any changes to such documents which affect the alternative site location, to the executive who makes the request. In complying with the requirements of this paragraph the applicant should not make public distribution of those parts of the application subject to § 2.390(d). The applicant shall submit to the Director, Office of Nuclear Material Safety and Safeguards, an affidavit that service of the notice of availability of the application or environmental report has been completed along with a list of names and addresses of those executives upon whom the notice was served.

            (c) Upon receipt and acceptance for docketing of the required portions of the application dealing with radiological health and safety and environmental matters, notice of receipt will be published in the Federal Register including an appropriate notice of hearing.

            (d) The Director, Office of Nuclear Reactor Regulation, 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.
            (e)(1) Each application for construction authorization for a HLW repository at a geologic repository operations area pursuant to parts 60 or 63 of this chapter, and each application for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to parts 60 or 63 of this chapter, and any environmental impact statement required in connection therewith pursuant to subpart A of part 51 of this chapter shall be processed in accordance with the provisions of this paragraph.
            (2) To allow a determination as to whether the application is complete and acceptable for docketing, it will be initially treated as a tendered document, and a copy will be available for public inspection in the Commission's Public Document Room. Twenty copies shall be filed to enable this determination to be made.
            (3) If the Director, Office of Nuclear Material Safety and Safeguards determines that the tendered document is complete and acceptable for docketing, a docket number will be assigned and the applicant will be notified of the determination. If it is determined that all or any part of the tendered document is incomplete and therefore not acceptable for processing, the applicant will be informed of this determination and the respects in which the document is deficient.
            (4) [Reserved]

            (5) If a tendered document is acceptable for docketing, the applicant will be requested to submit to the Director of Nuclear Material Safety and Safeguards such additional copies of the application and environmental impact statement as the regulations in part 60 or 63 and subpart A of part 51 of this chapter require; serve a copy of such application and environmental impact statement on the chief executive of the municipality in which the geologic repository operations area is to be located, or if the geologic repository operations area is not to be located within a municipality, on the chief executive of the county (or to the Tribal organization, if it is to be located within an Indian reservation); and make direct distribution of additional copies to Federal, State, Indian Tribe, and local officials in accordance with the requirements of this chapter, and written instructions from the Director of Nuclear Material Safety and Safeguards. All such copies shall be completely assembled documents, identified by docket number. Subsequently distributed amendments to the application, however, may include revised pages to previous submittals and, in such cases, the recipients are responsible for inserting the revised pages.

            (6) The tendered document will be formally docketed upon receipt by the Director, Office of Nuclear Material Safety and Safeguards, of the required additional copies. The date of docketing shall be the date when the required copies are received by the Director, Office of Nuclear Material Safety and Safeguards. Within ten (10) days after docketing, the applicant shall submit to the Director, Office of Nuclear Material Safety and Safeguards, a written statement that distribution of the additional copies to Federal, State, Indian Tribe, and local officials has been completed in accordance with requirements of this chapter and written instructions furnished to the applicant by the Director, Office of Nuclear Material Safety and Safeguards. Distribution of the additional copies shall be deemed to be complete as of the time the copies are deposited in the mail or with a carrier prepaid for delivery to the designated addressees.
            (7) Amendments to the application and supplements to the environmental impact statement shall be filed and distributed and a written statement shall be furnished to the Director, Office of Nuclear Material Safety and Safeguards, in the same manner as for the initial application and environmental impact statement.

            (8) The Director, Office of Nuclear Material Safety and Safeguards, will cause to be published in the Federal Register a notice of docketing which identifies the State and location at which the proposed geologic repository operations area would be located and will give notice of docketing to the governor of that State. The notice of docketing will state that the Commission finds that a hearing is required in the public interest, prior to issuance of a construction authorization, and will recite the matters specified in § 2.104(a) of this part.
            (f) Each application for a license to receive radioactive waste from other persons for disposal under part 61 of this chapter and the accompanying environmental report shall be processed in accordance with the provisions of this paragraph.
            (1) To allow a determination as to whether the application or environmental report is complete and acceptable for docketing, it will be initially treated as a tendered document, and a copy will be available for public inspection in the Commission's Public Document Room, One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852-2738. One original and two copies shall be filed to enable this determination to be made.

            (i) Upon receipt of a tendered application, the Commission will publish in the Federal Register notice of the filed application and will notify the governors, legislatures and other appropriate State, county, and municipal officials and Tribal governing bodies of the States and areas containing or potentially affected by the activities at the proposed site and the alternative sites. The Commission will inform these officials that the Commission staff will be available for consultation pursuant to § 61.71 of this chapter. The Federal Register notice will note the opportunity for interested persons to submit views and comments on the tendered application for consideration by the Commission and applicant. The Commission will also notify the U.S. Bureau of Indian Affairs when Tribal governing bodies are notified.
            (ii) The Commission will also post a public notice in a newspaper or newspapers of general circulation in the affected States and areas summarizing information contained in the applicant's tendered application and noting the opportunity to submit views and comments.
            (iii) When the Director, Office of Nuclear Material Safety and Safeguards, determines that the tendered document is complete and acceptable for docketing, a docket number will be assigned and the applicant will be notified of the determination. If it is determined that all or any part of the tendered document is incomplete and therefore not acceptable for processing, the applicant will be informed of this determination and the aspects in which the document is deficient.

            (2)(i) With respect to any tendered document that is acceptable for docketing, the applicant will be requested to:

            (A) Submit to the Director, Office of Nuclear Material Safety and Safeguards, such additional copies as required by the regulations in part 61 and subpart A of part 51 of this chapter;
            (B) Serve a copy on the chief executive of the municipality in which the waste is to be disposed of or, if the waste is not to be disposed of within a municipality, serve a copy on the chief executive of the county in which the waste is to be disposed of;
            (C) Make direct distribution of additional copies to Federal, State, Indian Tribal, and local officials in accordance with the requirements of this chapter and written instructions from the Director, Office of Nuclear Material Safety and Safeguards; and
            (D) Serve a notice of availability of the application and environmental report on the chief executives or governing bodies of the municipalities or counties which have been identified in the application and environmental report as the location of all or part of the alternative sites if copies are not distributed under paragraph (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).
            (3) The tendered document will be formally docketed upon receipt by the Director, Office of Nuclear Material Safety and Safeguards, of the required additional copies. Distribution of the additional copies shall be deemed to be complete as of the time the copies are deposited in the mail or with a carrier prepaid for delivery to the designated addressees. The date of docketing shall be the date when the required copies are received by the Director, Office of Nuclear Material Safety and Safeguards. Within ten (10) days after docketing, the applicant shall submit to the Director, Office of Nuclear Material Safety and Safeguards, a written statement that distribution of the additional copies to Federal, State, Indian Tribal, and local officials has been completed in accordance with requirements of this section and written instructions furnished to the applicant by the Director, Office of Nuclear Material Safety and Safeguards.
            (4) Amendments to the application and environmental report shall be filed and distributed and a written statement shall be furnished to the Director, Office of Nuclear Material Safety and Safeguards, in the same manner as for the initial application and environmental report.

            (5) The Director, Office of Nuclear Material Safety and Safeguards, will cause to be published in the Federal Register a notice of docketing which identifies the State and location of the proposed waste disposal facility and will give notice of docketing to the governor of that State and other officials listed in paragraph (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.
            [41 FR 15833, Apr. 15, 1976]

              Editorial Note:
              For Federal Register citations affecting § 2.101, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

            § 2.102
            Administrative review of application.
            (a) During review of an application by the NRC staff, an applicant may be required to supply additional information. The staff may request any one party to the proceeding to confer with the NRC staff informally. In the case of docketed application for a limited work authorization, construction permit, operating license, early site permit, standard design approval, combined license, or manufacturing license under this chapter, the NRC staff shall establish a schedule for its review of the application, specifying the key intermediate steps from the time of docketing until the completion of its review.

            (b) The Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, will refer the docketed application to the ACRS as required by law and in such additional cases as he or the Commission may determine to be appropriate. The ACRS will render to the Commission one or more reports as required by law or as requested by the Commission.
            (c) The Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, will make each report of the ACRS a part of the record of the docketed application, and transmit copies to the appropriate State and local officials.
            [27 FR 377, Jan. 13, 1962, as amended at 36 FR 13270, July 17, 1971; 37 FR 15130, July 28, 1972; 47 FR 9986, Mar. 9, 1982; 69 FR 2235, Jan. 14, 2004; 70 FR 61887, Oct. 27, 2005; 72 FR 49472, Aug. 28, 2007; 72 FR 57439, Oct. 9, 2007; 73 FR 5715, Jan. 31, 2008; 84 FR 65643, Nov. 29, 2019]

            § 2.103
            Action on applications for byproduct, source, special nuclear material, facility and operator licenses.
            (a) If the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, finds that an application for a byproduct, source, special nuclear material, facility, or operator license complies with the requirements of the Act, the Energy Reorganization Act, and this chapter, he will issue a license. If the license is for a facility, or for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee, or for a construction authorization for a HLW repository at a geologic repository operations area under parts 60 or 63 of this chapter, or if it is to receive and possess high-level radioactive waste at a geologic repository operations area under parts 60 or 63 of this chapter, the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, will inform the State, Tribal and local officials specified in § 2.104(c) of the issuance of the license. For notice of issuance requirements for licenses issued under part 61 of this chapter, see § 2.106(d).
            (b) If the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, finds that an application does not comply with the requirements of the Act and this chapter he may issue a notice of proposed denial or a notice of denial of the application and inform the applicant in writing of:
            (1) The nature of any deficiencies or the reason for the proposed denial or the denial, and
            (2) The right of the applicant to demand a hearing within twenty (20) days from the date of the notice or such longer period as may be specified in the notice.
            [28 FR 10152, Sept. 17, 1963, as amended at 47 FR 57478, Dec. 27, 1982; 66 FR 55787, Nov. 2, 2001; 69 FR 2235, Jan. 14, 2004; 73 FR 5715, Jan. 31, 2008; 77 FR 46589, Aug. 3, 2012; 79 FR 75739, Dec. 19, 2014; 84 FR 65643, Nov. 29, 2019]

            Hearing on Application—How Initiated

              § 2.104
              Notice of hearing.

              (a) In the case of an application on which a hearing is required by the Act or this chapter, or in which the Commission finds that a hearing is required in the public interest, the Secretary will issue a notice of hearing to be published in the Federal Register. The notice must be published at least 15 days, and in the case of an application concerning a limited work authorization, construction permit, early site permit, or combined license for a facility of the type described in §§ 50.21(b) or 50.22 of this chapter or a testing facility, at least 30 days, before the date set for hearing in the notice. 1

                 In addition, in the case of an application for a limited work authorization, construction permit, early site permit, or combined license for a facility of the type described in § 50.22 of this chapter, or a testing facility, the notice must be issued as soon as practicable after the NRC has docketed the application. If the Commission decides, under § 2.101(a)(2), to determine the acceptability of the application based on its technical adequacy as well as completeness, the notice must be issued as soon as practicable after the application has been tendered.

                  1 If the notice of hearing concerning an application for a limited work authorization, construction permit, early site permit, or combined license for a facility of the type described in §§ 50.21(b) or 50.22 of this chapter or a testing facility does not specify the time and place of initial hearing, a subsequent notice will be published in the Federal Register which will provide at least 30 days notice of the time and place of that hearing. After this notice is given, the presiding officer may reschedule the commencement of the initial hearing for a later date or reconvene a recessed hearing without again providing at least 30 days notice.

              (b) The notice of hearing must state:
              (1) The nature of the hearing;
              (2) The authority under which the hearing is to be held;
              (3) The matters of fact and law to be considered;
              (4) The date by which requests for hearing or petitions to intervene must be filed;
              (5) The presiding officer designated for the hearing, or the procedure that the Commission will use to designate a presiding officer for the hearing.
              (c)(1) The Secretary will transmit a notice of hearing on an application for a license for a production or utilization facility, including a limited work authorization, early site permit, combined license, but not for a manufacturing license, for a license for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee, for a license under part 61 of this chapter, for a construction authorization for a high-level waste repository at a geologic repository operations area under parts 60 or 63 of this chapter, 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, and for a license under part 72 of this chapter to acquire, receive or possess spent fuel for the purpose of storage in an independent spent fuel storage installation (ISFSI) to the governor or other appropriate official of the State and to the chief executive of the municipality in which the facility is to be located or the activity is to be conducted or, if the facility is not to be located or the activity conducted within a municipality, to the chief executive of the county (or to the Tribal organization, if it is to be located or conducted within an Indian reservation).
              (2) The Secretary will transmit a notice of hearing on an application for a license under part 72 of this chapter to acquire, receive or possess spent fuel, high-level radioactive waste or radioactive material associated with high-level radioactive waste for the purpose of storage in a monitored retrievable storage installation (MRS) to the same persons who received the notice of docketing under § 72.16(e) of this chapter.
              [72 FR 49472, Aug. 28, 2007, as amended at 72 FR 57439, Oct. 9, 2007]

              § 2.105
              Notice of proposed action.

              (a) If a hearing is not required by the Act or this chapter, and if the Commission has not found that a hearing is in the public interest, it will, before acting thereon, publish in the Federal Register, as applicable, or on the NRC's Web site, http://www.nrc.gov, or both, at the Commission's discretion, either a notice of intended operation under § 52.103(a) of this chapter and a proposed finding that inspections, tests, analyses, and acceptance criteria for a combined license under subpart C of part 52 have been or will be met, or a notice of proposed action with respect to an application for:
              (1) A license for a facility;
              (2) A license for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee. All licenses issued under part 61 of this chapter shall be so noticed;
              (3) An amendment of a license specified in paragraph (a) (1) or (2) of this section and which involves a significant hazards consideration;
              (4) An amendment to an operating license, combined license, or manufacturing license for a facility licensed under §§ 50.21(b) or 50.22 of this chapter, or for a testing facility, as follows:
              (i) If the Commission determines under § 50.58 of this chapter that the amendment involves no significant hazards consideration, though it will provide notice of opportunity for a hearing pursuant to this section, it may make the amendment immediately effective and grant a hearing thereafter; or

              (ii) If the Commission determines under §§ 50.58 and 50.91 of this chapter that an emergency situation exists or that exigent circumstances exist and that the amendment involves no significant hazards consideration, it will provide notice of opportunity for a hearing pursuant to § 2.106 (if a hearing is requested, it will be held after issuance of the amendment);
              (5) A license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to parts 60 or 63 of this chapter, or an amendment thereto, when the license or amendment would authorize actions which may significantly affect the health and safety of the public;
              (6) An amendment to a construction authorization for a high-level radioactive waste at a geologic repository operations area pursuant to parts 60 or 63 of this chapter, when such an amendment would authorize actions which may significantly affect the health and safety of the public;
              (7) A license under part 72 of this chapter to acquire, receive or possess spent fuel for the purpose of storage in an independent spent fuel storage installation (ISFSI) or to acquire, receive or possess spent fuel, high-level radioactive waste or radioactive material associated with high-level radioactive waste for the purpose of storage in a monitored retrievable storage installation (MRS);
              (8) An amendment to a license specified in paragraph (a)(7) of this section when such an amendment presents a genuine issue as to whether the health and safety of the public will be significantly affected; or
              (9) Any other license or amendment as to which the Commission determines that an opportunity for a public hearing should be afforded;
              (10) In the case of an application for an operating license for a facility of a type described in § 50.21(b) or § 50.22 of this chapter or a testing facility, a notice of opportunity for hearing shall be issued as soon as practicable after the application has been docketed; or
              (11) In the case of an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area, a notice of opportunity for hearing, as required by this paragraph, shall be published prior to Commission action authorizing receipt of such wastes; this requirement is in addition to the procedures set out in §§ 2.101(f)(8) and 2.104 of this part, which provide for a hearing on the application prior to issuance of a construction authorization.
              (12) An amendment to an early site permit issued under subpart A of part 52 of this chapter, as follows:
              (i) If the early site permit does not provide authority to conduct the activities allowed under § 50.10(e)(1) of this chapter, the amendment will involve no significant hazards consideration, and though the NRC will provide notice of opportunity for a hearing under this section, it may make the amendment immediately effective and grant a hearing thereafter; and
              (ii) If the early site permit provides authority to conduct the activities allowed under § 50.10(e)(1) and the Commission determines under §§ 50.58 and 50.91 of this chapter that an emergency situation exists or that exigent circumstances exist and that the amendment involves no significant hazards consideration, it will provide notice of opportunity for a hearing under § 2.106 of this chapter (if a hearing is requested, which will be held after issuance of the amendment).
              (13) A manufacturing license under subpart F of part 52 of this chapter.
              (b) A notice of proposed action published in the Federal Register will set forth:
              (1) The nature of the action proposed;
              (2) The manner in which a copy of the safety analysis and of the ACRS report, if any, may be obtained or examined.
              (3) For a notice of intended operation under § 52.103(a) of this chapter, the following information:
              (i) The identification of the NRC action as making the finding required under § 52.103(g) of this chapter;
              (ii) The manner in which the licensee notifications under 10 CFR 52.99(c) which are required to be made available by 10 CFR 52.99(e)(2) may be obtained and examined;
              (iii) The manner in which copies of the safety analysis may be obtained and examined; and

              (iv) Any conditions, limitations, or restrictions to be placed on the license in connection with the finding under § 52.103(g) of this chapter, and the expiration date or circumstances (if any) under which the conditions, limitations or restrictions will no longer apply.
              (c) If an application for a license is complete enough to permit all evaluations, other than completion inspection, necessary for the issuance of a construction permit and operating license, the notice of proposed issuance of a construction permit may provide that on completion of construction and inspection the operating license will be issued without further prior notice.
              (d) The notice of proposed action will provide that, within the time period provided under § 2.309(b):
              (1) The applicant may file a request for a hearing; and
              (2) Any person whose interest may be affected by the proceeding may file a request for a hearing or a petition for leave to intervene if a hearing has already been requested.

              (e)(1) If no request for a hearing or petition for leave to intervene is filed within the time prescribed in the notice, the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, may take the proposed action, inform the appropriate State and local officials, and publish in the Federal Register a notice of issuance of the license or other action.
              (2) If a request for a hearing or a petition for leave to intervene is filed within the time prescribed in the notice, the presiding officer who shall be an Atomic Safety and Licensing Board established by the Commission or by the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel, will rule on the request and/or petition, and the Secretary or the presiding officer will issue a notice of hearing or an appropriate order.
              [27 FR 377, Jan. 13, 1962]

                Editorial Note:
                For Federal Register citations affecting § 2.105, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 2.106
              Notice of issuance.

              (a) The Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, will inform the State and local officials specified in § 2.104(c) and publish a document in the Federal Register announcing the issuance of:
              (1) A license or an amendment of a license for which a notice of proposed action has been previously published;
              (2) An amendment of a license for a facility of the type described in § 50.21(b) or § 50.22 of this chapter, or a testing facility, whether or not a notice of proposed action has been previously published; and
              (3) The finding under § 52.103(g) of this chapter.
              (b) The notice of issuance will set forth:
              (1) In the case of a license or amendment:
              (i) The nature of the license or amendment;
              (ii) The manner in which copies of the safety analysis, if any, may be obtained and examined; and
              (iii) A finding that the application for the license or amendment complies with the requirements of the Act and this chapter.
              (2) In the case of a finding under § 52.103(g) of this chapter:
              (i) The manner in which copies of the safety analysis, if any, may be obtained and examined; and
              (ii) A finding that the prescribed inspections, tests, and analyses have been performed, the prescribed acceptance criteria have been met, and that the license complies with the requirements of the Act and this chapter.

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

              (d) The Office of Nuclear Material Safety and Safeguards will also cause to be published in the Federal Register notice of, and will inform the State and local officials or Tribal governing body specified in § 2.104(c) of any licensing action with respect to a license to receive radioactive waste from other persons for disposal under part 61 of this chapter or the amendment of such a license for which a notice of proposed action has been previously published.
              [37 FR 15131, July 28, 1972, as amended at 38 FR 9586, Apr. 18, 1973; 46 FR 13978, Feb. 25, 1981; 47 FR 57478, Dec. 27, 1982; 66 FR 55787, Nov. 2, 2001; 69 FR 2235, Jan. 14, 2004; 72 FR 49473, Aug. 28, 2007; 73 FR 5716, Jan. 31, 2008; 77 FR 46590, Aug. 3, 2012; 84 FR 65643, Nov. 29, 2019]

              § 2.107
              Withdrawal of application.
              (a) The Commission may permit an applicant to withdraw an application prior to the issuance of a notice of hearing on such terms and conditions as it may prescribe, or may, on receiving a request for withdrawal of an application, deny the application or dismiss it with prejudice. If the application is withdrawn prior to issuance of a notice of hearing, the Commission shall dismiss the proceeding. Withdrawal of an application after the issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe.
              (b) The withdrawal of an application does not authorize the removal of any document from the files of the Commission.

              (c) The Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, will cause to be published in the Federal Register a notice of the withdrawal of an application if notice of receipt of the application has been previously published.
              [27 FR 377, Jan. 13, 1962, as amended at 28 FR 10152, Sept. 17, 1963; 69 FR 2236, Jan. 14, 2004; 73 FR 5716, Jan. 31, 2008; 77 FR 46590, Aug. 3, 2012; 84 FR 65643, Nov. 29, 2019]

              § 2.108
              Denial of application for failure to supply information.
              (a) The Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, may deny an application if an applicant fails to respond to a request for additional information within thirty (30) days from the date of the request, or within such other time as may be specified.

              (b) The Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, will cause to be published in the Federal Register a notice of denial when notice of receipt of the application has previously been published, but notice of hearing has not yet been published. The notice of denial will provide that, within thirty (30) days after the date of publication in the Federal Register.

              (1) The applicant may demand a hearing, and
              (2) Any person whose interest may be affected by the proceeding may file a petition for leave to intervene.
              (c) When both a notice of receipt of the application and a notice of hearing have been published, the presiding officer, upon a motion made by the staff under § 2.323, will rule whether an application should be denied by the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, under paragraph (a) of this section.
              [77 FR 46590, Aug. 3, 2012, as amended at 84 FR 65643, Nov. 29, 2019]

              § 2.109
              Effect of timely renewal application.
              (a) Except for the renewal of an operating license for a nuclear power plant under 10 CFR 50.21(b) or 50.22, an early site permit under subpart A of part 52 of this chapter, a manufacturing license under subpart F of part 52 of this chapter, or a combined license under subpart C of part 52 of this chapter, if at least 30 days before the expiration of an existing license authorizing any activity of a continuing nature, the licensee files an application for a renewal or for a new license for the activity so authorized, the existing license will not be deemed to have expired until the application has been finally determined.

              (b) If the licensee of a nuclear power plant licensed under 10 CFR 50.21(b) or 50.22 files a sufficient application for renewal of either an operating license or a combined license at least 5 years before the expiration of the existing license, the existing license will not be deemed to have expired until the application has been finally determined.
              (c) If the holder of an early site permit licensed under subpart A of part 52 of this chapter files a sufficient application for renewal under § 52.29 of this chapter at least 12 months before the expiration of the existing early site permit, the existing permit will not be deemed to have expired until the application has been finally determined.
              (d) If the licensee of a manufacturing license under subpart F of part 52 of this chapter files a sufficient application for renewal under § 52.177 of this chapter at least 12 months before the expiration of the existing license, the existing license will not be deemed to have expired until the application has been finally determined.
              [72 FR 49473, Aug. 28, 2007]

              § 2.110
              Filing and administrative action on submittals for standard design approval or early review of site suitability issues.
              (a)(1) A submittal for a standard design approval under subpart E of part 52 of this chapter shall be subject to §§ 2.101(a) and 2.390 to the same extent as if it were an application for a permit or license.
              (2) Except as specifically provided otherwise by the provisions of appendix Q to parts 50 of this chapter, a submittal for early review of site suitability issues under appendix Q to parts 50 of this chapter shall be subject to §§ 2.101(a)(2) through (4) to the same extent as if it were an application for a permit or license.

              (b) Upon initiation of review by the NRC staff of a submittal for an early review of site suitability issues under Appendix Q of part 50 of this chapter, or for a standard design approval under subpart E of part 52 of this chapter, the Director, Office of Nuclear Reactor Regulation, shall publish in the Federal Register a notice of receipt of the submittal, inviting comments from interested persons within 60 days of publication or other time as may be specified, for consideration by the NRC staff and ACRS in their review.

              (c)(1) Upon completion of review by the NRC staff and the ACRS of a submittal for a standard design approval, the Director, Office of Nuclear Reactor Regulation, shall publish in the Federal Register a determination as to whether or not the design is acceptable, subject to terms and conditions as may be appropriate, and shall make available at the NRC Web site, http://www.nrc.gov, a report that analyzes the design.

              (2) Upon completion of review by the NRC staff and, if appropriate by the ACRS, of a submittal for early review of site suitability issues, the NRC staff shall prepare a staff site report which shall identify the location of the site, state the site suitability issues reviewed, explain the nature and scope of the review, state the conclusions of the staff regarding the issues reviewed and state the reasons for those conclusions. Upon issuance of an NRC staff site report, the NRC staff shall publish a notice of the availability of the report in the Federal Register and shall make the report available at the NRC Web site, http://www.nrc.gov. The NRC staff shall also send a copy of the report to the Governor or other appropriate official of the State in which the site is located, and to the chief executive of the municipality in which the site is located or, if the site is not located in a municipality, to the chief executive of the county.
              [72 FR 49474, Aug. 28, 2007; 73 FR 5716, Jan. 31, 2008; 84 FR 65643, Nov. 29, 2019]

              § 2.111
              Prohibition of sex discrimination.
              No person shall on the grounds of sex be excluded from participation in, be denied a license, standard design approval, or petition for rulemaking (including a design certification), be denied the benefits of, or be subjected to discrimination under any program or activity carried on or receiving Federal assistance under the Act or the Energy Reorganization Act of 1974.
              [72 FR 49474, Aug. 28, 2007]

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

            § 2.200
            Scope of subpart.
            (a) This subpart prescribes the procedures in cases initiated by the staff, or upon a request by any person, to impose requirements by order, or to modify, suspend, or revoke a license, or to take other action as may be proper, against any person subject to the jurisdiction of the Commission. However, with regard to the holder of a part 76 certificate of compliance or compliance plan, except for civil penalty procedures in this subpart, the applicable procedures are set forth in § 76.70 of this chapter.
            (b) This subpart also prescribes the procedures in cases initiated by the staff to impose civil penalties pursuant to section 234 of the Act and section 206 of the Energy Reorganization Act of 1974.
            [36 FR 16896, Aug. 26, 1971, as amended at 42 FR 28893, June 6, 1977; 48 FR 44172, Sept. 28, 1983; 62 FR 6668, Feb. 12, 1997]

            § 2.201
            Notice of violation.
            (a) In response to an alleged violation of any provision of the Act or this chapter or the conditions of a license or an order issued by the Commission, the Commission may serve on the licensee or other person subject to the jurisdiction of the Commission a written notice of violation; a separate notice may be omitted if an order pursuant to § 2.202 or demand for information pursuant to § 2.204 is issued that otherwise identifies the apparent violation. The notice of violation will concisely state the alleged violation and may require that the licensee or other person submit, within 20 days of the date of the notice or other specified time, a written explanation or statement in reply if the Commission believes that the licensee has not already addressed all the issues contained in the notice of violation, including:
            (1) Corrective steps which have been taken by the licensee or other person and the results achieved;
            (2) Corrective steps which will be taken; and
            (3) The date when full compliance will be achieved.
            (b) The notice may require the licensee or other person subject to the jurisdiction of the Commission to admit or deny the violation and to state the reasons for the violation, if admitted. It may provide that, if an adequate reply is not received within the time specified in the notice, the Commission may issue an order or a demand for information as to why the license should not be modified, suspended or revoked or why such other action as may be proper should not be taken.
            [56 FR 40684, Aug. 15, 1991, as amended at 61 FR 43408, Aug. 22, 1996]

            § 2.202
            Orders.
            (a) The Commission may institute a proceeding to modify, suspend, or revoke a license or to take such other action as may be proper by serving on the licensee or other person subject to the jurisdiction of the Commission an order that will:
            (1) Allege the violations with which the licensee or other person subject to the Commission's jurisdiction is charged, or the potentially hazardous conditions or other facts deemed to be sufficient ground for the proposed action, and specify the action proposed;
            (2) Provide that the licensee or other person must file a written answer to the order under oath or affirmation within twenty (20) days of its date, or such other time as may be specified in the order;
            (3) Inform the licensee or any other person adversely affected by the order of his or her right, within twenty (20) days of the date of the order, or such other time as may be specified in the order, to demand a hearing on all or part of the order, except in a case where the licensee or other person has consented in writing to the order;
            (4) Specify the issues for hearing; and

            (5) State the effective date of the order; if the Commission finds that the public health, safety, or interest so requires or that the violation or conduct causing the violation is willful, the order may provide, for stated reasons, that the proposed action be immediately effective pending further order.
            (b) A licensee or other person to whom the Commission has issued an order under this section must respond to the order by filing a written answer under oath or affirmation. The answer shall specifically admit or deny each allegation or charge made in the order, and shall set forth the matters of fact and law on which the licensee or other person relies, and, if the order is not consented to, the reasons as to why the order should not have been issued. Except as provided in paragraph (d) of this section, the answer may demand a hearing.
            (c) If the answer demands a hearing, the Commission will issue an order designating the time and place of hearing.
            (1) If the answer demands a hearing with respect to an immediately effective order, the hearing will be conducted expeditiously, giving due consideration to the rights of the parties.
            (2)(i) The licensee or other person to whom the Commission has issued an immediately effective order in accordance with paragraph (a)(5) of this section, may, in addition to demanding a hearing, at the time the answer is filed or sooner, file a motion with the presiding officer to set aside the immediate effectiveness of the order on the ground that the order, including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error. The motion must state with particularity the reasons why the order is not based on adequate evidence and must be accompanied by affidavits or other evidence relied on.
            (ii) Any party may file a motion with the presiding officer requesting that the presiding officer order live testimony. Any motion for live testimony must be made in conjunction with the motion to set aside the immediate effectiveness of the order or any party's response thereto. The presiding officer may, on its own motion, order live testimony. The presiding officer's basis for approving any motion for, or ordering on its own motion, live testimony shall be that taking live testimony would assist in its decision on the motion to set aside the immediate effectiveness of the order.
            (iii) The NRC staff shall respond in writing within 5 days of the receipt of either a motion to set aside the immediate effectiveness of the order or the presiding officer's order denying a motion for live testimony. In cases in which the presiding officer orders live testimony, the staff may present its response through live testimony rather than a written response.
            (iv) The presiding officer shall conduct any live testimony pursuant to its powers in § 2.319 of this part, except that no subpoenas, discovery, or referred rulings or certified questions to the Commission shall be permitted for this purpose.
            (v) The presiding officer may, on motion by the staff or any other party to the proceeding, where good cause exists, delay the hearing on the immediately effective order at any time for such periods as are consistent with the due process rights of the licensee or other person and other affected parties.
            (vi) The licensee or other person challenging the immediate effectiveness of an order bears the burden of going forward with evidence that the immediately effective order is not based on adequate evidence, but on mere suspicion, unfounded allegations, or error. The NRC staff bears the burden of persuading the presiding officer that adequate evidence supports the grounds for the immediately effective order and immediate effectiveness is warranted.
            (vii) The presiding officer shall issue a decision on the motion to set aside the immediate effectiveness of the order expeditiously. During the pendency of the motion to set aside the immediate effectiveness of the order or at any other time, the presiding officer may not stay the immediate effectiveness of the order, either on its own motion, or upon motion of the licensee or other person.

            (viii) The presiding officer shall uphold the immediate effectiveness of the order if it finds that there is adequate evidence to support immediate effectiveness. An order upholding immediate effectiveness will constitute the final agency action on immediate effectiveness. The presiding officer will promptly refer an order setting aside immediate effectiveness to the Commission and such order setting aside immediate effectiveness will not be effective pending further order of the Commission.
            (d) An answer may consent to the entry of an order in substantially the form proposed in the order with respect to all or some of the actions proposed in the order. The consent, in the answer or other written document, of the licensee or other person to whom the order has been issued to the entry of an order shall constitute a waiver by the licensee or other person of a hearing, findings of fact and conclusions of law, and of all right to seek Commission and judicial review or to contest the validity of the order in any forum as to those matters which have been consented to or agreed to or on which a hearing has not been requested. An order that has been consented to shall have the same force and effect as an order made after hearing by a presiding officer or the Commission, and shall be effective as provided in the order.
            (e)(1) If the order involves the modification of a part 50 license and is a backfit, the requirements of § 50.109 of this chapter shall be followed, unless the licensee has consented to the action required.
            (2) If the order involves the modification of combined license under subpart C of part 52 of this chapter, the requirements of § 52.98 of this chapter shall be followed unless the licensee has consented to the action required.
            (3) If the order involves a change to an early site permit under subpart A of part 52 of this chapter, the requirements of § 52.39 of this chapter must be followed, unless the applicant or licensee has consented to the action required.
            (4) If the order involves a change to a standard design certification rule referenced by that plant's application, the requirements, if any, in the referenced design certification rule with respect to changes must be followed, or, in the absence of these requirements, the requirements of § 52.63 of this chapter must be followed, unless the applicant or licensee has consented to follow the action required.
            (5) If the order involves a change to a standard design approval referenced by that plant's application, the requirements of § 52.145 of this chapter must be followed unless the applicant or licensee has consented to follow the action required.
            (6) If the order involves a modification of a manufacturing license under subpart F of part 52, the requirements of § 52.171 of this chapter must be followed, unless the applicant or licensee has consented to the action required.
            [56 FR 40684, Aug. 15, 1991, as amended at 57 FR 20198, May 12, 1992; 72 FR 49474, Aug. 28, 2007; 80 FR 63419, Oct. 20, 2015]

            § 2.203
            Settlement and compromise.
            At any time after the issuance of an order designating the time and place of hearing in a proceeding to modify, suspend, or revoke a license or for other action, the staff and a licensee or other person may enter into a stipulation for the settlement of the proceeding or the compromise of a civil penalty. The stipulation or compromise shall be subject to approval by the designated presiding officer or, if none has been designated, by the Chief Administrative Law Judge, according due weight to the position of the staff. The presiding officer, or if none has been designated, the Chief Administrative Law Judge, may order such adjudication of the issues as he may deem to be required in the public interest to dispose of the proceeding. If approved, the terms of the settlement or compromise shall be embodied in a decision or order settling and discontinuing the proceeding.
            [36 FR 16896, Aug. 26, 1971]

            § 2.204
            Demand for information.
            (a) The Commission may issue to a licensee or other person subject to the jurisdiction of the Commission a demand for information for the purpose of determining whether an order under § 2.202 should be issued, or whether other action should be taken, which demand will:
            (1) Allege the violations with which the licensee or other person is charged, or the potentially hazardous conditions or other facts deemed to be sufficient ground for issuing the demand; and

            (2) Provide that the licensee must, or the other person may, file a written answer to the demand for information under oath or affirmation within twenty (20) days of its date, or such other time as may be specified in the demand for information.
            (b) A licensee to whom the Commission has issued a demand for information under this section must respond to the demand by filing a written answer under oath or affirmation; any other person to whom the Commission has issued a demand for information may, in its discretion, respond to the demand by filing a written answer under oath or affirmation. The licensee's answer shall specifically admit or deny each allegation or charge made in the demand for information, and shall set forth the matters of fact and law on which the licensee relies. A person other than a licensee may answer as described above, or by setting forth its reasons why the demand should not have been issued and, if the requested information is not provided, the reasons why it is not provided.
            (c) Upon review of the answer filed pursuant to paragraph (a)(2) of this section, or if no answer is filed, the Commission may institute a proceeding pursuant to 10 CFR 2.202 to take such action as may be proper.
            (d) An answer may consent to the entry of an order pursuant to § 2.202 in substantially the form proposed in the demand for information. Such consent shall constitute a waiver as provided in § 2.202(d).
            [56 FR 40685, Aug. 15, 1991]

            § 2.205
            Civil penalties.
            (a) Before instituting any proceeding to impose a civil penalty under section 234 of the Act, the Executive Director for Operations or the Executive Director's designee, as appropriate, shall serve a written notice of violation upon the person charged. This notice may be included in a notice issued pursuant to § 2.201 or § 76.70(d) of this chapter. The notice of violation shall specify the date or dates, facts, and the nature of the alleged act or omission with which the person is charged, and shall identify specifically the particular provision or provisions of the law, rule, regulation, license, permit, part 76 certificate of compliance or compliance plan, or cease and desist order involved in the alleged violation and must state the amount of each proposed penalty. The notice of violation shall also advise the person charged that the civil penalty may be paid in the amount specified therein, or the proposed imposition of the civil penalty may be protested in its entirety or in part, by a written answer, either denying the violation or showing extenuating circumstances. The notice of violation shall advise the person charged that upon failure to pay a civil penalty subsequently determined by the Commission, if any, unless compromised, remitted, or mitigated, be collected by civil action, pursuant to Section 234c of the Act.
            (b) Within twenty (20) days of the date of a notice of violation or other time specified in the notice, the person charged may either pay the penalty in the amount proposed or answer the notice of violation. The answer to the notice of violation shall state any facts, explanations, and arguments, denying the charges of violation, or demonstrating any extenuating circumstances, error in the notice of violation, or other reason why the penalty should not be imposed and may request remission or mitigation of the penalty.
            (c) If the person charged with violation fails to answer within the time specified in paragraph (b) of this section, an order may be issued imposing the civil penalty in the amount set forth in the notice of violation described in paragraph (a) of this section.
            (d) If the person charged with violation files an answer to the notice of violation, the Executive Director for Operations or the Executive Director's designee, upon consideration of the answer, will issue an order dismissing the proceeding or imposing, mitigating, or remitting the civil penalty. The person charged may, within twenty (20) days of the date of the order or other time specified in the order, request a hearing.
            (e) If the person charged with violation requests a hearing, the Commission will issue an order designating the time and place of hearing.

            (f) If a hearing is held, an order will be issued after the hearing by the presiding officer or the Commission dismissing the proceeding or imposing, mitigating, or remitting the civil penalty.
            (g) The Executive Director for Operations or the Executive Director's designee, as appropriate may compromise any civil penalty, subject to the provisions of § 2.203.
            (h) If the civil penalty is not compromised, or is not remitted by the Executive Director for Operations or the Executive Director's designee, as appropriate, the presiding officer, or the Commission, and if payment is not made within ten (10) days following either the service of the order described in paragraph (c) or (f) of this section, or the expiration of the time for requesting a hearing described in paragraph (d) of this section, the Executive Director for Operations or the Executive Director's designee, as appropriate, may refer the matter to the Attorney General for collection.
            (i) Except when payment is made after compromise or mitigation by the Department of Justice or as ordered by a court of the United States, following reference of the matter to the Attorney General for collection, payment of civil penalties imposed under Section 234 of the Act are to be made payable to the U.S. Nuclear Regulatory Commission, in U.S. funds, by check, draft, money order, credit cars, or electronic funds transfer such as Automated Clearing House (ACH) using Electronic Data Interchange (EDI). Federal agencies may also make payment by the On-Line Payment and Collections System (OPAC's). All payments are to be made in accordance with the specific payment instructions provided with Notices of Violation that propose civil penalties and Orders Imposing Civil Monetary Penalties.
            (j) Amount. A civil monetary penalty imposed under Section 234 of the Atomic Energy Act of 1954, as amended, or any other statute within the jurisdiction of the Commission that provides for the imposition of a civil penalty in an amount equal to the amount set forth in Section 234, may not exceed $298,211 for each violation. If any violation is a continuing one, each day of such violation shall constitute a separate violation for the purposes of computing the applicable civil penalty.
            [36 FR 16896, Aug. 26, 1971, as amended at 52 FR 31608, Aug. 21, 1987; 54 FR 53315, Dec. 28, 1989; 61 FR 53555, Oct. 11, 1996; 62 FR 6668, Feb. 12, 1997; 63 FR 31850, June 10, 1998; 65 FR 59272, Oct. 4, 2000; 69 FR 62394, Oct. 26, 2004; 73 FR 54673, Sept. 23, 2008; 81 FR 43021, July 1, 2016; 82 FR 8135, Jan. 24, 2017; 83 FR 1517, Jan. 12, 2018; 84 FR 2435, Feb. 7, 2019]

            § 2.206
            Requests for action under this subpart.

            (a) Any person may file a request to institute a proceeding pursuant to § 2.202 to modify, suspend, or revoke a license, or for any other action as may be proper. Requests must be addressed to the Executive Director for Operations and must be filed either by hand delivery to the NRC's Offices at 11555 Rockville Pike, Rockville, Maryland; by mail or telegram addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; or by electronic submissions, for example, via facsimile, Electronic Information Exchange, e-mail, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The request must specify the action requested and set forth the facts that constitute the basis for the request. The Executive Director for Operations will refer the request to the Director of the NRC office with responsibility for the subject matter of the request for appropriate action in accordance with paragraph (b) of this section.

            (b) Within a reasonable time after a request pursuant to paragraph (a) of this section has been received, the Director of the NRC office with responsibility for the subject matter of the request shall either institute the requested proceeding in accordance with this subpart or shall advise the person who made the request in writing that no proceeding will be instituted in whole or in part, with respect to the request, and the reasons for the decision.
            (c)(1) Director's decisions under this section will be filed with the Office of the Secretary. Within twenty-five (25) days after the date of the Director's decision under this section that no proceeding will be instituted or other action taken in whole or in part, the Commission may on its own motion review that decision, in whole or in part, to determine if the Director has abused his discretion. This review power does not limit in any way either the Commission's supervisory power over delegated staff actions or the Commission's power to consult with the staff on a formal or informal basis regarding institution of proceedings under this section.
            (2) No petition or other request for Commission review of a Director's decision under this section will be entertained by the Commission.
            (3) The Secretary is authorized to extend the time for Commission review on its own motion of a Director's denial under paragraph (c) of this section.
            [39 FR 12353, Apr. 5, 1974, as amended at 42 FR 36240, July 14, 1977; 45 FR 73466, Nov. 5, 1980; 52 FR 31608, Aug. 21, 1987; 53 FR 43419, Oct. 27, 1988; 64 FR 48948, Sept. 9, 1999; 68 FR 58799, Oct. 10, 2003; 69 FR 2236, Jan. 14, 2004; 69 FR 41749, July 12, 2004; 74 FR 62679, Dec. 1, 2009; 80 FR 74978, Dec. 1, 2015]

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

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

            § 2.300
            Scope of subpart C.
            The provisions of this subpart apply to all adjudications conducted under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, and 10 CFR Part 2, unless specifically stated otherwise in this subpart.

            § 2.301
            Exceptions.
            Consistent with 5 U.S.C. 554(a)(4) of the Administrative Procedure Act, the Commission may provide alternative procedures in adjudications to the extent that the conduct of military or foreign affairs functions is involved.

            § 2.302
            Filing of documents.
            (a) Documents filed in Commission adjudicatory proceedings subject to this part shall be electronically transmitted through the E-Filing system, unless the Commission or presiding officer grants an exemption permitting an alternative filing method or unless the filing falls within the scope of paragraph (g)(1) of this section.
            (b) Upon an order from the Commission or presiding officer permitting alternative filing methods, or as otherwise set forth in Guidance for Electronic Submissions to the NRC, documents may be filed by:
            (1) First-class mail: Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff; or
            (2) Courier, express mail, and expedited delivery services: Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, Attention: Rulemakings and Adjudications Staff.
            (c) All documents offered for filing must be accompanied by a certificate of service stating the names and addresses of the persons served as well as the manner and date of service.
            (d) Filing is considered complete:
            (1) By electronic transmission when the filer performs the last act that it must perform to transmit a document, in its entirety, electronically;
            (2) By first-class mail as of the time of deposit in the mail;
            (3) By courier, express mail, or expedited delivery service upon depositing the document with the provider of the service; or

            (4) If a filing must be submitted by two or more methods, such as a filing that the Guidance for Electronic Submission to the NRC indicates should be transmitted electronically as well as physically delivered or mailed on optical storage media, the filing is complete when all methods of filing have been completed.
            (e) For filings by electronic transmission, the filer must make a good faith effort to successfully transmit the entire filing. Notwithstanding paragraph (d) of this section, a filing will not be considered complete if the filer knows or has reason to know that the entire filing has not been successfully transmitted.
            (f) Digital ID Certificates. (1) Through digital ID certificates, the NRC permits participants in the proceeding to access the E-Filing system to file documents, serve other participants, and retrieve documents in the proceeding.

            (2) Any participant or participant representative that does not have a digital ID certificate shall request one from the NRC before that participant or representative intends to make its first electronic filing to the E-Filing system. A participant or representative may apply for a digital ID certificate on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html.

            (3) Group ID Certificate. A participant wishing to obtain a digital ID certificate valid for several persons may obtain a group digital ID certificate. A Group ID cannot be used to file documents. The Group ID provides access to the E-Filing system for the individuals specifically identified in the group's application to retrieve documents recently received by the system. The Group ID also enables a group of people, all of whom may not have individual digital ID certificates, to be notified when a filing has been made in a particular proceeding.
            (g) Filing Method Requirements—(1) Electronic filing. Unless otherwise provided by order, all filings must be made as electronic submissions in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html. If a filing contains sections of information or electronic formats that may not be transmitted electronically for security or other reasons, the portions not containing those sections will be transmitted electronically to the E-Filing system. In addition, optical storage media (OSM) containing the entire filing must be physically delivered or mailed. In such cases, the submitter does not need to apply to the Commission or presiding officer for an exemption to deviate from the requirements in paragraph (g)(1) of this section.
            (2) Electronic transmission exemption. Upon a finding of good cause, the Commission or presiding officer can grant an exemption from electronic transmission requirements found in paragraph (g)(1) of this section to a participant who is filing electronic documents. The exempt participant is permitted to file electronic documents by physically delivering or mailing an OSM containing the documents. A participant granted this exemption would still be required to meet the electronic formatting requirement in paragraph (g)(1) of this section.
            (3) Electronic document exemption. Upon a finding of good cause, the Commission or presiding officer can exempt a participant from both the electronic (computer file) formatting and electronic transmission requirements in paragraph (g)(1) of this section. A participant granted such an exemption can file paper documents either in person or by courier, express mail, some other expedited delivery service, or first-class mail, as ordered by the Commission or presiding officer.
            (4) Requesting an exemption. A filer seeking an exemption under paragraphs (g)(2) or (g)(3) of this section must submit the exemption request with its first filing in the proceeding. In the request, a filer must show good cause as to why it cannot file electronically. The filer may not change its formats or delivery methods for filing until a ruling on the exemption request is issued. Exemption requests under paragraphs (g)(2) or (g)(3) of this section sought after the first filing in the proceeding will be granted only if the requestor shows that the interests of fairness so require.
            [72 FR 49149, Aug. 28, 2007]

            § 2.303
            Docket.
            The Secretary shall maintain a docket for each proceeding conducted under this part, commencing with either the initial notice of hearing, notice of proposed action, order, request for hearing or petition for leave to intervene, as appropriate. The Secretary shall maintain all files and records of proceedings, including transcripts and video recordings of testimony, exhibits, and all papers, correspondence, decisions and orders filed or issued. All documents, records, and exhibits filed in any proceeding must be filed with the Secretary as described in §§ 2.302 and 2.304.

            § 2.304
            Formal requirements for documents; signatures; acceptance for filing.
            (a) Docket numbers and titles. Each document filed in an adjudication to which a docket number has been assigned must contain a caption setting forth the docket number and the title of the proceeding and a description of the document (e.g., motion to quash subpoena).
            (b) Paper documents. In addition to the requirements in this part, paper documents must be stapled or bound on the left side; typewritten, printed, or otherwise reproduced in permanent form on good unglazed paper of standard letterhead size; signed in ink by the participant, its authorized representative, or an attorney having authority with respect to it; and filed with an original and two conforming copies.
            (c) Format. Each page in a document must begin not less than one inch from the top, with side and bottom margins of not less than one inch. Text must be double-spaced, except that quotations may be single-spaced and indented. The requirements of this paragraph do not apply to original documents, or admissible copies, offered as exhibits, or to specifically prepared exhibits.
            (d) Signatures. The original of each document must be signed by the participant or its authorized representative, or by an attorney having authority with respect to it. The document must state the capacity of the person signing; his or her address, phone number, and e-mail address; and the date of signature. The signature of a person signing a pleading or other similar document submitted by a participant is a representation that the document has been subscribed in the capacity specified with full authority, that he or she has read it and knows the contents, that to the best of his or her knowledge, information, and belief the statements made in it are true, and that it is not interposed for delay. The signature of a person signing an affidavit or similar document, which should be submitted in accord with the form outlined in 28 U.S.C. 1746, is a representation that, under penalty of perjury, the document is true and correct to the best of that individual's knowledge and belief. If a document is not signed, or is signed with intent to defeat the purpose of this section, it may be struck.
            (1) An electronic document must be signed using a participant's or a participant representative's digital ID certificate. Additional signatures can be added to the electronic document, including to any affidavits that accompany the document, by a typed-in designation that indicates the signer understands and acknowledges that he or she is assenting to the representations in paragraph (d) of this section.
            (i) When signing an electronic document using a digital ID certificate, the signature page for the electronic document should contain a typed signature block that includes the phrase “Signed (electronically) by” typed onto the signature line; the name and the capacity of the person signing; the person's address, phone number, and e-mail address; and the date of signature.

            (ii) If additional individuals need to sign an electronic document, including any affidavits that accompany the document, such individuals must sign by inserting a typed signature block in the electronic document that includes the phrase “Executed in Accord with 10 CFR 2.304(d)” or its equivalent typed on the signature line as well as the name and the capacity of the person signing; the person's address, phone number, and e-mail address; and the date of signature to the extent any of these items are different from the information provided for the digital ID certificate signer.

            (2) Paper documents must be signed in ink.
            (e) Designation for service. The first document filed by any participant in a proceeding must designate the name and address of a person on whom service may be made. This document must also designate the e-mail address, if any, of the person on whom service may be made.
            (f) Acceptance for filing. Any document that fails to conform to the requirements of this section may be refused acceptance for filing by the Secretary or the presiding officer and may be returned with an indication of the reason for nonacceptance. Any document that is not accepted for filing will not be entered on the Commission's docket.
            (g) Pre-filed written testimony and exhibits. In any instance in which a participant submits electronically through the E-Filing system written testimony or hearing exhibits in advance of a hearing, the written testimony of each individual witness or witness panel and each individual exhibit shall be submitted as an individual electronic file.
            [72 FR 49150, Aug. 28, 2007]

            § 2.305
            Service of documents, methods, proof.
            (a) Service of documents by the Commission. Except for subpoenas, the Commission shall serve all orders, decisions, notices, and other documents to all participants, by the same delivery method those participants use to file and accept service.
            (b) Who may be served. Any document required to be served upon a participant shall be served upon that person or upon the representative designated by the participant or by law to receive service of documents. When a participant has appeared by attorney, service shall be made upon the attorney of record.
            (c) Method of service accompanying a filing. Service must be made electronically to the E-Filing system. Upon an order from the Commission or presiding officer permitting alternative filing methods under § 2.302(g)(4), service may be made by personal delivery, courier, expedited delivery service, or by first-class, express, certified or registered mail. As to each participant that cannot serve electronically, the Commission or presiding officer shall require service by the most expeditious means permitted under this paragraph that are available to the participant, unless the Commission or presiding officer finds that this requirement would impose undue burden or expense on the participant.
            (1) Unless otherwise provided in this section, a participant will serve documents on the other participants by the same method by which those participants filed.
            (2) A participant granted an exemption under § 2.302(g)(2) will serve the presiding officer and the participants in the proceeding that filed electronically by physically delivering or mailing optical storage media containing the electronic document.
            (3) A participant granted an exemption under § 2.302(g)(3) will serve the presiding officer and the other participants in the proceeding by physically delivering or mailing a paper copy.
            (4) Each document served (as may be required by law, rule, or order of the presiding officer) upon a participant to the proceeding must be accompanied by a signed certificate of service.
            (i) If a document is served on participants through only the E-filing system, then the certificate of service must state that the document has been filed through the E-Filing system.
            (ii) If a document is served on participants by only a method other than the E-Filing system, then the certificate of service must state the name, address, and method and date of service for all participants served.
            (iii) If a document is served on some participants through the E-Filing system and other participants by another method of service, then the certificate of service must include a list of participants served through the E-filing system, and it must state the name, address, and method and date of service for all participants served by the other method of service.
            (d) Method of service not accompanying a filing. Service of demonstrative evidence, e.g., maps and other physical evidence, may be made by first-class mail in all cases, unless the presiding officer directs otherwise or the participant desires to serve by a faster method. In instances when service of a document, such as a discovery document under § 2.336, will not accompany a filing with the agency, the participant may use any reasonable method of service to which the recipient agrees.
            (e) Service on the Secretary. (1) All motions, briefs, pleadings, and other documents must be served on the Secretary of the Commission by the same or equivalent method, such as by electronic transmission or first-class mail, that they are served upon the presiding officer, so that the Secretary will receive the filing at approximately the same time that it is received by the presiding officer to which the filing is directed.
            (2) When pleadings are personally delivered to a presiding officer conducting proceedings outside the Washington, DC area, service on the Secretary may be accomplished electronically to the E-Filing system, as well as by courier, express mail, or expedited delivery service.
            (3) Service of demonstrative evidence (e.g., maps and other physical exhibits) on the Secretary of the Commission may be made by first-class mail in all cases, unless the presiding officer directs otherwise or the participant desires to serve by a faster method. All pre-filed testimony and exhibits shall be served on the Secretary of the Commission by the same or equivalent method that it is served upon the presiding officer to the proceedings, i.e., electronically to the E-Filing system, personal delivery or courier, express mail, or expedited delivery service.
            (4) The addresses for the Secretary are:
            (i) Internet: The E-Filing system at http://www.nrc.gov.

            (ii) First-class mail: Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff; and
            (iii) Courier, express mail, and expedited delivery services: Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemakings and Adjudications Staff.
            (f) When service is complete. Service upon a participant is complete:
            (1) By the E-Filing system, when filing electronically to the E-Filing system is considered complete under § 2.302(d).
            (2) By personal delivery, upon handing the document to the person, or leaving it at his or her office with that person's clerk or other person in charge or, if there is no one in charge, leaving it in a conspicuous place in the office, or if the office is closed or the person to be served has no office, leaving it at his or her usual place of residence with some person of suitable age and discretion then residing there;
            (3) By mail, upon deposit in the United States mail, properly stamped and addressed;
            (4) By expedited service, upon depositing the document with the provider of the expedited service; or
            (5) When service cannot be effected by a method provided by paragraphs (f)(1)-(4) of this section, by any other method authorized by law.
            (6) When two or more methods of service are required, service is considered complete when service by each method is complete under paragraphs (f)(1)-(4) of this section.
            (g) Service on the NRC staff. (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 Rockville Pike, Rockville MD 20852-0001; by mail addressed to the Associate General Counsel for Hearings, Enforcement & Administration, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; by email to OgcMailCenter.Resource@nrc.gov; or by facsimile to 301-415-3200.
            (2) If the NRC staff decides not to participate as a party in a proceeding, it shall, in its notification to the presiding officer and participants of its determination not to participate, designate a person and address for service of documents.
            [72 FR 49150, Aug. 28, 2007, as amended at 77 FR 46590, Aug. 3, 2012; 81 FR 86909, Dec. 2, 2016]

            § 2.306
            Computation of time.
            (a) In computing any period of time, the day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period so computed is included unless it is a Saturday or Sunday, a Federal legal holiday at the place where the action or event is to occur, or a day upon which, because of an emergency closure of the Federal government in Washington, DC, NRC Headquarters does not open for business, in which event the period runs until the end of the next day that is not a Saturday, Sunday, Federal legal holiday, or emergency closure.
            (b) Whenever a participant has the right or is required to do some act within a prescribed period after the service of a notice or other document upon him or her, no additional time is added to the prescribed period except in the following circumstances:
            (1) If a notice or document is served upon a participant, by first-class mail only, three (3) calendar days will be added to the prescribed period for all the participants in the proceeding.
            (2) If a notice or document is served upon a participant, by express mail or other expedited service only, two (2) calendar days will be added to the prescribed period for all the participants in the proceeding.
            (3) If a document is to be served by multiple service methods, such as partially electronic and entirely on optical storage media, the additional number of days is computed according to the service method used to deliver the entire document, excluding courtesy copies, to all of the other participants in the proceeding. The presiding officer may determine the calculation of additional days when a participant is not entitled to receive an entire filing served by multiple methods.
            (4) In mixed service proceedings when all participants are not using the same filing and service method, the number of days for service will be determined by the presiding officer based on considerations of fairness and efficiency.
            (c) To be considered timely, a document must be served:
            (1) By 5 p.m. Eastern Time for a document served in person or by expedited service; and
            (2) By 11:59 p.m. Eastern Time for a document served by the E-Filing system.
            [72 FR 49151, Aug. 28, 2007]

            § 2.307
            Extension and reduction of time limits; delegated authority to order use of procedures for access by potential parties to certain sensitive unclassified information.
            (a) Except as otherwise provided by law, the time fixed or the period of time prescribed for an act that is required or allowed to be done at or within a specified time, may be extended or shortened either by the Commission or the presiding officer for good cause, or by stipulation approved by the Commission or the presiding officer.
            (b) If this part does not prescribe a time limit for an action to be taken in the proceeding, the Commission or the presiding officer may set a time limit for the action.
            (c) In circumstances where, in order to meet Commission requirements for intervention, potential parties may deem it necessary to obtain access to safeguards information (as defined in § 73.2 of this chapter) or to sensitive unclassified non-safeguards information, the Secretary is delegated authority to issue orders establishing procedures and timelines for submitting and resolving requests for this information.
            [69 FR 2236, Jan. 14, 2004, as amended at 73 FR 10980, Feb. 29, 2008]

            § 2.308
            Treatment of requests for hearing or petitions for leave to intervene by the Secretary.
            Upon receipt of a request for hearing or a petition to intervene, the Secretary will forward the request or petition and/or proffered contentions and any answers and replies either to the Commission for a ruling on the request/petition and/or proffered contentions or to the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel for the designation of a presiding officer under § 2.313(a) to rule on the matter.

            § 2.309
            Hearing requests, petitions to intervene, requirements for standing, and contentions.
            (a) General requirements. Any person whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing and a specification of the contentions which the person seeks to have litigated in the hearing. In a proceeding under 10 CFR 52.103, the Commission, acting as the presiding officer, will grant the request if it determines that the requestor has standing under the provisions of paragraph (d) of this section and has proposed at least one admissible contention that meets the requirements of paragraph (f) of this section. For all other proceedings, except as provided in paragraph (e) of this section, the Commission, presiding officer, or the Atomic Safety and Licensing Board designated to rule on the request for hearing and/or petition for leave to intervene, will grant the request/petition if it determines that the requestor/petitioner has standing under the provisions of paragraph (d) of this section and has proposed at least one admissible contention that meets the requirements of paragraph (f) of this section. In ruling on the request for hearing/petition to intervene submitted by petitioners seeking to intervene in the proceeding on the HLW repository, the Commission, the presiding officer, or the Atomic Safety and Licensing Board shall also consider any failure of the petitioner to participate as a potential party in the pre-license application phase under subpart J of this part in addition to the factors in paragraph (d) of this section. If a request for hearing or petition to intervene is filed in response to any notice of hearing or opportunity for hearing, the applicant/licensee shall be deemed to be a party.
            (b) Timing. Unless specified elsewhere in this chapter or otherwise provided by the Commission, the request or petition and the list of contentions must be filed as follows:

            (1) In proceedings for the direct or indirect transfer of control of an NRC license when the transfer requires prior approval of the NRC under the Commission's regulations, governing statute, or pursuant to a license condition, twenty (20) days from the date of publication of the notice in the Federal Register.

            (2) In proceedings for the initial authorization to construct a high-level radioactive waste geologic repository, and the initial licensee to receive and process high level radioactive waste at a geological repository operations area, thirty (30) days from the date of publication of the notice in the Federal Register.

            (3) In proceedings for which a Federal Register notice of agency action is published (other than a proceeding covered by paragraphs (b)(1) or (b)(2) of this section), not later than:

            (i) The time specified in any notice of hearing or notice of proposed action or as provided by the presiding officer or the Atomic Safety and Licensing Board designated to rule on the request and/or petition, which may not be less than sixty (60) days from the date of publication of the notice in the Federal Register; or
            (ii) If no period is specified, sixty (60) days from the date of publication of the notice.
            (4) In proceedings for which a Federal Register notice of agency action is not published, not later than the latest of:

            (i) Sixty (60) days after publication of notice on the NRC Web site at http://www.nrc.gov/public-involve/major-actions.html, or

            (ii) Sixty (60) days after the requestor receives actual notice of a pending application, but not more than sixty (60) days after agency action on the application.

            (c) Filings after the deadline; submission of hearing request, intervention petition, or motion for leave to file new or amended contentions—(1) Determination by presiding officer. Hearing requests, intervention petitions, and motions for leave to file new or amended contentions filed after the deadline in paragraph (b) of this section will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause by showing that:
            (i) The information upon which the filing is based was not previously available;
            (ii) The information upon which the filing is based is materially different from information previously available; and
            (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.
            (2) Applicability of §§ 2.307 and 2.323. (i) Section 2.307 applies to requests to change a filing deadline (requested before or after that deadline has passed) based on reasons not related to the substance of the filing.
            (ii) Section 2.323 does not apply to hearing requests, intervention petitions, or motions for leave to file new or amended contentions filed after the deadline in paragraph (b) of this section.
            (3) New petitioner. A hearing request or intervention petition filed after the deadline in paragraph (b) of this section must include a specification of contentions if the petitioner seeks admission as a party, and must also demonstrate that the petitioner meets the applicable standing and contention admissibility requirements in paragraphs (d) and (f) of this section.
            (4) Party or participant. A new or amended contention filed by a party or participant to the proceeding must also meet the applicable contention admissibility requirements in paragraph (f) of this section. If the party or participant has already satisfied the requirements for standing under paragraph (d) of this section in the same proceeding in which the new or amended contentions are filed, it does not need to do so again.
            (d) Standing. (1) General requirements. A request for hearing or petition for leave to intervene must state:
            (i) The name, address and telephone number of the requestor or petitioner;
            (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding;
            (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; and
            (iv) The possible effect of any decision or order that may be issued in the proceeding on the requestor's/petitioner's interest.
            (2) 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.
            (e) Discretionary Intervention. The presiding officer may consider a request for discretionary intervention when at least one requestor/petitioner has established standing and at least one admissible contention has been admitted so that a hearing will be held. A requestor/petitioner may request that his or her petition be granted as a matter of discretion in the event that the petitioner is determined to lack standing to intervene as a matter of right under paragraph (d)(1) of this section. Accordingly, in addition to addressing the factors in paragraph (d)(1) of this section, a petitioner who wishes to seek intervention as a matter of discretion in the event it is determined that standing as a matter of right is not demonstrated shall address the following factors in his/her initial petition, which the Commission, the presiding officer or the Atomic Safety and Licensing Board will consider and balance:
            (1) Factors weighing in favor of allowing intervention—

            (i) The extent to which the requestor's/petitioner's participation may reasonably be expected to assist in developing a sound record;
            (ii) The nature and extent of the requestor's/petitioner's property, financial or other interests in the proceeding; and
            (iii) The possible effect of any decision or order that may be issued in the proceeding on the requestor's/petitioner's interest;
            (2) Factors weighing against allowing intervention—
            (i) The availability of other means whereby the requestor's/petitioner's interest will be protected;
            (ii) The extent to which the requestor's/petitioner's interest will be represented by existing parties; and
            (iii) The extent to which the requestor's/petitioner's participation will inappropriately broaden the issues or delay the proceeding.
            (f) Contentions. (1) A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:

            (i) Provide a specific statement of the issue of law or fact to be raised or controverted, provided further, that the issue of law or fact to be raised in a request for hearing under 10 CFR 52.103(b) must be directed at demonstrating that one or more of the acceptance criteria in the combined license have not been, or will not be met, and that the specific operational consequences of nonconformance would be contrary to providing reasonable assurance of adequate protection of the public health and safety;
            (ii) Provide a brief explanation of the basis for the contention;
            (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding;
            (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding;
            (v) Provide a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue;
            (vi) In a proceeding other than one under 10 CFR 52.103, provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief; and

            (vii) In a proceeding under 10 CFR 52.103(b), the information must be sufficient, and include supporting information showing, prima facie, that one or more of the acceptance criteria in the combined license have not been, or will not be met, and that the specific operational consequences of nonconformance would be contrary to providing reasonable assurance of adequate protection of the public health and safety. This information must include the specific portion of the report required by 10 CFR 52.99(c) which the requestor believes is inaccurate, incorrect, and/or incomplete (i.e., fails to contain the necessary information required by § 52.99(c)). If the requestor identifies a specific portion of the § 52.99(c) report as incomplete and the requestor contends that the incomplete portion prevents the requestor from making the necessary prima facie showing, then the requestor must explain why this deficiency prevents the requestor from making the prima facie showing.

            (2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, participants shall file contentions based on the applicant's environmental report. Participants may file new or amended environmental contentions after the deadline in paragraph (b) of this section (e.g., based on a draft or final NRC environmental impact statement, environmental assessment, or any supplements to these documents) if the contention complies with the requirements in paragraph (c) of this section.
            (3) If two or more requestors/petitioners seek to co-sponsor a contention, the requestors/petitioners shall jointly designate a representative who shall have the authority to act for the requestors/petitioners with respect to that contention. If a requestor/petitioner seeks to adopt the contention of another sponsoring requestor/petitioner, the requestor/petitioner who seeks to adopt the contention must either agree that the sponsoring requestor/petitioner shall act as the representative with respect to that contention, or jointly designate with the sponsoring requestor/petitioner a representative who shall have the authority to act for the requestors/petitioners with respect to that contention.
            (g) Selection of hearing procedures. A request for hearing and/or petition for leave to intervene may, except in a proceeding under 10 CFR 52.103, also address the selection of hearing procedures, taking into account the provisions of § 2.310. If a request/petition relies upon § 2.310(d), the request/petition must demonstrate, by reference to the contention and the bases provided and the specific procedures in subpart G of this part, that resolution of the contention necessitates resolution of material issues of fact which may be best determined through the use of the identified procedures.
            (h) Requirements applicable to States, local governmental bodies, and Federally-recognized Indian Tribes seeking party status. (1) If a State, local governmental body (county, municipality or other subdivision), or Federally-recognized Indian Tribe seeks to participate as a party in a proceeding, it must submit a request for hearing or a petition to intervene containing at least one admissible contention, and must designate a single representative for the hearing. If a request for hearing or petition to intervene is granted, the Commission, the presiding officer or the Atomic Safety and Licensing Board ruling on the request will admit as a party to the proceeding a single designated representative of the State, a single designated representative for each local governmental body (county, municipality or other subdivision), and a single designated representative for each Federally-recognized Indian Tribe. Where a State's constitution provides that both the Governor and another State official or State governmental body may represent the interests of the State in a proceeding, the Governor and the other State official/government body will be considered separate participants.
            (2) If the proceeding pertains to a production or utilization facility (as defined in § 50.2 of this chapter) located within the boundaries of the State, local governmental body, or Federally-recognized Indian Tribe seeking to participate as a party, no further demonstration of standing is required. If the production or utilization facility is not located within the boundaries of the State, local governmental body, or Federally-recognized Indian Tribe seeking to participate as a party, the State, local governmental body, or Federally-recognized Indian Tribe also must demonstrate standing.

            (3) In any proceeding on an application for a construction authorization for a high-level radioactive waste repository at a geologic repository operations area under parts 60 or 63 of this chapter, or an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area under parts 60 or 63 of this chapter, the Commission shall permit intervention by the State and local governmental body (county, municipality or other subdivision) in which such an area is located and by any affected Federally-recognized Indian Tribe as defined in parts 60 or 63 of this chapter if the requirements of paragraph (f) of this section are satisfied with respect to at least one contention. All other petitions for intervention in any such proceeding must be reviewed under the provisions of paragraphs (a) through (f) of this section.

            (i) Answers to hearing requests, intervention petitions, and motions for leave to file new or amended contentions filed after the deadline. Unless otherwise specified by the Commission, the presiding officer, or the Atomic Safety and Licensing Board designated to rule on the request, petition, or motion—
            (1) The applicant/licensee, the NRC staff, and other parties to a proceeding may file an answer to a hearing request, intervention petition, or motion for leave to file amended or new contentions filed after the deadline in § 2.309(b) within 25 days after service of the request, petition, or motion. Answers should address, at a minimum, the factors set forth in paragraphs (a) through (h) of this section insofar as these sections apply to the filing that is the subject of the answer.
            (2) Except in a proceeding under § 52.103 of this chapter, the participant who filed the hearing request, intervention petition, or motion for leave to file new or amended contentions after the deadline may file a reply to any answer. The reply must be filed within 7 days after service of that answer.
            (3) No other written answers or replies will be entertained.
            (j) Decision on request/petition. (1) In all proceedings other than a proceeding under § 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.
            [69 FR 2236, Jan. 14, 2004, as amended at 72 FR 49474, Aug. 28, 2007; 73 FR 44620, July 31, 2008; 77 FR 46591, Aug. 3, 2012]

            § 2.310
            Selection of hearing procedures.
            Upon a determination that a request for hearing/petition to intervene should be granted and a hearing held, the Commission, the presiding officer, or the Atomic Safety and Licensing Board designated to rule on the request/petition will determine and identify the specific hearing procedures to be used for the proceeding as follows—
            (a) Except as determined through the application of paragraphs (b) through (h) of this section, proceedings for the grant, renewal, licensee-initiated amendment, or termination of licenses or permits subject to parts 30, 32 through 36, 39, 40, 50, 52, 54, 55, 61, 70 and 72 of this chapter may be conducted under the procedures of subpart L of this part.
            (b) Proceedings on enforcement matters must be conducted under the procedures of subpart G of this part, unless all parties agree and jointly request that the proceedings be conducted under the procedures of subpart L or subpart N of this part, as appropriate.
            (c) Proceedings on the licensing of the construction and operation of a uranium enrichment facility must be conducted under the procedures of subpart G of this part.

            (d) In proceedings for the grant, renewal, licensee-initiated amendment, or termination of licenses or permits for nuclear power reactors, where the presiding officer by order finds that resolution of the contention or contested matter necessitates resolution of issues of material fact relating to the occurrence of a past activity, where the credibility of an eyewitness may reasonably be expected to be at issue, and/or issues of motive or intent of the party or eyewitness material to the resolution of the contested matter, the hearing for resolution of that contention or contested matter will be conducted under subpart G of this part.
            (e) Proceedings on applications for a license or license amendment to expand the spent nuclear fuel storage capacity at the site of a civilian nuclear power plant must be conducted under the procedures of subpart L of this part, unless a party requests that the proceeding be conducted under the procedures of subpart K of this part, or if all parties agree and jointly request that the proceeding be conducted under the procedures of subpart N of this part.
            (f) Proceedings on an application for initial construction authorization for a high-level radioactive waste repository at a geologic repository operations area noticed pursuant to §§ 2.101(f)(8) or 2.105(a)(5), and proceedings on an initial application for a license to receive and possess high-level radioactive waste at a geologic repository operations area must be conducted under the procedures of subparts G and J of this part. Subsequent amendments to a construction authorization for a high-level radioactive geologic repository, and amendments to a license to receive and possess high level radioactive waste at a high level waste geologic repository may be conducted under the procedures of subpart L of this part, unless all parties agree and jointly request that the proceeding be conducted under the procedures of subpart N of this part.
            (g) Proceedings on an application for the direct or indirect transfer of control of an NRC license which transfer requires prior approval of the NRC under the Commission's regulations, governing statutes or pursuant to a license condition shall be conducted under the procedures of subpart M of this part, unless the Commission determines otherwise in a case-specific order.
            (h) Except as determined through the application of paragraphs (b) through (g) of this section, proceedings for the grant, renewal, licensee-initiated amendment, or termination of licenses or permits subject to parts 30, 32 through 36, 39, 40, 50, 52, 54, 55, 61, 70 and 72 of this chapter, and proceedings on an application for the direct or indirect transfer of control of an NRC license may be conducted under the procedures of subpart N of this part if—
            (1) The hearing itself is expected to take no more than two (2) days to complete; or
            (2) All parties to the proceeding agree that it should be conducted under the procedures of subpart N of this part.
            (i) In design certification rulemaking proceedings under part 52 of this chapter, any informal hearing held under § 52.51 of this chapter must be conducted under the procedures of subpart O of this part.
            (j) Proceedings on a Commission finding under 10 CFR 52.103(c) and (g) shall be conducted in accordance with the procedures designated by the Commission in each proceeding.
            (k) In proceedings where the Commission grants a petition filed under § 2.335(b), the Commission may, in its discretion, conduct a hearing under the procedures of subpart O of this part to assist the Commission in developing a record on the matters raised in the petition.
            [69 FR 2236, Jan. 14, 2004, as amended at 72 FR 49475, Aug. 28, 2007]

            § 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.
            (a) An order of the presiding officer, or if a presiding officer has not been designated, of the Chief Administrative Judge, or if he or she is unavailable, of another administrative judge, or of an administrative law judge with jurisdiction under § 2.318(a), may be appealed to the Commission with respect to:
            (1) A request for hearing;
            (2) A petition to intervene; or

            (3) A request for access to sensitive unclassified non-safeguards information (SUNSI), including, but not limited to, proprietary, confidential commercial, and security-related information, and Safeguards Information (SGI). An appeal to the Commission may also be taken from an order of an officer designated to rule on information access issues.

            (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)(3). No other appeals from rulings on requests for hearing are allowed.
            (c) An order denying a petition to intervene, and/or request for hearing, or a request for access to the information described in paragraph (a) of this section, is appealable by the requestor/petitioner on the question as to whether the request and/or petition should have been granted.
            (d) An order granting a petition to intervene, and/or request for hearing, or granting a request for access to the information described in paragraph (a) of this section, is appealable by a party other than the requestor/petitioner on the question as to:
            (1) Whether the request for hearing or petition to intervene should have been wholly denied; or
            (2) Whether the request for access to the information described in paragraph (a)(3) of this section should have been denied in whole or in part. However, such a question with respect to SGI may only be appealed by the NRC staff, and such a question with respect to SUNSI may be appealed only by the NRC staff or by a party whose interest independent of the proceeding would be harmed by the release of the information.
            (e) An order selecting a hearing procedure may be appealed by any party on the question as to whether the selection of the particular hearing procedures was in clear contravention of the criteria set forth in § 2.310. The appeal must be filed with the Commission no later than ten (10) days after issuance of the order selecting a hearing procedure.
            [73 FR 12631, Mar. 10, 2008, as amended at 77 FR 46592, Aug. 3, 2012; 78 FR 34247, June 7, 2013]

            § 2.312
            Notice of hearing.
            (a) In a proceeding in which the terms of a notice of hearing are not otherwise prescribed by this part, the order or notice of hearing will state:
            (1) The nature of the hearing and its time and place, or a statement that the time and place will be fixed by subsequent order;
            (2) The legal authority and jurisdiction under which the hearing is to be held;
            (3) The matters of fact and law asserted or to be considered; and
            (4) A statement describing the specific hearing procedures or subpart that will be used for the hearing.
            (b) The time and place of hearing will be fixed with due regard for the convenience of the parties or their representatives, the nature of the proceeding and the public interest.

            § 2.313
            Designation of presiding officer, disqualification, unavailability, and substitution.
            (a) Designation of presiding officer. The Commission may provide in the notice of hearing that one or more members of the Commission, an administrative law judge, an administrative judge, an Atomic Safety and Licensing Board, or a named officer who has been delegated final authority in the matter, shall be the presiding officer. The Commission alone shall designate the presiding officer in a hearing conducted under subpart O. If the Commission does not designate the presiding officer for a hearing under subparts G, J, K, L, M, or N of this part, then the Chief Administrative Judge shall issue an order designating:
            (1) An Atomic Safety and Licensing Board appointed under Section 191 of the Atomic Energy Act of 1954, as amended, or an administrative law judge appointed pursuant to 5 U.S.C. 3105, for a hearing conducted under subparts G, J, K, L, or N of this part; or
            (2) An Atomic Safety and Licensing Board, an administrative law judge, or an administrative judge for a hearing conducted under subpart M of this part.
            (b) Disqualification. (1) If a designated presiding officer or a designated member of an Atomic Safety and Licensing Board believes that he or she is disqualified to preside or to participate as a board member in the hearing, he or she shall withdraw by notice on the record and shall notify the Commission or the Chief Administrative Judge, as appropriate, of the withdrawal.
            (2) If a party believes that a presiding officer or a designated member of an Atomic Safety and Licensing Board should be disqualified, the party may move that the presiding officer or the Licensing Board member disqualify himself or herself. The motion must be supported by affidavits setting forth the alleged grounds for disqualification. If the presiding officer does not grant the motion or the Licensing Board member does not disqualify himself, the motion must be referred to the Commission. The Commission will determine the sufficiency of the grounds alleged.
            (c) Unavailability. If a presiding officer or a designated member of an Atomic Safety and Licensing Board becomes unavailable during the course of a hearing, the Commission or the Chief Administrative Judge, as appropriate, will designate another presiding officer or Atomic Safety and Licensing Board member. If he or she becomes unavailable after the hearing has been concluded, then:
            (1) The Commission may designate another presiding officer;
            (2) The Chief Administrative Judge or the Commission, as appropriate, may designate another Atomic Safety and Licensing Board member to participate in the decision;
            (3) The Commission may direct that the record be certified to it for decision.
            (d) Substitution. If a presiding officer or a designated member of an Atomic Safety and Licensing Board is substituted for the one originally designated, any motion predicated upon the substitution must be made within five (5) days after the substitution.

            § 2.314
            Appearance and practice before the Commission in adjudicatory proceedings.
            (a) Standards of practice. In the exercise of their functions under this subpart, the Commission, the Atomic Safety and Licensing Boards, Administrative Law Judges, and Administrative Judges function in a quasi-judicial capacity. Accordingly, parties and their representatives in proceedings subject to this subpart are expected to conduct themselves with honor, dignity, and decorum as they should before a court of law.
            (b) Representation. A person may appear in an adjudication on his or her own behalf or by an attorney-at-law. A partnership, corporation, or unincorporated association may be represented by a duly authorized member or officer, or by an attorney-at-law. A party may be represented by an attorney-at-law if the attorney is in good standing and has been admitted to practice before any Court of the United States, the District of Columbia, or the highest court of any State, territory, or possession of the United States. Any person appearing in a representative capacity shall file with the Commission a written notice of appearance. The notice must state his or her name, address, telephone number, and facsimile number and email address, if any; the name and address of the person or entity on whose behalf he or she appears; and, in the case of an attorney-at-law, the basis of his or her eligibility as a representative or, in the case of another representative, the basis of his or her authority to act on behalf of the party.
            (c) Reprimand, censure or suspension from the proceeding. (1) A presiding officer, or the Commission may, if necessary for the orderly conduct of a proceeding, reprimand, censure or suspend from participation in the particular proceeding pending before it any party or representative of a party who refuses to comply with its directions, or who is disorderly, disruptive, or engages in contemptuous conduct.

            (2) A reprimand, censure, or a suspension that is ordered to run for one day or less must state the grounds for the action in the record of the proceeding, and must advise the person disciplined of the right to appeal under paragraph (c)(3) of this section. A suspension that is ordered for a longer period must be in writing, state the grounds on which it is based, and advise the person suspended of the right to appeal and to request a stay under paragraphs (c)(3) and (c)(4) of this section. The suspension may be stayed for a reasonable time in order for an affected party to obtain other representation if this would be necessary to prevent injustice.
            (3) Anyone disciplined under this section may file an appeal with the Commission within 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.
            (4) A suspension exceeding one (1) day is not effective for seventy-two (72) hours from the date the suspension order is issued. Within this time, a suspended individual may request a stay of the sanction from the appropriate reviewing tribunal pending appeal. No responses to the stay request from other parties will be entertained. If a timely stay request is filed, the suspension must be stayed until the reviewing tribunal rules on the motion. The stay request must be in writing and contain the information specified in § 2.342(b). The Commission shall rule on the stay request within ten (10) days after the filing of the motion. The Commission shall consider the factors specified in § 2.342(e)(1) and (e)(2) in determining whether to grant or deny a stay application.
            [69 FR 2236, Jan. 14, 2004, as amended at 77 FR 46592, Aug. 3, 2012]

            § 2.315
            Participation by a person not a party.
            (a) A person who is not a party (including persons who are affiliated with or represented by a party) may, in the discretion of the presiding officer, be permitted to make a limited appearance by making an oral or written statement of his or her position on the issues at any session of the hearing or any prehearing conference within the limits and on the conditions fixed by the presiding officer. However, that person may not otherwise participate in the proceeding. Such statements of position shall not be considered evidence in the proceeding.
            (b) The Secretary will give notice of a hearing to any person who requests it before the issuance of the notice of hearing, and will furnish a copy of the notice of hearing to any person who requests it thereafter. If a communication bears more than one signature, the Commission will give the notice to the person first signing unless the communication clearly indicates otherwise.

            (c) The presiding officer will afford an interested State, local governmental body (county, municipality or other subdivision), and 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 Federally-recognized Indian Tribe shall be limited to unresolved issues and contentions, and issues and contentions that are raised after the State, local governmental body, or Federally-recognized Indian Tribe becomes a participant. Each State, local governmental body, and Federally-recognized Indian Tribe shall, in its request to participate in a hearing, designate a single representative for the hearing. The representative shall be permitted to introduce evidence, interrogate witnesses where cross examination by the parties is permitted, advise the Commission without requiring the representative to take a position with respect to the issue, file proposed findings in those proceedings where findings are permitted, and petition for review by the Commission under § 2.341 with respect to the admitted contentions. The representative shall identify those contentions on which they will participate in advance of any hearing held.

            (d) If a matter is taken up by the Commission under § 2.341 or sua sponte, a person who is not a party may, in the discretion of the Commission, be permitted to file a brief “amicus curiae.” Such a person shall submit the amicus brief together with a motion for leave to do so which identifies the interest of the person and states the reasons why a brief is desirable. Unless the Commission provides otherwise, the brief must be filed within the time allowed to the party whose position the brief will support. A motion of a person who is not a party to participate in oral argument before the Commission will be granted at the discretion of the Commission.
            [69 FR 2236, Jan. 14, 2004, as amended at 77 FR 46592, Aug. 3, 2012]

            § 2.316
            Consolidation of parties.
            On motion or on its or his own initiative, the Commission or the presiding officer may order any parties in a proceeding who have substantially the same interest that may be affected by the proceeding and who raise substantially the same questions, to consolidate their presentation of evidence, cross-examination, briefs, proposed findings of fact, and conclusions of law and argument. However, it may not order any consolidation that would prejudice the rights of any party. A consolidation under this section may be for all purposes of the proceeding, all of the issues of the proceeding, or with respect to any one or more issues thereof.

            § 2.317
            Separate hearings; consolidation of proceedings.
            (a) Separate hearings. On motion by the parties or upon request of the presiding officer for good cause shown, or on its own initiative, the Commission may establish separate hearings in a proceeding if it is found that the action will be conducive to the proper dispatch of its business and to the ends of justice and will be conducted in accordance with the other provisions of this subpart.
            (b) Consolidation of proceedings. On motion and for good cause shown or on its own initiative, the Commission or the presiding officers of each affected proceeding may consolidate for hearing or for other purposes two or more proceedings, or may hold joint hearings with interested States and/or other Federal agencies on matters of concurrent jurisdiction, if it is found that the action will be conducive to the proper dispatch of its business and to the ends of justice and will be conducted in accordance with the other provisions of this subpart.

            § 2.318
            Commencement and termination of jurisdiction of presiding officer.
            (a) Unless the Commission orders otherwise, the jurisdiction of the presiding officer designated to conduct a hearing over the proceeding, including motions and procedural matters, commences when the proceeding commences. If a presiding officer has not been designated, the Chief Administrative Judge has jurisdiction or, if he or she is unavailable, another administrative judge or administrative law judge has jurisdiction. A proceeding commences when a notice of hearing or a notice of proposed action under § 2.105 is issued. When a notice of hearing provides that the presiding officer is to be an administrative judge or an administrative law judge, the Chief Administrative Judge will designate by order the administrative judge or administrative law judge, as appropriate, who is to preside. The presiding officer's jurisdiction in each proceeding terminates when the period within which the Commission may direct that the record be certified to it for final decision expires, when the Commission renders a final decision, or when the presiding officer withdraws from the case upon considering himself or herself disqualified, whichever is earliest.

            (b) The Director, Office of Nuclear Reactor Regulation, or the Director, Office of Nuclear Material Safety and Safeguards, as appropriate, may issue an order and take any otherwise proper administrative action with respect to a licensee who is a party to a pending proceeding. Any order related to the subject matter of the pending proceeding may be modified by the presiding officer as appropriate for the purpose of the proceeding.
            [69 FR 2236, Jan. 14, 2004, as amended at 73 FR 5716, Jan. 31, 2008; 77 FR 46592, Aug. 3, 2012; 84 FR 65643, Nov. 29, 2019]

            § 2.319
            Power of the presiding officer.
            A presiding officer has the duty to conduct a fair and impartial hearing according to law, to take appropriate action to control the prehearing and hearing process, to avoid delay and to maintain order. The presiding officer has all the powers necessary to those ends, including the powers to:
            (a) Administer oaths and affirmations;
            (b) Issue subpoenas authorized by law, including subpoenas requested by a participant for the attendance and testimony of witnesses or the production of evidence upon the requestor's showing of general relevance and reasonable scope of the evidence sought;
            (c) Consolidate parties and proceedings in accordance with §§ 2.316 and 2.317 and/or direct that common interests be represented by a single spokesperson;
            (d) Rule on offers of proof and receive evidence. In proceedings under this part, strict rules of evidence do not apply to written submissions. However, the presiding officer may, on motion or on the presiding officer's own initiative, strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative or cumulative.
            (e) Restrict irrelevant, immaterial, unreliable, duplicative or cumulative evidence and/or arguments;
            (f) Order depositions to be taken as appropriate;
            (g) Regulate the course of the hearing and the conduct of participants;
            (h) Dispose of procedural requests or similar matters;
            (i) Examine witnesses;
            (j) Hold conferences before or during the hearing for settlement, simplification of contentions, or any other proper purpose;
            (k) Set reasonable schedules for the conduct of the proceeding and take actions reasonably calculated to maintain overall schedules;
            (l) 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.
            (m) Reopen a proceeding for the receipt of further evidence at any time before the initial decision;
            (n) Appoint special assistants from the Atomic Safety and Licensing Board Panel under § 2.322;
            (o) Issue initial decisions as provided in this part;
            (p) Dispose of motions by written order or by oral ruling during the course of a hearing or prehearing conference. The presiding officer should ensure that parties not present for the oral ruling are notified promptly of the ruling;
            (q) Issue orders necessary to carry out the presiding officer's duties and responsibilities under this part; and
            (r) 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.
            (s) Take any other action consistent with the Act, this chapter, and 5 U.S.C. 551-558.
            [69 FR 2236, Jan. 14, 2004, as amended at 77 FR 46592, Aug. 3, 2012]

            § 2.320
            Default.
            If a party fails to file an answer or pleading within the time prescribed in this part or as specified in the notice of hearing or pleading, to appear at a hearing or prehearing conference, to comply with any prehearing order entered by the presiding officer, or to comply with any discovery order entered by the presiding officer, the Commission or the presiding officer may make any orders in regard to the failure that are just, including, among others, the following:

            (a) Without further notice, find the facts as to the matters regarding which the order was made in accordance with the claim of the party obtaining the order, and enter the order as appropriate; or
            (b) Proceed without further notice to take proof on the issues specified.

            § 2.321
            Atomic Safety and Licensing Boards.
            (a) The Commission or the Chief Administrative Judge may establish one or more Atomic Safety and Licensing Boards, each comprised of three members, one of whom will be qualified in the conduct of administrative proceedings and two of whom have such technical or other qualifications as the Commission or the Chief Administrative Judge determines to be appropriate to the issues to be decided. The members of an Atomic Safety and Licensing Board shall be designated from the Atomic Safety and Licensing Board Panel established by the Commission. In proceedings for granting, suspending, revoking, or amending licenses or authorizations as the Commission may designate, the Atomic Safety and Licensing Board shall perform the adjudicatory functions that the Commission determines are appropriate.
            (b) The Commission or the Chief Administrative Judge may designate an alternate qualified in the conduct of administrative proceedings, or an alternate having technical or other qualifications, or both, for an Atomic Safety and Licensing Board established under paragraph (a) of this section. If a member of a board becomes unavailable, the Commission or the Chief Administrative Judge may constitute the alternate qualified in the conduct of administrative proceedings, or the alternate having technical or other qualifications, as appropriate, as a member of the board by notifying the alternate who will, as of the date of the notification, serve as a member of the board. If an alternate is unavailable or no alternates have been designated, and a member of a board becomes unavailable, the Commission or Chief Administrative Judge may appoint a member of the Atomic Safety and Licensing Board Panel who is qualified in the conduct of administrative proceedings or a member having technical or other qualifications, as appropriate, as a member of the Atomic Safety and Licensing Board by notifying the appointee who will, as of the date of the notification, serve as a member of the board.
            (c) An Atomic Safety and Licensing Board has the duties and may exercise the powers of a presiding officer as granted by § 2.319 and otherwise in this part. Any time when a board is in existence but is not actually in session, any powers which could be exercised by a presiding officer or by the Chief Administrative Judge may be exercised with respect to the proceeding by the chairman of the board having jurisdiction over it. Two members of an Atomic Safety and Licensing Board constitute a quorum if one of those members is the member qualified in the conduct of administrative proceedings.

            § 2.322
            Special assistants to the presiding officer.
            (a) In consultation with the Chief Administrative Judge, the presiding officer may, at his or her discretion, appoint personnel from the Atomic Safety and Licensing Board Panel established by the Commission to assist the presiding officer in taking evidence and preparing a suitable record for review. The appointment may occur at any appropriate time during the proceeding but must, at the time of the appointment, be subject to the notice and disqualification provisions as described in § 2.313. The special assistants may function as:
            (1) Technical interrogators in their individual fields of expertise. The interrogators shall study the written testimony and sit with the presiding officer to hear the presentation and, where permitted in the proceeding, the cross-examination by the parties of all witnesses on the issues of the interrogators' expertise. The interrogators shall take a leading role in examining the witnesses to ensure that the record is as complete as possible;

            (2) Upon consent of all the parties, special masters to hear evidentiary presentations by the parties on specific technical matters, and, upon completion of the presentation of evidence, to prepare a report that would become part of the record. Special masters may rule on evidentiary issues brought before them, in accordance with § 2.333. Appeals from special masters' rulings may be taken to the presiding officer in accordance with procedures established in the presiding officer's order appointing the special master. Special masters' reports are advisory only; the presiding officer retains final authority with respect to the issues heard by the special master;
            (3) Alternate Atomic Safety and Licensing Board members to sit with the presiding officer, to participate in the evidentiary sessions on the issue for which the alternate members were designated by examining witnesses, and to advise the presiding officer of their conclusions through an on-the-record report. This report is advisory only; the presiding officer retains final authority on the issue for which the alternate member was designated; or
            (4) Discovery master to rule on the matters specified in § 2.1018(a)(2).
            (b) The presiding officer may, as a matter of discretion, informally seek the assistance of members of the Atomic Safety and Licensing Board Panel to brief the presiding officer on the general technical background of subjects involving complex issues that the presiding officer might otherwise have difficulty in quickly grasping. These briefings take place before the hearing on the subject involved and supplement the reading and study undertaken by the presiding officer. They are not subject to the procedures described in § 2.313.

            § 2.323
            Motions.
            (a) Scope and general requirements—(1) Applicability to § 2.309(c). Section 2.309 motions for new or amended contentions filed after the deadline in § 2.309(b) are not subject to the requirements of this section. For the purposes of this section the term “all motions” includes any motion except § 2.309 motions for new or amended contentions filed after the deadline.
            (2) Presentation and disposition. All motions must be addressed to the Commission or other designated presiding officer. All motions must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises. All written motions must be filed with the Secretary and served on all parties to the proceeding.
            (b) Form and content. Unless made orally on-the-record during a hearing, or the presiding officer directs otherwise, or under the provisions of subpart N of this part, a motion must be in writing, state with particularity the grounds and the relief sought, be accompanied by any affidavits or other evidence relied on, and, as appropriate, a proposed form of order. A motion must be rejected if it does not include a certification by the attorney or representative of the moving party that the movant has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion, and that the movant's efforts to resolve the issue(s) have been unsuccessful.
            (c) Answers to motions. Within ten (10) days after service of a written motion, or other period as determined by the Secretary, the Assistant Secretary, or the presiding officer, a party may file an answer in support of or in opposition to the motion, accompanied by affidavits or other evidence. The moving party has no right to reply, except as permitted by the Secretary, the Assistant Secretary, or the presiding officer. Permission may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply.
            (d) Accuracy in filing. All parties are obligated, in their filings before the presiding officer and the Commission, to ensure that their arguments and assertions are supported by appropriate and accurate references to legal authority and factual basis, including, as appropriate, citations to the record. Failure to do so may result in appropriate sanctions, including striking a matter from the record or, in extreme circumstances, dismissal of the party.
            (e) Motions for reconsideration. Motions for reconsideration may not be filed except upon leave of the presiding officer or the Commission, upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid. A motion must be filed within ten (10) days of the action for which reconsideration is requested. The motion and any responses to the motion are limited to ten (10) pages.
            (f) Referral and certifications to the Commission. (1) If, in the judgment of the presiding officer, the presiding officer's decision raises significant and novel legal or policy issues, or prompt decision by the Commission is necessary to materially advance the orderly disposition of the proceeding, then the presiding officer may promptly refer the ruling to the Commission. This standard also applies to matters certified to the Commission. The presiding officer shall notify the parties of the referral or certification either by announcement on-the-record or by written notice if the hearing is not in session.
            (2) A party may petition the presiding officer to certify a question to the Commission for early review. The presiding officer shall apply the criteria in § 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.
            (g) Effect of filing a motion, petition, or certification of question to the Commission. Unless otherwise ordered, neither the filing of a motion, the filing of a petition for certification, nor the certification of a question to the Commission stays the proceeding or extends the time for the performance of any act.
            (h) Motions to compel discovery. Parties may file answers to motions to compel discovery in accordance with paragraph (c) of this section. The presiding officer, in his or her discretion, may order that the answer be given orally during a telephone conference or other prehearing conference, rather than in writing. If responses are given over the telephone, the presiding officer shall issue a written order on the motion summarizing the views presented by the parties. This does not preclude the presiding officer from issuing a prior oral ruling on the matter effective at the time of the ruling, if the terms of the ruling are incorporated in the subsequent written order.
            [69 FR 2236, Jan. 14, 2004, as amended at 77 FR 46593, Aug. 3, 2012]

            § 2.324
            Order of procedure.
            The presiding officer or the Commission will designate the order of procedure at a hearing. The proponent of an order will ordinarily open and close.

            § 2.325
            Burden of proof.
            Unless the presiding officer otherwise orders, the applicant or the proponent of an order has the burden of proof.

            § 2.326
            Motions to reopen.
            (a) A motion to reopen a closed record to consider additional evidence will not be granted unless the following criteria are satisfied:
            (1) The motion must be timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented;
            (2) The motion must address a significant safety or environmental issue; and
            (3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.
            (b) The motion must be accompanied by affidavits that set forth the factual and/or technical bases for the movant's claim that the criteria of paragraph (a) of this section have been satisfied. Affidavits must be given by competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised. Evidence contained in affidavits must meet the admissibility standards of this subpart. Each of the criteria must be separately addressed, with a specific explanation of why it has been met. When multiple allegations are involved, the movant must identify with particularity each issue it seeks to litigate and specify the factual and/or technical bases which it believes support the claim that this issue meets the criteria in paragraph (a) of this section.

            (c) A motion predicated in whole or in part on the allegations of a confidential informant must identify to the presiding officer the source of the allegations and must request the issuance of an appropriate protective order.
            (d) A motion to reopen that relates to a contention not previously in controversy among the parties must also satisfy the § 2.309(c) requirements for new or amended contentions filed after the deadline in § 2.309(b).
            [69 FR 2236, Jan. 14, 2004, as amended at 77 FR 46593, Aug. 3, 2012]

            § 2.327
            Official recording; transcript.
            (a) Recording hearings. A hearing will be recorded stenographically or by other means under the supervision of the presiding officer. If the hearing is recorded on videotape or some other video medium, before an official transcript is prepared under paragraph (b) of this section, that video recording will be considered to constitute the record of events at the hearing.
            (b) Official transcript. For each hearing, a transcript will be prepared from the recording made in accordance with paragraph (a) of this section that will be the sole official transcript of the hearing. The transcript will be prepared by an official reporter who may be designated by the Commission or may be a regular employee of the Commission. Except as limited by section 181 of the Act or order of the Commission, the transcript will be available for inspection in the agency's public records system.
            (c) Availability of copies. Copies of transcripts prepared in accordance with paragraph (b) of this section are available to the parties and to the public from the official reporter on payment of the charges fixed therefor. If a hearing is recorded on videotape or other video medium, copies of the recording of each daily session of the hearing may be made available to the parties and to the public from the presiding officer upon payment of a charge specified by the Chief Administrative Judge.
            (d) Transcript corrections. Corrections ordered or approved by the presiding officer must be included in the record through the issuance of an order by the presiding officer or the Secretary, as appropriate under the regulations in this part. The order shall reflect the corrections to the transcript through the use of a table, the issuance of a corrected or new transcript, or some other method selected by the presiding officer that will ensure a clear and concise description of the corrections.
            [69 FR 2236, Jan. 14, 2004, as amended at 81 FR 47006, July 20, 2016]

            § 2.328
            Hearings to be public.
            Except as may be requested under section 181 of the Act, all hearings will be public unless otherwise ordered by the Commission.

            § 2.329
            Prehearing conference.
            (a) Necessity for prehearing conference; timing. The Commission or the presiding officer may, and in the case of a proceeding on an application for a construction permit or an operating license for a facility of a type described in §§ 50.21(b) or 50.22 of this chapter or a testing facility, shall direct the parties or their counsel to appear at a specified time and place for a conference or conferences before trial. A prehearing conference in a proceeding involving a construction permit or operating license for a facility of a type described in §§ 50.21(b) or 50.22 of this chapter must be held within sixty (60) days after discovery has been completed or any other time specified by the Commission or the presiding officer.
            (b) Objectives. The following subjects may be discussed, as directed by the Commission or the presiding officer, at the prehearing conference:
            (1) Expediting the disposition of the proceeding;
            (2) Establishing early and continuing control so that the proceeding will not be protracted because of lack of management;
            (3) Discouraging wasteful prehearing activities;
            (4) Improving the quality of the hearing through more thorough preparation, and;
            (5) Facilitating the settlement of the proceeding or any portions of it.
            (c) Other matters for consideration. As appropriate for the particular proceeding, a prehearing conference may be held to consider such matters as:
            (1) Simplification, clarification, and specification of the issues;

            (2) The necessity or desirability of amending the pleadings;

            (3) Obtaining stipulations and admissions of fact and the contents and authenticity of documents to avoid unnecessary proof, and advance rulings from the presiding officer on the admissibility of evidence;
            (4) The appropriateness and timing of summary disposition motions under subparts G and L of this part, including appropriate limitations on the page length of motions and responses thereto;
            (5) The control and scheduling of discovery, including orders affecting disclosures and discovery under the discovery provisions in subpart G of this part.
            (6) Identification of witnesses and documents, and the limitation of the number of expert witnesses, and other steps to expedite the presentation of evidence, including the establishment of reasonable limits on the time allowed for presenting direct and, where permitted, cross-examination evidence;
            (7) The disposition of pending motions;
            (8) Settlement and the use of special procedures to assist in resolving any issues in the proceeding;
            (9) The need to adopt special procedures for managing potentially difficult or protracted proceedings that may involve particularly complex issues, including the establishment of separate hearings with respect to any particular issue in the proceeding;
            (10) The setting of a hearing schedule, including any appropriate limitations on the scope and time permitted for cross-examination where cross-examination is permitted; and
            (11) Other matters that the Commission or presiding officer determines may aid in the just and orderly disposition of the proceeding.
            (d) Reports. Prehearing conferences may be reported stenographically or by other means.
            (e) Prehearing conference order. The presiding officer shall enter an order that recites the action taken at the conference, the amendments allowed to the pleadings and agreements by the parties, and the issues or matters in controversy to be determined in the proceeding. Any objections to the order must be filed by a party within five (5) days after service of the order. Parties may not file replies to the objections unless the presiding officer so directs. The filing of objections does not stay the decision unless the presiding officer so orders. The presiding officer may revise the order in the light of the objections presented and, as permitted by § 2.319(l), may certify for determination to the Commission any matter raised in the objections the presiding officer finds appropriate. The order controls the subsequent course of the proceeding unless modified for good cause.

            § 2.330
            Stipulations.
            Apart from any stipulations made during or as a result of a prehearing conference, the parties may stipulate in writing at any stage of the proceeding or orally during the hearing, any relevant fact or the contents or authenticity of any document. These stipulations may be received in evidence. The parties may also stipulate as to the procedure to be followed in the proceeding. These stipulations may, on motion of all parties, be recognized by the presiding officer to govern the conduct of the proceeding.

            § 2.331
            Oral argument before the presiding officer.
            When, in the opinion of the presiding officer, time permits and the nature of the proceeding and the public interest warrant, the presiding officer may allow, and fix a time for, the presentation of oral argument. The presiding officer will impose appropriate limits of time on the argument. The transcript of the argument is part of the record.

            § 2.332
            General case scheduling and management.
            (a) Scheduling order. The presiding officer shall, as soon as practicable after consulting with the parties by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that establishes limits for the time to file motions, conclude discovery, commence the oral phase of the hearing (if applicable), and take other actions in the proceeding. The scheduling order may also include:

            (1) Modifications of the times for disclosures under §§ 2.336 and 2.704 and of the extent of discovery to be permitted;
            (2) The date or dates for prehearing conferences; and
            (3) Any other matters appropriate in the circumstances of the proceeding.
            (b) Model milestones. In developing the scheduling order under paragraph (a) of this section, the presiding officer shall utilize the applicable model milestones in Appendix B to this part as a starting point. The presiding officer shall make appropriate modifications based upon all relevant information, including but not limited to, the number of contentions admitted, the complexity of the issues presented, relevant considerations which a party may bring to the attention of the presiding officer, the NRC staff's schedule for completion of its safety and environmental evaluations (paragraph (e) of this section), and the NRC's interest in providing a fair and expeditious resolution of the issues sought to be adjudicated by the parties in the proceeding.
            (c) Objectives of scheduling order. The scheduling order must have as its objectives proper case management purposes such as:
            (1) Expediting the disposition of the proceeding;
            (2) Establishing early and continuing control so that the proceeding will not be protracted because of lack of management;
            (3) Discouraging wasteful prehearing activities;
            (4) Improving the quality of the hearing through more thorough preparation; and
            (5) Facilitating the settlement of the proceeding or any portions thereof, including the use of Alternative Dispute Resolution, when and if the presiding officer, upon consultation with the parties, determines that these types of efforts should be pursued.
            (d) Effect of NRC staff's schedule on scheduling order. In establishing a schedule, the presiding officer shall take into consideration the NRC staff's projected schedule for completion of its safety and environmental evaluations to ensure that the hearing schedule does not adversely impact the staff's ability to complete its reviews in a timely manner. Hearings on safety issues may be commenced before publication of the NRC staff's safety evaluation upon a finding by the presiding officer that commencing the hearings at that time would expedite the proceeding. Where an environmental impact statement (EIS) is involved, hearings on environmental issues addressed in the EIS may not commence before the issuance of the final EIS. In addition, discovery against the NRC staff on safety or environmental issues, respectively, should be suspended until the staff has issued the SER or EIS, unless the presiding officer finds that the commencement of discovery against the NRC staff (as otherwise permitted by the provisions of this part) before the publication of the pertinent document will not adversely affect completion of the document and will expedite the hearing.
            [69 FR 2236, Jan. 14, 2004, as amended at 70 FR 20461, Apr. 20, 2005]

            § 2.333
            Authority of the presiding officer to regulate procedure in a hearing.
            To prevent unnecessary delays or an unnecessarily large record, the presiding officer:
            (a) May limit the number of witnesses whose testimony may be cumulative;
            (b) May strike argumentative, repetitious, cumulative, unreliable, immaterial, or irrelevant evidence;
            (c) Shall require each party or participant who requests permission to conduct cross-examination to file a cross-examination plan for each witness or panel of witnesses the party or participant proposes to cross-examine;
            (d) Must ensure that each party or participant permitted to conduct cross-examination conducts its cross-examination in conformance with the party's or participant's cross-examination plan filed with the presiding officer;
            (e) May take necessary and proper measures to prevent argumentative, repetitious, or cumulative cross-examination; and
            (f) May impose such time limitations on arguments as the presiding officer determines appropriate, having regard for the volume of the evidence and the importance and complexity of the issues involved.

            § 2.334
            Implementing hearing schedule for proceeding.
            (a) Unless the Commission directs otherwise in a particular proceeding, the presiding officer assigned to the proceeding shall, based on information and projections provided by the parties and the NRC staff, take appropriate action to maintain the hearing schedule established by the presiding officer in accordance with 10 CFR 2.332(a) of this part for the completion of the evidentiary record and, as appropriate, the issuance of its initial decision.
            (b) Modification of hearing schedule. A hearing schedule may not be modified except upon a finding of good cause by the presiding officer or the Commission. In making such a good cause determination, the presiding officer or the Commission should take into account the following factors, among other things:
            (1) Whether the requesting party has exercised due diligence to adhere to the schedule;
            (2) Whether the requested change is the result of unavoidable circumstances; and
            (3) Whether the other parties have agreed to the change and the overall effect of the change on the schedule of the case.
            (c) The presiding officer shall provide written notification to the Commission any time during the course of the proceeding when it appears that there will be a delay of more than forty-five (45) days in meeting any of the dates for major activities in the hearing schedule established by the presiding officer under 10 CFR 2.332(a), or that the completion of the record or the issuance of the initial decision will be delayed more than sixty (60) days beyond the time specified in the hearing schedule established under 10 CFR 2.332(a). The notification must include an explanation of the reasons for the projected delay and a description of the actions, if any, that the presiding officer or the Board proposes to take to avoid or mitigate the delay.
            [70 FR 20461, Apr. 20, 2005]

            § 2.335
            Consideration of Commission rules and regulations in adjudicatory proceedings.
            (a) Except as provided in paragraphs (b), (c), and (d) of this section, no rule or regulation of the Commission, or any provision thereof, concerning the licensing of production and utilization facilities, source material, special nuclear material, or byproduct material, is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding subject to this part.
            (b) A 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.

            (d) If, on the basis of the petition, affidavit and any response provided for in paragraph (b) of this section, the presiding officer determines that the prima facie showing required by paragraph (b) of this section has been made, the presiding officer shall, before ruling on the petition, certify the matter directly to the Commission (the matter will be certified to the Commission notwithstanding other provisions on certification in this part) for a determination in the matter of whether the application of the Commission rule or regulation or provision thereof to a particular aspect or aspects of the subject matter of the proceeding, in the context of this section, should be waived or an exception made. The Commission may, among other things, on the basis of the petition, affidavits, and any response, determine whether the application of the specified rule or regulation (or provision thereof) should be waived or an exception be made. The Commission may direct further proceedings as it considers appropriate to aid its determination.
            (e) Whether or not the procedure in paragraph (b) of this section is available, a participant to an initial or renewal licensing proceeding may file a petition for rulemaking under § 2.802.
            [69 FR 2236, Jan. 14, 2004, as amended at 77 FR 46593, Aug. 3, 2012]

            § 2.336
            General discovery.
            (a) Except for proceedings conducted under subparts G and J of this part or as otherwise ordered by the Commission, the presiding officer or the Atomic Safety and Licensing Board assigned to the proceeding, all parties, other than the NRC staff, to any proceeding subject to this part shall, within thirty (30) days of the issuance of the order granting a request for hearing or petition to intervene and without further order or request from any party, disclose and provide:
            (1) The name and, if known, the address and telephone number of any person, including any expert, upon whose opinion the party bases its claims and contentions and may rely upon as a witness, and a copy of the analysis or other authority upon which that person bases his or her opinion;
            (2)(i) A copy, or a description by category and location, of all documents and data compilations in the possession, custody, or control of the party that are relevant to the contentions, provided that if only a description is provided of a document or data compilation, a party shall have the right to request copies of that document and/or data compilation, and
            (ii) A copy (for which there is no claim of privilege or protected status), or a description by category and location, of all tangible things (e.g., books, publications and treatises) in the possession, custody or control of the party that are relevant to the contention.

            (iii) When any document, data compilation, or other tangible thing that must be disclosed is publicly available from another source, such as at the NRC Web site, http://www.nrc.gov, and/or the NRC Public Document Room, a sufficient disclosure would be the location, the title and a page reference to the relevant document, data compilation, or tangible thing.
            (3) A list of documents otherwise required to be disclosed for which a claim of privilege or protected status is being made, together with sufficient information for assessing the claim of privilege or protected status of the documents.
            (b) Except for proceedings conducted under subparts G and J of this part or as otherwise ordered by the Commission, the presiding officer, or the Atomic Safety and Licensing Board assigned to the proceeding, the NRC staff must, within 30 days of the issuance of the order granting a request for hearing or petition to intervene and without further order or request from any party, disclose or provide to the extent available (but excluding those documents for which there is a claim of privilege or protected status):
            (1) The application (if applicable) and applicant or licensee requests that are relevant to the admitted contentions and are associated with the application or proposed action that is the subject of the proceeding;

            (2) NRC correspondence with the applicant or licensee that is relevant to the admitted contentions and associated with the application or proposed action that is the subject of the proceeding;
            (3) All documents (including documents that provide support for, or opposition to, the application or proposed action) that both support the NRC staff's review of the application or proposed action that is the subject of the proceeding and are relevant to the admitted contentions;
            (4) Any NRC staff documents that both represent the NRC staff's determination on the application or proposal that is the subject of the proceeding and are relevant to the admitted contentions; and
            (5) A list of all otherwise-discoverable documents for which a claim of privilege or protected status is being made, together with sufficient information for assessing the claim of privilege or protected status of the documents.
            (c) Each party and the NRC staff shall make its initial disclosures under paragraphs (a) and (b) of this section, based on the information and documentation then reasonably available to it. A party, including the NRC staff, is not excused from making the required disclosures because it has not fully completed its investigation of the case, it challenges the sufficiency of another entity's disclosures, or that another entity has not yet made its disclosures. All disclosures under this section must be accompanied by a certification (by sworn affidavit) that all relevant materials required by this section have been disclosed, and that the disclosures are accurate and complete as of the date of the certification.
            (d) The duty of disclosure under this section is continuing. Parties must update their disclosures every month after initial disclosures on a due date selected by the presiding officer in the order admitting contentions, unless the parties agree upon a different due date or frequency. The disclosure update shall be limited to documents subject to disclosure under this section and does not need to include documents that are developed, obtained, or discovered during the two weeks before the due date. Disclosure updates shall include any documents subject to disclosure that were not included in any previous disclosure update. The duty to update disclosures relevant to an admitted contention ends when the presiding officer issues a decision resolving the contention, or at such other time as may be specified by the presiding officer or the Commission.
            (e)(1) The presiding officer may impose sanctions, including dismissal of specific contentions, dismissal of the adjudication, denial or dismissal of the application or proposed action, or the use of the discovery provisions in subpart G of this part against the offending party, for the offending party's continuing unexcused failure to make the disclosures required by this section.
            (2) The presiding officer may impose sanctions on a party that fails to provide any document or witness name required to be disclosed under this section, unless the party demonstrates good cause for its failure to make the disclosure required by this section. A sanction that may be imposed by the presiding officer is prohibiting the admission into evidence of documents or testimony of the witness proffered by the offending party in support of its case.
            (f)(1) In the event of a dispute over disclosure of documents and records including Safeguards Information referred to in Sections 147 and 181 of the Atomic Energy Act of 1954, as amended, the presiding officer may issue an order requiring disclosure if—
            (i) The presiding officer finds that the individual seeking access to Safeguards Information to participate in an NRC adjudication has the requisite ”need to know”, as defined in 10 CFR 73.2;

            (ii) The individual has undergone an FBI criminal history records check, unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as applicable, by submitting fingerprints to the NRC Office of Administration, Security Processing Unit, Mail Stop T-6E46, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and otherwise following the procedures in 10 CFR 73.57(d) for submitting and processing fingerprints. However, before a final adverse determination by the NRC Office of Administration on an individual's criminal history records check is made, the individual shall be afforded the protections provided by 10 CFR 73.57; and
            (iii) The NRC Office of Administration has found, based upon a background check, that the individual is trustworthy and reliable, unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as applicable. In addition to the protections provided by 10 CFR 73.57 for adverse determinations based on criminal history records checks, the Office of Administration must take the following actions before making a final adverse determination on an individual's background check for trustworthiness and reliability. The Office of Administration will:
            (A) For the purpose of assuring correct and complete information, provide to the individual any records, in addition to those required to be provided under 10 CFR 73.57(e)(1), that were considered in the trustworthiness and reliability determination;
            (B) Resolve any challenge by the individual to the completeness or accuracy of the records described in § 2.336(f)(1)(iii)(A). The individual may make this challenge by submitting information and/or an explanation to the Office of Administration. The challenge must be submitted within 10 days of the distribution of the records described in § 2.336(f)(1)(iii)(A), and the Office of Administration must promptly resolve any challenge.
            (iv) Individuals seeking access to Safeguards Information to participate in an NRC adjudication for whom the NRC Office of Administration has made a final adverse determination on trustworthiness and reliability may submit a request to the Chief Administrative Judge for review of the adverse determination. Upon receiving such a request, the Chief Administrative Judge shall designate an officer other than the presiding officer of the proceeding to review the adverse determination. For purposes of review, the adverse determination must be in writing and set forth the grounds for the determination. The request for review shall be served on the NRC staff and may include additional information for review by the designated officer. The request must be filed within 15 days after receipt of the adverse determination by the person against whom the adverse determination has been made. Within 10 days of receipt of the request for review and any additional information, the NRC staff will file a response indicating whether the request and additional information has caused the NRC Office of Administration to reverse its adverse determination. The designated officer may reverse the Office of Administration's final adverse determination only if the officer finds, based on all the information submitted, that the adverse determination constitutes an abuse of discretion. The designated officer's decision must be rendered within 15 days after receipt of the staff filing indicating that the request for review and additional information has not changed the NRC Office of Administration's adverse determination.
            (2) The presiding officer may include in an order any protective terms and conditions (including affidavits of nondisclosure) as may be necessary and appropriate to prevent the unauthorized disclosure of Safeguards Information.
            (3) When Safeguards Information protected from unauthorized disclosure under Section 147 of the Atomic Energy Act of 1954, as amended, is received and possessed by anyone other than the NRC staff, it must also be protected according to the requirements of § 73.21 and the requirements of § 73.22 or § 73.23 of this chapter, as applicable.
            (4) The presiding officer may also prescribe additional procedures to effectively safeguard and prevent disclosure of Safeguards Information to unauthorized persons with minimum impairment of the procedural rights which would be available if Safeguards Information were not involved.
            (5) In addition to any other sanction that may be imposed by the presiding officer for violation of an order issued pursuant to this paragraph, violation of a provision for the protection of Safeguards Information from unauthorized disclosure that is contained in an order may be subject to a civil penalty imposed under § 2.205.

            (6) For the purpose of imposing the criminal penalties contained in Section 223 of the Atomic Energy Act of 1954, as amended, a provision for the protection of Safeguards Information from unauthorized disclosure that is contained in an order issued pursuant to this paragraph is considered to be issued under Section 161b of the Atomic Energy Act of 1954, as amended.
            (7) If a presiding officer has yet to be appointed, the authority to take the actions described in paragraphs (f)(1) to (f)(6) of this section resides in the officer with jurisdiction under § 2.318(a).
            (g) The disclosures required by this section constitute the sole discovery permitted for NRC proceedings under this part unless there is further provision for discovery under the specific subpart under which the hearing will be conducted or unless the Commission provides otherwise in a specific proceeding.
            [69 FR 2236, Jan. 14, 2004, as amended at 73 FR 63567, Oct. 24, 2008, 77 FR 46593, Aug. 3, 2012]

            § 2.337
            Evidence at a hearing.
            (a) Admissibility. Only relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible document will be segregated and excluded so far as is practicable.
            (b) Objections. An objection to evidence must briefly state the grounds of objection. The transcript must include the objection, the grounds, and the ruling. Exception to an adverse ruling is preserved without notation on-the-record.
            (c) Offer of proof. An offer of proof, made in connection with an objection to a ruling of the presiding officer excluding or rejecting proffered oral testimony, must consist of a statement of the substance of the proffered evidence. If the excluded evidence is in written form, a copy must be marked for identification. Rejected exhibits, adequately marked for identification, must be retained in the record.
            (d) Exhibits. A written exhibit will not be received in evidence unless the original and two copies are offered and a copy is furnished to each party, or the parties have been previously furnished with copies or the presiding officer directs otherwise. The presiding officer may permit a party to replace with a true copy an original document admitted in evidence.
            (e) Official record. An official record of a government agency or entry in an official record may be evidenced by an official publication or by a copy attested by the officer having legal custody of the record and accompanied by a certificate of his custody.
            (f) Official notice. (1) The Commission or the presiding officer may take official notice of any fact of which a court of the United States may take judicial notice or of any technical or scientific fact within the knowledge of the Commission as an expert body. Each fact officially noticed under this paragraph must be specified in the record with sufficient particularity to advise the parties of the matters which have been noticed or brought to the attention of the parties before final decision and each party adversely affected by the decision shall be given opportunity to controvert the fact.
            (2) If a decision is stated to rest in whole or in part on official notice of a fact which the parties have not had a prior opportunity to controvert, a party may controvert the fact by filing an appeal from an initial decision or a petition for reconsideration of a final decision. The appeal must clearly and concisely set forth the information relied upon to controvert the fact.
            (g) Proceedings involving applications—(1) Facility construction permits. In a proceeding involving an application for construction permit for a production or utilization facility, the NRC staff shall offer into evidence any report submitted by the ACRS in the proceeding in compliance with section 182(b) of the Act, any safety evaluation prepared by the NRC staff, and any environmental impact statement prepared in the proceeding under subpart A of part 51 of this chapter by the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, or his or her designee.
            (2) Other applications where the NRC staff is a party. In a proceeding involving an application for other than a construction permit for a production or utilization facility, the NRC staff shall offer into evidence:
            (i) Any report submitted by the ACRS in the proceeding in compliance with section 182(b) of the Act;

            (ii) At the discretion of the NRC staff, a safety evaluation prepared by the NRC staff and/or NRC staff testimony and evidence on the contention or contested matter prepared in advance of the completion of the safety evaluation;
            (iii) Any NRC staff statement of position on the contention or contested matter provided to the presiding officer under § 2.1202(a); and
            (iv) Any environmental impact statement or environmental assessment prepared in the proceeding under subpart A of part 51 of this chapter by the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, or his or her designee if there is any, but only if there are admitted contentions or contested matters with respect to the adequacy of the environmental impact statement or environmental assessment.
            (3) Other applications where the NRC staff is not a party. In a proceeding involving an application for other than a construction permit for a production or utilization facility, the NRC staff shall offer into evidence, and (with the exception of an ACRS report) provide one or more sponsoring witnesses, for:
            (i) Any report submitted by the ACRS in the proceeding in compliance with section 182(b) of the Act;
            (ii) At the discretion of the NRC staff, a safety evaluation prepared by the NRC staff and/or NRC staff testimony and evidence on the contention or contested matter prepared in advance of the completion of the safety evaluation;
            (iii) Any NRC staff statement of position on the contention or contested matter under § 2.1202(a); and
            (iv) Any environmental impact statement or environmental assessment prepared in the proceeding under subpart A of part 51 of this chapter by the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, or his or her designee if there is any, but only if there are admitted contentions or contested matters with respect to the adequacy of the environmental impact statement or environmental assessment.
            [69 FR 2236, Jan. 14, 2004, as amended at 73 FR 5716, Jan. 31, 2008; 77 FR 46594, Aug. 3, 2012; 84 FR 65643, Nov. 29, 2019]

            § 2.338
            Settlement of issues; alternative dispute resolution.
            The fair and reasonable settlement and resolution of issues proposed for litigation in proceedings subject to this part is encouraged. Parties are encouraged to employ various methods of alternate dispute resolution to address the issues without the need for litigation in proceedings subject to this part.
            (a) Availability. The parties shall have the opportunity to submit a proposed settlement of some or all issues to the Commission or presiding officer, as appropriate, or submit a request for alternative dispute resolution under paragraph (b) of this section.
            (b) Settlement judge; alternative dispute resolution. (1) The presiding officer, upon joint motion of the parties, may request the Chief Administrative Judge to appoint a Settlement Judge to conduct settlement negotiations or remit the proceeding to alternative dispute resolution as the Commission may provide or to which the parties may agree. The order appointing the Settlement Judge may confine the scope of settlement negotiations to specified issues. The order must direct the Settlement Judge to report to the Chief Administrative Judge at specified time periods.
            (2) If a Settlement Judge is appointed, the Settlement Judge shall:
            (i) Convene and preside over conferences and settlement negotiations between the parties and assess the practicalities of a potential settlement;
            (ii) Report to the Chief Administrative Judge describing the status of the settlement negotiations and recommending the termination or continuation of the settlement negotiations; and
            (iii) Not discuss the merits of the case with the Chief Administrative Judge or any other person, or appear as a witness in the case.
            (3) Settlement negotiations conducted by the Settlement Judge terminate upon the order of the Chief Administrative Judge issued after consultation with the Settlement Judge.

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

            § 2.339
            Expedited decisionmaking procedure.
            (a) The presiding officer may determine a proceeding by an order after the conclusion of a hearing without issuing an initial decision, when:
            (1) All parties stipulate that the initial decision may be omitted and waive their rights to file a petition for review, to request oral argument, and to seek judicial review;
            (2) No unresolved substantial issue of fact, law, or discretion remains, and the record clearly warrants granting the relief requested; and
            (3) The presiding officer finds that dispensing with the issuance of the initial decision is in the public interest.
            (b) An order entered under paragraph (a) of this section is subject to review by the Commission on its own motion within forty (40) days after its date.

            (c) An initial decision may be made effective immediately, subject to review by the Commission on its own motion within thirty (30) days after its date, except as otherwise provided in this chapter, when:

            (1) All parties stipulate that the initial decision may be made effective immediately and waive their rights to file a petition for review, to request oral argument, and to seek judicial review;
            (2) No unresolved substantial issue of fact, law, or discretion remains and the record clearly warrants granting the relief requested; and
            (3) The presiding officer finds that it is in the public interest to make the initial decision effective immediately.
            (d) The provisions of this section do not apply to an initial decision directing the issuance of a limited work authorization under 10 CFR 50.10, an early site permit under subpart A of part 52 of this chapter, a construction permit or construction authorization, a combined license under subpart C of part 52 of this chapter, or a manufacturing license under subpart F of part 52.
            [69 FR 2236, Jan. 14, 2004, as amended at 72 FR 49475, Aug. 28, 2007]

            § 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 Commission or the Director, Office of Nuclear Reactor Regulation, 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 or the Director, Office of Nuclear Reactor Regulation, 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 or the Director, Office of Nuclear Reactor Regulation, 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 or the Director, Office of Nuclear Reactor Regulation, 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 or the Director, Office of Nuclear Reactor Regulation, 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 or the Director, Office of Nuclear Reactor Regulation, 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 or the Director, Office of Nuclear Reactor Regulation, as appropriate, shall issue, deny, or appropriately condition the license, permit, or license amendment in accordance with the presiding officer's initial decision.
            (e) Initial decision—other proceedings not involving production or utilization facilities—(1) Matters in controversy; presiding officer consideration of matters not put in controversy by parties. In a proceeding not involving production or utilization facilities, the presiding officer shall make findings of fact and conclusions of law on the matters put into controversy by the parties to the proceeding, and on any matters designated by the Commission to be decided by the presiding officer. Matters not put into controversy by the parties, but identified by the presiding officer as requiring further examination, must be referred to the Director, Office of Nuclear Material Safety and Safeguards. Depending on the resolution of those matters, the Director, Office of Nuclear Material Safety and Safeguards, after making the requisite findings, shall issue, deny, revoke or appropriately condition the license, or take other action as necessary or appropriate.
            (2) Presiding officer initial decision and issuance of permit or license. (i) In a contested proceeding under this paragraph (e), the Commission or the Director, Office of Nuclear Material Safety and Safeguards, as appropriate, shall issue, deny, or appropriately condition the permit, license, or license amendment in accordance with the presiding officer's initial decision once that decision becomes effective.
            (ii) In a contested proceeding under this paragraph (e), the Commission or the Director, Office of Nuclear Material Safety and Safeguards, 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 or the Director, Office of Nuclear Material Safety and Safeguards, 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, a renewed license under part 54, or a license under part 72 of this chapter to store spent fuel in an independent spent fuel storage facility (ISFSI) or a monitored retrievable storage installation (MRS), an initial decision directing issuance of a license under part 61 of this chapter, or an initial decision under § 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 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 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 or the Director, Office of Nuclear Reactor Regulation, as appropriate, shall make the finding under 10 CFR 52.103(g) that acceptance criteria in a combined license are met within 10 days from the date of the presiding officer's initial decision:
            (1) If the Commission or the Director is otherwise able to make the finding under 10 CFR 52.103(g) that the prescribed acceptance criteria are met for those acceptance criteria not within the scope of the initial decision of the presiding officer;
            (2) If the presiding officer's initial decision—with respect to contentions that the prescribed acceptance criteria have not been met—finds that those acceptance criteria have been met, and the Commission or the Director thereafter is able to make the finding that those acceptance criteria are met;
            (3) If the presiding officer's initial decision—with respect to contentions that the prescribed acceptance criteria will not be met—finds that those acceptance criteria will be met, and the Commission or the Director thereafter is able to make the finding that those acceptance criteria are met; and
            (4) Notwithstanding the pendency of a petition for reconsideration under 10 CFR 2.345, a petition for review under 10 CFR 2.341, or a motion for stay under 10 CFR 2.342, or the filing of a petition under 10 CFR 2.206.
            (k) Issuance of other licenses. The Commission or the Director, Office of Nuclear Material Safety and Safeguards, 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 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.
            [77 FR 46594, Aug. 3, 2012, as amended at 77 FR 51891, Aug. 28, 2012;79 FR 75739, Dec. 19, 2014; 84 FR 65643, Nov. 29, 2019]

            § 2.341
            Review of decisions and actions of a presiding officer.
            (a)(1) Review of decisions and actions of a presiding officer are treated under this section; provided, however, that no party may request further Commission review of a Commission determination to allow a period of interim operation under § 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 after service of any other decision or action by a presiding officer with respect to which a petition for review is authorized by this part, a party may file a petition for review with the Commission on the grounds specified in paragraph (b)(4) of this section. Unless otherwise authorized by law, a party to an NRC proceeding must file a petition for Commission review before seeking judicial review of an agency action.
            (2) A petition for review under this paragraph may not be longer than twenty-five (25) pages, and must contain the following:
            (i) A concise summary of the decision or action of which review is sought;
            (ii) A statement (including record citation) where the matters of fact or law raised in the petition for review were previously raised before the presiding officer and, if they were not, why they could not have been raised;
            (iii) A concise statement why in the petitioner's view the decision or action is erroneous; and
            (iv) A concise statement why Commission review should be exercised.
            (3) Any other party to the proceeding may, within 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.
            (4) The petition for review may be granted in the discretion of the Commission, giving due weight to the existence of a substantial question with respect to the following considerations:
            (i) A finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding;
            (ii) A necessary legal conclusion is without governing precedent or is a departure from or contrary to established law;
            (iii) A substantial and important question of law, policy, or discretion has been raised;
            (iv) The conduct of the proceeding involved a prejudicial procedural error; or
            (v) Any other consideration which the Commission may deem to be in the public interest.
            (5) A petition for review will not be granted to the extent that it relies on matters that could have been but were not raised before the presiding officer. A matter raised sua sponte by a presiding officer has been raised before the presiding officer for the purpose of this section.
            (6) A petition for review will not be granted as to issues raised before the presiding officer on a pending motion for reconsideration.
            (c)(1) If 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.
            (d) Petitions for reconsideration of Commission decisions granting or denying review in whole or in part will not be entertained. A petition for reconsideration of a Commission decision after review may be filed within ten (10) days, but is not necessary for exhaustion of administrative remedies. However, if a petition for reconsideration is filed, the Commission decision is not final until the petition is decided. Any petition for reconsideration will be evaluated against the standard in § 2.323(e).

            (e) Neither the filing nor the granting of a petition under this section stays the effect of the decision or action of the presiding officer, unless the Commission orders otherwise.

            (f) Interlocutory review. (1) A 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.
            (2) The Commission may, in its discretion, grant interlocutory review at the request of a party despite the absence of a referral or certification by the presiding officer. A petition and answer to it must be filed within the times and in the form prescribed in paragraph (b) of this section and must be treated in accordance with the general provisions of this section. The petition for interlocutory review will be granted only if the party demonstrates that the issue for which the party seeks interlocutory review:
            (i) Threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officer's final decision; or
            (ii) Affects the basic structure of the proceeding in a pervasive or unusual manner.
            [69 FR 2236, Jan. 14, 2004, as amended at 72 FR 49476, Aug. 28, 2007; 77 FR 46596, Aug. 3, 2012]

            § 2.342
            Stays of decisions.
            (a) Within ten (10) days after service of a decision or action of a presiding officer, any party to the proceeding may file an application for a stay of the effectiveness of the decision or action pending filing of and a decision on a petition for review. This application may be filed with the Commission or the presiding officer, but not both at the same time.
            (b) An application for a stay may be no longer than ten (10) pages, exclusive of affidavits, and must contain the following:
            (1) A concise summary of the decision or action which is requested to be stayed;
            (2) A concise statement of the grounds for stay, with reference to the factors specified in paragraph (e) of this section; and
            (3) To the extent that an application for a stay relies on facts subject to dispute, appropriate references to the record or affidavits by knowledgeable persons.
            (c) Service of an application for a stay on the other parties must be by the same method, e.g., electronic or facsimile transmission, mail, as the method for filing the application with the Commission or the presiding officer.
            (d) Within ten (10) days after service of an application for a stay under this section, any party may file an answer supporting or opposing the granting of a stay. This answer may not be longer than ten (10) pages, exclusive of affidavits, and should concisely address the matters in paragraph (b) of this section to the extent appropriate. Further replies to answers will not be entertained. Filing of and service of an answer on the other parties must be by the same method, e.g., electronic or facsimile transmission, mail, as the method for filing the application for the stay.
            (e) In determining whether to grant or deny an application for a stay, the Commission or presiding officer will consider:
            (1) Whether the moving party has made a strong showing that it is likely to prevail on the merits;
            (2) Whether the party will be irreparably injured unless a stay is granted;
            (3) Whether the granting of a stay would harm other parties; and
            (4) Where the public interest lies.
            (f) In extraordinary cases, where prompt application is made under this section, the Commission or presiding officer may grant a temporary stay to preserve the status quo without waiting for filing of any answer. The application may be made orally provided the application is promptly confirmed by electronic or facsimile transmission message. Any party applying under this paragraph shall make all reasonable efforts to inform the other parties of the application, orally if made orally.

            § 2.343
            Oral argument.

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

            § 2.344
            Final decision.
            (a) The Commission will ordinarily consider the whole record on review, but may limit the issues to be reviewed to those identified in an order taking review.
            (b) The Commission may adopt, modify, or set aside the findings, conclusions and order in the initial decision, and will state the basis of its action. The final decision will be in writing and will include:
            (1) A statement of findings and conclusions, with the basis for them on all material issues of fact, law or discretion presented;
            (2) All facts officially noticed;
            (3) The ruling on each material issue; and
            (4) The appropriate ruling, order, or denial of relief, with the effective date.

            § 2.345
            Petition for reconsideration.
            (a)(1) Any petition for reconsideration of a final decision must be filed by a party within ten (10) days after the date of the decision.
            (2) Petitions for reconsideration of Commission decisions are subject to the requirements in § 2.341(d).
            (b) A petition for reconsideration must demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid. The petition must state the relief sought. Within ten (10) days after a petition for reconsideration has been served, any other party may file an answer in opposition to or in support of the petition.
            (c) Neither the filing nor the granting of the petition stays the decision unless the Commission orders otherwise.

            § 2.346
            Authority of the Secretary.
            When briefs, motions or other documents are submitted to the Commission itself, as opposed to officers who have been delegated authority to act for the Commission, the Secretary or the Assistant Secretary is authorized to:
            (a) Prescribe procedures for the filing of briefs, motions, or other pleadings, when the schedules differ from those prescribed by the rules of this part or when the rules of this part do not prescribe a schedule;
            (b) Rule on motions for extensions of time;
            (c) Reject motions, briefs, pleadings, and other documents filed with the Commission later then the time prescribed by the Secretary or the Assistant Secretary or established by an order, rule or regulation of the Commission unless good cause is shown for the late filing;
            (d) Prescribe all procedural arrangements relating to any oral argument to be held before the Commission;
            (e) Extend the time for the Commission to rule on a petition for review under § 2.341;
            (f) Extend the time for the Commission to grant review on its own motion under § 2.341;
            (g) Direct pleadings improperly filed before the Commission to the appropriate presiding officer for action;
            (h) Deny a request for hearings, where the request fails to comply with the Commission's pleading requirements set forth in this part, and fails to set forth an arguable basis for further proceedings;
            (i) Refer to the Atomic Safety and Licensing Board Panel or an Administrative Judge, as appropriate requests for hearing not falling under § 2.104, where the requestor is entitled to further proceedings; and
            (j) Take action on other minor matters.
            [69 FR 2236, Jan. 14, 2004, as amended at 72 FR 49152, Aug. 28, 2007; 77 FR 46597, Aug. 3, 2012; 78 FR 34247, June 7, 2013]

            § 2.347
            Ex parte communications.
            In any proceeding under this subpart—
            (a)(1) Interested persons outside the agency may not make or knowingly cause to be made to any Commission adjudicatory employee, any ex parte communication relevant to the merits of the proceeding.
            (2) For purposes of this section, merits of the proceeding includes:
            (i) A disputed issue;

            (ii) A matter which a presiding officer seeks to be referred to the Commission under 10 CFR 2.340(a); and
            (iii) A matter for which the Commission has approved examination by the presiding officer under § 2.340(a).

            (b) Commission adjudicatory employees may not request or entertain from any interested person outside the agency or make or knowingly cause to be made to any interested person outside the agency, any ex parte communication relevant to the merits of the proceeding.
            (c) Any Commission adjudicatory employee who receives, makes, or knowingly causes to be made a communication prohibited by this section shall ensure that it, and any responses to the communication, are promptly served on the parties and placed in the public record of the proceeding. In the case of oral communications, a written summary must be served and placed in the public record of the proceeding.
            (d) Upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this section, the Commission or other adjudicatory employee presiding in a proceeding may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why its claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of the violation.
            (e)(1) The prohibitions of this section apply—
            (i) When a notice of hearing or other comparable order is issued in accordance with §§ 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.
            (2) The prohibitions of this section cease to apply to ex parte communications relevant to the merits of a full or partial initial decision when, in accordance with § 2.341, the time has expired for Commission review of the decision.
            (f) The prohibitions in this section do not apply to—
            (1) Requests for and the provision of status reports;
            (2) Communications specifically permitted by statute or regulation;
            (3) Communications made to or by Commission adjudicatory employees in the Office of the General Counsel regarding matters pending before a court or another agency; and
            (4) Communications regarding generic issues involving public health and safety or other statutory responsibilities of the agency (e.g., rulemakings, congressional hearings on legislation, budgetary planning) not associated with the resolution of any proceeding under this subpart pending before the NRC.
            (5) Communications, in contested proceedings and uncontested mandatory proceeding, regarding an undisputed issue.
            [69 FR 2236, Jan. 14, 2004, as amended at 72 FR 49476, Aug. 28, 2007; 77 FR 46597, Aug. 3, 2012]

            § 2.348
            Separation of functions.
            (a) In any proceeding under this part, any NRC officer or employee engaged in the performance of any investigative or litigating function in the proceeding or in a factually related proceeding with respect to a disputed issue in that proceeding, may not participate in or advise a Commission adjudicatory employee about the initial or final decision with respect to that disputed issue, except—
            (1) As witness or counsel in the proceeding;
            (2) Through a written communication served on all parties and made on-the-record of the proceeding; or
            (3) Through an oral communication made both with reasonable prior notice to all parties and with reasonable opportunity for all parties to respond.
            (b) The prohibition in paragraph (a) of this section does not apply to—
            (1) Communications to or from any Commission adjudicatory employee regarding—
            (i) The status of a proceeding;
            (ii) Matters for which the communications are specifically permitted by statute or regulation;

            (iii) NRC participation in matters pending before a court or another agency; or

            (iv) Generic issues involving public health and safety or other statutory responsibilities of the NRC (e.g., rulemakings, congressional hearings on legislation, budgetary planning) not associated with the resolution of any proceeding under this subpart pending before the NRC.
            (2) Communications to or from Commissioners, members of their personal staffs, Commission adjudicatory employees in the Office of the General Counsel, and the Secretary and employees of the Office of the Secretary, regarding—
            (i) Initiation or direction of an investigation or initiation of an enforcement proceeding;
            (ii) Supervision of NRC staff to ensure compliance with the general policies and procedures of the agency;
            (iii) NRC staff priorities and schedules or the allocation of agency resources; or
            (iv) General regulatory, scientific, or engineering principles that are useful for an understanding of the issues in a proceeding and are not contested in the proceeding.
            (3) None of the communications permitted by paragraph (b)(2) (i) through (iii) of this section is to be associated by the Commission adjudicatory employee or the NRC officer or employee performing investigative or litigating functions with the resolution of any proceeding under this subpart pending before the NRC.
            (c) Any Commission adjudicatory employee who receives a communication prohibited under paragraph (a) of this section shall ensure that it, and any responses to the communication, are placed in the public record of the proceeding and served on the parties. In the case of oral communications, a written summary must be served and placed in the public record of the proceeding.
            (d)(1) The prohibitions in this section apply—
            (i) When a notice of hearing or other comparable order is issued in accordance with §§ 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.
            (iii) A matter which a presiding officer seeks to be referred to the Commission under 10 CFR 2.340(a); and
            (iv) A matter for which the Commission has approved examination by the presiding officer under § 2.340(a).
            (2) The prohibitions of this section cease to apply to the disputed issues pertinent to a full or partial initial decision when the time has expired for Commission review of the decision in accordance with § 2.341.
            (3) Separation of functions does not apply to uncontested proceedings, or to an undisputed issue in contested initial licensing proceedings.
            (e) Communications to, from, and between Commission adjudicatory employees not prohibited by this section may not serve as a conduit for a communication that otherwise would be prohibited by this section or for an ex parte communication that otherwise would be prohibited by § 2.347.
            (f) If an initial or final decision is stated to rest in whole or in part on fact or opinion obtained as a result of a communication authorized by this section, the substance of the communication must be specified in the record of the proceeding and every party must be afforded an opportunity to controvert the fact or opinion. If the parties have not had an opportunity to controvert the fact or opinion before the decision is filed, a party may controvert the fact or opinion by filing a petition for review of an initial decision, or a petition for reconsideration of a final decision that clearly and concisely sets forth the information or argument relied on to show the contrary. If appropriate, a party may be afforded the opportunity for cross-examination or to present rebuttal evidence.
            [69 FR 2236, Jan. 14, 2004, as amended at 72 FR 49477, Aug. 28, 2007; 77 FR 46597, Aug. 3, 2012]

            § 2.390
            Public inspections, exemptions, requests for withholding.

            (a) Subject to the provisions of paragraphs (b), (d), (e), and (f) of this section, final NRC records and documents, including but not limited to correspondence to and from the NRC regarding the issuance, denial, amendment, transfer, renewal, modification, suspension, revocation, or violation of a license, permit, order, or standard design approval, or regarding a rulemaking proceeding subject to this part shall not, in the absence of an NRC determination of a compelling reason for nondisclosure after a balancing of the interests of the person or agency urging nondisclosure and the public interest in disclosure, be exempt from disclosure and will be made available for inspection and copying at the NRC Web site, http://www.nrc.gov, and/or at the NRC Public Document Room, except for matters that are:
            (1)(i) Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy; and
            (ii) Are in fact properly classified under that Executive order;
            (2) Related solely to the internal personnel rules and practices of the Commission;
            (3) Specifically exempted from disclosure by statute (other than 5 U.S.C. 552(b)), but only if that statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or establishes particular criteria for withholding or refers to particular types or matters to be withheld.
            (4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
            (5) Interagency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;
            (6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
            (7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:
            (i) Could reasonably be expected to interfere with enforcement proceedings;
            (ii) Would deprive a person of a right to a fair trial or an impartial adjudication;
            (iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;
            (iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority, or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;
            (v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or
            (vi) Could reasonably be expected to endanger the life or physical safety of any individual;
            (8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
            (9) Geological and geophysical information and data, including maps, concerning wells.
            (b) The procedures in this section must be followed by anyone submitting a document to the NRC who seeks to have the document, or a portion of it, withheld from public disclosure because it contains trade secrets, privileged, or confidential commercial or financial information.

            (1) The submitter shall request withholding at the time the document is submitted and shall comply with the document marking and affidavit requirements set forth in this paragraph. The NRC has no obligation to review documents not so marked to determine whether they contain information eligible for withholding under paragraph (a) of this section. Any documents not so marked may be made available to the public at the NRC Web site, http://www.nrc.gov or at the NRC Public Document Room.
            (i) The submitter shall ensure that the document containing information sought to be withheld is marked as follows:
            (A) The first page of the document, and each successive page containing such information, must be marked so as to be readily visible, at the top, or by electronic watermark or other suitable marking on the body of the page, with language substantially similar to: “confidential information submitted under 10 CFR 2.390,” “withhold from public disclosure under 10 CFR 2.390,” or “proprietary,” to indicate that it contains information the submitter seeks to have withheld.

            (B) Each document or page, as appropriate, containing information sought to be withheld from public disclosure must indicate, adjacent to the information, or as specified in paragraph (b)(1)(i)(A) of this section if the entire page is affected, the basis (i.e., trade secret, personal privacy, etc.) for proposing that the information be withheld from public disclosure under paragraph (a) of this section.
            (ii) The Commission may waive the affidavit requirements on request, or on its own initiative, in circumstances the Commission, in its discretion, deems appropriate. Otherwise, except for personal privacy information, which is not subject to the affidavit requirement, the request for withholding must be accompanied by an affidavit that—
            (A) Identifies the document or part sought to be withheld;
            (B) Identifies the official position of the person making the affidavit;
            (C) Declares the basis for proposing the information be withheld, encompassing considerations set forth in § 2.390(a);
            (D) Includes a specific statement of the harm that would result if the information sought to be withheld is disclosed to the public; and
            (E) Indicates the location(s) in the document of all information sought to be withheld.
            (iii) In addition, an affidavit accompanying a withholding request based on paragraph (a)(4) of this section must contain a full statement of the reason for claiming the information should be withheld from public disclosure. This statement must address with specificity the considerations listed in paragraph (b)(4) of this section. In the case of an affidavit submitted by a company, the affidavit shall be executed by an officer or upper-level management official who has been specifically delegated the function of reviewing the information sought to be withheld and authorized to apply for its withholding on behalf of the company. The affidavit shall be executed by the owner of the information, even though the information sought to be withheld is submitted to the Commission by another person. The application and affidavit shall be submitted at the time of filing the information sought to be withheld. The information sought to be withheld shall be incorporated, as far as possible, into a separate document. The affiant must designate with appropriate markings information submitted in the affidavit as a trade secret, or confidential or privileged commercial or financial information within the meaning of § 9.17(a)(4) of this chapter, and such information shall be subject to disclosure only in accordance with the provisions of § 9.19 of this chapter.
            (2) A person who submits commercial or financial information believed to be privileged or confidential or a trade secret shall be on notice that it is the policy of the Commission to achieve an effective balance between legitimate concerns for protection of competitive positions and the right of the public to be fully apprised as to the basis for and effects of licensing or rulemaking actions, and that it is within the discretion of the Commission to withhold such information from public disclosure.

            (3) The Commission shall determine whether information sought to be withheld from public disclosure under this paragraph:

            (i) Is a trade secret or confidential or privileged commercial or financial information; and (ii) If so, should be withheld from public disclosure.
            (4) In making the determination required by paragraph (b)(3)(i) of this section, the Commission will consider:
            (i) Whether the information has been held in confidence by its owner;
            (ii) Whether the information is of a type customarily held in confidence by its owner and, except for voluntarily submitted information, whether there is a rational basis therefor;
            (iii) Whether the information was transmitted to and received by the Commission in confidence;
            (iv) Whether the information is available in public sources;
            (v) Whether public disclosure of the information sought to be withheld is likely to cause substantial harm to the competitive position of the owner of the information, taking into account the value of the information to the owner; the amount of effort or money, if any, expended by the owner in developing the information; and the ease or difficulty with which the information could be properly acquired or duplicated by others.
            (5) If the Commission determines, under paragraph (b)(4) of this section, that the record or document contains trade secrets or privileged or confidential commercial or financial information, the Commission will then determine whether the right of the public to be fully apprised as to the bases for and effects of the proposed action outweighs the demonstrated concern for protection of a competitive position, and whether the information should be withheld from public disclosure under this paragraph. If the record or document for which withholding is sought is deemed by the Commission to be irrelevant or unnecessary to the performance of its functions, it will be returned to the applicant.

            (6) Withholding from public inspection does not affect the right, if any, of persons properly and directly concerned to inspect the document. Either before a decision of the Commission on the matter of whether the information should be made publicly available or after a decision has been made that the information should be withheld from public disclosure, the Commission may require information claimed to be a trade secret or privileged or confidential commercial or financial information to be subject to inspection under a protective agreement by contractor personnel or government officials other than NRC officials, by the presiding officer in a proceeding, and under protective order by the parties to a proceeding. In camera sessions of hearings may be held when the information sought to be withheld is produced or offered in evidence. If the Commission subsequently determines that the information should be disclosed, the information and the transcript of such in camera session will be made publicly available.
            (c) The Commission either may grant or deny a request for withholding under this section.
            (1) If the request is granted, the Commission will notify the submitter of its determination to withhold the information from public disclosure.

            (2) If the Commission denies a request for withholding under this section, it will provide the submitter with a statement of reasons for that determination. This decision will specify the date, which will be a reasonable time thereafter, when the document will be available at the NRC Web site, http://www.nrc.gov. The document will not be returned to the submitter.
            (3) Whenever a submitter desires to withdraw a document from Commission consideration, it may request return of the document, and the document will be returned unless the information—
            (i) Forms part of the basis of an official agency decision, including but not limited to, a rulemaking proceeding or licensing activity;
            (ii) Is contained in a document that was made available to or prepared for an NRC advisory committee;
            (iii) Was revealed, or relied upon, in an open Commission meeting held in accordance with 10 CFR part 9, subpart C;
            (iv) Has been requested in a Freedom of Information Act request; or

            (v) Has been obtained during the course of an investigation conducted by the NRC Office of Investigations.

            (d) The following information is considered commercial or financial information within the meaning of § 9.17(a)(4) of this chapter and is subject to disclosure only in accordance with the provisions of § 9.19 of this chapter.
            (1) Correspondence and reports to or from the NRC which contain information or records concerning a licensee's or applicant's physical protection, classified matter protection, or material control and accounting program for special nuclear material not otherwise designated as Safeguards Information or classified as National Security Information or Restricted Data.
            (2) Information submitted in confidence to the Commission by a foreign source.
            (e) Submitting information to NRC for consideration in connection with NRC licensing or regulatory activities shall be deemed to constitute authority for the NRC to reproduce and distribute sufficient copies to carry out the Commission's official responsibilities.
            (f) The presiding officer, if any, or the Commission may, with reference to the NRC records and documents made available pursuant to this section, issue orders consistent with the provisions of this section and § 2.705(c).
            [69 FR 2236, Jan. 14, 2004, as amended at 72 FR 49152, Aug. 28, 2007; 72 FR 49477, Aug. 28, 2007; 75 FR 73937, Nov. 30, 2010; 81 FR 96346, Dec. 30, 2016]

          Subpart D—Additional Procedures Applicable to Proceedings for the Issuance of Licenses To Construct and/or Operate Nuclear Power Plants of Identical Design at Multiple Sites

            Source:
            72 FR 49477, Aug. 28, 2007, unless otherwise noted.

            § 2.400
            Scope of subpart.
            This subpart describes procedures applicable to licensing proceedings which involve the consideration in hearings of a number of applications, filed by one or more applicants pursuant to appendix N of parts 50 or 52 of this chapter, for licenses to construct and/or operate nuclear power reactors of identical design to be located at multiple sites.

            § 2.401
            Notice of hearing on construction permit or combined license applications pursuant to appendix N of 10 CFR parts 50 or 52.
            (a) In the case of applications pursuant to appendix N of part 50 of this chapter for construction permits for nuclear power reactors of the type described in § 50.22 of this chapter, or applications pursuant to appendix N of part 52 of this chapter for combined licenses, the Secretary will issue notices of hearing pursuant to § 2.104.
            (b) The notice of hearing will also state the time and place of the hearings on any separate phase of the proceeding.

            § 2.402
            Separate hearings on separate issues; consolidation of proceedings.
            (a) In the case of applications under appendix N of part 50 of this chapter for construction permits for nuclear power reactors of a type described in 10 CFR 50.22, or applications pursuant to appendix N of part 52 of this chapter for combined licenses, the Commission or the presiding officer may order separate hearings on particular phases of the proceeding, such as matters related to the acceptability of the design of the reactor, in the context of the site parameters postulated for the design or environmental matters.
            (b) If a separate hearing is held on a particular phase of the proceeding, the Commission or presiding officers of each affected proceeding may, under 10 CFR 2.317, consolidate for hearing on that phase two or more proceedings to consider common issues relating to the applications involved in the proceedings, if it finds that this action will be conducive to the proper dispatch of its business and to the ends of justice. In specifying the place of this consolidated hearing, due regard will be given to the convenience and necessity of the parties, petitioners for leave to intervene, or the attorneys or representatives of such persons, and the public interest.

            § 2.403
            Notice of proposed action on applications for operating licenses pursuant to appendix N of 10 CFR part 50.

            In the case of applications pursuant to appendix N of part 50 of this chapter for operating licenses for nuclear power reactors, if the Commission has not found that a hearing is in the public interest, the Commission or the Director, Office of Nuclear Reactor Regulation, as appropriate will, prior to acting thereon, cause to be published in the Federal Register, pursuant to § 2.105, a notice of proposed action with respect to each application as soon as practicable after the applications have been docketed.
            [73 FR 5717, Jan. 31, 2008, as amended at 84 FR 65643, Nov. 29, 2019]

            § 2.404
            Hearings on applications for operating licenses pursuant to appendix N of 10 CFR part 50.
            If a request for a hearing and/or petition for leave to intervene is filed within the time prescribed in the notice of proposed action on an application for an operating license pursuant to appendix N of part 50 of this chapter with respect to a specific reactor(s) at a specific site, and the Commission, the Chief Administrative Judge, or a presiding officer has issued a notice of hearing or other appropriate order, then the Commission, the Chief Administrative Judge, or the presiding officer may order separate hearings on particular phases of the proceeding and/or consolidate for hearing two or more proceedings in the manner described in § 2.402.

            § 2.405
            Initial decisions in consolidated hearings.
            At the conclusion of a hearing held under this subpart, the presiding officer will render a partial initial decision on the common design. The partial initial decision on the common design may be appealed under § 2.341. If the proceedings have also been consolidated with respect to matters other than the common design under § 2.317(b), the presiding officer may issue a consolidated partial initial decision for those proceedings. No construction permit, full-power operating license, or combined license under part 52 of this chapter will be issued until an initial decision has been issued on all phases of the hearing and all issues under the Act and the National Environmental Policy Act of 1969 appropriate to the proceeding have been resolved.

            § 2.406
            Finality of decisions on separate issues.
            Notwithstanding any other provision of this chapter, in a proceeding conducted pursuant to this subpart and appendices N of parts 50 or 52 of this chapter, no matter which has been reserved for consideration in one phase of the hearing shall be considered at another phase of the hearing except on the basis of significant new information that substantially affects the conclusion(s) reached at the other phase or other good cause.

            § 2.407
            Applicability of other sections.
            The provisions of subparts A, C, G, L, and N of this part relating to construction permits, operating licenses, and combined licenses apply, respectively, to construction permits, operating licenses, and combined licenses subject to this subpart, except as may be qualified by the provisions of this subpart.

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

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

            § 2.500
            Scope of subpart.
            This subpart prescribes procedures applicable to licensing proceedings which involve the consideration in separate hearings of an application for a license to manufacture nuclear power reactors under subpart F of part 52 of this chapter.
            [72 FR 49478, Aug. 28, 2007]

            § 2.501
            Notice of hearing on application under subpart F of 10 CFR part 52 for a license to manufacture nuclear power reactors.

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

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

            (1) The time, place, and nature of the hearing and/or the prehearing conference;
            (2) The authority within which the hearing is to be held;
            (3) The matters of fact and law to be considered; and
            (4) The time within which answers to the notice shall be filed.
            (b) The notice of hearing shall comply with the requirements of § 2.104(f) of this chapter.
            (c) The place of hearing on an application for a manufacturing license will be Washington, DC, or such other location as the Commission deems appropriate.
            [38 FR 30252, Nov. 2, 1973, as amended at 39 FR 26279, July 18, 1974; 39 FR 33202, Sept. 16, 1974; 49 FR 9401, Mar. 12, 1984; 54 FR 15398, Apr. 18, 1989; 54 FR 52342, Dec. 21, 1989; 72 FR 49478, Aug. 28, 2007]

            §§ 2.502-2.504
            [Reserved]

          Subpart F—Additional Procedures Applicable to Early Partial Decisions on Site Suitability Issues in Connection With an Application for a Construction Permit or Combined License To Construct Certain Utilization Facilities; and Advance Issuance of Limited Work Authorizations

            Source:
            72 FR 49478, Aug. 28, 2007, unless otherwise noted.

            § 2.600
            Scope of subpart.
            This subpart prescribes procedures applicable to licensing proceedings which involve an early submittal of site suitability information in accordance with § 2.101(a-1), and a hearing and early partial decision on issues of site suitability, in connection with an application for a permit to construct a utilization facility which is subject to § 51.20(b) of this chapter and is of the type specified in § 50.21(b)(2) or (3) or § 50.22 of this chapter or is a testing facility. This subpart also prescribes procedures applicable to proceedings for a construction permit for a utilization facility which is subject to § 51.20(b) of this chapter and is of the type specified in § 50.21(b)(2) or (3) or § 50.22 of this chapter, or proceedings for a combined license under part 52 of this chapter, either of which includes a request to conduct the activities authorized under § 50.10(d) of part 50 of this chapter in advance of issuance of the construction permit or combined license, and submits an application in accordance with § 2.101(a)(9).
            (a) The procedures in §§ 2.601 through 2.609 apply to all applications under this subpart.
            (b) The procedures in §§ 2.611 through 2.619 apply to applications for a permit to construct a utilization facility which is subject to § 51.20(b) of this chapter and is of the type specified in § 50.21(b)(2) or (3) or § 50.22 of this chapter or is a testing facility.

            (c) The procedures in §§ 2.621 through 2.629 apply to applications for combined license under part 52 of this chapter for a nuclear power facility.

            (d) The procedures in §§ 2.641 through 2.649 apply to phased applications for construction permits or combined licenses which request limited work authorizations to be issued in advance of issuance of the construction permit or combined license (i.e., a phased application).
            [72 FR 49478, Aug. 28, 2007, as amended at 72 FR 57440, Oct. 9, 2007]

            § 2.601
            Applicability of other sections.
            The provisions of subparts A, C, G, L, and N relating to applications for construction permits and combined licenses, and proceedings thereon apply, respectively, to such applications and proceedings in accordance with this subpart, except as specifically provided otherwise by the provisions of this subpart.

            Early Partial Decisions on Site Suitability—Construction Permit

              § 2.602
              Filing fees.
              Each application which contains a request for early review of site suitability issues under the procedures of this subpart shall be accompanied by any fee required by § 50.30(e) and part 170 of this chapter.

              § 2.603
              Acceptance and docketing of application for early review of site suitability issues in a construction permit proceeding.
              (a) Each part of an application for a construction permit submitted in accordance with § 2.101(a-1) of this part will be initially treated as a tendered application. If it is determined that any one of the parts as described in § 2.101(a-1) is incomplete and not acceptable for processing, the Director of the Office of Nuclear Reactor Regulation will inform the applicant of this determination and the respects in which the document is deficient. Such a determination of completeness will generally be made within a period of 30 days.
              (b)(1) The Director of the Office of Nuclear Reactor Regulation will accept for docketing part one of an application for a construction permit for a utilization facility which is subject to § 51.20(b) of this chapter and is of the type specified in § 50.21(b)(2) or (3) or § 50.22 of this chapter, or is a testing facility where part one of the application as described in § 2.101(a-1) is complete. Part one of any application will not be considered complete unless it contains proposed findings as required by § 2.101(a-1)(1)(i) and unless it describes the applicant's site selection process, specifies the extent to which that process involves the consideration of alternative sites, explains the relationship between that process and the application for early review of site suitability issues, and briefly describes the applicant's long-range plans for ultimate development of the site. Upon assignment of a docket number, the procedures in § 2.101(a)(3) and (4) relating to formal docketing and the submission and distribution of additional copies of the application shall be followed.
              (2) Additional parts of the application will be docketed upon a determination by the Director of the Office of Nuclear Reactor Regulation that they are complete.

              (c) If part one of the application is docketed, the Director of the Office of Nuclear Reactor Regulation will cause to be published in the Federal Register and send to the Governor or other appropriate official of the State in which the site is located, a notice of docketing of the application which states the purpose of the application, states the location of the proposed site, states that a notice of hearing will be published, requests comments within 120 days or such other time as may be specified on the initiation or outcome of an early site review from Federal, State, and local agencies and interested persons.
              [72 FR 49478, Aug. 28, 2007, as amended at 84 FR 65643, Nov. 29, 2019]

              § 2.604
              Notice of hearing on application for early review of site suitability issues in construction permit proceeding.

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

              § 2.605
              Additional considerations.
              (a) The Commission will not conduct more than one review of site suitability issues with regard to a particular site prior to filing and review of part two of the application described in § 2.101(a-1) of this part.
              (b) The Commission, upon its own initiative, or upon the motion of any party to the proceeding filed at least 60 days prior to the date of the commencement of the evidentiary hearing on site suitability issues, may decline to initiate an early hearing or render an early partial decision on any issue or issues of site suitability:
              (1) In cases where no partial decision on the relative merits of the proposed site and alternative sites under subpart A of part 51 of this chapter is requested, upon determination that there is a reasonable likelihood that further review would identify one or more preferable alternative sites and the partial decision on one or more site suitability issues would lead to an irreversible and irretrievable commitment of resources prior to the submittal of the remainder of the information required by § 50.30(f) of this chapter that would prejudice the later review and decision on such alternative sites; or
              (2) In cases where it appears that an early partial decision on any issue or issues of site suitability would not be in the public interest considering:
              (i) The degree of likelihood that any early findings on those issues would retain their validity in later reviews;
              (ii) The objections, if any, of cognizant State or local government agencies to the conduct of an early review on those issues; and
              (iii) The possible effect on the public interest and the parties of having an early, if not necessarily conclusive, resolution of those issues.

              § 2.606
              Partial decision on site suitability issues in construction permit proceeding.

              (a) The provisions of §§ 2.331, 2.339, 2.340(b), 2.343, 2.712, and 2.713 apply to any partial initial decision rendered in accordance with this subpart. Section 2.340(c) does not apply to any partial initial decision rendered in accordance with this subpart. No construction permit or combined license may be issued without completion of the full review required by Section 102(2) of the NEPA, as amended, and subpart A of part 51 of this chapter. The authority of the Commission to review such a partial initial decision sua sponte, or to raise sua sponte an issue that has not been raised by the parties, will be exercised within the same time as in the case of a full decision relating to the issuance of a construction permit or combined license.
              (b)(1) A partial decision on one or more site suitability issues pursuant to the applicable provisions of part 50, subpart A of part 51, and part 100 of this chapter issued in accordance with this subpart shall:
              (i) Clearly identify the site to which the partial decision applies; and
              (ii) Indicate to what extent additional information may be needed and additional review may be required to enable the Commission to determine in accordance with the provisions of the Act and the applicable provisions of the regulations in this chapter whether a construction permit for a facility to be located on the site identified in the partial decision should be issued or denied.
              (2) Following either the Commission (acting in the function of a presiding officer) issuance of a partial initial decision, or completion of Commission review of the partial initial decision of the Atomic Safety and Licensing Board, after hearing, on the site suitability issues, the partial decision shall remain in effect either for a period of 5 years or, where the applicant for the construction permit has made timely submittal of the information required to support the application as provided in § 2.101(a-1), until the proceeding for a permit to construct a facility on the site identified in the partial decision has been concluded, 3
                 unless the Commission or Atomic Safety and Licensing Board, upon its own initiative or upon motion by a party to the proceeding, finds that there exists significant new information that substantially affects the earlier conclusions and reopens the hearing record on site suitability issues. Upon good cause shown, the Commission may extend the 5-year period during which a partial decision shall remain in effect for a reasonable period of time not to exceed 1 year.

                  3 The partial decision on site suitability issues shall be incorporated in the decision regarding issuance of the combined license to the extent that it serves as a basis for the decision on a specific site issue.

              [72 FR 49479, Aug. 28, 2007, as amended at 72 FR 57440, Oct. 9, 2007]

            Early Partial Decisions on Site Suitability—Combined License Under 10 CFR Part 52

              § 2.621
              Acceptance and docketing of application for early review of site suitability issues in a combined license proceeding.
              (a) Each part of an application submitted in accordance with § 2.101(a-1) of this part will be initially treated as a tendered application. If it is determined that any one of the parts as described in § 2.101(a-1) is incomplete and not acceptable for processing, the Director of the Office of Nuclear Reactor Regulation will inform the applicant of this determination and the respects in which the document is deficient. Such a determination of completeness will generally be made within a period of 30 days.

              (b)(1) The Director of the Office of Nuclear Reactor Regulation will accept for docketing an application for a combined license for a nuclear power facility where part one of the application as described in § 2.101(a-1) is complete. Part one of any application will not be considered complete unless it contains proposed findings as required by § 2.101(a-1)(1)(i) and unless it describes the applicant's site selection process, specifies the extent to which that process involves the consideration of alternative sites, explains the relationship between that process and the application for early review of site suitability issues, and briefly describes the applicant's long-range plans for ultimate development of the site. Upon assignment of a docket number, the procedures in § 2.101(a)(3) and (4) relating to formal docketing and the submission and distribution of additional copies of the application shall be followed.
              (2) Additional parts of the application will be docketed upon a determination by the Director of the Office of Nuclear Reactor Regulation that they are complete.

              (c) If part one of the application is docketed, the Director of the Office of Nuclear Reactor Regulation will cause to be published in the Federal Register and send to the Governor or other appropriate official of the State in which the site is located, a notice of docketing of the application which states the purpose of the application, states the location of the proposed site, states that a notice of hearing will be published, requests comments within 120 days or such other time as may be specified on the initiation or outcome of an early site review from Federal, State, and local agencies and interested persons.
              [72 FR 49478, Aug. 28, 2007, as amended at 84 FR 65643, Nov. 29, 2019]

              § 2.623
              Notice of hearing on application for early review of site suitability issues in combined license proceeding.
              (a) Where an applicant for a combined license under part 52 of this chapter requests an early review and hearing and an early partial decision on issues of site suitability pursuant to § 2.101(a-2), the provisions in the notice of hearing setting forth the matters of fact and law to be considered, as required by § 2.104, shall be modified so as to relate only to the site suitability issue or issues under review. The notice will provide appropriate opportunities for participation by a representative of an interested State under § 2.315(c) and for limited appearances under § 2.315(a), limited however, to the issues of site suitability for which early review has been requested by the applicant.
              (b) After docketing of part two of the application, as provided in §§ 2.101(a-1) and 2.603, a supplementary notice of hearing will be published under § 2.104 with respect to the remaining unresolved issues in the proceeding within the scope of § 2.104. This supplementary notice of hearing will provide that any person whose interest may be affected by the proceeding and who desires to participate as a party in the resolution of the remaining issues shall file a petition for leave to intervene pursuant to § 2.309 within the time prescribed in the notice. This supplementary notice will also provide appropriate opportunities for participation by a representative of an interested State under § 2.315(c) and for limited appearances under § 2.315(a).

              (c) Any person who was permitted to intervene as a party under the initial notice of hearing on site suitability issues and who was not dismissed or did not withdraw as a party may continue to participate as a party to the proceeding without having to demonstrate standing under § 2.309(d), provided, however, that within the time prescribed for filing of petitions for leave to intervene in the supplementary notice of hearing, the party files a notice of intent to continue as a party. The notice must include the information required by § 2.309(f). A party who files a non-timely notice of intent to continue as a party may be dismissed from the proceeding, absent a determination that the party has made a substantial showing of good cause for failure to file on time, and with particular reference to the factors specified in §§ 2.309(c)(1)(i) through (iv) and 2.309(d). The notice will be ruled upon by the Commission or presiding officer designated to rule on petitions for leave to intervene.
              (d) To the maximum extent practicable, the presiding officer (as applicable, the membership of the licensing board) designated to preside in the proceeding on the remaining unresolved issues pursuant to the supplemental notice of hearing will be the same as the presiding officer (as applicable, the membership of the licensing board) designated to preside in the initial notice of hearing on site suitability issues.

              § 2.625
              Additional considerations.

              (a) The Commission will not conduct more than one review of site suitability issues with regard to a particular site prior to filing and review of part two of the application described in § 2.101(a-1) of this part.

              (b) The Commission, upon its own initiative, or upon the motion of any party to the proceeding filed at least 60 days prior to the date of the commencement of the evidentiary hearing on site suitability issues, may decline to initiate an early hearing or render an early partial decision on any issue or issues of site suitability:
              (1) In cases where no partial decision on the relative merits of the proposed site and alternative sites under subpart A of part 51 is requested, upon determination that there is a reasonable likelihood that further review would identify one or more preferable alternative sites and the partial decision on one or more site suitability issues would lead to an irreversible and irretrievable commitment of resources prior to the submittal of the remainder of the information required by § 50.30(f) of this chapter that would prejudice the later review and decision on such alternative sites; or
              (2) In cases where it appears that an early partial decision on any issue or issues of site suitability would not be in the public interest considering:
              (i) The degree of likelihood that any early findings on those issues would retain their validity in later reviews;
              (ii) The objections, if any, of cognizant State or local government agencies to the conduct of an early review on those issues; and
              (iii) The possible effect on the public interest and the parties of having an early, if not necessarily conclusive, resolution of those issues.

              § 2.627
              Partial decision on site suitability issues in combined license proceeding.
              (a) The provisions of §§ 2.331, 2.339, 2.340(b), 2.343, 2.712, and 2.713 shall apply to any partial initial decision rendered in accordance with this subpart. Section 2.340(c) shall not apply to any partial initial decision rendered in accordance with this subpart. A limited work authorization may not be issued under 10 CFR 50.10(e) and no construction permit may be issued without completion of the full review required by Section 102(2) of the National Environmental Policy Act of 1969, as amended, and subpart A of part 51 of this chapter. The authority of the Commission to review such a partial initial decision sua sponte, or to raise sua sponte an issue that has not been raised by the parties, will be exercised within the same time period as in the case of a full decision relating to the issuance of a construction permit.
              (b)(1) A partial decision on one or more site suitability issues pursuant to the applicable provisions of part 50, subpart A of part 51, and part 100 of this chapter issued in accordance with this subpart shall:
              (i) Clearly identify the site to which the partial decision applies; and
              (ii) Indicate to what extent additional information may be needed and additional review may be required to enable the Commission to determine in accordance with the provisions of the Act and the applicable provisions of the regulations in this chapter whether a construction permit for a facility to be located on the site identified in the partial decision should be issued or denied.
              (2) Following either the Commission (acting in the function of a presiding officer) issuance of a partial initial decision, or completion of Commission review of the partial initial decision of the presiding officer, after hearing, on the site suitability issues, the partial decision shall remain in effect either for a period of 5 years or, where the applicant for the combined license has made timely submittal of the information required to support the application as provided in § 2.101(a-2), until the proceeding for a combined license on the site identified in the partial decision has been concluded, unless the Commission or presiding officer, upon its own initiative or upon motion by a party to the proceeding, finds that there exists significant new information that substantially affects the earlier conclusions and reopens the hearing record on site suitability issues. Upon good cause shown, the Commission may extend the 5-year period during which a partial decision shall remain in effect for a reasonable period of time not to exceed 1 year.

              § 2.629
              Finality of partial decision on site suitability issues in a combined license proceeding.
              (a) The partial decision on site suitability issues in a combined license proceeding shall be incorporated in the decision regarding issuance of a combined license. Except as provided in 10 CFR 2.758, in making the findings required for issuance of a combined license, the Commission shall treat as resolved those matters resolved in connection with the issuance of the partial decision on site suitability issues. If the Commission reaches an adverse decision, the application shall be denied without prejudice for resubmission, provided, however, that in determining whether the resubmitted application is complete and acceptable for docketing under § 2.101(a)(3), the Director of the Office of Nuclear Reactor Regulation shall determine whether the resubmitted application addresses those matters identified as bases for denial of the original application.
              (b) Notwithstanding any provision in 10 CFR 50.109, while a partial decision on site suitability is in effect under § 2.627(b)(2), the Commission may not modify, rescind, or impose new requirements with respect to matters within the scope of the site suitability decision, whether on its own motion, or in response to a request or petition from any person, unless the Commission determines that a modification to the original decision is necessary either for compliance with the Commission's regulations applicable and in effect at the time the partial decision was issued, or to assure adequate protection of the public health and safety or the common defense and security.
              [72 FR 49478, Aug. 28, 2007, as amended at 84 FR 63567, Nov. 18, 2019; 84 FR 65644, Nov. 29, 2019]

            Phased Applications Involving Limited Work Authorizations

              Source:
              72 FR 57440, Oct. 9, 2007, unless otherwise noted.

              § 2.641
              Filing fees.
              Each application which contains a request for limited work authorization under the procedures of § 2.101(a)(9) and this subpart shall be accompanied by any fee required by § 50.30(e) and part 170 of this chapter.

              § 2.643
              Acceptance and docketing of application for limited work authorization.
              (a) Each part of an application submitted in accordance with § 2.101(a)(9) will be initially treated as a tendered application. If it is determined that any one of the parts as described in § 2.101(a)(9) is incomplete and not acceptable for processing, the Director of the Office of Nuclear Reactor Regulation will inform the applicant of this determination and the respects in which the document is deficient. A determination of completeness will generally be made within a period of 30 days.
              (b) The Director will accept for docketing part one of an application for a construction permit for a utilization facility which is subject to § 51.20(b) of this chapter and is of the type specified in § 50.21(b)(2) or (3) or § 50.22 of this chapter or an application for a combined license where part one of the application as described in § 2.101(a)(9) is complete. Part one will not be considered complete unless it contains the information required by § 50.10(d)(3) of this chapter. Upon assignment of a docket number, the procedures in § 2.101(a)(3) and (4) relating to formal docketing and the submission and distribution of additional copies of the application must be followed.

              (c) If part one of the application is docketed, the Director will cause to be published in the Federal Register and send to the Governor or other appropriate official of the State in which the site is located, a notice of docketing of the application which states the purpose of the application, states the location of the proposed site, states that a notice of hearing will be published, and requests comments on the limited work authorization from Federal, State, and local agencies and interested persons. The notice will state that comments must be submitted to the NRC within 60 days or such other time as may be specified in the notice.

              (d) Part two of the application will be docketed upon a determination by the Director that it is complete.

              (e) If part two of the application is docketed, the Director will cause to be published in the Federal Register and sent to the Governor or other appropriate official of the State in which the site is located, a notice of docketing of part two of the application which states the purpose of the application, states that a notice of hearing will be published, and requests comments on the construction permit or combined license application, as applicable, from Federal, State, and local agencies and interested persons. The notice will state that comments must be submitted to the NRC within 60 days or such other time as may be specified in the notice.
              [72 FR 49478, Aug. 28, 2007, as amended at 84 FR 65644, Nov. 29, 2019]

              § 2.645
              Notice of hearing.
              (a) The notice of hearing on part one of the application must set forth the matters of fact and law to be considered, as required by § 2.104, which will be modified to state that the hearing will relate only to the matters related to § 50.33(a) through (f) of this chapter, and the limited work authorization.
              (b) After docketing of part two of the application, as provided in §§ 2.101(a)(9) and 2.643(d), a supplementary notice of hearing will be published under § 2.104 with respect to the remaining unresolved issues in the proceeding within the scope of § 2.104. The supplementary notice of hearing will provide that any person whose interest may be affected by the proceeding and who desires to participate as a party in the resolution of the remaining issues shall, file a petition for leave to intervene within the time prescribed in the notice. The petition to intervene must meet the applicable requirements in subpart C of this part, including § 2.309. This supplementary notice will also provide appropriate opportunities for participation by a representative of an interested State under § 2.315(c) and for limited appearances under § 2.315(a).

              (c) Any person who was permitted to intervene under the initial notice of hearing on the limited work authorization and who was not dismissed or did not withdraw as a party, may continue to participate as a party with respect to the remaining unresolved issues only if, within the time prescribed for filing of petitions for leave to intervene in the supplementary notice of hearing, that person files a petition for intervention which meets the applicable requirements in subpart C of this part, including § 2.309, provided, however, that the petition need not address § 2.309(d). However, a person who was granted discretionary intervention under § 2.309(e) must address in its petition the factors in § 2.309(e) as they apply to the supplementary hearing.
              (d) A party who files a non-timely petition for intervention under paragraph (b) of this section to continue as a party may be dismissed from the proceeding, absent a determination that the party has made a substantial showing of good cause for failure to file on time, and with particular reference to the factors specified in §§ 2.309(c)(1)(i) through (iv) and 2.309(d). The notice will be ruled upon by the Commission or presiding officer designated to rule on petitions for leave to intervene.
              (e) To the maximum extent practicable, the membership of the Atomic Safety and Licensing Board, or the individual presiding officer, as applicable, designated to preside in the proceeding on the remaining unresolved issues under the supplemental notice of hearing will be the same as the membership or individual designated to preside in the initial notice of hearing.

              § 2.647
              [Reserved]

              § 2.649
              Partial decisions on limited work authorization.

              The provisions of §§ 2.331, 2.339, 2.340(b), 2.343, 2.712, and 2.713 apply to any partial initial decision rendered in accordance with this subpart. Section 2.340(c) does not apply to any partial initial decision rendered in accordance with this subpart. A limited work authorization may not be issued under 10 CFR 50.10(d) without completion of the review for limited work authorizations required by subpart A of part 51 of this chapter. The authority of the Commission to review such a partial initial decision sua sponte, or to raise sua sponte an issue that has not been raised by the parties, will be exercised within the same time as in the case of a full decision relating to the issuance of a construction permit or combined license.

          Subpart G—Rules for Formal Adjudications

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

            § 2.700
            Scope of subpart G.
            The provisions of this subpart apply to and supplement the provisions set forth in subpart C of this part with respect to enforcement proceedings initiated under subpart B of this part unless otherwise agreed to by the parties, proceedings conducted with respect to the initial licensing of a uranium enrichment facility, proceedings for the grant, renewal, licensee-initiated amendment, or termination of licenses or permits for nuclear power reactors, where the presiding officer by order finds that resolution of the contention necessitates resolution of: issues of material fact relating to the occurrence of a past event, where the credibility of an eyewitness may reasonably be expected to be at issue, and/or issues of motive or intent of the party or eyewitness material to the resolution of the contested matter, proceedings for initial applications for construction authorization for high-level radioactive waste repository noticed under §§ 2.101(f)(8) or 2.105(a)(5), proceedings for initial applications for a license to receive and possess high-level radioactive waste at a geologic repository operations area, and any other proceeding as ordered by the Commission. If there is any conflict between the provisions of this subpart and those set forth in subpart C of this part, the provisions of this subpart control.

            § 2.701
            Exceptions.
            Consistent with 5 U.S.C. 554(a)(4) of the Administrative Procedure Act, the Commission may provide alternative procedures in adjudications to the extent that there is involved the conduct of military or foreign affairs functions.

            § 2.702
            Subpoenas.
            (a) On application by any party, the designated presiding officer or, if he or she is not available, the Chief Administrative Judge, or other designated officer will issue subpoenas requiring the attendance and testimony of witnesses or the production of evidence. The officer to whom application is made may require a showing of general relevance of the testimony or evidence sought, and may withhold the subpoena if such a showing is not made. However, the officer may not determine the admissibility of evidence.
            (b) Every subpoena will bear the name of the Commission, the name and office of the issuing officer and the title of the hearing, and will command the person to whom it is directed to attend and give testimony or produce specified documents or other things at a designated time and place. The subpoena will also advise of the quashing procedure provided in paragraph (f) of this section.
            (c) Unless the service of a subpoena is acknowledged on its face by the witness or is served by an officer or employee of the Commission, it must be served by a person who is not a party to the hearing and is not less than eighteen (18) years of age. Service of a subpoena must be made by delivery of a copy of the subpoena to the person named in it and tendering that person the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the Commission, fees and mileage need not be tendered and the subpoena may be served by registered mail.
            (d) Witnesses summoned by subpoena must be paid the fees and mileage paid to witnesses in the district courts of the United States by the party at whose instance they appear.
            (e) The person serving the subpoena shall make proof of service by filing the subpoena and affidavit or acknowledgment of service with the officer before whom the witness is required to testify or produce evidence or with the Secretary. Failure to make proof of service does not affect the validity of the service.

            (f) On motion made promptly, and in any event at or before the time specified in the subpoena for compliance by the person to whom the subpoena is directed, and on notice to the party at whose instance the subpoena was issued, the presiding officer or, if he is unavailable, the Commission may:
            (1) Quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter in issue, or
            (2) Condition denial of the motion on just and reasonable terms.
            (g) On application and for good cause shown, the Commission will seek judicial enforcement of a subpoena issued to a party and which has not been quashed.
            (h) The provisions of paragraphs (a) through (g) of this section are not applicable to the attendance and testimony of the Commissioners or NRC personnel, or to the production of records or documents in their custody.

            § 2.703
            Examination by experts.
            (a) A party may request the presiding officer to permit a qualified individual who has scientific or technical training or experience to participate on behalf of that party in the examination and cross-examination of expert witnesses. The presiding officer may permit the individual to participate on behalf of the party in the examination and cross-examination of expert witnesses, upon finding:
            (1) That cross-examination by that individual would serve the purpose of furthering the conduct of the proceeding;
            (2) That the individual is qualified by scientific or technical training or experience to contribute to the development of an adequate decisional record in the proceeding by the conduct of such examination or cross-examination;
            (3) That the individual has read any written testimony on which he intends to examine or cross-examine and any documents to be used or referred to in the course of the examination or cross-examination; and
            (4) That the individual has prepared himself to conduct a meaningful and expeditious examination or cross-examination, and has submitted a cross-examination plan in accordance with § 2.711(c).
            (b) Examination or cross-examination conducted under this section must be limited to areas within the expertise of the individual conducting the examination or cross-examination. The party on behalf of whom this examination or cross-examination is conducted and his or her attorney is responsible for the conduct of examination or cross-examination by such individuals.

            § 2.704
            Discovery-required disclosures.
            (a) Initial disclosures. Except to the extent otherwise stipulated or directed by order of the presiding officer or the Commission, a party other than the NRC staff shall, without awaiting a discovery request, provide to other parties:
            (1) The name and, if known, the address and telephone number of each individual likely to have discoverable information relevant to disputed issues alleged with particularity in the pleadings, identifying the subjects of the information; and

            (2) A copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed issues alleged with particularity in the pleadings. When any document, data compilation, or other tangible thing that must be disclosed is publicly available from another source, such as at the NRC Web site, http://www.nrc.gov, and/or the NRC Public Document Room, a sufficient disclosure would be the location, the title and a page reference to the relevant document, data compilation, or tangible thing;

            (3) Unless otherwise stipulated by the parties or directed by order of the presiding officer, these disclosures must be made within 45 days after the issuance of a prehearing conference order following the initial prehearing conference specified in § 2.329. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully completed its investigation of the case, because it challenges the sufficiency of another party's disclosures, or because another party has not made its disclosures. The duty of disclosure under this section is continuing. A disclosure update must be made every month after initial disclosures on a due date selected by the presiding officer, unless the parties agree upon a different due date or frequency. The disclosure update shall be limited to documents subject to disclosure under this section and does not need to include documents that are developed, obtained, or discovered during the two weeks before the due date. Disclosure updates shall include any documents subject to disclosure that were not included in any previous disclosure update. The duty to update disclosures relevant to a disputed issue ends when the presiding officer issues a decision resolving that disputed issue, or at such other time as may be specified by the presiding officer or the Commission.
            (b) Disclosure of expert testimony. (1) In addition to the disclosures required by paragraph (a) of this section, a party other than the NRC staff shall disclose to other parties the identity of any person who may be used at trial to present evidence under § 2.711.
            (2) Except in proceedings with pre-filed written testimony, or as otherwise stipulated or directed by the presiding officer, this disclosure must be accompanied by a written report prepared and signed by the witness, containing: A complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four (4) years.
            (3) These disclosures must be made at the times and in the sequence directed by the presiding officer. In the absence of other directions from the presiding officer, or stipulation by the parties, the disclosures must be made at least ninety (90) days before the hearing commencement date or the date the matter is to be presented for hearing. If the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (b)(2) of this section, the disclosures must be made within thirty (30) days after the disclosure made by the other party. The parties shall supplement these disclosures when required under paragraph (e) of this section.
            (c) Pretrial disclosures. (1) In addition to the disclosures required in the preceding paragraphs, a party other than the NRC staff shall provide to other parties the following information regarding the evidence that it may present at trial other than solely for impeachment purposes:
            (i) The name and, if not previously provided, the address and telephone number of each witness, separately identifying those whom the party expects to present and those whom the party may call if the need arises;
            (ii) The designation of those witnesses whose testimony is expected to be presented by means of a deposition and, when available, a transcript of the pertinent portions of the deposition testimony; and
            (iii) An appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those which the party expects to offer and those which the party may offer if the need arises.
            (2) Unless otherwise directed by the presiding officer or the Commission, these disclosures must be made at least thirty (30) days before commencement of the hearing at which the issue is to be presented.
            (3) A party may object to the admissibility of documents identified under paragraph (c) of this section. A list of those objections must be served and filed within fourteen (14) days after service of the disclosures required by paragraphs (c)(1) and (2) of this section, unless a different time is specified by the presiding officer or the Commission. Objections not so disclosed, other than objections as to a document's admissibility under § 2.711(e), are waived unless excused by the presiding officer or Commission for good cause shown.
            (d) Form of disclosures; filing. Unless otherwise directed by order of the presiding officer or the Commission, all disclosures under paragraphs (a) through (c) of this section must be made in writing, signed, served, and promptly filed with the presiding officer or the Commission.

            (e) Supplementation of responses. A party who has made a disclosure under this section is under a duty to supplement or correct the disclosure to include information thereafter acquired if ordered by the presiding officer or in the following circumstances:
            (1) When a party learns that in some material respect the information disclosed under paragraph (a) of this section is incomplete or incorrect, and if additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing, a party shall supplement its disclosures in accordance with the disclosure update schedule in paragraph (a)(3) of this section.
            (2) With respect to testimony of an expert from whom a report is required under paragraph (b) of this section, the duty extends both to information contained in the report and to information provided through a deposition of the expert, and any additions or other changes to this information must be disclosed by the time the party's disclosures under § 2.704(c) are due.
            (f) Disclosure under this section of documents and records including Safeguards Information referred to in Sections 147 and 181 of the Atomic Energy Act of 1954, as amended, will be according to the provisions in § 2.705(c)(3) through (c)(8).
            [69 FR 2256, Jan. 14, 2004, as amended at 73 FR 63567, Oct. 24, 2008; 77 FR 46597, Aug. 3, 2012]

            § 2.705
            Discovery-additional methods.
            (a) Discovery methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written interrogatories (§ 2.706); interrogatories to parties (§ 2.706); production of documents or things or permission to enter upon land or other property, for inspection and other purposes (§ 2.707); and requests for admission (§ 2.708).
            (b) Scope of discovery. Unless otherwise limited by order of the presiding officer in accordance with this section, the scope of discovery is as follows:
            (1) In general. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the proceeding, whether it relates to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. When any book, document, or other tangible thing sought is reasonably available from another source, such as at the NRC Web site, http://www.nrc.gov, and/or the NRC Public Document Room, sufficient response to an interrogatory on materials would be the location, the title and a page reference to the relevant book, document, or tangible thing. In a proceeding on an application for a construction permit or an operating license for a production or utilization facility, discovery begins only after the prehearing conference and relates only to those matters in controversy which have been identified by the Commission or the presiding officer in the prehearing order entered at the conclusion of that prehearing conference. In such a proceeding, discovery may not take place after the beginning of the prehearing conference held under § 2.329 except upon leave of the presiding officer upon good cause shown. It is not a ground for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
            (2) Limitations. Upon his or her own initiative after reasonable notice or in response to a motion filed under paragraph (c) of this section, the presiding officer may 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:
            (i) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;

            (ii) The party seeking discovery has had ample opportunity by discovery in the proceeding to obtain the information sought; or

            (iii) The burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the proceeding, the parties' resources, the importance of the issue in the proceeding, and the importance of the proposed discovery in resolving the issues.
            (3) Trial preparation materials. A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (b)(1) of this section and prepared in anticipation of or for the hearing by or for another party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of this case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the presiding officer shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney for a party concerning the proceeding.
            (4) Claims of privilege or protection of trial preparation materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. Identification of these privileged materials must be made within the time provided for disclosure of the materials, unless otherwise extended by order of the presiding officer or the Commission.
            (5) Nature of interrogatories. Interrogatories may seek to elicit factual information reasonably related to a party's position in the proceeding, including data used, assumptions made, and analyses performed by the party. Interrogatories may not be addressed to, or be construed to require:
            (i) Reasons for not using alternative data, assumptions, and analyses where the alternative data, assumptions, and analyses were not relied on in developing the party's position; or
            (ii) Performance of additional research or analytical work beyond that which is needed to support the party's position on any particular matter.
            (c) Protective order. (1) Upon motion by a party or the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without action by the presiding officer, and for good cause shown, the presiding officer may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
            (i) That the discovery not be had;
            (ii) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
            (iii) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
            (iv) That certain matters not be inquired into, or that the scope of discovery be limited to certain matters;
            (v) That discovery be conducted with no one present except persons designated by the presiding officer;
            (vi) That, subject to the provisions of §§ 2.709 and 2.390, a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; or
            (vii) That studies and evaluations not be prepared.
            (2) If the motion for a protective order is denied in whole or in part, the presiding officer may, on such terms and conditions as are just, order that any party or person provide or permit discovery.

            (3) In the case of documents and records including Safeguards Information referred to in Sections 147 and 181 of the Atomic Energy Act of 1954, as amended, the presiding officer may issue an order requiring disclosure if—

            (i) The presiding officer finds that the individual seeking access to Safeguards Information in order to participate in an NRC proceeding has the requisite “need to know,” as defined in 10 CFR 73.2;
            (ii) The individual has undergone an FBI criminal history records check, unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as applicable, by submitting fingerprints to the NRC Office of Administration, Security Processing Unit, Mail Stop T-6E46, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and otherwise following the procedures in 10 CFR 73.57(d) for submitting and processing fingerprints. However, before a final adverse determination by the NRC Office of Administration on an individual's criminal history records check is made, the individual shall be afforded the protections provided by 10 CFR 73.57; and
            (iii) The NRC Office of Administration has found, based upon a background check, that the individual is trustworthy and reliable, unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as applicable. In addition to the protections provided by 10 CFR 73.57 for adverse determinations based on criminal history records checks, the Office of Administration must take the following actions before making a final adverse determination on an individual's background check for trustworthiness and reliability. The Office of Administration will:
            (A) For the purpose of assuring correct and complete information, provide to the individual any records, in addition to those required to be provided under 10 CFR 73.57(e)(1), that were considered in the trustworthiness and reliability determination;
            (B) Resolve any challenge by the individual to the completeness or accuracy of the records described in § 2.705(c)(3)(iii)(A). The individual may make this challenge by submitting information and/or an explanation to the Office of Administration. The challenge must be submitted within 10 days of the distribution of the records described in § 2.705(c)(3)(iii)(A), and the Office of Administration must promptly resolve any challenge.
            (iv) Individuals seeking access to Safeguards Information to participate in an NRC adjudication for whom the NRC Office of Administration has made a final adverse determination on trustworthiness and reliability may submit a request to the Chief Administrative Judge for review of the adverse determination. Upon receiving such a request, the Chief Administrative Judge shall designate an officer other than the presiding officer of the proceeding to review the adverse determination. For purposes of review, the adverse determination must be in writing and set forth the grounds for the determination. The request for review shall be served on the NRC staff and may include additional information for review by the designated officer. The request must be filed within 15 days after receipt of the adverse determination by the person against whom the adverse determination has been made. Within 10 days of receipt of the request for review and any additional information, the NRC staff will file a response indicating whether the request and additional information has caused the NRC Office of Administration to reverse its adverse determination. The designated officer may reverse the Office of Administration's final adverse determination only if the officer finds, based on all the information submitted, that the adverse determination constitutes an abuse of discretion. The designated officer's decision must be rendered within 15 days after receipt of the staff filing indicating that the request for review and additional information has not changed the NRC Office of Administration's adverse determination.
            (4) The presiding officer may include in an order any protective terms and conditions (including affidavits of nondisclosure) as may be necessary and appropriate to prevent the unauthorized disclosure of Safeguards Information.

            (5) When Safeguards Information protected from unauthorized disclosure under Section 147 of the Atomic Energy Act of 1954, as amended, is received and possessed by anyone other than the NRC staff, it must also be protected according to the requirements of § 73.21 and the requirements of § 73.22 or § 73.23 of this chapter, as applicable.

            (6) The presiding officer may also prescribe additional procedures to effectively safeguard and prevent disclosure of Safeguards Information to unauthorized persons with minimum impairment of the procedural rights which would be available if Safeguards Information were not involved.
            (7) In addition to any other sanction that may be imposed by the presiding officer for violation of an order issued pursuant to this paragraph, violation of a provision for the protection of Safeguards Information from unauthorized disclosure that is contained in an order may be subject to a civil penalty imposed under § 2.205.
            (8) For the purpose of imposing the criminal penalties contained in Section 223 of the Atomic Energy Act of 1954, as amended, a provision for the protection of Safeguards Information from unauthorized disclosure that is contained in an order issued pursuant to this paragraph is considered to be issued under Section 161b of the Atomic Energy Act of 1954, as amended.
            (d) Sequence and timing of discovery. Except when authorized under these rules or by order of the presiding officer, or agreement of the parties, a party may not seek discovery from any source before the parties have met and conferred as required by paragraph (f) of this section, nor may a party seek discovery after the time limit established in the proceeding for the conclusion of discovery. Unless the presiding officer upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, does not operate to delay any other party's discovery.
            (e) Supplementation of responses. A party who responded to a request for discovery with a response is under a duty to supplement or correct the response to include information thereafter acquired if ordered by the presiding officer or, with respect to a response to an interrogatory, request for production, or request for admission, within a reasonable time after a party learns that the response is in some material respect incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.
            (f) Meeting of parties; planning for discovery. Except when otherwise ordered, the parties shall, as soon as practicable and in any event no more than thirty (30) days after the issuance of a prehearing conference order following the initial prehearing conference specified in § 2.329, meet to discuss the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the proceeding or any portion thereof, to make or arrange for the disclosures required by § 2.704, and to develop a proposed discovery plan.
            (1) The plan must indicate the parties' views and proposals concerning:
            (i) What changes should be made in the timing, form, or requirement for disclosures under § 2.704, including a statement as to when disclosures under § 2.704(a)(1) were made or will be made;
            (ii) The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues;
            (iii) What changes should be made in the limitations on discovery imposed under these rules, and what other limitations should be imposed; and
            (iv) Any other orders that should be entered by the presiding officer under paragraph (c) of this section.
            (2) The attorneys of record and all unrepresented parties that have appeared in the proceeding are jointly responsible for arranging and being present or represented at the meeting, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the presiding officer within ten (10) days after the meeting a written report outlining the plan.
            (g) Signing of disclosures, discovery requests, responses, and objections. (1) Every disclosure made in accordance with § 2.704 must be signed by at least one attorney of record in the attorney's individual name, whose address must be stated. An unrepresented party shall sign the disclosure and state the party's address. The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.
            (2) Every discovery request, response, or objection made by a party represented by an attorney must be signed by at least one attorney of record in the attorney's individual name, whose address must be stated. An unrepresented party shall sign the request, response, or objection and state the party's address. The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is:
            (i) Consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
            (ii) Not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and
            (iii) Not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.
            (3) If a request, response, or objection is not signed, it must be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed.
            (4) If a certification is made in violation of the rule without substantial justification, the presiding officer, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the disclosure, request, response, or objection is made, or both, an appropriate sanction, which may, in appropriate circumstances, include termination of that person's right to participate in the proceeding.
            (h) Motion to compel discovery. (1) If a deponent or party upon whom a request for production of documents or answers to interrogatories is served fails to respond or objects to the request, or any part thereof, or fails to permit inspection as requested, the deposing party or the party submitting the request may move the presiding officer, within ten (10) days after the date of the response or after failure of a party to respond to the request, for an order compelling a response or inspection in accordance with the request. The motion must set forth the nature of the questions or the request, the response or objection of the party upon whom the request was served, and arguments in support of the motion. The motion must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without action by the presiding officer. Failure to answer or respond may not be excused on the ground that the discovery sought is objectionable unless the person or party failing to answer or respond has applied for a protective order pursuant to paragraph (c) of this section. For purposes of this paragraph, an evasive or incomplete answer or response will be treated as a failure to answer or respond.
            (2) In ruling on a motion made under this section, the presiding officer may issue a protective order under paragraph (c) of this section.
            (3) This section does not preclude an independent request for issuance of a subpoena directed to a person not a party for production of documents and things. This section does not apply to requests for the testimony or interrogatories of the NRC staff under § 2.709(a), or the production of NRC documents under §§ 2.709(b) or § 2.390, except for paragraphs (c) and (e) of this section.
            [69 FR 2256, Jan. 14, 2004, as amended at 73 FR 63568, Oct. 24, 2008; 77 FR 46597, Aug. 3, 2012]

            § 2.706
            Depositions upon oral examination and written interrogatories; interrogatories to parties.
            (a) Depositions upon oral examination and written interrogatories. (1) Any party desiring to take the testimony of any party or other person by deposition on oral examination or written interrogatories shall, without leave of the Commission or the presiding officer, give reasonable notice in writing to every other party, to the person to be examined and to the presiding officer of the proposed time and place of taking the deposition; the name and address of each person to be examined, if known, or if the name is not known, a general description sufficient to identify him or the class or group to which he belongs; the matters upon which each person will be examined and the name or descriptive title and address of the officer before whom the deposition is to be taken.
            (2) [Reserved]
            (3) Within the United States, a deposition may be taken before any officer authorized to administer oaths by the laws of the United States or of the place where the examination is held. Outside of the United States, a deposition may be taken before a secretary of an embassy or legation, a consul general, vice consul or consular agent of the United States, or a person authorized to administer oaths designated by the Commission.
            (4) Before any questioning, the deponent shall either be sworn or affirm the truthfulness of his or her answers. Examination and cross-examination must proceed as at a hearing. Each question propounded must be recorded and the answer taken down in the words of the witness. Objections on questions of evidence must be noted in short form without the arguments. The officer may not decide on the competency, materiality, or relevancy of evidence but must record the evidence subject to objection. Objections on questions of evidence not made before the officer will not be considered waived unless the ground of the objection is one which might have been obviated or removed if presented at that time.
            (5) When the testimony is fully transcribed, the deposition must be submitted to the deponent for examination and signature unless he or she is ill, cannot be found, or refuses to sign. The officer shall certify the deposition or, if the deposition is not signed by the deponent, shall certify the reasons for the failure to sign, and shall promptly forward the deposition by registered mail to the Commission.
            (6) Where the deposition is to be taken on written interrogatories, the party taking the deposition shall serve a copy of the interrogatories, showing each interrogatory separately and consecutively numbered, on every other party with a notice stating the name and address of the person who is to answer them, and the name, description, title, and address of the officer before whom they are to be taken. Within ten (10) days after service, any other party may serve cross-interrogatories. The interrogatories, cross-interrogatories, and answers must be recorded and signed, and the deposition certified, returned, and filed as in the case of a deposition on oral examination.
            (7) A deposition will not become a part of the record in the hearing unless received in evidence. If only part of a deposition is offered in evidence by a party, any other party may introduce any other parts. A party does not make a person his or her own witness for any purpose by taking his deposition.
            (8) A deponent whose deposition is taken and the officer taking a deposition are entitled to the same fees as are paid for like services in the district courts of the United States. The fees must be paid by the party at whose instance the deposition is taken.
            (9) The witness may be accompanied, represented, and advised by legal counsel.
            (10) The provisions of paragraphs (a)(1) through (a)(9) of this section are not applicable to NRC personnel. Testimony of NRC personnel by oral examination and written interrogatories addressed to NRC personnel are subject to the provisions of § 2.709.
            (b) Interrogatories to parties. (1) Any party may serve upon any other party (other than the NRC staff) written interrogatories to be answered in writing by the party served, or if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party. A copy of the interrogatories, answers, and all related pleadings must be filed with the Secretary of the Commission, and must be served on the presiding officer and all parties to the proceeding.

            (2) Each interrogatory must be answered separately and fully in writing under oath or affirmation, unless it is objected to, in which event the reasons for objection must be stated in lieu of an answer. The answers must be signed by the person making them, and the objections by the attorney making them. The party upon whom the interrogatories were served shall serve a copy of the answers and objections upon all parties to the proceeding within fourteen (14) days after service of the interrogatories, or within such shorter or longer period as the presiding officer may allow. Answers may be used in the same manner as depositions (see § 2.706(a)(7)).

            § 2.707
            Production of documents and things; entry upon land for inspections and other purposes.
            (a) Request for discovery. Any party may serve on any other party a request to:
            (1) Produce and permit the party making the request, or a person acting on his or her behalf, to inspect and copy any designated documents, or to inspect and copy, test, or sample any tangible things which are within the scope of § 2.704 and which are in the possession, custody, or control of the party upon whom the request is served; or
            (2) Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on the property, within the scope of § 2.704.
            (b) Service. The request may be served on any party without leave of the Commission or the presiding officer. Except as otherwise provided in § 2.704, the request may be served after the proceeding is set for hearing.
            (c) Contents. The request must identify the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request must specify a reasonable time, place, and manner of making the inspection and performing the related acts.
            (d) Response. The party upon whom the request is served shall serve on the party submitting the request a written response within thirty (30) days after the service of the request. The response must state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which case the reasons for objection must be stated. If objection is made to part of an item or category, the part must be specified.
            (e) NRC records and documents. The provisions of paragraphs (a) through (d) of this section do not apply to the production for inspection and copying or photographing of NRC records or documents. Production of NRC records or documents is subject to the provisions of §§ 2.709 and 2.390.

            § 2.708
            Admissions.
            (a) Apart from any admissions made during or as a result of a prehearing conference, at any time after his or her answer has been filed, a party may file a written request for the admission of the genuineness and authenticity of any relevant document described in or attached to the request, or for the admission of the truth of any specified relevant matter of fact. A copy of the document for which an admission of genuineness and authenticity is requested must be delivered with the request unless a copy has already been furnished.
            (b)(1) Each requested admission is considered made unless, within a time designated by the presiding officer or the Commission, and not less than ten (10) days after service of the request or such further time as may be allowed on motion, the party to whom the request is directed serves on the requesting party either:
            (i) A sworn statement denying specifically the relevant matters of which an admission is requested or setting forth in detail the reasons why he can neither truthfully admit nor deny them; or

            (ii) Written objections on the ground that some or all of the matters involved are privileged or irrelevant or that the request is otherwise improper in whole or in part.

            (2) Answers on matters to which such objections are made may be deferred until the objections are determined. If written objections are made to only a part of a request, the remainder of the request must be answered within the time designated.
            (c) Admissions obtained under the procedure in this section may be used in evidence to the same extent and subject to the same objections as other admissions.

            § 2.709
            Discovery against NRC staff.
            (a)(1) In a proceeding in which the NRC staff is a party, the NRC staff will make available one or more witnesses, designated by the Executive Director for Operations or a delegee of the Executive Director for Operations, for oral examination at the hearing or on deposition regarding any matter, not privileged, that is relevant to the issues in the proceeding. The attendance and testimony of the Commissioners and named NRC personnel at a hearing or on deposition may not be required by the presiding officer, by subpoena or otherwise. However, the presiding officer may, upon a showing of exceptional circumstances, such as a case in which a particular named NRC employee has direct personal knowledge of a material fact not known to the witnesses made available by the Executive Director for Operations or a delegee of the Executive Director for Operations, require the attendance and testimony of named NRC personnel.
            (2) A party may file with the presiding officer written interrogatories to be answered by NRC personnel with knowledge of the facts, as designated by the Executive Director for Operations, or a delegee of the Executive Director for Operations. Upon a finding by the presiding officer that answers to the interrogatories are necessary to a proper decision in the proceeding and that answers to the interrogatories are not reasonably obtainable from any other source, the presiding officer may require that the NRC staff answer the interrogatories.
            (3) A deposition of a particular named NRC employee or answer to interrogatories by NRC personnel under paragraphs (a)(1) and (2) of this section may not be required before the matters in controversy in the proceeding have been identified by order of the Commission or the presiding officer, or after the beginning of the prehearing conference held in accordance with § 2.329, except upon leave of the presiding officer for good cause shown.
            (4) The provisions of § 2.704(c) and (e) apply to interrogatories served under this paragraph.
            (5) Records or documents in the custody of the Commissioners and NRC personnel are available for inspection and copying or photographing under paragraph (b) of this section and § 2.390.
            (6)(i) The NRC staff shall, except to the extent otherwise stipulated or directed by order of the presiding officer or the Commission, provide to the other parties within 45 days after the issuance of a prehearing conference order following the initial prehearing conference specified in § 2.329 and without awaiting a discovery request:

            (A) Except for those documents, data compilations, or other tangible things for which there is a claim of privilege or protected status, all NRC staff documents, data compilations, or other tangible things in possession, custody, or control of the NRC staff that are relevant to disputed issues alleged with particularity in the pleadings, including any Office of Investigations report and supporting exhibits, and any Office of Enforcement documents, data compilations, or other tangible things regarding the order. When any document, data compilation, or other tangible thing that must be disclosed is publicly available from another source, such as the NRC Web site, http://www.nrc.gov, or the NRC Public Document Room, a sufficient disclosure would be the location, the title, and a page reference to the relevant document, data compilation, or tangible thing; and
            (B) A list of all documents, data compilations, or other tangible things otherwise responsive to paragraph (a)(6)(i)(A) of this section for which a claim of privilege or protected status is being made, together with sufficient information for assessing the claim of privilege or protected status of the documents.

            (ii) The duty of disclosure under this section is continuing. A disclosure update must be made every month after initial disclosures on a due date selected by the presiding officer, unless the parties agree upon a different due date or frequency. The disclosure update shall be limited to documents subject to disclosure under this section and does not need to include documents that are developed, obtained, or discovered during the two weeks before the due date. Disclosure updates shall include any documents subject to disclosure that were not included in any previous disclosure update. The duty to update disclosures relevant to a disputed issue ends when the presiding officer issues a decision resolving that dispute issue, or at such other time as may be specified by the presiding officer or the Commission.

            (7) When any document, data compilation, or other tangible thing that must be disclosed is publicly available from another source, such as at the NRC Web site, http://www.nrc.gov, and/or the NRC Public Document Room, a sufficient disclosure would identify the location (including the ADAMS accession number, when available), the title and a page reference to the relevant document, data compilation, or tangible thing.
            (b) A request for the production of an NRC record or document not available under § 2.390 by a party to an initial licensing proceeding may be served on the Executive Director for Operations or a delegee of the Executive Director for Operations, without leave of the Commission or the presiding officer. The request must identify the records or documents requested, either by individual item or by category, describe each item or category with reasonable particularity, and state why that record or document is relevant to the proceeding.
            (c) If the Executive Director for Operations, or a delegee of the Executive Director for Operations, objects to producing a requested record or document on the ground that it is not relevant or it is exempted from disclosure under § 2.390 and the disclosure is not necessary to a proper decision in the proceeding or the document or the information therein is reasonably obtainable from another source, the Executive Director for Operations, or a delegee of the Executive Director for Operations, shall advise the requesting party.

            (d) If the Executive Director for Operations, or a delegee of the Executive Director for Operations, objects to producing a record or document, the requesting party may apply to the presiding officer, in writing, to compel production of that record or document. The application must set forth the relevancy of the record or document to the issues in the proceeding. The application will be processed as a motion in accordance with § 2.323 (a) through (d). The record or document covered by the application must be produced for the in camera inspection of the presiding officer, exclusively, if requested by the presiding officer and only to the extent necessary to determine:
            (1) The relevancy of that record or document;
            (2) Whether the document is exempt from disclosure under § 2.390;
            (3) Whether the disclosure is necessary to a proper decision in the proceeding; and
            (4) Whether the document or the information therein is reasonably obtainable from another source.
            (e) Upon a determination by the presiding officer that the requesting party has demonstrated the relevancy of the record or document and that its production is not exempt from disclosure under § 2.390 or that, if exempt, its disclosure is necessary to a proper decision in the proceeding, and the document or the information therein is not reasonably obtainable from another source, the presiding officer shall order the Executive Director for Operations, or a delegee of the Executive Director for Operations, to produce the document.

            (f)(1) In the case of requested documents and records including Safeguards Information referred to in Sections 147 and 181 of the Atomic Energy Act of 1954, as amended exempt from disclosure under § 2.390, the presiding officer may issue an order requiring disclosure to the Executive Director for Operations or a delegee of the Executive Director for Operations, to produce the documents or records (or any other order issued ordering production of the document or records) if—

            (i) The presiding officer finds that the individual seeking access to Safeguards Information to participate in an NRC adjudication has the requisite “need to know,” as defined in 10 CFR 73.2;
            (ii) The individual has undergone an FBI criminal history records check, unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as applicable, by submitting fingerprints to the NRC Office of Administration, Security Processing Unit, Mail Stop T-6E46, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and otherwise following the procedures in 10 CFR 73.57(d) for submitting and processing fingerprints. However, before a final adverse determination by the NRC Office of Administration on an individual's criminal history records check is made, the individual shall be afforded the protections provided by 10 CFR 73.57; and
            (iii) The NRC Office of Administration has found, based upon a background check, that the individual is trustworthy and reliable, unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as applicable. In addition to the protections provided by 10 CFR 73.57 for adverse determinations based on criminal history records checks, the Office of Administration must take the following actions before making a final adverse determination on an individual's background check for trustworthiness and reliability. The Office of Administration will:
            (A) For the purpose of assuring correct and complete information, provide to the individual any records, in addition to those required to be provided under 10 CFR 73.57(e)(1), that were considered in the trustworthiness and reliability determination;
            (B) Resolve any challenge by the individual to the completeness or accuracy of the records described in § 2.709(f)(1)(iii)(A). The individual may make this challenge by submitting information and/or an explanation to the Office of Administration. The challenge must be submitted within 10 days of the distribution of the records described in § 2.709(f)(1)(iii)(A), and the Office of Administration must promptly resolve any challenge.
            (iv) Individuals seeking access to Safeguards Information to participate in an NRC adjudication for whom the NRC Office of Administration has made a final adverse determination on trustworthiness and reliability may submit a request to the Chief Administrative Judge for review of the adverse determination. Upon receiving such a request, the Chief Administrative Judge shall designate an officer other than the presiding officer of the proceeding to review the adverse determination. For purposes of review, the adverse determination must be in writing and set forth the grounds for the determination. The request for review shall be served on the NRC staff and may include additional information for review by the designated officer. The request must be filed within 15 days after receipt of the adverse determination by the person against whom the adverse determination has been made. Within 10 days of receipt of the request for review and any additional information, the NRC staff will file a response indicating whether the request and additional information has caused the NRC Office of Administration to reverse its adverse determination. The designated officer may reverse the Office of Administration's final adverse determination only if the officer finds, based on all the information submitted, that the adverse determination constitutes an abuse of discretion. The designated officer's decision must be rendered within 15 days after receipt of the staff filing indicating that the request for review and additional information has not changed the NRC Office of Administration's adverse determination.
            (2) The presiding officer may include in an order any protective terms and conditions (including affidavits of nondisclosure) as may be necessary and appropriate to prevent the unauthorized disclosure of Safeguards Information.

            (3) When Safeguards Information protected from disclosure under Section 147 of the Atomic Energy Act of 1954, as amended, is received and possessed by anyone other than the NRC staff, it must also be protected according to the requirements of § 73.21 and the requirements of § 73.22 or § 73.23 of this chapter, as applicable.

            (4) The presiding officer may also prescribe additional procedures to effectively safeguard and prevent disclosure of Safeguards Information to unauthorized persons with minimum impairment of the procedural rights which would be available if Safeguards Information were not involved.
            (5) In addition to any other sanction that may be imposed by the presiding officer for violation of an order issued pursuant to this paragraph, violation of a provision for the protection of Safeguards Information from unauthorized disclosure that is contained in an order may be subject to a civil penalty imposed under § 2.205.
            (6) For the purpose of imposing the criminal penalties contained in Section 223 of the Atomic Energy Act of 1954, as amended, a provision for the protection of Safeguards Information from unauthorized disclosure that is contained in an order issued pursuant to this paragraph is considered to be issued under Section 161b of the Atomic Energy Act of 1954, as amended.
            (g) A ruling by the presiding officer or the Commission for the production of a record or document will specify the time, place, and manner of production.
            (h) A request under this section may not be made or entertained before the matters in controversy have been identified by the Commission or the presiding officer, or after the beginning of the prehearing conference held under § 2.329 except upon leave of the presiding officer for good cause shown.
            (i) The provisions of § 2.705 (c) and (e) apply to production of NRC records and documents under this section.
            [69 FR 2256, Jan. 14, 2004, as amended at 73 FR 63568, Oct. 24, 2008; 77 FR 46597, Aug. 3, 2012]

            § 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.
            (b) Affidavits must set forth the facts that would be admissible in evidence, and must demonstrate affirmatively that the affiant is competent to testify to the matters stated in the affidavit. The presiding officer may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or further affidavits. When a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of his answer. The answer by affidavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue of fact. If no answer is filed, the decision sought, if appropriate, must be rendered.
            (c) Should it appear from the affidavits of a party opposing the motion that he or she cannot, for reasons stated, present by affidavit facts essential to justify the party's opposition, the presiding officer may refuse the application for summary decision, order a continuance to permit affidavits to be obtained, or make an order as is appropriate. A determination to that effect must be made a matter of record.

            (d)(1) The presiding officer need not consider a motion for summary disposition unless its resolution will serve to expedite the proceeding if the motion is granted. The presiding officer may dismiss summarily or hold in abeyance untimely motions filed shortly before the hearing commences or during the hearing if the other parties or the presiding officer would be required to divert substantial resources from the hearing in order to respond adequately to the motion and thereby extend the proceeding.
            (2) The presiding officer shall render the decision sought if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law. However, in any proceeding involving a construction permit for a production or utilization facility, the procedure described in this section may be used only for the determination of specific subordinate issues and may not be used to determine the ultimate issue as to whether the permit shall be issued.
            (e) The presiding officer shall issue an order no later than forty (40) days after any responses to the summary disposition motion are filed, indicating whether the motion is granted, or denied, and the bases therefore.
            [69 FR 2256, Jan. 14, 2004, as amended at 77 FR 46598, Aug. 3, 2012]

            § 2.711
            Evidence.
            (a) General. Every party to a proceeding has the right to present oral or documentary evidence and rebuttal evidence and to conduct, in accordance with an approved cross-examination plan that contains the information specified in paragraph (c) of this section, any cross-examination required for full and true disclosure of the facts.
            (b) Testimony. The parties shall submit direct testimony of witnesses in written form, unless otherwise ordered by the presiding officer on the basis of objections presented. In any proceeding in which advance written testimony is to be used, each party shall serve copies of its proposed written testimony on every other party at least fifteen (15) days in advance of the session of the hearing at which its testimony is to be presented. The presiding officer may permit the introduction of written testimony not so served, either with the consent of all parties present or after they have had a reasonable opportunity to examine it. Written testimony must be incorporated into the transcript of the record as if read or, in the discretion of the presiding officer, may be offered and admitted in evidence as an exhibit.
            (c) Cross-examination. (1) The presiding officer shall require a party seeking an opportunity to cross-examine to request permission to do so in accordance with a schedule established by the presiding officer. A request to conduct cross-examination must be accompanied by a cross-examination plan containing the following information:
            (i) A brief description of the issue or issues on which cross-examination will be conducted;
            (ii) The objective to be achieved by cross-examination; and
            (iii) The proposed line of questions that may logically lead to achieving the objective of the cross-examination.
            (2) The cross-examination plan may be submitted only to the presiding officer and must be kept by the presiding officer in confidence until issuance of the initial decision on the issue being litigated. The presiding officer shall then provide each cross-examination plan to the Commission's Secretary for inclusion in the official record of the proceeding.
            (d) Non-applicability to subpart B proceedings. Paragraphs (b) and (c) of this section do not apply to proceedings initiated under subpart B of this part for modification, suspension, or revocation of a license or to proceedings for imposition of a civil penalty, unless otherwise directed by the presiding officer.
            (e) Admissibility. Only relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible document will be segregated and excluded so far as is practicable.
            (f) Objections. An objection to evidence must briefly state the grounds of objection. The transcript must include the objection, the grounds, and the ruling. Exception to an adverse ruling is preserved without notation on-the-record.
            (g) Offer of proof. An offer of proof, made in connection with an objection to a ruling of the presiding officer excluding or rejecting proffered oral testimony, must consist of a statement of the substance of the proffered evidence. If the excluded evidence is in written form, a copy must be marked for identification. Rejected exhibits, adequately marked for identification, must be retained in the record.
            (h) Exhibits. A written exhibit will not be received in evidence unless the original and two copies are offered and a copy is furnished to each party, or the parties have been previously furnished with copies or the presiding officer directs otherwise. The presiding officer may permit a party to replace with a true copy an original document admitted in evidence.
            (i) Official record. An official record of a government agency or entry in an official record may be evidenced by an official publication or by a copy attested by the officer having legal custody of the record and accompanied by a certificate of his custody.
            (j) Official notice. (1) The Commission or the presiding officer may take official notice of any fact of which a court of the United States may take judicial notice or of any technical or scientific fact within the knowledge of the Commission as an expert body. Each fact officially noticed under this paragraph must be specified in the record with sufficient particularity to advise the parties of the matters which have been noticed or brought to the attention of the parties before final decision and each party adversely affected by the decision shall be given opportunity to controvert the fact.
            (2) If a decision is stated to rest in whole or in part on official notice of a fact which the parties have not had a prior opportunity to controvert, a party may controvert the fact by filing an appeal from an initial decision or a petition for reconsideration of a final decision. The appeal must clearly and concisely set forth the information relied upon to controvert the fact.

            § 2.712
            Proposed findings and conclusions.
            (a) Any party to a proceeding may, or if directed by the presiding officer shall, file proposed findings of fact and conclusions of law, briefs and a proposed form of order or decision within the time provided by this section, except as otherwise ordered by the presiding officer:
            (1) The party who has the burden of proof shall, within thirty (30) days after the record is closed, file proposed findings of fact and conclusions of law and briefs, and a proposed form of order or decision.
            (2) Other parties may file proposed findings, conclusions of law and briefs within forty (40) days after the record is closed.
            (3) A party who has the burden of proof may reply within five (5) days after filing of proposed findings and conclusions of law and briefs by other parties.
            (b) Failure to file proposed findings of fact, conclusions of law, or briefs when directed to do so may be considered a default, and an order or initial decision may be entered accordingly.
            (c) Proposed findings of fact must be clearly and concisely set forth in numbered paragraphs and must be confined to the material issues of fact presented on-the-record, with exact citations to the transcript of record and exhibits in support of each proposed finding. Proposed conclusions of law must be set forth in numbered paragraphs as to all material issues of law or discretion presented on-the-record. An intervenor's proposed findings of fact and conclusions of law must be confined to issues which that party placed in controversy or sought to place in controversy in the proceeding.

            § 2.713
            Initial decision and its effect.
            (a) After hearing, the presiding officer will render an initial decision which will constitute the final action of the Commission forty (40) days after its date unless any party petitions for Commission review in accordance with § 2.341 or the Commission takes review sua sponte.
            (b) Where the public interest so requires, the Commission may direct that the presiding officer certify the record to it without an initial decision, and may:

            (1) Prepare its own decision which will become final unless the Commission grants a petition for reconsideration under § 2.345; or

            (2) Omit an initial decision on a finding that due and timely execution of its functions imperatively and unavoidably so requires.
            (c) An initial decision will be in writing and will be based on the whole record and supported by reliable, probative, and substantial evidence. The initial decision will include:
            (1) Findings, conclusions, and rulings, with the reasons or basis for them, on all material issues of fact, law, or discretion presented on-the-record;
            (2) All facts officially noticed and relied on in making the decision;
            (3) The appropriate ruling, order, or denial of relief with the effective date;
            (4) The time within which a petition for review of the decision may be filed, the time within which answers in support of or in opposition to a petition for review filed by another party may be filed and, in the case of an initial decision which may become final in accordance with paragraph (a) of this section, the date when it may become final.

          Subpart H—Rulemaking

            § 2.800
            Scope and applicability.
            (a) This subpart governs the issuance, amendment, and repeal of regulations in which participation by interested persons is prescribed under Section 553 of title 5 of the U.S. Code.
            (b) The procedures in §§ 2.804 through 2.810 apply to all rulemakings.
            (c) The procedures in §§ 2.802 through 2.803 apply to all petitions for rulemaking except for initial applications for standard design certification rulemaking under subpart B of part 52 of this chapter, and subsequent petitions for amendment of an existing design certification rule filed by the original applicant for the design certification rule.
            (d) The procedures in §§ 2.811 through 2.819, as supplemented by the provisions of subpart B of part 52, apply to standard design certification rulemaking.
            [72 FR 49481, Aug. 28, 2007]

            § 2.801
            Initiation of rulemaking.
            Rulemaking may be initiated by the Commission at its own instance, on the recommendation of another agency of the United States, or on the petition of any other interested person, including an application for design certification under subpart B of part 52 of this chapter.
            [72 FR 49482, Aug. 28, 2007]

            § 2.802
            Petition for rulemaking—requirements for filing.
            (a) Filing a petition for rulemaking. Any person may petition the Commission to issue, amend, or rescind any regulation in 10 CFR chapter I. The petition for rulemaking should be addressed to the Secretary, Attention: Rulemakings and Adjudications Staff, and sent by mail addressed to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by email to Rulemaking.Comments@nrc.gov; or by hand delivery to 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern time) on Federal workdays.
            (b) Consultation with the NRC. A petitioner may consult with the NRC staff before and after filing a petition for rulemaking by contacting the Chief, Regulatory Analysis and Rulemaking Support Branch, Division of Rulemaking, Environmental, and Financial Support, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 1-800-368-5642.
            (1) In any consultation regarding the drafting or amendment of a petition for rulemaking, the assistance that the NRC staff may provide is limited to the following:
            (i) Describing the process for filing, docketing, tracking, closing, amending, withdrawing, and resolving a petition for rulemaking;
            (ii) Clarifying an existing NRC regulation and the basis for the regulation; and
            (iii) Assisting the petitioner to clarify a petition for rulemaking so that the Commission is able to understand the issues of concern to the petitioner.

            (2) In any consultation regarding the drafting or amendment of a petition for rulemaking, in providing the assistance permitted in paragraph (b)(1) of this section, the NRC staff will not draft or develop text or alternative approaches to address matters in the petition for rulemaking.
            (3) In any consultation regarding a petition for rulemaking, the NRC staff will not advise a petitioner on whether a petition should be amended or withdrawn.
            (c) Content of petition. (1) Each petition for rulemaking filed under this section must clearly and concisely:
            (i) Specify the name of the petitioner, a telephone number, a mailing address, and an email address (if available) that the NRC may use to communicate with the petitioner;
            (ii) If the petitioner is an organization, provide additional identifying information (as applicable) including the petitioner's organizational or corporate status, the petitioner's State of incorporation, the petitioner's registered agent, and the name and authority of the individual who signed the petition on behalf of the organizational or corporate petitioner.
            (iii) Present the specific problems or issues that the petitioner believes should be addressed through rulemaking, including any specific circumstances in which the NRC's codified requirements are incorrect, incomplete, inadequate, or unnecessarily burdensome;
            (iv) Cite, enclose, or reference publicly-available technical, scientific, or other data or information supporting the petitioner's assertion of the problems or issues;

            (v) Present the petitioner's proposed solution to the problems or issues raised in the petition for rulemaking (e.g., a proposed solution may include specific regulations or regulatory language to add to, amend in, or delete from 10 CFR chapter I);
            (vi) Provide an analysis, discussion, or argument that explains how the petitioner's proposed solution solves the problems or issues identified by the petitioner; and
            (vii) Cite, enclose, or reference any other publicly-available data or information supporting the petitioner's proposed solution; and
            (viii) If required by 10 CFR 51.68 of this chapter, submit a separate document entitled “Petitioner's Environmental Report,” which contains the information specified in 10 CFR 51.45.
            (2) To assist the NRC in its evaluation of the petition for rulemaking, the petitioner should clearly and concisely:
            (i) Explain why the proposed rulemaking solution is within the authority of the NRC to adopt; and
            (ii) Explain why rulemaking is the most favorable approach to address the problem or issue, as opposed to other NRC actions such as licensing, issuance of an order, or referral to another Federal or State agency.
            (3) If the petition is signed by multiple petitioners, the petition must designate a lead petitioner who is responsible for disseminating communications received from the NRC to co-petitioners.
            (d) [Reserved]
            (e) Request for suspension of an adjudication involving licensing. 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.
            (f) Amendment; withdrawal. If the petitioner wants to amend or withdraw a docketed petition for rulemaking, then the petitioner should include the docket number and the date that the original petition for rulemaking was submitted in a filing addressed to the Secretary, Attention: Rulemakings and Adjudications Staff, and sent by mail addressed to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; or by email to Rulemaking.Comments@nrc.gov.
            [80 FR 60526, Oct. 7, 2015, as amended at 83 FR 30287, June 28, 2018; 84 FR 65644, Nov. 29, 2019]

            § 2.803
            Petition for rulemaking—NRC action.
            (a) Notification of receipt. Following receipt of a petition for rulemaking, the NRC will acknowledge its receipt to the petitioner.
            (b) Docketing review. (1) The NRC will evaluate the petition for rulemaking, including supporting data or information submitted under § 2.802(c), for sufficiency according to the review criteria in § 2.803(b).

            (2) If the NRC determines that the petition for rulemaking does not include the information set out in § 2.802(c), that the regulatory change sought by the petitioner is not within the legal authority of the NRC, or that the petition for rulemaking does not raise a potentially valid issue that warrants further consideration, then the NRC will notify the petitioner in writing and explain the deficiencies in the petition for rulemaking.
            (3) The petitioner may resubmit the petition for rulemaking without prejudice.
            (c) Docketing. (1) The NRC will docket a petition for rulemaking and assign a docket number to the petition if the NRC determines the following:
            (i) The petition for rulemaking includes the information required by paragraph § 2.802(c),
            (ii) The regulatory change sought by the petitioner is within the NRC's legal authority, and
            (iii) The petition for rulemaking raises a potentially valid issue that warrants further consideration.

            (2) A copy of the docketed petition for rulemaking will be posted in the NRC's Agencywide Documents Access and Management System (ADAMS) and on the Federal rulemaking Web site at: http://www.regulations.gov. The NRC will publish a notice of docketing in the Federal Register informing the public that the NRC is reviewing the merits of the petition for rulemaking. The notice of docketing will include the docket number and explain how the public may track the status of the petition for rulemaking.
            (d) NRC communication with petitioners. If the petition is signed by multiple petitioners, any NRC obligation to inform a petitioner (as may be required under 10 CFR part 2, subpart H) is satisfied, with respect to all petitioners, when the NRC transmits the required notification to the lead petitioner.
            (e)-(f) [Reserved]
            (g) Public comment on a petition for rulemaking; hearings. (1) At its discretion, the NRC may request public comment on a docketed petition for rulemaking.
            (2) The NRC will post all comment submissions at http://www.regulations.gov and enter the comment submissions into ADAMS, without removing identifying or contact information from comment submissions. Anyone requesting or aggregating comments from other persons for submission to the NRC is responsible for informing those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submissions.
            (3) No adjudicatory or legislative hearing under the procedures of 10 CFR part 2 will be held on a petition for rulemaking unless the Commission determines to do so, at its discretion.
            (h) Determination on a petition for rulemaking; Closure of docket on a petition for rulemaking. (1) Determination. Following docketing of a petition for rulemaking, the NRC's determination on the petition for rulemaking may be based upon, but is not limited to, the following considerations:
            (i) The merits of the petition;
            (ii) The immediacy of the safety, environmental, or security concern raised;
            (iii) The availability of NRC resources and the priority of the issues raised in relation to other NRC rulemaking issues;
            (iv) Whether the problems or issues are already under consideration by the NRC in other NRC processes;
            (v) The substance of any public comment received, if comment is requested; and
            (vi) The NRC's relevant past decisions and current policies.
            (2) Petition for rulemaking docket closure. After the NRC determines the appropriate regulatory action in response to the petition for rulemaking, the NRC will administratively close the docket for the petition. The NRC will publish a notice describing that action with any related Docket Identification number (Docket ID), as applicable, in the Federal Register. The NRC may make a determination on a petition for rulemaking and administratively close the docket for the petition for rulemaking by:

            (i) Deciding not to undertake a rulemaking to address the issue raised by the petition for rulemaking, and informing the petitioner in writing of the grounds for denial.

            (ii) Initiating a rulemaking action (e.g., initiating a new rulemaking, addressing the petition for rulemaking in an ongoing rulemaking, addressing the petition for rulemaking in a planned rulemaking) that considers the issues raised by a petition for rulemaking, and informing the petitioner in writing of this decision and the associated Docket ID of the rulemaking action, if applicable.
            (i) Petition for rulemaking resolution.—(1) Petition for rulemaking resolution published in the Federal Register. The NRC will publish a Federal Register notice informing the public that it has concluded all planned regulatory action with respect to some or all of the issues presented in a petition for rulemaking. This may occur by adoption of a final rule related to the petition for rulemaking, denial by the NRC of the petition for rulemaking at any stage of the regulatory process, or the petitioner's withdrawal of the petition for rulemaking before the NRC has entered the rulemaking process. As applicable, the Federal Register notice will include a discussion of how the regulatory action addresses the issue raised by the petitioner, the NRC's grounds for denial of the petition for rulemaking, or information on the withdrawal. The notice will normally include the NRC's response to any public comment received (if comment is requested), unless the NRC has indicated that it will not be providing a formal written response to each comment received.
            (2) NRC decision not to proceed with rulemaking after closure of a petition for rulemaking docket. If the NRC closes a petition for rulemaking docket under paragraph (h)(2)(ii) of this section but subsequently decides not to carry out the planned rulemaking to publication of a final rule, the NRC will notify the petitioner in writing of this decision and publish a notice in the Federal Register explaining the basis for its decision. The decision not to complete the rulemaking action will be documented as denial of the petition for rulemaking in the docket of the closed petition for rulemaking, in the Web sites, in the Government-wide Unified Agenda of Federal Regulatory and Deregulatory Actions, online in ADAMS, and at http://www.regulations.gov as described in paragraph (j) of this section.
            (j) Status of petitions for rulemaking and rulemakings. (1) The NRC provides current information on rulemakings and petitions for rulemaking in the NRC Library at http://www.nrc.gov/about-nrc/regulatory/rulemaking.html.

            (2) The NRC includes a summary of the NRC's planned and ongoing rulemakings in the Government-wide Unified Agenda of Federal Regulatory and Deregulatory Actions (the Unified Agenda), published semiannually. This Unified Agenda is available at http://www.reginfo.gov/public/do/eAgendaMain/.

            (3) All docketed petitions, rulemakings, and public comments are posted online in ADAMS and at http://www.regulations.gov.
            [80 FR 60526, Oct. 7, 2015]

            § 2.804
            Notice of proposed rulemaking.

            (a) Except as provided by paragraph (d) of this section, when the Commission proposes to adopt, amend, or repeal a regulation, it will cause to be published in the Federal Register a notice of proposed rulemaking, unless all persons subject to the notice are named and either are personally served or otherwise have actual notice in accordance with law.
            (b) The notice will include:
            (1) Either the terms or substance of the proposed rule, or a specification of the subjects and issues involved;

            (2) The manner and time within which interested members of the public may comment, and a statement that copies of comments may be examined will be made available at the NRC Web site, http://www.nrc.gov;

            (3) The authority under which the regulation is proposed;
            (4) The time, place, and nature of the public hearing, if any;
            (5) If a hearing is to be held, designation of the presiding officer and any special directions for the conduct of the hearing; and
            (6) Such explanatory statement as the Commission may consider appropriate.

            (c) The publication or service of notice will be made not less than fifteen (15) days prior to the time fixed for hearing, if any, unless the Commission for good cause stated in the notice provides otherwise.
            (d) The notice and comment provisions contained in paragraphs (a), (b), and (c) of this section will not be required to be applied—
            (1) To interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
            (2) When the Commission for good cause finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest, and are not required by statute. This finding, and the reasons therefor, will be incorporated into any rule issued without notice and comment for good cause.
            (e) The Commission shall provide for a 30-day post-promulgation comment period for—
            (1) Any rule adopted without notice and comment under the good cause exception on paragraph (d)(2) of this section where the basis is that notice and comment is “impracticable” or “contrary to the public interest.”
            (2) Any interpretative rule, or general statement of policy adopted without notice and comment under paragraph (d)(1) of this section, except for those cases for which the Commission finds that such procedures would serve no public interest, or would be so burdensome as to outweigh any foreseeable gain.

            (f) For any post-promulgation comments received under paragraph (e) of this section, the Commission shall publish a statement in the Federal Register containing an evaluation of the significant comments and any revisions of the rule or policy statement made as a result of the comments and their evaluation.
            [27 FR 377, Jan. 13, 1962, as amended at 50 FR 13010, Apr. 2, 1985; 64 FR 48949, Sept. 9, 1999]

            § 2.805
            Participation by interested persons.
            (a) In all rulemaking proceedings conducted under the provisions of § 2.804(a), the Commission will afford interested persons an opportunity to participate through the submission of statements, information, opinions, and arguments in the manner stated in the notice. The Commission may grant additional reasonable opportunity for the submission of comments.
            (b) The Commission may hold informal hearings at which interested persons may be heard, adopting procedures which in its judgment will best serve the purpose of the hearing.
            [27 FR 377, Jan. 13, 1962, as amended at 50 FR 13010, Apr. 2, 1985; 50 FR 15865, Apr. 22, 1985]

            § 2.806
            Commission action.

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

            § 2.807
            Effective date.
            The notice of adoption of a regulation will specify the effective date. Publication or service of the notice and regulation, other than one granting or recognizing exemptions or relieving from restrictions, will be made not less than thirty (30) days prior to the effective date unless the Commission directs otherwise on good cause found and published in the notice of rule making.

            § 2.808
            Authority of the Secretary to rule on procedural matters.
            When briefs, motions or other documents listed herein are submitted to the Commission itself, as opposed to officers who have been delegated authority to act for the Commission, the Secretary or the Assistant Secretary is authorized to:
            (a) Prescribe schedules for the filing of statements, information, briefs, motions, responses or other pleadings, where such schedules may differ from those elsewhere prescribed in these rules or where these rules do not prescribe a schedule;
            (b) Rule on motions for extensions of time;

            (c) Reject motions, briefs, pleadings, and other documents filed with the Commission later than the time prescribed by the Secretary or the Assistant Secretary or established by an order, rule, or regulation of the Commission unless good cause is shown for the late filing; and

            (d) Prescribe all procedural arrangements relating to any oral argument to be held before the Commission.
            [39 FR 24219, July 1, 1974, as amended at 72 FR 49152, Aug. 28, 2007]

            § 2.809
            Participation by the Advisory Committee on Reactor Safeguards.

            (a) In its advisory capacity to the Commission, the ACRS may recommend that the Commission initiate rulemaking in a particular area. The Commission will respond to such rulemaking recommendation in writing within 90 days, noting its intent to implement, study, or defer action on the recommendation. In the event the Commission decides not to accept or decides to defer action on the recommendation, it will give its reasons for doing so. Both the ACRS recommendation and the Commission's response will be made available at the NRC Web site, http://www.nrc.gov, following transmittal of the Commission's response to the ACRS.
            (b) When a rule involving nuclear safety matters within the purview of the ACRS is under development by the NRC Staff, the Staff will ensure that the ACRS is given an opportunity to provide advice at appropriate stages and to identify issues to be considered during rulemaking hearings.
            [46 FR 22358, Apr. 17, 1981, as amended at 64 FR 48949, Sept. 9, 1999]

            § 2.810
            NRC size standards.
            The NRC shall use the size standards contained in this section to determine whether a licensee qualifies as a small entity in its regulatory programs.
            (a) A small business is a for-profit concern and is a—
            (1) Concern that provides a service or a concern not engaged in manufacturing with average gross receipts of $7.0 million or less over its last 3 completed fiscal years; or
            (2) Manufacturing concern with an average number of 500 or fewer employees based upon employment during each pay period for the preceding 12 calendar months.
            (b) A small organization is a not-for-profit organization which is independently owned and operated and has annual gross receipts of $7.0 million or less.
            (c) A small governmental jurisdiction is a government of a city, county, town, township, village, school district, or special district with a population of less than 50,000.
            (d) A small educational institution is one that is—
            (1) Supported by a qualifying small governmental jurisdiction; or
            (2) Not state or publicly supported and has 500 or fewer employees.
            (e) For the purposes of this section, the NRC shall use the Small Business Administration definition of receipts (13 CFR 121.104). A licensee who is a subsidiary of a large entity does not qualify as a small entity for purposes of this section.
            (f) Whenever appropriate in the interest of administering statutes and regulations within its jurisdiction, it is the practice of the NRC to answer inquiries from small entities concerning information on and advice about compliance with the statutes and regulations that affect them. To help small entities obtain information quickly, the NRC has established a toll-free telephone number at 1-800-368-5642.
            [60 FR 18346, Apr. 11, 1995, as amended at 62 FR 26220, May 13, 1997; 72 FR 44953, Aug. 10, 2007; 73 FR 42673, July 23, 2008; 77 FR 39387, July 3, 2012; 79 FR 66601, Nov. 10, 2014]

            § 2.811
            Filing of standard design certification application; required copies.
            (a) Serving of applications. The signed original of an application for a standard design certification, including all amendments to the applications, must be sent either by mail addressed: ATTN: Document Control Desk, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by facsimile; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland, between the hours of 7:30 a.m. and 4:15 p.m. eastern time; or, where practicable, by electronic submission, for example, via Electronic Information Exchange, e-mail, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information. If the communication is on paper, the signed original must be sent.
            (b) Form of application. Each original of an application and an amendment of an application must meet the requirements in § 2.813.
            (c) Capability to provide additional copies. The applicant shall maintain the capability to generate additional copies of the general information and the safety analysis report, or part thereof or amendment thereto, for subsequent distribution in accordance with the written instructions of the Director, Office of Nuclear Reactor Regulation, or the Director, Office of Nuclear Material Safety and Safeguards, as appropriate.
            (d) Public hearing copy. In any hearing conducted under subpart O of this part for a design certification rulemaking, the applicant must make a copy of the updated application available at the public hearing for the use of any other parties to the proceeding, and shall certify that the updated copies of the application contain the current contents of the application submitted in accordance with the requirements of this part.
            (e) Pre-application consultation. A prospective applicant for a standard design certification may consult with NRC staff before filing an application by writing to the Director, Division of New and Renewed Licenses, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, with respect to the subject matters listed in § 2.802(b)(1). A prospective applicant also may telephone the Regulatory Analysis and Rulemaking Support Branch, Division of Rulemaking, Environmental, and Financial Support, Office of Nuclear Material Safety and Safeguards, toll free on 1-800-368-5642 on these subject matters. In addition, a prospective applicant may confer informally with NRC staff before filing an application for a standard design certification, and the limitations on consultation in § 2.802(b)(2) do not apply.
            [72 FR 49482, Aug. 28, 2007, as amended at 74 FR 62679, Dec. 1, 2009; 77 FR 46598, Aug. 3, 2012; 80 FR 60527, Oct. 7, 2015; 80 FR 74978, Dec. 1, 2015; 84 FR 65644, Nov. 29, 2019]

            § 2.813
            Written communications.
            (a) General requirements. All correspondence, reports, and other written communications from the applicant to the Nuclear Regulatory Commission concerning the regulations in this subpart, and parts 50, 52, and 100 of this chapter must be sent either by mail addressed: ATTN: Document Control Desk, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland, between the hours of 7:30 a.m. and 4:15 p.m. eastern time; or, where practicable, by electronic submission, for example, via Electronic Information Exchange, e-mail, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information. If the communication is on paper, the signed original must be sent. If a submission due date falls on a Saturday, Sunday, or Federal holiday, the next Federal working day becomes the official due date.
            (b) Form of communications. All paper copies submitted to meet the requirements set forth in paragraph (a) of this section must be typewritten, printed or otherwise reproduced in permanent form on unglazed paper. Exceptions to these requirements imposed on paper submissions may be granted for the submission of micrographic, photographic, or similar forms.
            (c) Regulation governing submission. An applicant submitting correspondence, reports, and other written communications under the regulations of this chapter is requested but not required to cite whenever practical, in the upper right corner of the first page of the submission, the specific regulation or other basis requiring submission.
            [72 FR 49482, Aug. 28, 2007, as amended at 74 FR 62679, Dec. 1, 2009; 80 FR 74978, Dec. 1, 2015]

            § 2.815
            Docketing and acceptance review.

            (a) Each application for a standard design certification will be assigned a docket number. However, to allow a determination as to whether an application is complete and acceptable for docketing, it will be initially treated as a tendered application. A copy of the tendered application will be available for public inspection at the NRC Web site, http://www.nrc.gov, and/or at the NRC Public Document Room. Generally, the determination on acceptability for docketing will be made within a period of 30 days. The Commission may decide to determine acceptability on the basis of the technical adequacy of the application as well as its completeness.
            (b) If the Commission determines that a tendered application is complete and acceptable for docketing, a docket number will be assigned to the application or part thereof, and the applicant will be notified of the determination.
            [72 FR 49482, Aug. 28, 2007]

            § 2.817
            Withdrawal of application.

            (a) The Commission may permit an applicant to withdraw an application for a standard design certification before the issuance of a notice of proposed rulemaking on such terms and conditions as the Commission may prescribe, or may, on receiving a request for withdrawal of an application, deny the application or dismiss it without prejudice. The NRC will publish in the Federal Register a document withdrawing the application, if the notice of receipt of the application, an advance notice of proposed rulemaking, or a notice of proposed rulemaking for the standard design certification has been previously published in the Federal Register. If the notice of receipt, advance notice of proposed rulemaking or notice of proposed rulemaking was published on the NRC Web site, then the notice of action on the withdrawal will also be published on the NRC Web site.
            (b) The withdrawal of an application does not authorize the removal of any document from the files of the Commission.
            [72 FR 49482, Aug. 28, 2007]

            § 2.819
            Denial of application for failure to supply information.
            (a) The Commission may deny an application for a standard design certification if an applicant fails to respond to a request for additional information within 30 days from the date of the request, or within such other time as may be specified.

            (b) If the Commission denies an application because the applicant has failed to respond in a timely fashion to a request for additional information, the NRC will publish in the Federal Register a notice of denial and will notify the applicant with a simple statement of the grounds of denial. If a notice of receipt of application, advance notice of proposed rulemaking, or notice of proposed rulemaking for a standard design certification was published on the NRC Web site, then the notice of action on the denial will also be published on the NRC Web site.
            [72 FR 49482, Aug. 28, 2007]

          Subpart I—Special Procedures Applicable to Adjudicatory Proceedings Involving Restricted Data and/or National Security Information

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

            § 2.900
            Purpose.

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

            § 2.901
            Scope of subpart I.
            This subpart applies, as applicable, to all proceedings under subparts G, J, K, L, M, and N of this part.
            [69 FR 2264, Jan. 14, 2004]

            § 2.902
            Definitions.
            As used in this subpart:
            (a) Government agency means any executive department, commission, independent establishment, corporation, wholly or partly owned by the United States of America, which is an instrumentality of the United States, or any board, bureau, division, service, office, officer, authority, administration, or other establishment in the executive branch of the Government.
            (b) Interested party means a party having an interest in the issue or issues to which particular Restricted Data or National Security Information is relevant. Normally the interest of a party in an issue may be determined by examination of the notice of hearing, the answers and replies.
            (c) The phrase introduced into a proceeding refers to the introduction or incorporation of testimony or documentary matter into any part of the official record of a proceeding subject to this part.
            (d) National Security Information means information that has been classified pursuant to Executive Order 12356.
            (e) Party, in the case of proceedings subject to this subpart includes a person admitted as a party under § 2.309 or an interested State admitted under § 2.315(c).
            [41 FR 53329, Dec. 6, 1976, as amended at 47 FR 56314, Dec. 16, 1982; 69 FR 2264, Jan. 14, 2004]

            § 2.903
            Protection of restricted data and national security information.
            Nothing in this subpart shall relieve any person from safeguarding Restricted Data or National Security Information in accordance with the applicable provisions of laws of the United States and rules, regulations or orders of any Government Agency.

            § 2.904
            Classification assistance.
            On request of any party to a proceeding or of the presiding officer, the Commission will designate a representative to advise and assist the presiding officer and the parties with respect to security classification of information and the safeguards to be observed.

            § 2.905
            Access to restricted data and national security information for parties; security clearances.
            (a) Access to restricted data and national security information introduced into proceedings. Except as provided in paragraph (h) of this section, restricted data or national security information introduced into a proceeding subject to this part will be made available to any interested party having the required security clearance; to counsel for an interested party provided the counsel has the required security clearance; and to such additional persons having the required security clearance as the Commission or the presiding officer determined are needed by such party for adequate preparation or presentation of his case. Where the interest of such party will not be prejudiced, the Commission or presiding officer may postpone action upon an application for access under this paragraph until after a notice of hearing, answers, and replies have been filed.
            (b) Access to Restricted Data or National Security Information not introduced into proceedings. (1) On application showing that access to Restricted Data or National Security Information may be required for the preparation of a party's case, and except as provided in paragraph (h) of this section, the Commission or the presiding officer will issue an order granting access to such Restricted Data or National Security Information to the party upon his obtaining the required security clearance, to counsel for the party upon their obtaining the required security clearance, and to such other individuals as may be needed by the party for the preparation and presentation of his case upon their obtaining the required clearance.
            (2) Where the interest of the party applying for access will not be prejudiced, the Commission or the presiding officer may postpone action on an application pursuant to this paragraph until after a notice of hearing, answers and replies have been filed.
            (c) The Commission will consider requests for appropriate security clearances in reasonable numbers pursuant to this section. A reasonable charge will be made by the Commission for costs of security clearance pursuant to this section.
            (d) The presiding officer may certify to the Commission for its consideration and determination any questions relating to access to Restricted Data or National Security Information arising under this section. Any party affected by a determination or order of the presiding officer under this section may appeal forthwith to the Commission from the determination or order. The filing by the staff of an appeal from an order of a presiding officer granting access to Restricted Data or National Security Information shall stay the order pending determination of the appeal by the Commission.
            (e) Application granting access to restricted data or national security information. (1) An application under this section for orders granting access to restricted data or national security information not received from another Government agency will normally be acted upon by the presiding officer, or if a proceeding is not before a presiding officer, by the Commission.
            (2) An application under this section for orders granting access to restricted data or national security information where the information has been received by the Commission from another Government agency will be acted upon by the Commission.
            (f) To the extent practicable, an application for an order granting access under this section shall describe the subjects of Restricted Data or National Security Information to which access is desired and the level of classification (confidential, secret or other) of the information; the reasons why access to the information is requested; the names of individuals for whom clearances are requested; and the reasons why security clearances are being requested for those individuals.
            (g) On the conclusion of a proceeding, the Commission will terminate all orders issued in the proceeding for access to Restricted Data or National Security Information and all security clearances granted pursuant to them; and may issue such orders requiring the disposal of classified matter received pursuant to them or requiring the observance of other procedures to safeguard such classified matter as it deems necessary to protect Restricted Data or National Security Information.
            (h) Refusal to grant access to restricted data or national security information. (1) The Commission will not grant access to restricted data or national security information unless it determines that the granting of access will not be inimical to the common defense and security.
            (2) Access to Restricted Data or National Security Information which has been received by the Commission from another Government agency will not be granted by the Commission if the originating agency determines in writing that access should not be granted. The Commission will consult the originating agency prior to granting access to such data or information received from another Government agency.

            § 2.906
            Obligation of parties to avoid introduction of restricted data or national security information.
            It is the obligation of all parties in a proceeding subject to this part to avoid, where practicable, the introduction of Restricted Data or National Security Information into the proceeding. This obligation rests on each party whether or not all other parties have the required security clearance.

            § 2.907
            Notice of intent to introduce restricted data or national security information.

            (a) If, at the time of publication of a notice of hearing, it appears to the staff that it will be impracticable for it to avoid the introduction of Restricted Data or National Security Information into the proceeding, it will file a notice of intent to introduce Restricted Data or National Security Information.

            (b) If, at the time of filing of an answer to the notice of hearing it appears to the party filing that it will be impracticable for the party to avoid the introduction of Restricted Data or National Security Information into the proceeding, the party shall state in the answer a notice of intent to introduce Restricted Data or National Security Information into the proceeding.
            (c) If, at any later stage of a proceeding, it appears to any party that it will be impracticable to avoid the introduction of Restricted Data or National Security Information into the proceeding, the party shall give to the other parties prompt written notice of intent to introduce Restricted Data or National Security Information into the proceeding.
            (d) Restricted Data or National Security Information shall not be introduced into a proceeding after publication of a notice of hearing unless a notice of intent has been filed in accordance with § 2.908, except as permitted in the discretion of the presiding officer when it is clear that no party or the public interest will be prejudiced.

            § 2.908
            Contents of notice of intent to introduce restricted data or other national security information.
            (a) A party who intends to introduce Restricted Data or other National Security Information shall file a notice of intent with the Secretary. The notice shall be unclassified and, to the extent consistent with classification requirements, shall include the following:
            (1) The subject matter of the Restricted Data or other National Security Information which it is anticipated will be involved;
            (2) The highest level of classification of the information (confidential, secret, or other);
            (3) The stage of the proceeding at which he anticipates a need to introduce the information; and
            (4) The relevance and materiality of the information to the issues on the proceeding.
            (b) In the discretion of the presiding officer, such notice, when required by § 2.907(c), may be given orally on the record.

            § 2.909
            Rearrangement or suspension of proceedings.
            In any proceeding subject to this part where a party gives a notice of intent to introduce Restricted Data or other National Security Information, and the presiding officer determines that any other interested party does not have required security clearances, the presiding officer may in his discretion:
            (a) Rearrange the normal order of the proceeding in a manner which gives such interested parties an opportunity to obtain required security clearances with minimum delay in the conduct of the proceeding.
            (b) Suspend the proceeding or any portion of it until all interested parties have had opportunity to obtain required security clearances. No proceeding shall be suspended for such reasons for more than 100 days except with the consent of all parties or on a determination by the presiding officer that further suspension of the proceeding would not be contrary to the public interest.
            (c) Take such other action as he determines to be in the best interest of all parties and the public.

            § 2.910
            Unclassified statements required.
            (a) Whenever Restricted Data or other National Security Information is introduced into a proceeding, the party offering it shall submit to the presiding officer and to all parties to the proceeding an unclassified statement setting forth the information in the classified matter as accurately and completely as possible.

            (b) In accordance with such procedures as may be agreed upon by the parties or prescribed by the presiding officer, and after notice to all parties and opportunity to be heard thereon, the presiding officer shall determine whether the unclassified statement or any portion of it, together with any appropriate modifications suggested by any party, may be substituted for the classified matter or any portion of it without prejudice to the interest of any party or to the public interest.

            (c) If the presiding officer determines that the unclassified statement, together with such unclassified modifications as he finds are necessary or appropriate to protect the interest of other parties and the public interest, adequately sets forth information in the classified matter which is relevant and material to the issues in the proceeding, he shall direct that the classified matter be excluded from the record of the proceeding. His determination will be considered by the Commission as a part of the decision in the event of review.
            (d) If the presiding officer determines that an unclassified statement does not adequately present the information contained in the classified matter which is relevant and material to the issues in the proceeding, he shall include his reasons in his determination. This determination shall be included as part of the record and will be considered by the Commission in the event of review of the determination.
            (e) The presiding officer may postpone all or part of the procedures established in this section until the reception of all other evidence has been completed. Service of the unclassified statement required in paragraph (a) of this section shall not be postponed if any party does not have access to Restricted Data or other National Security Information.

            § 2.911
            Admissibility of restricted data or other national security information.
            A presiding officer shall not receive any Restricted Data or other National Security Information in evidence unless:
            (a) The relevance and materiality of the Restricted Data or other National Security Information to the issues in the preceeding, and its competence, are clearly established; and
            (b) The exclusion of the Restricted Data or other National Security Information would prejudice the interests of a party or the public interest.

            § 2.912
            Weight to be attached to classified evidence.
            In considering the weight and effect of any Restricted Data or other National Security Information received in evidence to which an interested party has not had opportunity to receive access, the presiding officer and the Commission shall give to such evidence such weight as is appropriate under the circumstances, taking into consideration any lack of opportunity to rebut or impeach the evidence.

            § 2.913
            Review of Restricted Data or other National Security Information received in evidence.
            At the close of the reception of evidence, the presiding officer shall review the record and shall direct that any Restricted Data or other National Security Information be expunged from the record where such expunction would not prejudice the interests of a party or the public interest. Such directions by the presiding officer will be considered by the Commission in the event of review of the determinations of the presiding officer.

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

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

            § 2.1000
            Scope of subpart J.

            The rules in this subpart, together with the rules in subparts C and G of this part, govern the procedure for an application for authorization to construct a high-level radioactive waste repository at a geologic repository operations area noticed under §§ 2.101(f)(8) or 2.105(a)(5), and for an application for a license to receive and possess high level radioactive waste at a geologic repository operations area. The procedures in this subpart take precedence over those in 10 CFR part 2, subpart C, except for the following provisions: §§ 2.301; 2.303; 2.307; 2.309; 2.312; 2.313; 2.314; 2.315; 2.316; 2.317(a); 2.318; 2.319; 2.320; 2.321; 2.322; 2.323; 2.324; 2.325; 2.326; 2.327; 2.328; 2.330; 2.331; 2.333; 2.335; 2.338; 2.339; 2.342; 2.343; 2.344; 2.345; 2.346; 2.348; and 2.390. The procedures in this subpart take precedence over those in 10 CFR part 2, subpart G, except for the following provisions: §§ 2.701, 2.702; 2.703; 2.708; 2.709; 2.710; 2.711; 2.712.
            [69 FR 2264, Jan. 14, 2004]

            § 2.1001
            Definitions.

              Bibliographic header means the minimum series of descriptive fields that a potential party, interested governmental participant, or party must submit with a document or other material.

              Circulated draft means a nonfinal document circulated for supervisory concurrence or signature in which the original author or others in the concurrence process have non-concurred. A “circulated draft” meeting the above criterion includes a draft of a document that eventually becomes a final document, and a draft of a document that does not become a final document due to either a decision not to finalize the document or the passage of a substantial period of time in which no action has been taken on the document.

              Complex document means a document that consists (entirely or in part) of electronic files having substantial portions that are neither textual nor image in nature, and graphic or other Binary Large Objects that exceed 50 megabytes and cannot logically be divided. For example, specialized submissions may include runtime executable software, viewer or printer executables, dynamic link library (.dll) files, large data sets associated with an executable, and actual software code for analytical programs that a party may intend to introduce into the proceeding.

              Document means any written, printed, recorded, magnetic, graphic matter, or other documentary material, regardless of form or characteristic.

              Documentary material means:
            (1) Any information upon which a party, potential party, or interested governmental participant intends to rely and/or to cite in support of its position in the proceeding for a construction authorization for a high-level radioactive waste repository at a geologic repository operations area pursuant to parts 60 or 63 of this chapter, a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to parts 60 or 63 of this chapter;
            (2) Any information that is known to, and in the possession of, or developed by the party that is relevant to, but does not support, that information or that party's position; and
            (3) All reports and studies, prepared by or on behalf of the potential party, interested governmental participant, or party, including all related “circulated drafts,” relevant to both the license application and the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. The scope of documentary material shall be guided by the topical guidelines in the applicable NRC Regulatory Guide.

              DOE means the U.S. Department of Energy or its duly authorized representatives.

              Electronic docket means the NRC information system that receives, distributes, stores, and retrieves the Commission's adjudicatory docket materials.

              Image means a visual likeness of a document, presented on a paper copy, microform, or a bit-map on optical or magnetic media.

              Interested governmental participant means any person admitted under § 2.315(c) of this part to the proceeding on an application for a construction authorization for a high-level radioactive waste repository at a geologic repository operations area under parts 60 or 63 of this chapter, and an application for a license to receive and possess high level radioactive waste at a geologic repository operations area under parts 60 and 63 of this chapter.

              Large document means a document that consists of electronic files that are larger than 50 megabytes.

              Licensing Support Network means the combined system that makes documentary material available electronically to parties, potential parties, and interested governmental participants to a proceeding for a construction authorization for a high-level radioactive waste repository at a geologic repository operations area, and an application for a license to receive and possess high level radioactive waste at a geologic repository operations area under parts 60 and 63 of this chapter.

              LSN Administrator means the person within the U.S. Nuclear Regulatory Commission responsible for coordinating access to and the integrity of data available on the Licensing Support Network. The LSN Administrator shall not be in any organizational unit that either represents the U.S. Nuclear Regulatory Commission staff as a party to the high-level waste repository licensing proceeding or is a part of the management chain reporting to the Director, Office of Nuclear Material Safety and Safeguards. For the purposes of this subpart, the organizational unit within the NRC selected to be the LSN Administrator shall not be considered to be a party to the proceeding.

              Marginalia means handwritten, printed, or other types of notations added to a document excluding underlining and highlighting.

              NRC means the U.S. Nuclear Regulatory Commission or its duly authorized representatives.

              Party for the purpose of this subpart means the DOE, the NRC staff, the host State, any affected unit of local government as defined in Section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), any affected Indian Tribe as defined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), and a person admitted under § 2.309 to the proceeding on an application for construction authorization for a high-level radioactive waste repository at a geologic repository operations area under parts 60 or 63 of this chapter, and an application for a license to receive and possess high level radioactive waste at a geologic repository operations area under parts 60 and 63 of this chapter; provided that a host State, affected unit of local government, or affected Indian Tribe files a list of contentions in accordance with the provisions of § 2.309.

              Personal record means a document in the possession of an individual associated with a party, interested governmental participant, or potential party that was not required to be created or retained by the party, interested governmental participant, or potential party, and can be retained or discarded at the possessor's sole discretion, or documents of a personal nature that are not associated with any business of the party, interested governmental participant, or potential party.

              Potential party means any person who, during the period before the issuance of the first pre-hearing conference order under § 2.1021(d), is given access to the Licensing Support Network and who consents to comply with the regulations set forth in subpart J of this part, including the authority of the Pre-License Application Presiding Officer designated pursuant to § 2.1010.

              Pre-license application electronic docket means the NRC's electronic information system that receives, distributes, stores, and maintains NRC pre-license application docket materials during the pre-license application phase.

              Pre-license application phase means the time period before a construction authorization for a high-level radioactive waste repository at a geologic repository operations area under parts 60 or 63 of this chapter is docketed under § 2.101(f)(3), and the time period before a license application to receive and possess high-level radioactive waste at a geologic repository operations area under parts 60 or 63 is docketed under § 2.101(f)(3).

              Pre-License Application Presiding Officer means one or more members of the Commission, or an atomic safety and licensing board, or a named officer who has been delegated final authority in the pre-license application phase with jurisdiction specified at the time of designation.

              Preliminary draft means any nonfinal document that is not a circulated draft.

              Presiding Officer means one or more members of the Commission, or an atomic safety and licensing board, or a named officer who has been delegated final authority in the matter, designated in the notice of hearing to preside.

              Searchable full text means the electronic indexed entry of a document that allows the identification of specific words or groups of words within a text file.

              Simple document means a document that consists of electronic files that are 50 megabytes or less.

              Topical Guidelines means the set of topics set forth in Regulatory Guide 3.69, Topical Guidelines for the Licensing Support System, which are intended to serve as guidance on the scope of “documentary material”.
            [54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7795, Feb. 26, 1991; 63 FR 71736, Dec. 30, 1998; 66 FR 29465, May 31, 2001; 66 FR 55788, Nov. 2, 2001; 69 FR 2264, Jan. 14, 2004; 69 FR 32848, June 14, 2004]

            § 2.1002
            [Reserved]

            § 2.1003
            Availability of material.
            (a) Subject to the exclusions in § 2.1005 and paragraphs (b), (c), and (e) of this section, DOE shall make available, no later than six months in advance of submitting its license application for a geologic repository, the NRC shall make available no later than thirty days after the DOE certification of compliance under § 2.1009(b), and each other potential party, interested governmental participant or party shall make available no later than ninety days after the DOE certification of compliance under § 2.1009(b)—
            (1) An electronic file including bibliographic header for all documentary material (including circulated drafts but excluding preliminary drafts) generated by, or at the direction of, or acquired by, a potential party, interested governmental participant or party; provided, however, that an electronic file need not be provided for acquired documentary material that has already been made available by the potential party, interested governmental participant or party that originally created the documentary material. Concurrent with the production of the electronic files will be an authentication statement for posting on the LSN Web site that indicates where an authenticated image copy of the documents can be obtained.
            (2) In electronic image format, subject to the claims of privilege in § 2.1006, graphic-oriented documentary material that includes raw data, computer runs, computer programs and codes, field notes, laboratory notes, maps, diagrams and photographs, which have been printed, scripted, or hand written. Text embedded within these documents need not be separately entered in searchable full text. A bibliographic header must be provided for all graphic-oriented documentary material. Graphic-oriented documents may include—
            (i) Calibration procedures, logs, guidelines, data and discrepancies;
            (ii) Gauge, meter and computer settings;
            (iii) Probe locations;
            (iv) Logging intervals and rates;
            (v) Data logs in whatever form captured;
            (vi) Text data sheets;
            (vii) Equations and sampling rates;
            (viii) Sensor data and procedures;
            (ix) Data Descriptions;
            (x) Field and laboratory notebooks;
            (xi) Analog computer, meter or other device print-outs;
            (xii) Digital computer print-outs;
            (xiii) Photographs;
            (xiv) Graphs, plots, strip charts, sketches;
            (xv) Descriptive material related to the information identified in this paragraph.
            (3) In an electronic file, subject to the claims of privilege in § 2.1006, only a bibliographic header for each item of documentary material that is not suitable for image or searchable full text.
            (4) An electronic bibliographic header for each documentary material—
            (i) For which a claim of privilege is asserted;
            (ii) Which constitutes confidential financial or commercial information; or
            (iii) Which constitutes Safeguards Information under § 73.21 and the requirements of § 73.22 or § 73.23 of this chapter, as applicable.
            (b) Basic licensing documents generated by DOE, such as the Site Characterization Plan, the Environmental Impact Statement, and the license application, or by NRC, such as the Site Characterization Analysis, and the Safety Evaluation Report, shall be made available in electronic form by the respective agency that generated the document.
            (c) The participation of the host State in the pre-license application phase shall not affect the State's ability to exercise its disapproval rights under section 116(b)(2) of the Nuclear Waste Policy Act, as amended, 42 U.S.C. 10136(b)(2).

            (d) This subpart shall not affect any independent right of a potential party, interested governmental participant or party to receive information.
            (e) Each potential party, interested governmental participant or party shall continue to supplement its documentary material made available to other participants via the LSN with any additional material created after the time of its initial certification in accordance with paragraph (a)(1) through (a)(4) of this section until the discovery period in the proceeding has concluded.
            [63 FR 71737, Dec. 30, 1998, as amended at 66 FR 29465, May 31, 2001; 69 FR 2264, Jan. 14, 2004; 69 FR 32848, June 14, 2004; 73 FR 63569, Oct. 24, 2008]

            § 2.1004
            Amendments and additions.
            Any document that has not been provided to other parties in electronic form must be identified in an electronic notice and made available for inspection and copying by the potential party, interested governmental participant, or party responsible for the submission of the document within five days after it has been requested unless some other time is approved by the Pre-License Application Presiding Officer or the Presiding Officer designated for the high-level waste proceeding. The time allowed under this paragraph will be stayed pending Officer action on a motion to extend the time.
            [63 FR 71737, Dec. 30, 1998]

            § 2.1005
            Exclusions.
            The following material is excluded from the requirement to provide electronic access, either pursuant to § 2.1003, or through derivative discovery pursuant to § 2.1019(i)—
            (a) Official notice materials;
            (b) Reference books and text books;
            (c) Material pertaining exclusively to administration, such as material related to budgets, financial management, personnel, office space, general distribution memoranda, or procurement, except for the scope of work on a procurement related to repository siting, construction, or operation, or to the transportation of spent nuclear fuel or high-level waste;
            (d) Press clippings and press releases;
            (e) Junk mail;
            (f) References cited in contractor reports that are readily available;
            (g) Classified material subject to subpart I of this part;
            (h) Readily available references, such as journal articles and proceedings, which may be subject to copyright.
            (i) Correspondence between a potential party, interested governmental participant, or party and the Congress of the United States.
            [63 FR 71738, Dec. 30, 1998, as amended at 69 FR 32848, June 14, 2004]

            § 2.1006
            Privilege.
            (a) Subject to the requirements in § 2.1003(a)(4), the traditional discovery privileges recognized in NRC adjudicatory proceedings and the exceptions from disclosure in § 2.390 may be asserted by potential parties, interested States, local governmental bodies, Federally-recognized Indian Tribes, and parties. In addition to Federal agencies, the deliberative process privilege may also be asserted by States, local governmental bodies, and Federally-recognized Indian Tribes.
            (b) Any document for which a claim of privilege is asserted, but is denied in whole or in part by the Pre-License Application Presiding Officer or the Presiding Officer, must be provided in electronic form by the party, interested governmental participant, or potential party that asserted the claim to—
            (1) The other participants; or
            (2) To the Pre-License Application Presiding Officer or to the Presiding Officer, for entry into a Protective Order file, if the Pre-License Application Presiding Officer or the Presiding Officer so directs under §§ 2.1010(b) or 2.1018(c).
            (c) Notwithstanding any availability of the deliberative process privilege under paragraph (a) of this section, circulated drafts not otherwise privileged shall be provided for electronic access pursuant to § 2.1003(a).
            [63 FR 71738, Dec. 30, 1998; 64 FR 15920, Apr. 2, 1999, as amended at 69 FR 2265, Jan. 14, 2004]

            § 2.1007
            Access.
            (a)(1) A system to provide electronic access to the Licensing Support Network shall be provided at the headquarters of DOE, and at all DOE Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, beginning in the pre-license application phase.

            (2) A system to provide electronic access to the Licensing Support Network shall be provided at the NRC Web site, http://www.nrc.gov, and/or at the NRC Public Document Room beginning in the pre-license application phase.
            (3) [Reserved]
            (b) Public availability of paper and electronic copies of the records of NRC and DOE, as well as duplication fees, and fee waiver for those records, is governed by the regulations of the respective agencies.
            [63 FR 71738, Dec. 30, 1998, as amended at 64 FR 48949, Sept. 9, 1999]

            § 2.1008
            [Reserved]

            § 2.1009
            Procedures.
            (a) Each potential party, interested governmental participant, or party shall—
            (1) Designate an official who will be responsible for administration of its responsibility to provide electronic files of documentary material ;
            (2) Establish procedures to implement the requirements in § 2.1003;
            (3) Provide training to its staff on the procedures for implementation of the responsibility to provide electronic files of documentary material;
            (4) Ensure that all documents carry the submitter's unique identification number;
            (5) Cooperate with the advisory review process established by the NRC under § 2.1011(d).
            (b) The responsible official designated under paragraph (a)(1) of this section shall certify to the Pre-License Application Presiding Officer that the procedures specified in paragraph (a)(2) of this section have been implemented, and that to the best of his or her knowledge, the documentary material specified in § 2.1003 has been identified and made electronically available. The initial certification must be made at the time the participant is required to comply with § 2.1003. The responsible official for the DOE shall also update this certification at the time DOE submits the license application.
            [63 FR 71738, Dec. 30, 1998, as amended at 66 FR 29466, May 31, 2001]

            § 2.1010
            Pre-License Application Presiding Officer.
            (a)(1) The Commission may designate one or more members of the Commission, or an atomic safety and licensing board, or a named officer who has been delegated final authority on the matter to serve as the Pre-License Application Presiding Officer to rule on disputes over the electronic availability of documents during the pre-license application phase, including disputes relating to privilege, and disputes relating to the implementation of the recommendations of the Advisory Review Panel established under § 2.1011(d).
            (2) The Pre-License Application Presiding Officer shall be designated at such time during the pre-license application phase as the Commission finds it appropriate, but in any event no later than fifteen days after the DOE certification of initial compliance under § 2.1009(b).
            (b) The Pre-License Application Presiding Officer shall rule on any claim of document withholding to determine—
            (1) Whether it is documentary material within the scope of this subpart;
            (2) Whether the material is excluded under § 2.1005;
            (3) Whether the material is privileged or otherwise excepted from disclosure under § 2.1006;
            (4) If privileged, whether it is an absolute or qualified privilege;
            (5) If qualified, whether the document should be disclosed because it is necessary to a proper decision in the proceeding;

            (6) Whether the material should be disclosed under a protective order containing such protective terms and conditions (including affidavits of nondisclosure) as may be necessary and appropriate to limit the disclosure to potential parties, interested governmental participants, and parties in the proceeding, or to their qualified witnesses and counsel.

            (i) The Pre-License Application Presiding Officer may issue an order requiring disclosure of Safeguards Information if—
            (A) The Pre-License Application Presiding Officer finds that the individual seeking access to Safeguards Information in order to participate in an NRC adjudication has the requisite “need to know,” as defined in 10 CFR 73.2;
            (B) The individual has undergone an FBI criminal history records check, unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as applicable, by submitting fingerprints to the NRC Office of Administration, Security Processing Unit, Mail Stop T-6E46, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and otherwise following the procedures in 10 CFR 73.57(d) for submitting and processing fingerprints. However, before a final adverse determination by the NRC Office of Administration on an individual's criminal history records check is made, the individual shall be afforded the protections provided by 10 CFR 73.57; and
            (C) The NRC Office of Administration has found, based upon a background check, that the individual is trustworthy and reliable, unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as applicable. In addition to the protections provided by 10 CFR 73.57 for adverse determinations based on criminal history records checks, the Office of Administration must take the following actions before making a final adverse determination on an individual's background check for trustworthiness and reliability. The Office of Administration will:
            (1) For the purpose of assuring correct and complete information, provide to the individual any records, in addition to those required to be provided under 10 CFR 73.57(e)(1), that were considered in the trustworthiness and reliability determination;
            (2) Resolve any challenge by the individual to the completeness or accuracy of the records described in § 2.1010(b)(6)(i)(C)(1). The individual may make this challenge by submitting information and/or an explanation to the Office of Administration. The challenge must be submitted within 10 days of the distribution of the records described in § 2.1010(b)(6)(i)(C)(1), and the Office of Administration must promptly resolve any challenge.
            (D) Individuals seeking access to Safeguards Information to participate in an NRC adjudication for whom the NRC Office of Administration has made a final adverse determination on trustworthiness and reliability may submit a request to the Chief Administrative Judge for review of the adverse determination. Upon receiving such a request, the Chief Administrative Judge shall designate an officer other than the Pre-License Application Presiding Officer to review the adverse determination. For purposes of review, the adverse determination must be in writing and set forth the grounds for the determination. The request for review shall be served on the NRC staff and may include additional information for review by the designated officer. The request must be filed within 15 days after receipt of the adverse determination by the person against whom the adverse determination has been made. Within 10 days of receipt of the request for review and any additional information, the NRC staff will file a response indicating whether the request and additional information has caused the NRC Office of Administration to reverse its adverse determination. The designated officer may reverse the Office of Administration's final adverse determination only if the officer finds, based on all the information submitted, that the adverse determination constitutes an abuse of discretion. The designated officer's decision must be rendered within 15 days after receipt of the staff filing indicating that the request for review and additional information has not changed the NRC Office of Administration's adverse determination.
            (ii) The Pre-License Application Presiding Officer may include in an order any protective terms and conditions (including affidavits of nondisclosure) as may be necessary and appropriate to prevent the unauthorized disclosure of Safeguards Information.

            (iii) When Safeguards Information, protected from disclosure under Section 147 of the Atomic Energy Act of 1954, as amended, is received and possessed by a potential party, interested government participant, or party, other than the NRC staff, it shall also be protected according to the requirements of § 73.21 and the requirements of §§ 73.22 or 73.23 of this chapter, as applicable.
            (iv) The Pre-License Application Presiding Officer may also prescribe such additional procedures as will effectively safeguard and prevent disclosure of Safeguards Information to unauthorized persons with minimum impairment of the procedural rights which would be available if Safeguards Information were not involved.
            (v) In addition to any other sanction that may be imposed by the Pre-License Application Presiding Officer for violation of a provision for the protection of Safeguards Information from unauthorized disclosure that is contained in an order, the entity in violation may be subject to a civil penalty imposed pursuant to § 2.205.
            (vi) For the purpose of imposing the criminal penalties contained in Section 223 of the Atomic Energy Act of 1954, as amended, a provision for the protection of Safeguards Information from unauthorized disclosure that is contained in an order issued pursuant to this paragraph is considered to be issued under Section 161b of the Atomic Energy Act of 1954, as amended.
            (c) Upon a final determination that the material is relevant, and not privileged, exempt from disclosure, or otherwise exempt from production under § 2.1005, the potential party, interested governmental participant, or party who asserted the claim of withholding must make the document available in accordance with the provisions of this subpart within five days.
            (d) The service of all pleadings and answers, orders, and decisions during the pre-license application phase shall be made according to the procedures specified in § 2.1013(c) and entered into the pre-license application electronic docket.
            (e) The Pre-License Application presiding officer possesses all the general powers specified in §§ 2.319 and 2.321(c).
            (f) The Commission, in designating the Pre-License Application Presiding Officer in accordance with paragraphs (a) (1) and (2) of this section, shall specify the jurisdiction of the Officer.
            [63 FR 71738, Dec. 30, 1998, as amended at 66 FR 29466, May 31, 2001; 69 FR 2265, Jan. 14, 2004; 73 FR 63569, Oct. 24, 2008]

            § 2.1011
            Management of electronic information.
            (a) Electronic document production and the electronic docket are subject to the provisions of this subpart.
            (b)(1) The NRC, DOE, parties, and potential parties participating in accordance with the provision of this subpart shall be responsible for obtaining the computer system necessary to comply with the requirements for electronic document production and service.
            (2) The NRC, DOE, parties, and potential parties participating in accordance with the provision of this subpart shall comply with the following standards in the design of the computer systems necessary to comply with the requirements for electronic document production and service:

            (i) The participants shall make textual (or, where non-text, image) versions of their documents available on a web accessible server which is able to be canvassed by web indexing software (i.e., a “robot”, “spider”, “crawler”) and the participant system must make both data files and log files accessible to this software.

            (ii) The participants shall make bibliographic header data available in an HTTP (Hypertext Transfer Protocol) accessible, ODBC (Open Database Connectivity) and SQL (Structured Query Language)-compliant (ANSI IX3.135-1992/ISO 9075-1992) database management system (DBMS). Alternatively, the structured data containing the bibliographic header may be made available in a standard database readable (e.g., XML (Extensible Markup Language http://www.w3.org/xml/), comma delimited, or comma separated value (.csv)) file.
            (iii) Textual material must be formatted to comply with the ISO/IEC 8859-1 character set and be in one of the following acceptable formats: ASCII, native word processing (Word, WordPerfect), PDF Normal, or HTML.

            (iv) Image files must be formatted as TIFF CCITT G4 for bi-tonal images or PNG (Portable Network Graphics) per [http://www.w3.org/TR/REC-png-multi.html]) format for grey-scale or color images, or PDF (Portable Document Format—Image). TIFF, PDF, or PNG images will be stored at 300 dpi (dots per inch) or greater, grey scale images at 150 dpi or greater with eight bits of tonal depth, and color images at 150 dpi or greater with 24 bits of color depth. Images found on participant machines will be stored as single image-per-page to facilitate retrieval of no more than a single page, or alternatively, images may be stored in an image-per-document format if software is incorporated in the web server that allows image-per-page representation and delivery.
            (v) The participants shall programmatically link, preferably via hyperlink or some other automated process, the bibliographic header record with the text or image file it represents. Each participant's system must afford the LSN software enough information to allow a text or image file to be identified to the bibliographic data that describes it.
            (vi) To facilitate data exchange, participants shall adhere to hardware and software standards, including, but not limited to:
            (A) Network access must be HTTP/1.1 [http://www.faqs.org/rfcs/rfc2068.html] over TCP (Transmission Control Protocol, [http://www.faqs.org/rfcs/rfc793.html]) over IP (Internet Protocol, [http://www.faqs.org/rfcs/rfc791.html]).

            (B) Associating server names with IP addresses must follow the DNS (Domain Name System), [http://www.faqs.org/rfcs/rfc1034.html] and [http://www.faqs.org/rfcs/rfc1035.html].
            (C) Web page construction must be HTML [http://www.w3.org/TR/REC-html40/].

            (D) Electronic mail (e-mail) exchange between e-mail servers must be SMTP (Simple Mail Transport Protocol, [http://www.faqs.org/rfcs/rfc821.html]).
            (E) Format of an electronic mail message must be per [http://www.faqs.org/rfcs/rfc822.html] optionally extended by MIME (Multipurpose Internet Mail Extensions) per [http://www.faqs.org/rfcs/rfc2045.html]) to accommodate multipurpose e-mail.
            (c) The Licensing Support Network shall be coordinated by the LSN Administrator, who shall be designated before the start of the pre-license application phase. The LSN Administrator shall have the responsibility to—
            (1) Identify technical and policy issues related to implementation of the LSN for LSN Advisory Review Panel and Commission consideration;
            (2) Address the consensus advice of the LSN Advisory Review Panel under paragraph (e)(1) of this section that is consistent with the requirements of this subpart;
            (3) Identify any problems experienced by participants regarding LSN availability, including the availability of individual participant's data, and provide a recommendation to resolve any such problems to the participant(s) and the Pre-License Application Presiding Officer relative to the resolution of any disputes regarding LSN availability, including disputes on the availability of an individual participant's data;
            (4) Identify any problems regarding the integrity of documentary material certified in accordance with § 2.1009(b) by the participants to be in the LSN, and provide a recommendation to resolve any such problems to the participant(s) and the Pre-License Application Presiding Officer relative to the resolution of any disputes regarding the integrity of documentary material;
            (5) Provide periodic reports to the Commission on the status of LSN functionality and operability.
            (6) Evaluate LSN participant compliance with the basic design standards in paragraph (b)(2) of this section, and provide for individual variances from the design standards to accommodate changes in technology or problems identified during initial operability testing of the individual documentary collection websites or the “central LSN site”.
            (7) Issue guidance for LSN participants on how best to comply with the design standards in paragraph (b)(2) of this section.

            (d) The Secretary of the Commission shall reconstitute the LSS Advisory Review Panel as the LSN Advisory Review Panel, composed of the interests currently represented on the LSS Advisory Review Panel. The Secretary of the Commission shall have the authority to appoint additional representatives to the LSN Advisory Review Panel consistent with the requirements of the Federal Advisory Committee Act, 5 U.S.C. app. I, giving particular consideration to potential parties, parties, and interested governmental participants who were not members of the NRC HLW Licensing Support System Advisory Review Panel.
            (e)(1) The LSN Advisory Review Panel shall provide advice to—
            (i) NRC on the fundamental issues of the type of computer system necessary to access the Licensing Support Network effectively under paragraph (b) of this section; and
            (ii) The Secretary of the Commission on the operation and maintenance of the electronic docket established for the HLW geologic repository licensing proceeding under the Commission's Rules of Practice (10 CFR part 2).
            (iii) The LSN Administrator on solutions to improve the functioning of the LSN;
            (2) The responsibilities of the LSN Advisory Review Panel shall include advice on—
            (i) Format standards for providing electronic access to the documentary material certified by each participant to be made available in the LSN to the other parties, interested governmental participants, or potential parties;
            (ii) The procedures and standards for the electronic transmission of filings, orders, and decisions during both the pre-license application phase and the high-level waste licensing proceeding;
            (iii) Other duties as specified in this subpart or as directed by the Secretary of the Commission.
            [63 FR 71739, Dec. 30, 1998, as amended at 66 FR 29466, May 31, 2001]

            § 2.1012
            Compliance.
            (a) If the Department of Energy fails to make its initial certification at least six months prior to tendering the application, upon receipt of the tendered application, notwithstanding the provisions of § 2.101(f)(3), the Director of the NRC's Office of Nuclear Material Safety and Safeguards will not docket the application until at least six months have elapsed from the time of the certification. The Director may determine that the tendered application is not acceptable for docketing under this subpart if the application is not accompanied by an updated certification pursuant to § 2.1009(b), or if the Secretary of the Commission determines that the application is not submitted on optical storage media in a format consistent with NRC regulations and guidance, or for non-compliance with any other requirements identified in this subpart.
            (b)(1) A person, including a potential party given access to the Licensing Support Network under this subpart, may not be granted party status under § 2.309, or status as an interested governmental participant under § 2.315, if it cannot demonstrate substantial and timely compliance with the requirements of § 2.1003 at the time it requests participation in the HLW licensing proceeding under § 2.309 or § 2.315.
            (2) A person denied party status or interested governmental participant status under paragraph (b)(1) of this section may request party status or interested governmental participant status upon a showing of subsequent compliance with the requirements of § 2.1003. Admission of such a party or interested governmental participant under §§ 2.309 or 2.315, respectively, is conditioned on accepting the status of the proceeding at the time of admission.
            (c) The Presiding Officer shall not make a finding of substantial and timely compliance pursuant to paragraph (b) of this section for any person who is not in compliance with all applicable orders of the Pre-License Application Presiding Officer designated pursuant to § 2.1010.
            [54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7796, Feb. 26, 1991; 63 FR 71739, Dec. 30, 1998; 66 FR 29466, May 31, 2001; 69 FR 2265, Jan. 14, 2004; 69 FR 32848, June 14, 2004]

            § 2.1013
            Use of the electronic docket during the proceeding.

            (a)(1) As specified in § 2.303, the Secretary of the Commission will maintain the official docket of the proceeding on the application for construction authorization for a high-level radioactive waste repository at a geologic repository operations area under parts 60 or 63 of this chapter, and for applications for a license to receive and possess high level radioactive waste at a geologic repository operations area under parts 60 or 63 of this Chapter.
            (2) The Secretary of the Commission will establish an electronic docket to contain the official record materials of the high-level radioactive waste repository licensing proceeding in searchable full text, or, for material that is not suitable for entry in searchable full text, by header and image, as appropriate.
            (b) Absent good cause, all exhibits tendered during the hearing must have been made available to the parties in electronic form before the commencement of that portion of the hearing in which the exhibit will be offered. The electronic docket will contain a list of all exhibits, showing where in the transcript each was marked for identification and where it was received into evidence or rejected. For any hearing sessions recorded stenographically or by other means, transcripts will be entered into the electronic docket on a daily basis in order to afford next-day availability at the hearing. However, for any hearing sessions recorded on videotape or other video medium, if a copy of the video recording is made available to all parties on a daily basis that affords next-day availability at the hearing, a transcript of the session prepared from the video recording will be entered into the electronic docket within twenty-four (24) hours of the time the transcript is tendered to the electronic docket by the transcription service.
            (c)(1) All filings in the adjudicatory proceeding on the application for a high-level radioactive waste geologic repository under part 60 or 63 of this chapter shall be transmitted by the submitter to the Presiding Officer, parties, and Secretary of the Commission, according to the following requirements—
            (i) “Simple documents” must be transmitted electronically via EIE;
            (ii) “Large documents” must be transmitted electronically in multiple transmissions of 50 megabytes or less each via EIE;
            (iii) “Complex documents”:
            (A) Those portions that can be electronically submitted through the EIE, in 50 MB or less segments, must be transmitted electronically, along with a transmittal letter; and
            (B) Those portions that are not capable of being transmitted electronically must be submitted on optical storage media which must also include those portions of the document that had been or will be transmitted electronically.
            (iv) Electronic submissions must have the following resolution—
            (A) Electronic submissions of files created after January 1, 2004 must have 300 dots per inch (dpi) as the minimum resolution for bi-tonal, color, and grayscale, except in limited circumstances where submitters may need to use an image scanned before January 1, 2004, in a document created after January 1, 2004, or the scanning process for a large, one-page image may not successfully complete at the 300 dpi standard resolution.
            (B) Electronic submissions of files created before January 1, 2004, or electronic submissions created after January 1, 2004, which cannot meet the 300 dpi standard for color and grayscale, must meet the standard for documents placed on LSN participant Web sites in § 2.1011(b)(2)(iv) of this subpart, which is 150 dpi for color and grayscale documents and 300 dpi for bi-tonal documents.
            (v) Electronic submissions must be generated in the appropriate PDF output format by using:
            (A) PDF—Formatted Text and Graphics for textual documents converted from native applications;
            (B) PDF—Searchable Image (Exact) for textual documents converted from scanned documents; and
            (C) PDF—Image Only for graphic-, image-, and forms-oriented documents. In addition, Tagged Image File Format (TIFF) images and the results of spreadsheet applications must to be converted to PDF, except in those rare instances where PDF conversion is not practicable.

            (vi) Electronic submissions must not rely on hyperlinks to other documents or Web sites for completeness or access except for hyperlinks that link to material within the same PDF file. If the submittal contains hyperlinks to other documents or Web sites, then it must include a disclaimer to the effect that the hyperlinks may be inoperable or are not essential to the use of the filing. Information contained in hyperlinks to a Web site on the Internet or to another PDF file, that is necessary for the completeness of a filing, must be submitted in its entirety in the filing or as an attachment to the filing.
            (vii) All electronic submissions must be free of author-imposed security restrictions.
            (2) Filings required to be served shall be served upon either the parties and interested governmental participants, or their designated representatives. When a party or interested governmental participant has appeared by attorney, service must be made upon the attorney of record.
            (3) Service upon a party or interested governmental participant is completed when the sender receives electronic acknowledgment (“delivery receipt”) that the electronic submission has been placed in the recipient's electronic mailbox.
            (4) Proof of service, stating the name and address of the person on whom served and the manner and date of service, shall be shown for each document filed, by—
            (i) Electronic acknowledgment (“delivery receipt”);
            (ii) The affidavit of the person making the service; or
            (iii) The certificate of counsel.
            (5) All Presiding Officer and Commission issuances and orders will be transmitted electronically to the parties and interested governmental participants.
            (d) Online access to the electronic docket, including a Protective Order File if authorized by a Presiding Officer, shall be provided to the Presiding Officer, the representatives of the parties and interested governmental participants, and the witnesses while testifying, for use during the hearing. Use of paper copy and other images will also be permitted at the hearing.
            [63 FR 71739, Dec. 30, 1998, as amended at 66 FR 55788, Nov. 2, 2001; 69 FR 2265, Jan. 14, 2004; 69 FR 32849, June 14, 2004]

            § 2.1015
            Appeals.
            (a) No appeals from any Pre-License Application Presiding Officer or Presiding Officer order or decision issued under this subpart are permitted, except as prescribed in paragraphs (b), (c), and (d) of this section.
            (b) A notice of appeal from a Pre-License Application presiding officer order issued under § 2.1010, a presiding officer prehearing conference order issued under § 2.1021, a presiding officer order granting or denying a motion for summary disposition issued in accordance with § 2.1025, or a presiding officer order granting or denying a petition to amend one or more contentions under § 2.309, must be filed with the Commission no later than ten (10) days after service of the order. A supporting brief must accompany the notice of appeal. Any other party, interested governmental participant, or potential party may file a brief in opposition to the appeal no later than ten (10) days after service of the appeal.
            (c) Appeals from a Presiding Officer initial decision or partial initial decision must be filed and briefed before the Commission in accordance with the following requirements.
            (1) Notice of appeal. Within ten (10) days after service of an initial decision, any party may take an appeal to the Commission by filing a notice of appeal. The notice shall specify:
            (i) The party taking the appeal; and
            (ii) The decision being appealed.
            (2) Filing appellant's brief. Each appellant shall file a brief supporting its position on appeal within thirty (30) days (40 days if Commission staff is the appellant) after the filing of notice required by paragraph (a) of this section.
            (3) Filing responsive brief. Any party who is not an appellant may file a brief in support of or in opposition to the appeal within thirty (30) days after the period has expired for the filing and service of the brief of all appellants. Commission staff may file a responsive brief within forty (40) days after the period has expired for the filing and service of the briefs of all appellants. A responding party shall file a single responsive brief regardless of the number of appellants' briefs filed.
            (4) Brief content. A brief in excess of ten (10) pages must contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes, regulations, and other authorities cited, with references to the pages of the brief where they are cited.
            (i) An appellant's brief must clearly identify the errors of fact or law that are the subject of the appeal. An intervenor-appellant's brief must be confined to issues which the intervenor-appellant placed in controversy or sought to place in controversy in the proceeding. For each issue appealed, the precise portion of the record relied upon in support of the assertion of error must also be provided.
            (ii) Each responsive brief must contain a reference to the precise portion of the record which supports each factual assertion made.
            (5) Brief length. A party shall not file a brief in excess of seventy (70) pages in length, exclusive of pages containing the table of contents, table of citations and any addendum containing statutes, rules, regulations, etc. A party may request an increase of this page limit for good cause. Such a request shall be made by motion submitted at least seven (7) days before the date upon which the brief is due for filing and shall specify the enlargement requested.
            (6) Certificate of service. All documents filed under this section must be accompanied by a certificate reflecting service upon all other parties to the proceeding.
            (7) Failure to comply. A brief which in form or content is not in substantial compliance with the provisions of this section may be stricken, either on motion of a party or by the Commission on its own initiative.
            (d) When, in the judgment of a Pre-License Application presiding officer or presiding officer, prompt appellate review of an order not immediately appealable under paragraph (b) of this section is necessary to prevent detriment to the public interest or unusual delay or expense, the Pre-License Application presiding officer or presiding officer may refer the ruling promptly to the Commission, and shall provide notice of this referral to the parties, interested governmental participants, or potential parties. The parties, interested governmental participants, or potential parties may also request that the Pre-License Application presiding officer or presiding officer certify under § 2.319 rulings not immediately appealable under paragraph (b) of this section.
            (e) Unless otherwise ordered, the filing of an appeal, petition for review, referral, or request for certification of a ruling shall not stay the proceeding or extend the time for the performance of any act.
            [56 FR 7797, Feb. 26, 1991, as amended at 56 FR 29410, June 27, 1991; 69 FR 2265, Jan. 14, 2004]

            § 2.1017
            Computation of time.
            In computing any period of time, the day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period so computed is included unless it is a Saturday, Sunday, or legal holiday at the place where the action or event is to occur, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor holiday. Whenever a party, potential party, or interested governmental participant, has the right or is required to do some act within a prescribed period after the service of a notice or other document upon it, one day shall be added to the prescribed period. If the electronic docket is unavailable for more than four access hours of any day that would be counted in the computation of time, that day will not be counted in the computation of time.
            [63 FR 71740, Dec. 30, 1998]

            § 2.1018
            Discovery.
            (a)(1) Parties, potential parties, and interested governmental participants in the high-level waste licensing proceeding may obtain discovery by one or more of the following methods:
            (i) Access to the documentary material made available pursuant to § 2.1003;
            (ii) Entry upon land for inspection, access to raw data, or other purposes pursuant to § 2.1020;

            (iii) Access to, or the production of, copies of documentary material for which bibliographic headers only have been submitted pursuant to § 2.1003(a);

            (iv) Depositions upon oral examination pursuant to § 2.1019;
            (v) Requests for admissions pursuant to § 2.708;
            (vi) Informal requests for information not made electronically available, such as the names of witnesses and the subjects they plan to address; and
            (vii) Interrogatories and depositions upon written questions, as provided in paragraph (a)(2) of this section.
            (2) Interrogatories and depositions upon written questions may be authorized by order of the discovery master appointed under paragraph (g) of this section, or if no discovery master has been appointed, by order of the Presiding Officer, in the event that the parties are unable, after informal good faith efforts, to resolve a dispute in a timely fashion concerning the production of information.
            (b)(1) Parties, potential parties, and interested governmental participants, pursuant to the methods set forth in paragraph (a) of this section, may obtain discovery regarding any matter, not privileged, which is relevant to the licensing of the likely candidate site for a geologic repository, whether it relates to the claim or defense of the person seeking discovery or to the claim or defense of any other person. Except for discovery pursuant to §§ 2.1018(a)(2) and 2.1019 of this subpart, all other discovery shall begin during the pre-license application phase. Discovery pursuant to §§ 2.1018(a)(2) and 2.1019 of this subpart shall begin after the issuance of the first pre-hearing conference order under § 2.1021 of this subpart, and shall be limited to the issues defined in that order or subsequent amendments to the order. It is not ground for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
            (2) A party, potential party, or interested governmental participant may obtain discovery of documentary material otherwise discoverable under paragraph (b)(1) of this section and prepared in anticipation of, or for the hearing by, or for another party's, potential party's, or interested governmental participant's representative (including its attorney, surety, indemnitor, insurer, or similar agent) only upon a showing that the party, potential party, or interested governmental participant seeking discovery has substantial need of the materials in the preparation of its case and that it is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of these materials when the required showing has been made, the Presiding Officer shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party, potential party, or interested governmental participant concerning the proceeding.
            (c)(1) Upon motion by a party, potential party, interested governmental participant, or the person from whom discovery is sought, and for good cause shown, the presiding officer may make any order that justice requires to protect a party, potential party, interested governmental participant, or other person from annoyance, embarrassment, oppression, or undue burden, delay, or expense, including one or more of the following:
            (i) That the discovery not be had;
            (ii) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
            (iii) That the discovery may be had only by a method of discovery other than that selected by the party, potential party, or interested governmental participant seeking discovery;
            (iv) That certain matters not be inquired into, or that the scope of discovery be limited to certain matters;
            (v) That discovery be conducted with no one present except persons designated by the presiding officer;
            (vi) That, subject to the provisions of § 2.390 of this part, a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; or
            (vii) That studies and evaluations not be prepared.

            (2) If the motion for a protective order is denied in whole or in part, the presiding officer may, on such terms and conditions as are just, order that any party, potential party, interested governmental participant or other person provide or permit discovery.
            (d) Except as provided in paragraph (b) of this section, and unless the Presiding Officer upon motion, for the convenience of parties, potential parties, interested governmental participants, and witnesses and in the interest of justice, orders otherwise, methods of discovery may be used in any sequence, and the fact that a party, potential party, or interested governmental participant is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's, potential party's, or interested governmental participant's discovery.
            (e) A party, potential party, or interested governmental participant who has made available in electronic form all material relevant to any discovery request or who has responded to a request for discovery with a response that was complete when made is under no duty to supplement its response to include information thereafter acquired, except as follows:
            (1) To the extent that written interrogatories are authorized pursuant to paragraph (a)(2) of this section, a party or interested governmental participant is under a duty to seasonably supplement its response to any question directly addressed to (i) the identity and location of persons having knowledge of discoverable matters, and (ii) the identity of each person expected to be called as an expert witness at the hearing, the subject matter on which the witness is expected to testify, and the substance of the witness' testimony.
            (2) A party, potential party, or interested governmental participant is under a duty seasonably to amend a prior response if it obtains information upon the basis of which (i) it knows that the response was incorrect when made, or (ii) it knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
            (3) A duty to supplement responses may be imposed by order of the Presiding Officer or agreement of the parties, potential parties, and interested governmental participants.
            (f)(1) If a deponent of a party, potential party, or interested governmental participant upon whom a request for discovery is served fails to respond or objects to the request, or any part thereof, the party, potential party, or interested governmental participant submitting the request or taking the deposition may move the Presiding Officer, within five days after the date of the response or after failure to respond to the request, for an order compelling a response in accordance with the request. The motion shall set forth the nature of the questions or the request, the response or objection of the party, potential party, interested governmental participant, or other person upon whom the request was served, and arguments in support of the motion. For purposes of this paragraph, an evasive or incomplete answer or response shall be treated as a failure to answer or respond. Failure to answer or respond shall not be excused on the ground that the discovery sought is objectionable unless the person, party, potential party, or interested governmental participant failing to answer or respond has applied for a protective order pursuant to paragraph (c) of this section.
            (2) In ruling on a motion made pursuant to this section, the Presiding Officer may make such a protective order as it is authorized to make on a motion made pursuant to paragraph (c) of this section.
            (3) An independent request for issuance of a subpoena may be directed to a nonparty for production of documents. This section does not apply to requests for the testimony of the NRC regulatory staff under § 2.709.
            (g) The presiding officer, under § 2.322, may appoint a discovery master to resolve disputes between parties concerning informal requests for information as provided in paragraphs (a)(1) and (a)(2) of this section.
            (h) Discovery under this section of documentary material including Safeguards Information referred to in Sections 147 and 181 of the Atomic Energy Act of 1954, as amended, will be according to the provisions in § 2.1010(b)(6)(i) through (b)(6)(vi).
            [54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 63 FR 71740, Dec. 30, 1998; 69 FR 2266, Jan. 14, 2004; 73 FR 63570, Oct. 24, 2008]

            § 2.1019
            Depositions.
            (a) Any party or interested governmental participant desiring to take the testimony of any person by deposition on oral examination shall, without leave of the Commission or the Presiding Officer, give reasonable notice in writing to every other party and interested governmental participant, to the person to be examined, and to the Presiding Officer of the proposed time and place of taking the deposition; the name and address of each person to be examined, if known, or if the name is not known, a general description sufficient to identify him or her or the class or group to which he or she belongs, the matters upon which each person will be examined and the name or descriptive title and address of the officer before whom the deposition is to be taken.
            (b) Within the United States, a deposition may be taken before any officer authorized to administer oaths by the laws of the United States or of the place where the examination is held. Outside of the United States, a deposition may be taken before a secretary of an embassy or legation, a consul general, vice consul or consular agent of the United States, or a person authorized to administer oaths designated by the Commission. Depositions may be conducted by telephone or by video teleconference at the option of the party or interested governmental participant taking the deposition.
            (c) The deponent shall be sworn or shall affirm before any questions are put to him or her. Examination and cross-examination shall proceed as at a hearing. Each question propounded shall be recorded and the answer taken down in the words of the witness. Objections on questions of evidence shall be noted in short form without the arguments. The officer shall not decide on the competency, materiality, or relevancy of evidence but shall record the evidence subject to objection. Objections on questions of evidence not made before the officer shall not be deemed waived unless the ground of the objection is one which might have been obviated or removed if presented at that time.
            (d) When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and signature unless the deponent is ill or cannot be found or refuses to sign. The officer shall certify the deposition or, if the deposition is not signed by the deponent, shall certify the reasons for the failure to sign, and shall promptly transmit an electronic copy of the deposition to the Secretary of the Commission for entry into the electronic docket.
            (e) Where the deposition is to be taken on written questions as authorized under § 2.1018(a)(2), the party or interested governmental participant taking the deposition shall electronically serve a copy of the questions, showing each question separately and consecutively numbered, on every other party and interested governmental participant with a notice stating the name and address of the person who is to answer them, and the name, description, title, and address of the officer before whom they are to be asked. Within ten days after service, any other party or interested governmental participant may serve cross-questions. The questions, cross-questions, and answers shall be recorded and signed, and the deposition certified, returned, and transmitted in electronic form to the Secretary of the Commission for entry into the electronic docket as in the case of a deposition on oral examination.
            (f) A deposition will not become a part of the evidentiary record in the hearing unless received in evidence. If only part of a deposition is offered in evidence by a party or interested governmental participant, any other party or interested governmental participant may introduce any other parts. A party or interested governmental participant shall not be deemed to make a person its own witness for any purpose by taking his or her deposition.
            (g) A deponent whose deposition is taken and the officer taking a deposition shall be entitled to the same fees as are paid for like services in the district courts of the United States, to be paid by the party or interested governmental participant at whose instance the deposition is taken.

            (h) The deponent may be accompanied, represented, and advised by legal counsel.

            (i)(1) After receiving written notice of the deposition under paragraph (a) or paragraph (e) of this section, and ten days before the scheduled date of the deposition, the deponent shall submit an electronic index of all documents in his or her possession, relevant to the subject matter of the deposition, including the categories of documents set forth in paragraph (i)(2) of this section, to all parties and interested governmental participants. The index shall identify those records which have already been made available electronically. All documents that are not identical to documents already made available electronically, whether by reason of subsequent modification or by the addition of notations, shall be treated as separate documents.
            (2) The following material is excluded from the initial requirements of § 2.1003 to be made available electronically, but is subject to derivative discovery under paragraph (i)(1) of this section—
            (i) Personal records;
            (ii) Travel vouchers;
            (iii) Speeches;
            (iv) Preliminary drafts;
            (v) Marginalia.
            (3) Subject to paragraph (i)(6) of this section, any party or interested governmental participant may request from the deponent a paper copy of any or all of the documents on the index that have not already been provided electronically.
            (4) Subject to paragraph (i)(6) of this section, the deponent shall bring a paper copy of all documents on the index that the deposing party or interested governmental participant requests that have not already been provided electronically to an oral deposition conducted pursuant to paragraph (a) of this section, or in the case of a deposition taken on written questions pursuant to paragraph (e) of this section, shall submit such documents with the certified deposition.
            (5) Subject to paragraph (i)(6) of this section, a party or interested governmental participant may request that any or all documents on the index that have not already been provided electronically, and on which it intends to rely at hearing, be made electronically available by the deponent.
            (6) The deposing party or interested governmental participant shall assume the responsibility for the obligations set forth in paragraphs (i)(1), (i)(3), (i)(4), and (i)(5) of this section when deposing someone other than a party or interested governmental participant.
            [54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 63 FR 71740, Dec. 30, 1998; 69 FR 2266, Jan. 14, 2004]

            § 2.1020
            Entry upon land for inspection.
            (a) Any party, potential party, or interested governmental participant may serve on any other party, potential party, or interested governmental participant a request to permit entry upon designated land or other property in the possession or control of the party, potential party, or interested governmental participant upon whom the request is served for the purpose of access to raw data, inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of § 2.1018 of this subpart.
            (b) The request may be served on any party, potential party, or interested governmental participant without leave of the Commission or the Presiding Officer.
            (c) The request shall describe with reasonable particularity the land or other property to be inspected either by individual item or by category. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.

            (d) The party, potential party, or interested governmental participant upon whom the request is served shall serve on the party, potential party, or interested governmental participant submitting the request a written response within ten days after the service of the request. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which case the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified.
            [54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991]

            § 2.1021
            First prehearing conference.
            (a) In any proceeding involving an application for a construction authorization for a HLW repository at a geologic repository operations area under parts 60 or 63 of this chapter, or an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to parts 60 or 63 of this chapter, the Commission or the presiding officer will direct the parties, interested governmental participants and any petitioners for intervention, or their counsel, to appear at a specified time and place, within seventy days after the notice of hearing is published, or such other time as the Commission or the presiding officer may deem appropriate, for a conference to:
            (1) Permit identification of the key issues in the proceeding;
            (2) Take any steps necessary for further identification of the issues;
            (3) Consider all intervention petitions to allow the Presiding Officer to make such preliminary or final determination as to the parties and interested governmental participants, as may be appropriate;
            (4) Establish a schedule for further actions in the proceeding; and
            (5) Establish a discovery schedule for the proceeding taking into account the objective of meeting the three year time schedule specified in section 114(d) of the Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C. 10134(d).
            (b) The Presiding Officer may order any further formal and informal conferences among the parties and interested governmental participants including teleconferences, to the extent that it considers that such a conference would expedite the proceeding.
            (c) A prehearing conference held pursuant to this section shall be stenographically reported.
            (d) The Presiding Officer shall enter an order which recites the action taken at the conference, the schedule for further actions in the proceeding, and any agreements by the parties, and which identifies the key issues in the proceeding, makes a preliminary or final determination as to the parties and interested governmental participants in the proceeding, and provides for the submission of status reports on discovery.
            [54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 66 FR 55788, Nov. 2, 2001; 69 FR 2266, Jan. 14, 2004]

            § 2.1022
            Second prehearing conference.
            (a) The Commission or the presiding officer in a proceeding on either an application for construction authorization for a high-level radioactive waste repository at a geologic repository operations area under parts 60 or 63 of this chapter, or an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area under parts 60 or 63 of this chapter, shall direct the parties, interested governmental participants, or their counsel to appear at a specified time and place not later than thirty days after the Safety Evaluation Report is issued by the NRC staff for a conference to consider:
            (1) Any amended contentions submitted, which must be reviewed under the criteria in § 2.309(c) of this part;
            (2) Simplification, clarification, and specification of the issues;
            (3) The obtaining of stipulations and admissions of fact and of the contents and authenticity of documents to avoid unnecessary proof;
            (4) Identification of witnesses and the limitation of the number of expert witnesses, and other steps to expedite the presentation of evidence;
            (5) The setting of a hearing schedule;
            (6) Establishing a discovery schedule for the proceeding taking into account the objective of meeting the three year time schedule specified in section 114(d) of the Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C. 10134(d); and
            (7) Such other matters as may aid in the orderly disposition of the proceeding.
            (b) A prehearing conference held pursuant to this section shall be stenographically reported.

            (c) The Presiding Officer shall enter an order which recites the action taken at the conference and the agreements by the parties, limits the issues or defines the matters in controversy to be determined in the proceeding, sets a discovery schedule, and sets the hearing schedule.
            [54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 69 FR 2266, Jan. 14, 2004]

            § 2.1023
            Immediate effectiveness.
            (a) Pending review and final decision by the Commission, an initial decision resolving all issues before the presiding officer in favor of issuance or amendment of either an authorization to construct a high-level radioactive waste repository at a geological repository operations area under parts 60 or 63 of this chapter, or a license to receive and possess high-level radioactive waste at a geologic repository operations area under parts 60 or 63 of this chapter will be immediately effective upon issuance except:
            (1) As provided in any order issued in accordance with § 2.342 that stays the effectiveness of an initial decision; or
            (2) As otherwise provided by the Commission in special circumstances.
            (b) The Director of Nuclear Material Safety and Safeguards, notwithstanding the filing or pendency of an appeal or a petition for review pursuant to § 2.1015 of this subpart, promptly shall issue a construction authorization or a license to receive and possess high-level radioactive waste at a geologic respository operations area, or amendments thereto, following an initial decision resolving all issues before the Presiding Officer in favor of the licensing action, upon making the appropriate licensing findings, except—
            (1) As provided in paragraph (c) of this section; or
            (2) As provided in any order issued in accordance with § 2.342 of this part that stays the effectiveness of an initial decision; or
            (3) As otherwise provided by the Commission in special circumstances.
            (c)(1) Before the Director of Nuclear Material Safety and Safeguards may issue a construction authorization or a license to receive and possess waste at a geologic repository operations area in accordance with paragraph (b) of this section, the Commission, in the exercise of its supervisory authority over agency proceedings, shall undertake and complete a supervisory examination of those issues contested in the proceeding before the Presiding Officer to consider whether there is any significant basis for doubting that the facility will be constructed or operated with adequate protection of the public health and safety, and whether the Commission should take action to suspend or to otherwise condition the effectiveness of a Presiding Officer decision that resolves contested issues in a proceeding in favor of issuing a construction authorization or a license to receive and possess high-level radioactive waste at a geologic repository operations area. This supervisory examination is not part of the adjudicatory proceeding. The Commission shall notify the Director in writing when its supervisory examination conducted in accordance with this paragraph has been completed.
            (2) Before the Director of Nuclear Material Safety and Safeguards issues a construction authorization or a license to receive and possess high-level radioactive waste at a geologic repository operations area, the Commission shall review those issues that have not been contested in the proceeding before the Presiding Officer but about which the Director must make appropriate findings prior to the issuance of such a license. The Director shall issue a construction authorization or a license to receive and possess high-level radioactive waste at a geologic repository operations area only after written notification from the Commission of its completion of its review under this paragraph and of its determination that it is appropriate for the Director to issue such a construction authorization or license. This Commission review of uncontested issues is not part of the adjudicatory proceeding.

            (3) No suspension of the effectiveness of a Presiding Officer's initial decision or postponement of the Director's issuance of a construction authorization or license that results from a Commission supervisory examination of contested issues under paragraph (c)(1) of this section or a review of uncontested issues under paragraph (c)(2) of this section will be entered except in writing with a statement of the reasons. Such suspension or postponement will be limited to such period as is necessary for the Commission to resolve the matters at issue. If the supervisory examination results in a suspension of the effectiveness of the Presiding Officer's initial decision under paragraph (c)(1) of this section, the Commission will take review of the decision sua sponte and further proceedings relative to the contested matters at issue will be in accordance with procedures for participation by the DOE, the NRC staff, or other parties and interested governmental participants to the Presiding Officer proceeding established by the Commission in its written statement of reasons. If a postponement results from a review under paragraph (c)(2) of this section, comments on the uncontested matters at issue may be filed by the DOE within ten days of service of the Commission's written statement.
            [54 FR 14944, Apr. 14, 1989, as amended at 56 FR 7797, Feb. 26, 1991; 66 FR 55789, Nov. 2, 2001; 69 FR 2266, Jan. 14, 2004; 79 FR 66601, Nov. 10, 2014]

            § 2.1025
            Authority of the Presiding Officer to dispose of certain issues on the pleadings.
            (a) Any party may move, with or without supporting affidavits, for a decision by the Presiding Officer in that party's favor as to all or any part of the matters involved in the proceeding. The moving party shall annex to the motion a separate, short, and concise statement of the material facts as to which the moving party contends that there is no genuine issue to be heard. Motions may be filed at any time. Any other party may file an answer supporting or opposing the motion, with or without affidavits, within twenty (20) days after service of the motion. The party shall annex to any answer opposing the motion a separate, short, and concise, statement of the material facts as to which it is contended there exists a genuine issue to be heard. All material facts set forth in the statement to be filed by the moving party will be deemed to be admitted unless controverted by the statement required to be filed by the opposing party. The opposing party may, within ten (10) days after service, respond in writing to new facts and arguments presented in any statement filed in support of the motion. No further supporting statements or responses thereto may be entertained. The Presiding Officer may dismiss summarily or hold in abeyance motions filed shortly before the hearing commences or during the hearing if the other parties or the Presiding Officer would be required to divert substantial resources from the hearing in order to respond adequately to the motion.
            (b) Affidavits must set forth those facts that would be admissible in evidence and show affirmatively that the affiant is competent to testify to the matters stated therein. The Presiding Officer may permit affidavits to be supplemented or opposed by further affidavits. When a motion for summary disposition is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of its answer; its answer by affidavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue of fact. If no such answer is filed, the decision sought, if appropriate, must be rendered.
            (c) The Presiding Officer shall render the decision sought if the filings in the proceeding show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law. However, in any proceeding involving a construction authorization for a geologic repository operations area, the procedure described in this section may be used only for the determination of specific subordinate issues and may not be used to determine the ultimate issue as to whether the authorization must be issued.
            [56 FR 7798, Feb. 26, 1991]

            § 2.1026
            Schedule.
            (a) Subject to paragraphs (b) and (c) of this section, the Presiding Officer shall adhere to the schedule set forth in appendix D of this part.

            (b)(1) Pursuant to § 2.307, the presiding officer may approve extensions of no more than fifteen (15) days beyond any required time set forth in this subpart for a filing by a party to the proceeding. Except in the case of exceptional and unforseen circumstances, requests for extensions of more than fifteen (15) days must be filed no later than five (5) days in advance of the required time set forth in this subpart for a filing by a party to the proceeding.
            (2) Extensions beyond 15 days must be referred to the Commission. If the Commission does not disapprove the extension within 10 days of receiving the request, the extension will be effective. If the Commission disapproves the extension, the date which was the subject of the extension request will be set for 5 days after the Commission's disapproval action.
            (c)(1) The Presiding Officer may delay the issuance of an order up to thirty days beyond the time set forth for the issuance in appendix D.
            (2) If the Presiding Officer anticipates that the issuance of an order will not occur until after the thirty day extension specified in paragraph (c)(1) of this section, the Presiding Officer shall notify the Commission at least ten days in advance of the scheduled date for the milestone and provide a justification for the delay.
            [56 FR 7798, Feb. 26, 1991, as amended at 69 FR 2266, Jan. 14, 2004]

            § 2.1027
            Sua sponte.
            In any initial decision in a proceeding on an application for a construction authorization for a high-level radioactive waste repository at a geologic repository operations area under parts 60 or 63 of this chapter, or an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area under parts 60 or 63 of this chapter, the Presiding Officer, other than the Commission, shall make findings of fact and conclusions of law on, and otherwise give consideration to, only those matters put into controversy by the parties and determined to be litigable issues in the proceeding.
            [69 FR 2266, Jan. 14, 2004]

          Subpart K—Hybrid Hearing Procedures for Expansion of Spent Nuclear Fuel Storage Capacity at Civilian Nuclear Power Reactors

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

            § 2.1101
            Purpose.
            The regulations in this subpart establish hybrid hearing procedures, as authorized by section 134 of the Nuclear Waste Policy Act of 1982 (96 Stat. 2230), to be used at the request of any party in certain contested proceedings on applications for a license or license amendment to expand the spent nuclear fuel storage capacity at the site of a civilian nuclear power plant. These procedures are intended to encourage and expedite onsite expansion of spent nuclear fuel storage capacity.

            § 2.1103
            Scope of subpart K.

            The provisions of this subpart, together with subpart C and applicable provisions of subparts G and L of this part, govern all adjudicatory proceedings on applications filed after January 7, 1983, for a license or license amendment under part 50 of this chapter, to expand the spent fuel storage capacity at the site of a civilian nuclear power plant, through the use of high density fuel storage racks, fuel rod compaction, the transshipment of spent nuclear fuel to another civilian nuclear power reactor within the same utility system, the construction of additional spent nuclear fuel pool capacity or dry storage capacity, or by other means. This subpart also applies to proceedings on applications for a license under part 72 of this chapter to store spent nuclear fuel in an independent spent fuel storage installation located at the site of a civilian nuclear power reactor. This subpart shall not apply to the first application for a license or license amendment to expand the spent fuel storage capacity at a particular site through the use of a new technology not previously approved by the Commission for use at any other nuclear power plant. This subpart shall not apply to proceedings on applications for transfer of a license issued under part 72 of this chapter. Subpart M of this part applies to license transfer proceedings.
            [69 FR 2266, Jan. 14, 2004]

            § 2.1105
            Definitions.
            As used in this part:
            (a) Civilian nuclear power reactor means a civilian nuclear power plant required to be licensed as a utilization facility under section 103 or 104(b) of the Atomic Energy Act of 1954.
            (b) Spent nuclear fuel means fuel that has been withdrawn from a nuclear reactor following irradiation, the constituent elements of which have not been separated by reprocessing.

            § 2.1107
            Notice of proposed action.

            In connection with each application filed after January 7, 1983, for a license or an amendment to a license to expand the spent nuclear fuel storage capacity at the site of a civilian nuclear power plant, for which the Commission has not found that a hearing is required in the public interest, for which an adjudicatory hearing has not yet been convened, and for which a notice of proposed action has not yet been published as of the effective date of this subpart, the Commission will, prior to acting thereon, cause to be published in the Federal Register a notice of proposed action in accordance with § 2.105. The notice of proposed action will identify the availability of the hybrid hearing procedures in this subpart, specify that any party may invoke these procedures by filing a timely request for oral argument under § 2.1109, and provide that if a request for oral argument is granted, any hearing held on the application shall be conducted in accordance with the procedures in this subpart.

            § 2.1109
            Requests for oral argument.
            (a)(1) In its request for hearing/petition to intervene filed in accordance with § 2.309 or in the applicant's or the NRC staff's response to a request for a hearing/petition to intervene, any party may invoke the hybrid hearing procedures in this Subpart by requesting an oral argument. If it is determined that a hearing will be held, the presiding officer shall grant a timely request for oral argument.
            (2) The presiding officer may grant an untimely request for oral argument only upon a showing of good cause by the requesting party for failure to file on time and after providing the other parties an opportunity to respond to the untimely request.
            (b) The presiding officer shall issue a written order ruling on any requests for oral argument. If the presiding officer grants a request for oral argument, the order shall include a schedule for discovery and subsequent oral argument with respect to the admitted contentions.
            (c) If no party to the proceeding requests oral argument, or if all untimely requests for oral argument are denied, the presiding officer shall conduct the proceeding in accordance with the subpart under which the proceeding was initially conducted as determined in accordance with § 2.310.
            [50 FR 41670, Oct. 15, 1985, as amended at 69 FR 2267, Jan. 14, 2004]

            § 2.1113
            Oral argument.
            (a) Twenty-five (25) days prior to the date set for oral argument, each party, including the NRC staff, shall submit to the presiding officer a detailed written summary of all the facts, data, and arguments which are known to the party at such time and on which the party proposes to rely at the oral argument either to support or to refute the existence of a genuine and substantial dispute of fact. Each party shall also submit all supporting facts and data in the form of sworn written testimony or other sworn written submission. Each party's written summary and supporting information shall be simultaneously served on all other parties to the proceeding.

            (b) Ten (10) days prior to the date set for oral argument, each party, including the NRC staff, may submit to the presiding officer a reply limited to addressing whether the written summaries, facts, data, and arguments filed under paragraph (a) of this section support or refute the existence of a genuine and substantial dispute of fact. Each party's reply shall be simultaneously served on all other parties to the proceeding.

            (c) Only facts and data in the form of sworn written testimony or other sworn written submission may be relied on by the parties during oral argument, and the presiding officer shall consider those facts and data only if they are submitted in that form.
            [50 FR 41670, Oct. 15, 1985, as amended at 69 FR 2267, Jan. 14, 2004]

            § 2.1115
            Designation of issues for adjudicatory hearing.
            (a) After due consideration of the oral presentation and the written facts and data submitted by the parties and relied on at the oral argument, the presiding officer shall promptly by written order:
            (1) Designate any disputed issues of fact, together with any remaining issues of law, for resolution in an adjudicatory hearing; and
            (2) Dispose of any issues of law or fact not designated for resolution in an adjudicatory hearing.
            With regard to each issue designated for resolution in an adjudicatory hearing, the presiding officer shall identify the specific facts that are in genuine and substantial dispute, the reason why the decision of the Commission is likely to depend on the resolution of that dispute, and the reason why an adjudicatory hearing is likely to resolve the dispute. With regard to issues not designated for resolution in an adjudicatory hearing, the presiding officer shall include a brief statement of the reasons for the disposition. If the presiding officer finds that there are no disputed issues of fact or law requiring resolution in an adjudicatory hearing, the presiding officer shall also dismiss the proceeding.
            (b) No issue of law or fact shall be designated for resolution in an adjudicatory hearing unless the presiding officer determines that:
            (1) There is a genuine and substantial dispute of fact which can only be resolved with sufficient accuracy by the introduction of evidence in an adjudicatory hearing; and
            (2) The decision of the Commission is likely to depend in whole or in part on the resolution of that dispute.
            (c) In making a determination under paragraph (b) of this section, the presiding officer shall not consider:
            (1) Any issue relating to the design, construction, or operation of any civilian nuclear power reactor already licensed to operate at the site, or any civilian nuclear power reactor for which a construction permit has been granted at the site, unless the presiding officer determines that any such issue substantially affects the design, construction, or operation of the facility or activity for which a license application, authorization, or amendment to expand the spent nuclear fuel storage capacity is being considered; or
            (2) Any siting or design issue fully considered and decided by the Commission in connection with the issuance of a construction permit or operating license for a civilian nuclear power reactor at that site, unless (i) such issue results from any revision of siting or design criteria by the Commission following such decision; and (ii) the presiding officer determines that such issue substantially affects the design, construction, or operation of the facility or activity for which a license application, authorization, or amendment to expand the spent nuclear fuel storage capacity is being considered.
            (d) The provisions of paragraph (c) of this section shall apply only with respect to licenses, authorizations, or amendments to licenses or authorizations applied for under the Atomic Energy Act of 1954, as amended, before December 31, 2005.
            (e) Unless the presiding officer disposes of all issues and dismisses the proceeding, appeals from the presiding officer's order disposing of issues and designating one or more issues for resolution in an adjudicatory hearing are interlocutory and must await the end of the proceeding.
            [50 FR 41671, Oct. 15, 1985; 50 FR 45398, Oct. 31, 1985]

            § 2.1117
            Burden of proof.
            The applicant bears the ultimate burden of proof (risk of non-persuasion) with respect to the contention in the proceeding. The proponent of the request for an adjudicatory hearing bears the burden of demonstrating under § 2.1115(b) that an adjudicatory hearing should be held.
            [69 FR 2267, Jan. 14, 2004]

            § 2.1119
            Applicability of other sections.
            In proceedings subject to this part, the provisions of subparts A, C, and L of this part are also applicable, except where inconsistent with the provisions of this subpart.
            [69 FR 2267, Jan. 14, 2004]

          Subpart L—Simplified Hearing Procedures for NRC Adjudications

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

            § 2.1200
            Scope of subpart L.
            The provisions of this subpart, together with subpart C of this part, govern all adjudicatory proceedings conducted under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act, and 10 CFR part 2, except for proceedings on the licensing of the construction and operation of a uranium enrichment facility, proceedings on an initial application for construction authorization for a high-level radioactive waste geologic repository at a geologic repository operations area noticed under §§ 2.101(e)(8) or 2.105(a)(5), proceedings on an initial application for a license to receive and possess high-level radioactive waste at a geologic repository operations area, proceedings on enforcement matters unless all parties otherwise agree and request the application of Subpart L procedures, and proceedings for the direct or indirect transfer of control of an NRC license when the transfer requires prior approval of the NRC under the Commission's regulations, governing statutes, or pursuant to a license condition.
            [69 FR 2267, Jan. 14, 2004, as amended at 82 FR 52825, Nov. 15, 2017]

            § 2.1201
            Definitions.
            The definitions of terms contained in § 2.4 apply to this subpart unless a different definition is provided in this subpart.

            § 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:
            (1) An application to construct and/or operate a production or utilization facility (including an application for a limited work authorization under 10 CFR 50.12, or an application for a combined license under subpart C of 10 CFR part 52);
            (2) An application for an early site permit under subpart A of 10 CFR part 52;
            (3) An application for a manufacturing license under subpart F of 10 CFR part 52;
            (4) An application for an amendment to a construction authorization for a high-level radioactive waste repository at a geologic repository operations area falling under either 10 CFR 60.32(c)(1) or 10 CFR part 63;
            (5) An application for the construction and operation of an independent spent fuel storage installation (ISFSI) located at a site other than a reactor site or a monitored retrievable storage installation (MRS) under 10 CFR part 72; and
            (6) Production or utilization facility licensing actions that involve significant hazards considerations as defined in 10 CFR 50.92.
            (b)(1) The NRC staff is not required to be a party to a proceeding under this subpart, except where:
            (i) The proceeding involves an application denied by the NRC staff or an enforcement action proposed by the NRC staff; or

            (ii) The presiding officer determines that the resolution of any issue in the proceeding would be aided materially by the NRC staff's participation in the proceeding as a party and orders the staff to participate as a party for the identified issue. In the event that the presiding officer determines that the NRC staff's participation is necessary, the presiding officer shall issue an order identifying the issue(s) on which the staff is to participate as well as setting forth the basis for the determination that staff participation will materially aid in resolution of the issue(s).
            (2) Within fifteen (15) days of the issuance of the order granting requests for hearing/petitions to intervene and admitting contentions, the NRC staff shall notify the presiding officer and the parties whether it desires to participate as a party, and identify the contentions on which it wishes to participate as a party. If the NRC staff desires to be a party thereafter, the NRC staff shall notify the presiding officer and the parties, identify the contentions on which it wishes to participate as a party, and make the disclosures required by § 2.336(b)(3) through (5) unless accompanied by an affidavit explaining why the disclosures cannot be provided to the parties with the notice.
            (3) Once the NRC staff chooses to participate as a party, it shall have all the rights and responsibilities of a party with respect to the admitted contention/matter in controversy on which the staff chooses to participate.
            [69 FR 2267, Jan. 14, 2004, as amended at 72 FR 49483, Aug. 28, 2007; 77 FR 46598, Aug. 3, 2012]

            § 2.1203
            Hearing file; prohibition on discovery.
            (a)(1) Within thirty (30) days of the issuance of the order granting requests for hearing/petitions to intervene and admitting contentions, the NRC staff shall file in the docket, present to the presiding officer, and make available to the parties to the proceeding a hearing file.

            (2) The hearing file must be made available to the parties either by service of hard copies or by making the file available at the NRC Web site, http://www.nrc.gov.

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

            § 2.1204
            Motions and requests.
            (a) General requirements. In proceedings under this subpart, requirements for motions and requests and responses to them are as specified in § 2.323.
            (b) Requests for cross-examination by the parties. (1) In any oral hearing under this subpart, a party may file a motion with the presiding officer to permit cross-examination by the parties on particular admitted contentions or issues. The motion must be accompanied by a cross-examination plan containing the following information:
            (i) A brief description of the issue or issues on which cross-examination will be conducted;
            (ii) The objective to be achieved by cross-examination; and

            (iii) The proposed line of questions that may logically lead to achieving the objective of the cross-examination.

            (2) The cross-examination plan may be submitted only to the presiding officer and must be kept by the presiding officer in confidence until issuance of the initial decision on the issue being litigated. The presiding officer shall then provide each cross-examination plan to the Commission's Secretary for inclusion in the official record of the proceeding.
            (3) The presiding officer shall allow cross-examination by the parties only if the presiding officer determines that cross-examination by the parties is necessary to ensure the development of an adequate record for decision.

            § 2.1205
            Summary disposition.
            (a) Unless the presiding officer or the Commission directs otherwise, motions for summary disposition may be submitted to the presiding officer by any party no later than 45 days before the commencement of hearing. The motions must be in writing and must include a written explanation of the basis of the motion. The moving party must attach a short and concise statement of material facts for which the moving party contends that there is no genuine issue to be heard. Motions for summary disposition must be served on the parties and the Secretary at the same time that they are submitted to the presiding officer.
            (b) Any other party may serve an answer supporting or opposing the motion within twenty (20) days after service of the motion.
            (c) The presiding officer shall issue a determination on each motion for summary disposition no later than fifteen (15) days before the date scheduled for commencement of hearing. In ruling on motions for summary disposition, the presiding officer shall apply the standards for summary disposition set forth in subpart G of this part.
            [69 FR 2267, Jan. 14, 2004, as amended at 77 FR 46598, Aug. 3, 2012]

            § 2.1206
            Informal hearings.
            Hearings under this subpart will be oral hearings as described in § 2.1207, unless, within fifteen (15) days of the service of the order granting the request for hearing, the parties unanimously agree and file a joint motion requesting a hearing consisting of written submissions. A motion to hold a hearing consisting of written submissions will not be entertained unless there is unanimous consent of the parties.

            § 2.1207
            Process and schedule for submissions and presentations in an oral hearing.
            (a) Unless otherwise limited by this subpart or by the presiding officer, participants in an oral hearing may submit and sponsor in the hearings:
            (1) Initial written statements of position and written testimony with supporting affidavits on the admitted contentions. These materials must be filed on the dates set by the presiding officer.
            (2) Written responses and rebuttal testimony with supporting affidavits directed to the initial statements and testimony of other participants. These materials must be filed within twenty (20) days of the service of the materials submitted under paragraph (a)(1) of this section unless the presiding officer directs otherwise.
            (3)(i) Proposed questions for the presiding officer to consider for propounding to the persons sponsoring the testimony. Unless the presiding officer directs otherwise, these questions must be received by the presiding officer no later than twenty (20) days after the service of the materials submitted under paragraph (a)(1) of this section, unless that date is less than five (5) days before the scheduled commencement of the oral hearing, in which case the questions must be received by the presiding officer no later than five (5) days before the scheduled commencement of the hearing. Proposed questions need not be filed with any other party.

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

            § 2.1208
            Process and schedule for a hearing consisting of written presentations.
            (a) Unless otherwise limited by this subpart or by the presiding officer, participants in a hearing consisting of written presentations may submit:
            (1) Initial written statements of position and written testimony with supporting affidavits on the admitted contentions. These materials must be filed on the dates set by the presiding officer;
            (2) Written responses, rebuttal testimony with supporting affidavits directed to the initial statements and testimony of witnesses and other participants, and proposed written questions for the presiding officer to consider for submission to the persons sponsoring testimony under paragraph (a)(1) of this section. These materials must be filed within twenty (20) days of the service of the materials submitted under paragraph (a)(1) of this section unless the presiding officer directs otherwise;
            (3) Written questions on the written responses and rebuttal testimony submitted under paragraph (a)(2) of this section, which the presiding officer may, in his or her discretion, require the persons offering the written responses and rebuttal testimony to provide responses. These questions must be filed within seven (7) days of service of the materials submitted under paragraph (a)(2) of this section unless the presiding officer directs otherwise; and
            (4) Written concluding statements of position on the contentions. These statements shall be filed within twenty (20) days of the service of written responses to the presiding officer's questions to the participants or, in the absence of questions from the presiding officer, within twenty (20) days of the service of the materials submitted under paragraph (a)(2) of this section unless the presiding officer directs otherwise.
            (b) The presiding officer may formulate and submit written questions to the participants that he or she considers appropriate to develop an adequate record.

            § 2.1209
            Findings of fact and conclusions of law.
            Each party shall file written post-hearing proposed findings of fact and conclusions of law on the contentions addressed in an oral hearing under § 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).
            [77 FR 46598, Aug. 3, 2012]

            § 2.1210
            Initial decision and its effect.
            (a) Unless the Commission directs that the record be certified to it in accordance with paragraph (b) of this section, the presiding officer shall render an initial decision after completion of an informal hearing under this subpart. That initial decision constitutes the final action of the Commission on the contested matter 120 days after the date of issuance, unless:
            (1) Any party files a petition for Commission review in accordance with § 2.1212;
            (2) The Commission, in its discretion, determines that the presiding officer's initial decision is inconsistent with the staff's action as described in the notice required by § 2.1202(a) and that the inconsistency warrants Commission review, in which case the Commission will review the initial decision; or
            (3) The Commission takes review of the decision sua sponte.
            (b) The Commission may direct that the presiding officer certify the record to it without an initial decision and prepare a final decision if the Commission finds that due and timely execution of its functions warrants certification.
            (c) An initial decision must be in writing and must be based only upon information in the record or facts officially noticed. The record must include all information submitted in the proceeding with respect to which all parties have been given reasonable prior notice and an opportunity to comment as provided in §§ 2.1207 or 2.1208. The initial decision must include:
            (1) Findings, conclusions, and rulings, with the reasons or basis for them, on all material issues of fact or law admitted as part of the contentions in the proceeding;
            (2) The appropriate ruling, order, or grant or denial of relief with its effective date;
            (3) The action the NRC staff shall take upon transmittal of the decision to the NRC staff under paragraph (e) of this section, if the initial decision is inconsistent with the NRC staff action as described in the notice required by § 2.1202(a); and
            (4) The time within which a petition for Commission review may be filed, the time within which any answers to a petition for review may be filed, and the date when the decision becomes final in the absence of a petition for Commission review or Commission sua sponte review.
            (d) Pending review and final decision by the Commission, an initial decision resolving all issues before the presiding officer is immediately effective upon issuance except as otherwise provided by this part (e.g., § 2.340) or by the Commission in special circumstances.
            (e) Once an initial decision becomes final, the Secretary shall transmit the decision to the NRC staff for action in accordance with the decision.
            [69 FR 2267, Jan. 14, 2004, as amended at 77 FR 46598, Aug. 3, 2012; 79 FR 66601, Nov. 10, 2014]

            § 2.1212
            Petitions for Commission review of initial decisions.
            Parties may file petitions for review of an initial decision under this subpart in accordance with the procedures set out in § 2.341. Unless otherwise authorized by law, a party to an NRC proceeding must file a petition for Commission review before seeking judicial review of an agency action.

            § 2.1213
            Application for a stay.

            (a) Any application for a stay of the effectiveness of the NRC staff's action on a matter involved in a hearing under this subpart must be filed with the presiding officer within five (5) days of the issuance of the notice of the NRC staff's action under § 2.1202(a) and must be filed and considered in accordance with paragraphs (b), (c) and (d) of this section.

            (b) An application for a stay of the NRC staff's action may not be longer than ten (10) pages, exclusive of affidavits, and must contain:
            (1) A concise summary of the action which is requested to be stayed; and
            (2) A concise statement of the grounds for a stay, with reference to the factors specified in paragraph (d) of this section.
            (c) Within ten (10) days after service of an application for a stay of the NRC staff's action under this section, any party and/or the NRC staff may file an answer supporting or opposing the granting of a stay. Answers may not be longer than ten (10) pages, exclusive of affidavits, and must concisely address the matters in paragraph (b) of this section as appropriate. Further replies to answers will not be entertained.
            (d) In determining whether to grant or deny an application for a stay of the NRC staff's action, the following will be considered:
            (1) Whether the requestor will be irreparably injured unless a stay is granted;
            (2) Whether the requestor has made a strong showing that it is likely to prevail on the merits;
            (3) Whether the granting of a stay would harm other participants; and
            (4) Where the public interest lies.
            (e) Any application for a stay of the effectiveness of the presiding officer's initial decision or action under this subpart shall be filed with the Commission in accordance with § 2.342.
            (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.
            [69 FR 2267, Jan. 14, 2004, as amended at 77 FR 46598, Aug. 3, 2012]

          Subpart M—Procedures for Hearings on License Transfer Applications

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

            § 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.
            [77 FR 46598, Aug. 3, 2012]

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

            (a) The Commission will notice the receipt of each application for direct or indirect transfer of a specific NRC license by placing a copy of the application at the NRC Web site, http://www.nrc.gov.

            (b) The Commission will also publish in the Federal Register a notice of receipt of an application for approval of a license transfer involving 10 CFR part 50 and part 52 licenses, major fuel cycle facility licenses issued under part 70, or part 72 licenses. This notice constitutes the notice required by § 2.105 with respect to all matters related to the application requiring NRC approval.
            (c) Periodic lists of applications received may be obtained upon request addressed to the NRC Public Document Room, US Nuclear Regulatory Commission, Washington, DC 20555-0001.
            [63 FR 66730, Dec. 3, 1998, as amended at 64 FR 48949, Sept. 9, 1999]

            § 2.1302
            Notice of withdrawal of an application.
            The Commission will notice the withdrawal of an application by publishing the notice of withdrawal in the same manner as the notice of receipt of the application was published under § 2.1301.

            § 2.1303
            Availability of documents.

            Unless exempt from disclosure under part 9 of this chapter, the following documents pertaining to each application for a license transfer requiring Commission approval will be placed at the NRC Web site, http://www.nrc.gov, when available:

            (a) The license transfer application and any associated requests;
            (b) Commission correspondence with the applicant or licensee related to the application;
            (c) Federal Register notices;
            (d) The NRC staff Safety Evaluation Report (SER).
            (e) Any NRC staff order which acts on the license transfer application; and
            (f) If a hearing is held, the hearing record and decision.
            [63 FR 66730, Dec. 3, 1998, as amended at 64 FR 48949, Sept. 9, 1999]

            § 2.1305
            Written comments.
            (a) As an alternative to requests for hearings and petitions to intervene, persons may submit written comments regarding license transfer applications. The Commission will consider and, if appropriate, respond to these comments, but these comments do not otherwise constitute part of the decisional record.
            (b) These comments should be submitted within 30 days after public notice of receipt of the application and addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff.
            (c) The Commission will provide the applicant with a copy of the comments. Any response the applicant chooses to make to the comments must be submitted within 10 days of service of the comments on the applicant. Such responses do not constitute part of the decisional record.

            § 2.1308
            Oral hearings.
            Hearings under this subpart will be oral hearings, unless, within 15 days of the service of the notice or order granting the hearing, the parties unanimously agree and file a joint motion requesting a hearing consisting of written comments. No motion to hold a hearing consisting of written comments will be entertained absent consent of all the parties.
            [69 FR 2270, Jan. 14, 2004]

            § 2.1309
            Notice of oral hearing.
            (a) A notice of oral hearing will—
            (1) State the time, place, and issues to be considered;
            (2) Provide names and addresses of participants,
            (3) Specify the time limit for participants and others to indicate whether they wish to present views;
            (4) Specify the schedule for the filing of written testimony, statements of position, proposed questions for the Presiding Officer to consider, and rebuttal testimony consistent with the schedule provisions of § 2.1321.
            (5) Specify that the oral hearing shall commence within 15 days of the date for submittal of rebuttal testimony unless otherwise ordered;
            (6) State any other instructions the Commission deems appropriate;
            (7) If so determined by the NRC staff or otherwise directed by the Commission, direct that the staff participate as a party with respect to some or all issues.
            (b) If the Commission is not the Presiding Officer, the notice of oral hearing will also state:
            (1) When the jurisdiction of the Presiding Officer commences and terminates;
            (2) The powers of the Presiding Officer;
            (3) Instructions to the Presiding Officer to certify promptly the completed hearing record to the Commission without a recommended or preliminary decision.

            § 2.1310
            Notice of hearing consisting of written comments.
            A notice of hearing consisting of written comments will:
            (a) State the issues to be considered;
            (b) Provide the names and addresses of participants;
            (c) Specify the schedule for the filing of written testimony, statements of position, proposed questions for the Presiding Officer to consider for submission to the other parties, and rebuttal testimony, consistent with the schedule provisions of § 2.1321.
            (d) State any other instructions the Commission deems appropriate.

            § 2.1311
            Conditions in a notice or order.
            (a) A notice or order granting a hearing or permitting intervention shall—

            (1) Restrict irrelevant or duplicative testimony; and

            (2) Require common interests to be represented by a single participant.
            (b) If a participant's interests do not extend to all the issues in the hearing, the notice or order may limit her/his participation accordingly.

            § 2.1315
            Generic determination regarding license amendments to reflect transfers.
            (a) Unless otherwise determined by the Commission with regard to a specific application, the Commission has determined that any amendment to the license of a utilization facility or the license of an Independent Spent Fuel Storage Installation which does no more than conform the license to reflect the transfer action, involves respectively, “no significant hazards consideration,” or “no genuine issue as to whether the health and safety of the public will be significantly affected.”
            (b) Where administrative license amendments are necessary to reflect an approved transfer, such amendments will be included in the order that approves the transfer. Any challenge to the administrative license amendment is limited to the question of whether the license amendment accurately reflects the approved transfer.
            [63 FR 66730, Dec. 3, 1998, as amended at 69 FR 2270, Jan. 14, 2004]

            § 2.1316
            Authority and role of NRC staff.
            (a) During the pendency of any hearing under this subpart, consistent with the NRC staff's findings in its Safety Evaluation Report (SER), the staff is expected to promptly issue approval or denial of license transfer requests. Notice of such action shall be promptly transmitted to the Presiding Officer and parties to the proceeding.
            (b) Except as otherwise directed in accordance with § 2.1309(a)(7), the NRC staff is not required to be a party to proceedings under this subpart but will offer into evidence its SER associated with the transfer application and provide one or more sponsoring witnesses.
            (c)(1) Within 15 days of the issuance of the order granting requests for hearing/petitions to intervene and admitting contentions, the NRC staff must notify the presiding officer and the parties whether it desires to participate as a party, and identify the contentions on which it wishes to participate as a party. If the NRC staff desires to be a party thereafter, the NRC staff must notify the presiding officer and the parties, and identify the contentions on which it wishes to participate as a party, and make the disclosures required by § 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.
            [63 FR 66730, Dec. 3, 1998, as amended at 77 FR 46599, Aug. 3, 2012]

            § 2.1319
            Presiding Officer.
            (a) The Commission will ordinarily be the Presiding Officer at a hearing under this part. However, the Commission may provide in a hearing notice that one or more Commissioners, or any other person permitted by law, will preside.
            (b) A participant may submit a written motion for the disqualification of any person presiding. The motion shall be supported by an affidavit setting forth the alleged grounds for disqualification. If the Presiding Officer does not grant the motion or the person does not disqualify himself and the Presiding Officer or such other person is not the Commission or a Commissioner, the Commission will decide the matter.
            (c) If any person presiding deems himself or herself disqualified, he or she shall withdraw by notice on the record after notifying the Commission.
            (d) If a Presiding Officer becomes unavailable, the Commission will designate a replacement.
            (e) Any motion concerning the designation of a replacement Presiding Officer shall be made within 5 days after the designation.

            (f) Unless otherwise ordered by the Commission, the jurisdiction of a Presiding Officer other than the Commission commences as designated in the hearing notice and terminates upon certification of the hearing record to the Commission, or when the Presiding Officer is disqualified.

            § 2.1320
            Responsibility and power of the Presiding Officer in an oral hearing.
            (a) The Presiding Officer in any oral hearing shall conduct a fair hearing, develop a record that will contribute to informed decisionmaking, and, within the framework of the Commission's orders, have the power necessary to achieve these ends, including the power to:
            (1) Take action to avoid unnecessary delay and maintain order;
            (2) Dispose of procedural requests;
            (3) Question participants and witnesses, and entertain suggestions as to questions which may be asked of participants and witnesses.
            (4) Order consolidation of participants;
            (5) Establish the order of presentation;
            (6) Hold conferences before or during the hearing;
            (7) Establish time limits;
            (8) Limit the number of witnesses; and
            (9) Strike or reject duplicative, unreliable, immaterial, or irrelevant presentations.
            (b) Where the Commission itself does not preside:
            (1) The Presiding Officer may certify questions or refer rulings to the Commission for decision;
            (2) Any hearing order may be modified by the Commission; and
            (3) The Presiding Officer will certify the completed hearing record to the Commission, which may then issue its decision on the hearing or provide that additional testimony be presented.

            § 2.1321
            Participation and schedule for submission in a hearing consisting of written comments.
            Unless otherwise limited by this subpart or by the Commission, participants in a hearing consisting of written comments may submit:
            (a) Initial written statements of position and written testimony with supporting affidavits on the issues. These materials must be filed on the date set by the Commission or the presiding officer.
            (b) Written responses, rebuttal testimony with supporting affidavits directed to the initial statements and testimony of other participants, and proposed written questions for the Presiding Officer to consider for submittal to persons sponsoring testimony submitted under paragraph (a) of this section. These materials shall be filed within 20 days of the filing of the materials submitted under paragraph (a) of this section, unless the Commission or Presiding Officer directs otherwise. Proposed written questions directed to rebuttal testimony for the Presiding Officer to consider for submittal to persons offering such testimony shall be filed within 7 days of the filing of the rebuttal testimony.
            (c) Written concluding statements of position on the issues. These materials shall be filed within 20 days of the filing of the materials submitted under paragraph (b) of this section, unless the Commission or the Presiding Officer directs otherwise.
            [63 FR 66730, Dec. 3, 1998, as amended at 69 FR 2271, Jan. 14, 2004; 77 FR 46599, Aug. 3, 2012]

            § 2.1322
            Participation and schedule for submissions in an oral hearing.
            (a) Unless otherwise limited by this subpart or by the Commission, participants in an oral hearing may submit and sponsor in the hearings:
            (1) Initial written statements of position and written testimony with supporting affidavits on the issues. These materials must be filed on the date set by the Commission or the presiding officer.
            (2)(i) Written responses and rebuttal testimony with supporting affidavits directed to the initial statements and testimony of other participants;
            (ii) Proposed questions for the Presiding Officer to consider for propounding to persons sponsoring testimony.
            (3) These materials must be filed within 20 days of the filing of the materials submitted under paragraph (a)(1) of this section, unless the Commission or Presiding Officer directs otherwise.

            (4) Proposed questions directed to rebuttal testimony for the Presiding Officer to consider for propounding to persons offering such testimony shall be filed within 7 days of the filing of the rebuttal testimony.
            (b) The oral hearing should commence within 65 days of the date of the Commission's notice granting a hearing unless the Commission or Presiding Officer directs otherwise. Ordinarily, questioning in the oral hearing will be conducted by the Presiding Officer, using either the Presiding Officer's questions or questions submitted by the participants or a combination of both.
            (c) Written post-hearing statements of position on the issues addressed in the oral hearing may be submitted within 20 days of the close of the oral hearing.
            (d) The Commission, on its own motion, or in response to a request from a Presiding Officer other than the Commission, may use additional procedures, such as direct and cross-examination, or may convene a formal hearing under subpart G of this part on specific and substantial disputes of fact, necessary for the Commission's decision, that cannot be resolved with sufficient accuracy except in a formal hearing. The staff will be a party in any such formal hearing. Neither the Commission nor the Presiding Officer will entertain motions from the parties that request such special procedures or formal hearings.
            [63 FR 66730, Dec. 3, 1998, as amended at 69 FR 2271, Jan. 14, 2004]

            § 2.1323
            Presentation of testimony in an oral hearing.
            (a) All direct testimony in an oral hearing shall be filed no later than 15 days before the hearing or as otherwise ordered or allowed pursuant to the provisions of § 2.1322.
            (b) Written testimony will be received into evidence in exhibit form.
            (c) Participants may designate and present their own witnesses to the Presiding Officer.
            (d) Testimony for the NRC staff will be presented only by persons designated for that purpose by either the Executive Director for Operations or a delegee of the Executive Director for Operations.
            (e) Participants and witnesses will be questioned orally or in writing and only by the Presiding Officer. Questions may be addressed to individuals or to panels of participants or witnesses.
            (f) The Presiding Officer may accept written testimony from a person unable to appear at the hearing, and may request him or her to respond to questions.
            (g) No subpoenas will be granted at the request of participants for attendance and testimony of participants or witnesses or the production of evidence.
            [63 FR 66730, Dec. 3, 1998, as amended at 69 FR 2271, Jan. 14, 2004]

            § 2.1324
            Appearance in an oral hearing.
            (a) A participant may appear in a hearing on her or his own behalf or be represented by an authorized representative.
            (b) A person appearing shall file a written notice stating her or his name, address and telephone number, and if an authorized representative, the basis of her or his eligibility and the name and address of the participant on whose behalf she or he appears.
            (c) A person may be excluded from a hearing for disorderly, dilatory or contemptuous conduct, provided he or she is informed of the grounds and given an opportunity to respond.

            § 2.1325
            Motions and requests.
            (a) Motions and requests shall be addressed to the Presiding Officer, and, if written, also filed with the Secretary and served on other participants.
            (b) Other participants may respond to the motion or request. Responses to written motions or requests shall be filed within 5 days after service unless the Commission or Presiding Officer directs otherwise.
            (c) The Presiding Officer may entertain motions for extension of time and changes in schedule in accordance with paragraphs (a) and (b) of this section.
            (d) When the Commission does not preside, in response to a motion or request, the Presiding Officer may refer a ruling or certify a question to the Commission for decision and notify the participants.

            (e) Unless otherwise ordered by the Commission, a motion or request, or the certification of a question or referral of a ruling, shall not stay or extend any aspect of the hearing.

            § 2.1327
            Application for a stay of the effectiveness of NRC staff action on license transfer.
            (a) Any application for a stay of the effectiveness of the NRC staff's order on the license transfer application shall be filed with the Commission within 5 days of the issuance of the notice of staff action pursuant to § 2.1316(a).
            (b) An application for a stay must be no longer than 10 pages, exclusive of affidavits, and must contain:
            (1) A concise summary of the action which is requested to be stayed; and
            (2) A concise statement of the grounds for a stay, with reference to the factors specified in paragraph (d) of this section.
            (c) Within 10 days after service of an application for a stay under this section, any participant may file an answer supporting or opposing the granting of a stay. Answers must be no longer than 10 pages, exclusive of affidavits, and should concisely address the matters in paragraph (b) of this section, as appropriate. No further replies to answers will be entertained.
            (d) In determining whether to grant or deny an application for a stay, the Commission will consider:
            (1) Whether the requestor will be irreparably injured unless a stay is granted;
            (2) Whether the requestor has made a strong showing that it is likely to prevail on the merits;
            (3) Whether the granting of a stay would harm other participants; and
            (4) Where the public interest lies.

            § 2.1331
            Commission action.
            (a) Upon completion of a hearing, the Commission will issue a written opinion including its decision on the license transfer application and the reasons for the decision.
            (b) The decision on issues designated for hearing under § 2.309 will be based on the record developed at hearing.
            [63 FR 66730, Dec. 3, 1998, as amended at 69 FR 2271, Jan. 14, 2004]

          Subpart N—Expedited Proceedings with Oral Hearings

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

            § 2.1400
            Purpose and scope of subpart N.
            The purpose of this subpart is to provide simplified procedures for the expeditious resolution of disputes among parties in an informal hearing process. The provisions of this subpart, together with subpart C of this part, govern all adjudicatory proceedings conducted under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, and 10 CFR part 2 except for proceedings on the licensing of the construction and operation of a uranium enrichment facility, proceedings on an initial application for authorization to construct a high-level radioactive waste repository at a geologic repository operations area noticed under §§ 2.101(f)(8) or 2.105(a)(5), proceedings on an initial application for authorization to receive and possess high-level radioactive waste at a geologic repository operations area, proceedings on an initial application for a license to receive and possess high-level radioactive waste at a geologic repository operations area, proceedings on enforcement matters unless all parties otherwise agree and request the application of subpart N procedures, and proceedings for the direct or indirect control of an NRC license when the transfer requires prior approval of the NRC under the Commission's regulations, governing statutes, or pursuant to a license condition.

            § 2.1401
            Definitions.
            The definitions of terms in § 2.4 apply to this subpart unless a different definition is provided in this subpart.

            § 2.1402
            General procedures and limitations; requests for other procedures.
            (a) Generally-applicable procedures. For proceedings conducted under this subpart:

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

            § 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:
            (1) An application to construct and/or operate a production or utilization facility;
            (2) An application for the construction and operation of an independent spent fuel storage installation located at a site other than a reactor site or a monitored retrievable storage facility under 10 CFR part 72; or
            (3) Production or utilization facility licensing actions that involve significant hazards considerations as defined in 10 CFR 50.92.
            (b)(1) The NRC staff is not required to be a party to proceedings under this subpart, except where:
            (i) The proceeding involves an application denied by the NRC staff or an enforcement action proposed by the staff; or

            (ii) The presiding officer determines that the resolution of any issue in the proceeding would be aided materially by the NRC staff's participation in the proceeding as a party and orders the staff to participate as a party for the identified issue. In the event that the presiding officer determines that the NRC staff's participation is necessary, the presiding officer shall issue an order identifying the issue(s) on which the staff is to participate as well as setting forth the basis for the determination that staff participation will materially aid in resolution of the issue(s).
            (2) Within fifteen (15) days of the issuance of the order granting requests for hearing/petitions to intervene and admitting contentions, the NRC staff shall notify the presiding officer and the parties whether it desires to participate as a party, and identify the contentions on which it wishes to participate as a party. If the NRC staff desires to be a party thereafter, the NRC staff shall notify the presiding officer and the parties, identify the contentions on which it wishes to participate as a party, and make the disclosures required by § 2.336(b)(3) through (5) unless accompanied by an affidavit explaining why the disclosures cannot be provided to the parties with the notice.
            (3) Once the NRC staff chooses to participate as a party, it shall have all the rights and responsibilities of a party with respect to the admitted contention/matter in controversy on which the staff chooses to participate.
            [69 FR 2271, Jan. 14, 2004, as amended at 77 FR 46599, Aug. 3, 2012]

            § 2.1404
            Prehearing conference.
            (a) No later than forty (40) days after the order granting requests for hearing/petitions to intervene, the presiding officer shall conduct a prehearing conference. At the discretion of the presiding officer, the prehearing conference may be held in person or by telephone or through the use of video conference technology.
            (b) At the prehearing conference, each party shall provide the presiding officer and the parties participating in the conference with a statement identifying each witness the party plans to present at the hearing and a written summary of the oral and written testimony of each proposed witness. If the prehearing conference is not held in person, each party shall forward the summaries of the party's witnesses' testimony to the presiding officer and the other parties by such means that will ensure the receipt of the summaries by the commencement of the prehearing conference.
            (c) At the prehearing conference, the parties shall describe the results of their efforts to settle their disputes or narrow the contentions that remain for hearing, provide an agreed statement of facts, if any, identify witnesses that they propose to present at hearing, provide questions or question areas that they would propose to have the presiding officer cover with the witnesses at the hearing, and discuss other pertinent matters. At the conclusion of the conference, the presiding officer will issue an order specifying the issues to be addressed at the hearing and setting forth any agreements reached by the parties. The order must include the scheduled date for any hearing that remains to be held, and address any other matters as appropriate.

            § 2.1405
            Hearing.
            (a) No later than twenty (20) days after the conclusion of the prehearing conference, the presiding officer shall hold a hearing on any contention that remains in dispute. At the beginning of the hearing, the presiding officer shall enter into the record all agreements reached by the parties before the hearing.
            (b) A hearing will be recorded stenographically or by other means, under the supervision of the presiding officer. A transcript will be prepared from the recording that will be the sole official transcript of the hearing. The transcript will be prepared by an official reporter who may be designated by the Commission or may be a regular employee of the Commission. Except as limited by section 181 of the Act or order of the Commission, the transcript will be available for inspection in the agency's public records system. Copies of transcripts are available to the parties and to the public from the official reporter on payment of the charges fixed therefor. If a hearing is recorded on videotape or other video medium, copies of the recording of each daily session of the hearing may be made available to the parties and to the public from the presiding officer upon payment of a charge fixed by the Chief Administrative Judge. Parties may purchase copies of the transcript from the reporter.

            (c) Hearings will be open to the public, unless portions of the hearings involving proprietary or other protectable information are closed in accordance with the Commission's regulations.
            (d) At the hearing, the presiding officer will not receive oral evidence that is irrelevant, immaterial, unreliable or unduly repetitious. Testimony will be under oath or affirmation.
            (e) The presiding officer may question witnesses who testify at the hearing, but the parties may not do so.
            (f) Each party may present oral argument and a final statement of position at the close of the hearing. Written post-hearing briefs and proposed findings are not permitted unless ordered by the presiding officer.

            § 2.1406
            Initial decision—issuance and effectiveness.
            (a) Where practicable, the presiding officer will render a decision from the bench. In rendering a decision from the bench, the presiding officer shall state the issues in the proceeding and make clear its findings of fact and conclusions of law on each issue. The presiding officer's decision and order must be reduced to writing and transmitted to the parties as soon as practicable, but not later than twenty (20) days, after the hearing ends. If a decision is not rendered from the bench, a written decision and order will be issued not later than thirty (30) days after the hearing ends. Approval of the Chief Administrative Judge must be obtained for an extension of these time periods, and in no event may a written decision and order be issued later than sixty (60) days after the hearing ends without the express approval of the Commission.
            (b) The presiding officer's written decision must be served on the parties and filed with the Commission when issued.
            (c) The presiding officer's initial decision is effective and constitutes the final action of the Commission twenty-five (25) days after the date of issuance of the written decision unless any party appeals to the Commission in accordance with § 2.1407 or the Commission takes review of the decision sua sponte or the regulations in this part specify other requirements with regard to the effectiveness of decisions on certain applications.
            [69 FR 2271, Jan. 14, 2004, as amended at 79 FR 66602, Nov. 10, 2014]

            § 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.
            (2) An appeal under this section may not be longer than twenty (20) pages and must contain the following:
            (i) A concise statement of the specific rulings and decisions that are being appealed;
            (ii) A concise statement (including record citations) where the matters of fact or law raised in the appeal were previously raised before the presiding officer and, if they were not, why they could not have been raised;
            (iii) A concise statement why, in the appellant's view, the decision or action is erroneous; and
            (iv) A concise statement why the Commission should review the decision or action, with particular reference to the grounds specified in paragraph (b) of this section.
            (3) Any other party to the proceeding may, within 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.
            (b) In considering the appeal, the Commission will give due weight to the existence of a substantial question with respect to the following considerations:
            (1) A finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding;
            (2) A necessary legal conclusion is without governing precedent or is a departure from, or contrary to, established law;

            (3) A substantial and important question of law, policy or discretion has been raised by the appeal;

            (4) The conduct of the proceeding involved a prejudicial procedural error; or
            (5) Any other consideration which the Commission may deem to be in the public interest.
            (c) Once a decision becomes final agency action, the Secretary shall transmit the decision to the NRC staff for action in accordance with the decision.
            [69 FR 2271, Jan. 14, 2004, as amended at 77 FR 46599, Aug. 3, 2012]

          Subpart O—Legislative Hearings

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

            § 2.1500
            Purpose and scope.
            The purpose of this subpart is to provide for simplified, legislative hearing procedures to be used, at the Commission's sole discretion, in:
            (a) Any design certification rulemaking hearings under subpart B of part 52 of this chapter that the Commission may choose to conduct; and
            (b) Developing a record to assist the Commission in resolving, under § 2.335(d), a petition filed under § 2.335(b).

            § 2.1501
            Definitions.
            Demonstrative information means physical things, not constituting documentary information.
            Documentary information means information, ordinarily contained in documents or electronic files, but may also include photographs and digital audio files.

            § 2.1502
            Commission decision to hold legislative hearing.
            (a) The Commission may, in its discretion, hold a legislative hearing in either a design certification rulemaking under § 52.51(b) of this chapter, or a proceeding where a question has been certified to it under § 2.335(d).

            (b) Notice of Commission decision—(1) Hearing in design certification rulemakings. If, at the time a proposed design certification rule is published in the Federal Register under § 52.51(a) of this chapter, the Commission decides that a legislative hearing should be held, the information required by paragraph (c) of this section must be included in the Federal Register notice for the proposed design certification rule. If, following the submission of written public comments submitted on the proposed design certification rule which are submitted in accordance with § 52.51(a) of this chapter, the Commission decides to conduct a legislative hearing, the Commission shall publish a notice in the Federal Register and on the NRC Web site indicating its determination to conduct a legislative hearing. The notice shall contain the information specified in paragraph (c) of this section, and specify whether the Commission or a presiding officer will conduct the legislative hearing.

            (2) Hearings under § 2.335(d). If, following a certification of a question to the Commission by a Licensing Board under § 2.335(d), the Commission decides to hold a legislative hearing to assist it in resolving the certified question, the Commission shall issue an order containing the information required by paragraph (c) of this section. The Commission shall serve the order on all parties in the proceeding. In addition, if the Commission decides that persons and entities other than those identified in paragraph (c)(2) may request to participate in the legislative hearing, the Commission shall publish a notice of its determination to hold a legislative hearing in the Federal Register and on the NRC Web site. The notice shall contain the information specified in paragraph (c) of this section, and refer to the criteria in § 2.1504 which will be used in determining requests to participate in the legislative hearing.
            (c) If the Commission decides to hold a legislative hearing, it shall, in accordance with paragraph (b) of this section:
            (1) Identify with specificity the issues on which it wishes to compile a record;

            (2) Identify, in a hearing associated with a question certified to the Commission under § 2.335(d), the parties and interested State(s), governmental bodies, and Federally-recognized Indian Tribe under § 2.315(c), who may participate in the legislative hearing;

            (3) Identify persons and entities that may, in the discretion of the Commission, be invited to participate in the legislative hearing;
            (4) Indicate whether other persons and entities may request, in accordance with § 2.1504, to participate in the legislative hearing, and the criteria that the Commission or presiding officer will use in determining whether to permit such participation;
            (5) Indicate whether the Commission or a presiding officer will conduct the legislative hearing;
            (6) Specify any special procedures to be used in the legislative hearing;
            (7) Set the dates for submission of requests to participate in the legislative hearing, submission of written statements and demonstrative and documentary information, and commencement of the oral hearing; and
            (8) Specify the location where the oral hearing is to be held. Ordinarily, oral hearings will be held in the Washington, DC metropolitan area.

            § 2.1503
            Authority of presiding officer.
            If the Commission appoints a presiding officer to conduct the legislative hearing, the presiding officer shall be responsible for expeditious development of a sufficient record on the Commission-identified issues, consistent with the direction provided by the Commission under § 2.1502(c). The presiding officer has the authority otherwise accorded to it under §§ 2.319(a), (c), (e), (g), (h), and (i), 2.324, and 2.333 to control the course of the proceeding, and may exercise any other authority granted to it by the Commission in accordance with § 2.1502(c)(6).

            § 2.1504
            Request to participate in legislative hearing.
            (a) Any person or entity who wishes to participate in a legislative hearing noticed under either § 2.1502(b)(1) or (b)(2) shall submit a request to participate by the date specified in the notice. The request must address:
            (1) A summary of the person's position on the subject matter of the legislative hearing; and
            (2) The specific information, expertise or experience that the person possesses with respect to the subject matter of the legislative hearing.
            (b) The Commission or presiding officer shall, within ten (10) days of the date specified for submission of requests to participate, determine whether the person or entity has met the criteria specified by the Commission under § 2.1502(c)(4) for determining requests to participate in the legislative hearing, and issue an order to that person or entity informing them of the presiding officer's decision. A presiding officer's determinations in this regard are final and not subject to any motion for reconsideration or appeal to the Commission; and the Commission's determination in this regard are final and are not subject to a motion for reconsideration.

            § 2.1505
            Role of the NRC staff.
            The NRC staff shall be available to answer any Commission or presiding officer's questions on staff-prepared documents, provide additional information or documentation that may be available to the staff, and provide other assistance that the Commission or presiding officer may request without requiring the NRC staff to assume the role of an advocate. The NRC staff may request to participate in the legislative hearing by providing notice to the Commission or presiding officer, as applicable, within the time period established for submitting a request to participate; or if no notice is provided under § 2.1502(b)(2), within ten (10) days of the Commission's order announcing its determination to conduct a legislative hearing.

            § 2.1506
            Written statements and submission of information.
            All participants shall file written statements on the Commission-identified issues, and may submit documentary and demonstrative information. Written statements, copies of documentary information, and a list and short description of any demonstrative information to be submitted must be received by the NRC (and in a hearing on issues stemming from a § 2.335(b) petition, by the parties in the proceeding in which the petition was filed) no later than ten (10) days before the commencement of the oral hearing.

            § 2.1507
            Oral hearing.
            (a) Not less than five (5) days before the commencement of the oral hearing, the presiding officer shall issue an order setting forth the grouping and order of appearance of the witnesses at the oral hearing. The order shall be filed upon all participants by email or facsimile transmission if possible, otherwise by overnight mail.
            (b) The Commission or presiding officer may question witnesses. Neither the Commission nor the presiding officer will ordinarily permit participants to submit recommended questions for the Commission or presiding officer to propound to witnesses. However, if the Commission or presiding officer believe that the conduct of the oral hearing will be expedited and that consideration of such proposed questions will assist in developing a more focused hearing record, the Commission or presiding officer may, in its discretion, permit the participants to submit recommended questions for the Commission or presiding officer's consideration.
            (c) The Commission or presiding officer may request, or upon request of a participant may, in the presiding officer's discretion, permit the submission of additional information following the close of the oral hearing. Such information must be submitted no later than five (5) days after the close of the oral hearing and must be served at the same time upon all participants at the oral hearing.

            § 2.1508
            Recommendation of presiding officer.
            (a) If the Commission is not acting as a presiding officer, the presiding officer shall, within thirty (30) days following the close of the legislative hearing record, certify the record to the Commission on each of the issues identified by the Commission.
            (b) The presiding officer's certification for each Commission-identified issue shall contain:
            (1) A transcript of the oral phase of the legislative hearing;
            (2) A list of all participants;
            (3) A list of all witnesses at the oral hearing, and their affiliation with a participant;
            (4) A list, and copies of, all documentary information submitted by the participants with ADAMS accession numbers;
            (5) All demonstrative information submitted by the participants;
            (6) Any written answers submitted by the NRC staff in response to questions posed by the presiding officer with ADAMS accession numbers;
            (7) A certification that all documentary information has been entered into ADAMS, and have been placed on the NRC Web site unless otherwise protected from public disclosure;
            (8) A certification by the presiding officer that the record contains sufficient information for the Commission to make a reasoned determination on the Commission-identified issue; and
            (9) At the option of the presiding officer, a summary of the information in the record and a proposed resolution of the Commission-identified issue with a supporting basis.

            § 2.1509
            Ex parte communications and separation of functions.
            Section 2.347 applies in a legislative hearing. Section 2.348 applies in a legislative hearing only where the hearing addresses an issue certified to the Commission under § 2.335(d), and then only with respect to the underlying contested matter.

            Appendix A to Part 2 [Reserved]

            Pt. 2, App. B
            Appendix B to 10 CFR Part 2—Model Milestones To Be Used By a Presiding Officer as a Guideline in Developing a Hearing Schedule for the Conduct of an Adjudicatory Proceeding in Accordance With 10 CFR 2.332.
            I. Model Milestones for a Hearing on an Enforcement Action Conducted Under 10 CFR Part 2, Subpart G

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

              Model Milestones
              [10 CFR Part 2, Subpart G]

                • Within 20 days of date of enforcement order:
                Person subject to order files answer; if order immediately effective, motion to set aside immediate effectiveness due; requests for hearing due.

                • Within 100 days of enforcement order:
                Presiding officer issues order on hearing request by person who is subject of enforcement order.

                • Within 25 days of presiding officer decision granting hearing:
                Presiding officer sets initial schedule for the proceeding.

                • Within 145 days of presiding officer decision granting hearing:
                Discovery complete.

                • Within 155 days of presiding officer decision granting hearing:
                Motions for summary disposition due.

                • Within 235 days of presiding officer decision granting hearing:
                Presiding officer decisions on motions for summary disposition.

                • Within 245 days of presiding officer decision granting hearing:
                Prehearing conference (optional); presiding officer sets schedule for remainder of proceeding.

                • Within 275 days of presiding officer decision granting hearing:
                Written testimony filed.

                • Within 90 days of end of evidentiary hearing and closing of record:
                Presiding officer issues initial decision.

            II. Model Milestones for Hearings Conducted Under 10 CFR Part 2, Subpart L
            These model milestones would apply to proceedings conducted under 10 CFR Part 2, Subpart L, including those on applications for combined licenses (COLs), renewed licenses, and license amendments. While such proceedings differ insofar as the scope and complexity of the NRC staff reviews for the requested actions may vary, such differences will be reflected in the staff's schedule for issuing its review documents in a particular type of action. Because the milestones are keyed to the staff's review schedule, separate milestones are not identified for proceedings on the different types of actions.
            As required by 10 CFR 2.332 and 2.334, the presiding officer establishes, by order, a schedule for the conduct of each proceeding. In establishing a schedule, the presiding officer should use these milestones as a starting point, make appropriate modifications to the milestones, and set detailed schedules (e.g., for filings) based upon all relevant information. Such information would include, but not be limited to, the number of contentions admitted, the complexity of the issues, the NRC staff's schedule for completion of its safety and environmental evaluations, any other relevant consideration that a party brings to the attention of the presiding officer, and the NRC's interest in providing a fair and expeditious resolution of the issues sought to be admitted for adjudication in the proceeding. The model milestones are based on the Commission's Rules of Practice in 10 CFR Part 2, Subparts B, C, and L.
            The model milestones include only the most significant events in the proceeding and are based upon the following assumptions: (I) the issues to be litigated will involve both disputes over fact and issues of compliance with the Commission's regulations and requirements; (ii) an oral hearing under 10 CFR 2.1207 will be held rather than a written hearing under 10 CFR 2.1208; and (iii) the final Safety Evaluation Report (SER) and final environmental document will be issued simultaneously. The model milestones reflect electronic filing and service in accordance with 10 CFR 2.305.

              Model Milestones
              [10 CFR Part 2, Subpart L]

                • Within 140 of publication days of notice in Federal Register:
                Presiding officer decision on intervention petitions and admission of contentions.

                • Within 55 days of presiding officer decision granting intervention and admitting contentions:
                Presiding officer to set initial schedule for proceeding, based on staff schedule for issuing draft and final SERs and any necessary NEPA document.

                • Within 30 days of issuance of SER and any necessary NEPA document:
                Proposed late-filed contentions on SER and necessary NEPA documents filed; motions for summary disposition on previously admitted contentions due.

                • Within 85 days of issuance of SER and NEPA document:
                Presiding officer decision on admission of proposed late-filed contentions and motions for summary disposition; presiding officer sets schedule for remainder of proceeding.

                • Within 14 days after presiding officer decision on amended/late-filed contentions:
                All parties complete updates of mandatory disclosures.

                • Within 115 days of issuance of SER and NEPA document:
                Motions for summary disposition due.

                • Within 155 days of issuance of SER and NEPA document:
                Written direct testimony filed.

                • Within 175 days of issuance of SER and NEPA document:
                Evidentiary hearing begins.

                • Within 90 days of end of evidentiary hearing and closing of record:
                Presiding officer issues initial decision.

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

              Model Milestones
              [10 CFR Part 2, Subpart M]

                • Within 100 days of publication of Federal Register notice of opportunity for hearing:
                Presiding officer decision on intervention petitions and admission of contentions.

                • Within 30 days of order granting hearing petitions:
                NRC staff and other parties complete mandatory disclosures.

                • Within 12 days of completion of mandatory disclosures:
                Presiding Officer issues scheduling order to address, inter alia, scheduling of oral hearing, filing of written statements of position, direct testimony, and rebuttal testimony.

                • Within 45 days of scheduling order:
                Oral hearing commences.

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

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

              Model Milestones
              [10 CFR Part 2, Subpart N]

                • Within 20 of date of enforcement order:
                Person subject to order files answer; if order immediately effective, motion to set aside immediate effectiveness due; requests for hearing due, including joint motion to use Subpart N procedures.

                • Within 50 days of date of enforcement order:
                Presiding officer decision on requests for hearing and confirms use of Subpart N procedures (note: if presiding officer concludes that Subpart N procedures should not be used, the Model Milestone for Enforcement Actions under Subpart G are applicable).

                • Within 30 days of presiding officer decision granting hearing:
                Mandatory disclosures complete.

                • Within 40 days of presiding officer decision granting hearing:
                Prehearing conference to specify issues for hearing and set schedules for remaining course of proceeding.

                • Within 60 days of presiding officer decision granting hearing:
                Evidentiary hearing begins.

                • Within 30 days of end of evidentiary hearing and closing of record:
                Presiding officer issues initial decision.

            [70 FR 20462, Apr. 20, 2005]

            Appendix C to Part 2 [Reserved]

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

                Day
                Regulation(10 CFR)

                Action

                0
                2.101(f)(8), 2.105(a)(5)

                  Federal Register Notice of Hearing.

                30
                2.309(b)(2)
                Petition to intervene/request for hearing, w/contentions.

                30
                2.309(b)(2)
                Petition for status as interested government participant.

                55
                2.315(c)
                Answers to intervention & interested government participant Petitions.

                62
                2.309(h)(1)
                Petitioner's response to answers.

                70
                2.1021
                First Prehearing conference.

                100
                2.309(h)(2)
                First Prehearing Conference Order identifying participants in proceeding, admitted contentions, and setting discovery and other schedules.

                110
                2.1021
                Appeals from First Prehearing Conference Order.

                120

                Briefs in opposition to appeals.

                150
                2.1021, 2.329
                Commission ruling on appeals for First Prehearing Conference Order.

                548

                NRC Staff issues SER.

                578
                2.1022
                Second Prehearing Conference.

                608
                2.1021, 2.1022
                Discovery complete; Second Prehearing Conference Order finalizes issues for hearing and sets schedule for prefiled testimony and hearing.

                618
                2.1015(b)
                Appeals from Second Prehearing Conference Order.

                628
                2.1015(b), c.f. 2.710(a)
                Briefs in opposition to appeals; last date for filing motions for summary disposition.

                648

                  c.f. 2.710(a)
                Last date for responses to summary disposition motions.

                658
                2.710(a)
                Commission ruling on appeals from Second Prehearing Conference Order; last date for party opposing summary disposition motion to file response to new facts and arguments in any response supporting summary disposition motion.

                698
                2.1015(b)
                Decision on summary disposition motions (may be determination to dismiss or to hold in abeyance).

                720

                  c.f. 2.710(a)
                Evidentiary hearing begins.

                810

                Evidentiary hearing ends.

                840
                2.712(a)(1)
                Applicant's proposed findings.

                850
                2.712(a)(2)
                Other parties' proposed findings.

                855
                2.712(a)(3)
                Applicant's reply to other parties' proposed findings.

                955
                2.713
                Initial decision.

                965
                2.342(a), 2.345(a), 2.1015(c)(1)
                Stay motion. Petition for reconsideration, notice of appeal.

                975
                2.342(d), 2.345(b)
                Other parties' responses to stay motion and Petitions for reconsideration.

                985

                Commission ruling on stay motion.

                995
                2.1015(c)(2)
                Appellant's briefs.

                1015
                2.1015(c)(3)
                Appellee's briefs.

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

                1125

                Commission decision.

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

        Pt. 4
        PART 4—NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM THE COMMISSION

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

            Subpart A—Regulations Implementing Title VI of the Civil Rights Act of 1964 and Title IV of the Energy Reorganization Act of 1974

              Discrimination Prohibited
              4.11
              General prohibition.

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

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

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

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

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

              Opportunity for Hearing
              4.51
              Notice of opportunity for hearing.

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

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

              Judicial Review
              4.81
              Judicial review.

              Effect on Other Regulations; Forms and Instructions
              4.91
              Effect on other regulations.
              4.92
              Forms and instructions.
              4.93
              Supervision and coordination.

            Subpart B—Regulations Implementing Section 504 of the Rehabilitation Act of 1973, as Amended
            4.101
            Definitions.

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

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

            Subpart C—Regulations Implementing the Age Discrimination Act of 1975, as Amended

              General
              4.301
              Purpose and scope.
              4.302
              Application of this subpart.
              4.303
              Definitions.

              Standards for Determining Age Discrimination
              4.311
              Rules against age discrimination.
              4.312
              Definitions of “normal operation” and “statutory objective”.
              4.313
              Exceptions to the rules against age discrimination. Normal operation or statutory objective of any program or activity.
              4.314
              Exceptions to the rules against age discrimination. Reasonable factors other than age.
              4.315
              Burden of proof.

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

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

            Subpart D [Reserved]

            Subpart E—Enforcement of Nondiscrimination on the Basis of Disability in Programs or Activities Conducted by the U.S. Nuclear Regulatory Commission
            4.501
            Purpose.
            4.502
            Application.
            4.503
            Definitions.
            4.504-4.509
            [Reserved]
            4.510
            Self-evaluation.
            4.511
            Notice.
            4.512-4.529
            [Reserved]
            4.530
            General prohibitions against discrimination.
            4.531-4.539
            [Reserved]
            4.540
            Employment.
            4.541-4.548
            [Reserved]
            4.549
            Program accessibility: Discrimination prohibited.
            4.550
            Program accessibility: Existing facilities.
            4.551
            Program accessibility: New construction and alterations.
            4.552-4.559
            [Reserved]
            4.560
            Communications.
            4.561-4.569
            [Reserved]
            4.570
            Compliance procedures.
            4.571-4.999
            [Reserved]
            Appendix A to Part 4—Federal Financial Assistance to Which This Part Applies

          Authority:

          Atomic Energy Act of 1954, secs. 161, 223, 234, 274 (42 U.S.C. 2201, 2273, 2282, 2021); Energy Reorganization Act of 1974, secs. 201, 401 (42 U.S.C. 5841, 5891); 29 U.S.C. 794; 42 U.S.C. 12101 et seq.; 44 U.S.C. 3504 note.
          Subpart A also issued under 42 U.S.C. 2000d through d-7.
          Subpart B also issued under 29 U.S.C. 706.
          Subpart C also issued under 42 U.S.C. 6101 through 6107.

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

          Editorial Note:
          Nomenclature changes to part 4 appear at 77 FR 39904, July 6, 2012.

          General Provisions

            § 4.1
            Purpose and scope.
            The regulations in this part implement:
            (a) The provisions of title VI of the Civil Rights Act of 1964, Pub. L. 88-352; (78 Stat. 241; 42 U.S.C. 2000a note), and title IV of the Energy Reorganization Act of 1974, Pub. L. 93-438, (88 Stat. 1233; 42 U.S.C. 5801 note), which relate to nondiscrimination with respect to race, color, national origin or sex in any program or activity receiving Federal financial assistance from NRC;
            (b) The provisions of section 504 of the Rehabilitation Act of 1973, as amended, Pub. L. 93-112 (87 Stat. 355; 29 U.S.C. 701 note), Pub. L. 95-602 (92 Stat. 2955; 29 U.S.C. 701 note), which relates to nondiscrimination with respect to the disabled in any program or activity receiving Federal financial assistance; and
            (c) The provisions of the Age Discrimination Act of 1975, as amended Pub. L. 94-135 (89 Stat. 713; 42 U.S.C. 3001 note), Pub. L. 95-478 (92 Stat. 1513; 42 U.S.C. 3001 note), which relates to nondiscrimination on the basis of age in any program or activity receiving Federal financial assistance.
            [52 FR 25357, July 7, 1987]

            § 4.2
            Subparts.
            Subpart A sets forth rules applicable to title VI of the Civil Rights Act of 1964 and title IV of the Energy Reorganization Act of 1974. (The Acts are collectively referred to in subpart A as “the Act”.) Subpart B sets forth rules applicable specifically to matters pertaining to section 504 of the Rehabilitation Act of 1973, as amended. Subpart C sets forth rules pertaining to the provisions of the Age Discrimination Act of 1975, as amended, Pub. L. 94-135 (89 Stat. 713; 42 U.S.C. 3001 note), Pub. L. 95-478 (92 Stat. 1513; 42 U.S.C. 3001 note), which relates to nondiscrimination on the basis of age in any program or activity receiving Federal financial assistance.
            [52 FR 25358, July 7, 1987]

            § 4.3
            Application of this part.

            This part applies to any program for which Federal financial assistance is authorized under a law administered by NRC. The types of Federal financial assistance to which this part applies are listed in appendix A of this part; appendix A may be revised from time to time by notice published in the Federal Register. This part applies to money paid, property transferred, or other Federal assistance extended, by way of grant, entitlement, cooperative agreement, loan, contract, or other agreement by NRC, or an authorized contractor or subcontractor of NRC, the terms of which require compliance with this part. If any statutes implemented by this part are otherwise applicable, the failure to list a type of Federal financial assistance in appendix A does not mean a program or activity is not covered by this part. This part does not apply to—
            (a) Contracts of insurance or guaranty; or
            (b) Procurement contracts; or
            (c) Employment practices under any program or activity except as provided in §§ 4.13, 4.122 and 4.302.
            [52 FR 25358, July 7, 1987, as amended at 68 FR 51344, Aug. 26, 2003]

            § 4.4
            Definitions.
            (a) Applicant means one who submits an application, request, or plan required to be approved by NRC, or by a primary recipient, as a condition to eligibility for Federal financial assistance; “application” means such an application, request, or plan.
            (b) Commission means the Commission of five members or a quorum thereof sitting as a body; “NRC” means the Nuclear Regulatory Commission and its duly authorized representatives.
            (c) Facility includes all or any portion of structures, equipment, or other real or personal property or interests therein, and the provisions of facilities includes the construction, expansion, renovation, remodeling, alteration or acquisition of facilities.
            (d) Federal financial assistance means any grant, entitlement, loan, cooperative agreement, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which NRC provides or otherwise makes available assistance in the form of—
            (1) Funds;
            (2) Services of Federal personnel or other personnel at Federal expense; or
            (3) Real and personal property or any interest in or use of property, including—
            (i) Transfers or leases of property for less than fair market value or for reduced consideration;
            (ii) Proceeds from a subsequent transfer or lease of property if the Federal share of its fair market value is not returned to the Federal Government; and the
            (iii) Sale and lease of, and the permission to use (other than on casual or transient basis) Federal property or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient.
            (e) Administrative Law Judge means an individual appointed pursuant to section 11 of the Administrative Procedure Act to conduct proceedings subject to this part.
            (f) Primary recipient means any recipient which is authorized or required to extend Federal financial assistance to another recipient.
            (g) Program or activity and program mean all of the operations of any entity described in paragraphs (g)(1) through (4) of this section, any part of which is extended Federal financial assistance:
            (1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
            (ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
            (2)(i) A college, university or other postsecondary institution, or a public system of higher education; or
            (ii) A local educational agency (as defined in 20 U.S.C. 8801), system of vocational education, or other school system;
            (3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—
            (A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
            (B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or

            (ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
            (4) Any other entity which is established by two or more of the entities described in paragraph (g)(1), (2), or (3) of this section.
            (h) Recipient means any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organization, or other entity, or any individual, in any State, to whom Federal financial assistance is extended, directly or through another recipient, including any successor, assignee, or transferee thereof, but such term does not include any ultimate beneficiary.
            (i) Responsible NRC official means the Director of the Office of Small Business and Civil Rights or any other officer to whom the Executive Director for Operations has delegated the authority to act.
            (j) United States means the States of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, and the territories and possessions of the United States, and the term “State” means any one of the foregoing.
            [29 FR 19277, Dec. 31, 1964, as amended at 45 FR 14535, Mar. 6, 1980; 45 FR 18905, Mar. 24, 1980. Redesignated and amended at 52 FR 25358, July 7, 1987; 63 FR 15742, Apr. 1, 1998; 68 FR 51344, Aug. 26, 2003; 68 FR 75389, Dec. 31, 2003]

            § 4.5
            Communications and reports.

            Except as otherwise indicated, communications and reports relating to this part may be sent to the NRC by mail addressed to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland; or, where practicable, by electronic submission, for example, via Electronic Information Exchange, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information.
            [68 FR 58799, Oct. 10, 2003, as amended at 74 FR 62679, Dec. 1, 2009; 80 FR 74978, Dec. 1, 2015]

            § 4.6
            Maintenance of records.
            Each record required by this part must be legible throughout the retention period specified by each Commission regulation. The record may be the original or a reproduced copy or a microform provided that the copy or microform is authenticated by authorized personnel and that the microform is capable of producing a clear copy throughout the required retention period. The record may also be stored in electronic media with the capability for producing legible, accurate, and complete records during the required retention period. Records such as letters, drawings, specifications, must include all pertinent information such as stamps, initials, and signatures. The licensee shall maintain adequate safeguards against tampering with and loss of records.
            [53 FR 19244, May 27, 1988]

            § 4.8
            Information collection requirements: OMB approval.

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

            (b) The approved information collection requirements contained in this part appear in §§ 4.32, 4.34, 4.125, 4.127, 4.231, 4.232, 4.322, and 4.324.
            [62 FR 52184, Oct. 6, 1997]

          Subpart A—Regulations Implementing Title VI of the Civil Rights Act of 1964 and Title IV of the Energy Reorganization Act of 1974

            Discrimination Prohibited

              § 4.11
              General prohibition.
              No person in the United States shall, on the ground of sex, race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program to which this subpart applies.
              [29 FR 19277, Dec. 31, 1964, as amended at 40 FR 8778, Mar. 3, 1975]

              § 4.12
              Specific discriminatory actions prohibited.
              (a) A recipient to which this subpart applies may not, directly or through contractual or other arrangements, on the ground of sex, race, color, or national origin:
              (1) Deny an individual any service, financial aid, or other benefit provided under the program;
              (2) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;
              (3) Subject an individual to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;
              (4) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program;
              (5) Treat an individual differently from others in determining whether he satisfies any admission, enrollment, quota, eligibilty, membership or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or other benefit provided under the program;
              (6) Deny an individual an opportunity to participate in the program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program (including the opportunity to participate in the program as an employee but only to the extent set forth in § 4.13).
              (b) A recipient in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their sex, race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular sex, race, color, or national origin.
              (c) In determining the site or location of facilities, a recipient or applicant may not make selections with the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program to which this subpart applies, on the grounds of sex, race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this subpart.
              (d) As used in this section the services, financial aid, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include any services, financial aid, or other benefit provided in or through a facility provided with the aid of Federal financial assistance.
              (e) The enumeration of specific forms of prohibited discrimination in this section and § 4.13 does not limit the generality of the prohibition in § 4.11.

              (f) This subpart does not prohibit the consideration of sex, race, color, or national origin if the purpose and effect are to remove or overcome the consequences of practices or impediments which have restricted the availability of, or participation in, the program or activity receiving Federal financial assistance, on the grounds of sex, race, color or national origin. Where previous discriminatory practice or usage tends, on the grounds of sex, race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program or activity to which this subpart applies, the applicant or recipient has an obligation to take reasonable action to remove or overcome the consequences of the prior discriminatory practice or usage, and to accomplish the purposes of the Act.
              [29 FR 19277, Dec. 31, 1964, as amended at 38 FR 17927, July 5, 1973; 40 FR 8778, Mar. 3, 1975; 68 FR 51344, Aug. 26, 2003]

              § 4.13
              Employment practices.
              (a) Where a primary objective of the Federal financial assistance to a program to which this subpart applies is to provide employment, a recipient may not, directly or through contractual or other arrangements, subject an individual to discrimination on the ground of sex, race, color, or national origin in its employment practices under such program (including recruitment or recruitment advertising, employment, layoff or termination, upgrading, demotion, or transfer, rates of pay or other forms of compensation, and use of facilities), including programs where a primary objective of the Federal financial assistance to a program is (1) to assist such individuals through employment to meet expenses incident to the commencement or continuation of their education or training, or (2) to provide work experience which contributes to the education or training of such individuals. (Examples of such Federal financial assistance are nuclear training equipment grants, grants and loans of materials for training, and fellowships.) The requirements applicable to construction employment under any such program shall be those specified in or pursuant to part III of Executive Order 11246 or any Executive order which supersedes it.
              (b) Where a primary objective of the Federal financial assistance is not to provide employment, but discrimination on the grounds of sex, race, color, or national origin in the employment practices of the recipient or other persons subject to this subpart tends, on the grounds of sex, race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program to which this subpart applies, the provisions of paragraph (a) of this section shall apply to the employment practices of the recipient or other persons subject to this subpart to the extent necessary to assure equality of opportunity to, and nondiscriminatory treatment of, beneficiaries.
              [38 FR 17927, July 5, 1973, as amended at 40 FR 8778, Mar. 3, 1975; 68 FR 51344, Aug. 26, 2003]

              § 4.14
              Medical emergencies.
              A recipient shall not be deemed to have failed to comply with § 4.11 if immediate provision of a service or other benefit to an individual is necessary to prevent his death or serious impairment of his health, and such service or other benefit cannot be provided except by or through a medical institution which refuses or fails to comply with § 4.11.

            Assurances Required

              § 4.21
              General requirements.

              (a) Every grant, loan or contract to which this subpart applies, except an application to which § 4.22 applies, shall, as a condition to its approval by NRC, or by the appropriate NRC contractor or subcontractor, and the extension of any Federal financial assistance pursuant thereto, contain or be accompanied by an assurance that the program will be conducted in compliance with all requirements imposed by or pursuant to this subpart. In the case of a grant, loan, or contract involving Federal financial assistance to provide real property or structures thereon, the assurance shall obligate the recipient, or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used for a purpose for which the Federal financial assistance is extended, or for another purpose involving the provision of similar services or benefits. In the case of personal property the assurance shall obligate the recipient for the period during which he retains ownership or possession of the property. In all other cases the assurance shall obligate the recipient for the period during which Federal financial assistance is extended pursuant to the grant, loan or contract. The Commission will specify the form of the foregoing assurances and the extent to which like assurances will be required of subgrantees, contractors and subcontractors, successors in interest, and other participants. Any such assurance shall include provisions which give the United States a right to seek its judicial enforcement.
              (b) In the case of real property, structures or improvements thereon, or interests therein, which was acquired with Federal financial assistance, or in the case where Federal financial assistance is provided in the form of a transfer of real property or interest therein from the Federal Government, the instrument effecting or recording the transfer shall contain a covenant running with the land assuring nondiscrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. Where no transfer of property is involved, but property is improved with Federal financial assistance, the recipient shall agree to include such a covenant in any subsequent transfer of such property. Where the property is obtained from the Federal Government, such covenant may also include a condition coupled with a right to be reserved by the NRC to revert title to the property in the event of a breach of the covenant where, in the discretion of the NRC, such a condition and right of reverter is appropriate to the program and to the nature of the grant and the grantee. In such event if a transferee of real property proposes to mortgage or otherwise encumber the real property as security for financing construction of new, or improvement of existing, facilities on such property for the purposes for which the property was transferred, the NRC may agree, upon request of the transferee and if necessary to accomplish such financing, and upon such conditions as the NRC deems appropriate, to forbear the exercise of such right to revert title for so long as the lien of such mortgage or other encumbrance remains effective.
              (c) Transfers of surplus property are subject to regulations issued by the Administrator of General Services (41 CFR 101-6.2).
              [29 FR 19277, Dec. 31, 1964, as amended at 38 FR 17927, July 5, 1973; 68 FR 51344, Aug. 26, 2003; 68 FR 75389, Dec. 31, 2003]

              § 4.22
              Continuing Federal financial assistance.
              Every application by a State or a State agency for continuing Federal financial assistance shall require the submission of and every grant, loan, or contract to or with a State or a State agency for continuing Federal financial assistance to which this subpart applies, shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the grant, loan or contract, contain or be accompanied by, a statement that the program is (or, in the case of a new program, will be) conducted in compliance with all requirements imposed by or pursuant to this subpart, and shall provide or be accompanied by provisions for such methods of administration for the program as are found by the responsible NRC official to give reasonable assurance that the recipient and all other recipients of Federal financial assistance under such program will comply with all requirements imposed by or pursuant to this subpart.
              [38 FR 17928, July 5, 1973, as amended at 68 FR 51344, Aug. 26, 2003]

              § 4.24
              Assurances from institutions.
              (a) In the case of a grant, loan or contract involving Federal financial assistance to an institution of higher education, the assurance required by § 4.21 shall extend to admission practices and to all other practices relating to the treatment of students.

              (b) The assurance required with respect to an institution of higher education, hospital, or any other institution, insofar as the assurance relates to the institution's practices with respect to admission or other treatment of individuals as students, patients, or clients of the institution or to the opportunity to participate in the provision of services or other benefits to such individuals, shall be applicable to the entire institution.
              [29 FR 19277, Dec. 31, 1964, as amended at 68 FR 51344, Aug. 26, 2003]

            Compliance Information

              § 4.31
              Cooperation and assistance.
              The responsible NRC official shall to the fullest extent practicable seek the cooperation of recipients in obtaining compliance with this subpart and shall provide assistance and guidance to recipients to help them comply voluntarily with this subpart.

              § 4.32
              Compliance reports.
              (a) Each recipient shall keep records and submit to the responsible NRC official, timely, complete, and accurate compliance reports at the times and in the form and containing the information that the responsible NRC official may determine to be necessary to enable the official to ascertain whether the recipient has complied or is complying with this subpart.
              (b) In the case in which a primary recipient extends Federal financial assistance to any other recipient, the other recipient shall also submit necessary compliance reports to the primary recipient to enable the primary recipient to carry out its obligations under this subpart.
              (c) The primary recipient shall retain each record of information needed to complete a compliance report pursuant to paragraph (a) of this section for three years or as long as the primary recipient retains the status of primary recipient as defined in § 4.4, whichever is shorter.
              [53 FR 19244, May 27, 1988, as amended at 68 FR 51344, Aug. 26, 2003]

              § 4.33
              Access to sources of information.
              Each recipient shall permit access by the responsible NRC official during normal business hours to such of its books, records, accounts, and other sources of information, and its facilities as may be pertinent to ascertain compliance with this subpart. Where any information required of a recipient is in the exclusive possession of any other agency, institution or person and that agency, institution or person shall fail or refuse to furnish this information, the recipient shall so certify in its report and shall set forth what efforts it has made to obtain the information.

              § 4.34
              Information to beneficiaries and participants.
              Each recipient shall make available to participants, beneficiaries, and other interested persons such information regarding the provisions of this subpart and its applicability to the program for which the recipient receives Federal financial assistance, and make such information available to them in such manner, as the responsible NRC official finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this subpart.
              [29 FR 19277, Dec. 31, 1964, as amended at 68 FR 51344, Aug. 26, 2003]

            Conduct of Investigations

              § 4.41
              Periodic compliance reviews.
              The responsible NRC official shall from time to time review the practices of recipients to determine whether they are complying with this subpart.

              § 4.42
              Complaints.
              Any person who believes himself or any specific class of individuals to be subjected to discrimination prohibited by this subpart may by himself or by a representative file with the responsible NRC official a written complaint. A complaint must be filed not later than ninety (90) days from the date of the alleged discrimination, unless the time for filing is extended by the responsible NRC official. A complaint shall be signed by the complainant or his representative.

              § 4.43
              Investigations.

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

              § 4.44
              Resolution of matters.
              (a) If an investigation pursuant to § 4.43 indicates a failure to comply with this subpart, the responsible NRC official will so inform the recipient and the matter will be resolved by voluntary means whenever possible. If it has been determined that the matter cannot be resolved by voluntary means, action will be taken as provided for in §§ 4.46 through 4.49.
              (b) If an investigation does not warrant action pursuant to paragraph (a) of this section, the responsible NRC official will so inform the recipient and the complainant, if any, in writing.

              § 4.45
              Intimidatory or retaliatory acts prohibited.
              No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by the Act or this subpart, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subpart. The identity of complainants shall be kept confidential, except to the extent necessary to carry out the purposes of this subpart including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
              [29 FR 19277, Dec. 31, 1964, as amended at 40 FR 8778, Mar. 3, 1975]

            Means of Effecting Compliance

              § 4.46
              Means available.
              If there appears to be a failure or threatened failure to comply with any of the provisions of this subpart, and if the noncompliance or threatened concompliance cannot be corrected by informal means, compliance with this subpart may be effected by the suspension or termination of or refusal to grant or to continue Federal financial assistance or by any other means authorized by law. Such other means may include, but are not limited to: (a) A reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking, and (b) any applicable proceeding under State or local law.

              § 4.47
              Noncompliance with § 4.21.
              If an applicant fails or refuses to furnish an assurance required under § 4.21 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to that section, Federal financial assistance may be refused in accordance with the procedures of § 4.48.
              [45 FR 14535, Mar. 6, 1980]

              § 4.48
              Termination of or refusal to grant or to continue Federal financial assistance.
              No order suspending, terminating, or refusing to grant or continue Federal financial assistance shall become effective until: (a) The responsible NRC official has advised the applicant or recipient of his failure to comply and has determined that compliance cannot be secured by voluntary means, (b) there has been an express finding on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with the requirement imposed by or pursuant to this subpart, (c) the action has been approved by the Commission pursuant to § 4.72, and (d) the expiration of thirty (30) days after the Commission has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the program involved, a full written report of the circumstances and the grounds for such action. Any action to suspend or terminate or to refuse to grant or to continue Federal financial assistance shall be limited to the particular political entity, or part thereof, or other applicant or recipient as to whom such finding has been made and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.

              § 4.49
              Other means authorized by law.
              No action to effect compliance by any other means authorized by law shall be taken until: (a) The responsible NRC official has determined that compliance cannot be secured by voluntary means, (b) the recipient or other person has been notified of its failure to comply and of the action to be taken to effect compliance, and (c) the expiration of at least ten (10) days from the mailing of such notice to the recipient or other person. During this period of at least ten (10) days, additional efforts shall be made to persuade the recipient or other person to comply with this subpart and to take such corrective action as may be appropriate.
              [38 FR 17928, July 5, 1973]

            Opportunity for Hearing

              § 4.51
              Notice of opportunity for hearing.
              (a) Whenever an opportunity for hearing is required by § 4.48, the responsible NRC official shall serve on the applicant or recipient, by registered or certified mail, return receipt requested, a notice of opportunity for hearing which will:
              (1) Inform the applicant or recipient of his right within twenty (20) days of the date of the notice of opportunity for hearing, or such other period as may be specified in the notice, to request a hearing;
              (2) Set forth the alleged item or items of noncompliance with this subpart;
              (3) Specify the issues;
              (4) State that compliance with this subpart may be effected by an order providing for the termination of or refusal to grant or to continue assistance, as appropriate; and
              (5) Provide that the applicant or recipient may file a written answer to the notice of opportunity for hearing under oath or affirmation within twenty (20) days of its date, or such other period as may be specified in the notice.
              (b) The applicant or recipient may respond to a notice of opportunity for hearing by filing a written answer under oath or affirmation. The answer shall specifically admit or deny each allegation, or, where the applicant or recipient does not have knowledge or information sufficient to form a belief, the answer may so state and the statements shall have the effect of a denial. Allegations of fact not denied shall be deemed to be admitted. The answer shall separately state and identify matters alleged as affirmative defenses and may also set forth the matters of fact and law on which the applicant or recipient relies. The answer may request a hearing.
              (c) If the answer requests a hearing, the Commission will issue a notice of hearing specifying:
              (1) The time, place, and nature thereof;
              (2) The legal authority and jurisdiction under which the hearing is to be held; and
              (3) The matters of fact and law asserted or to be considered. The time and place of hearing will be fixed with due regard for the convenience and necessity of the parties or their representatives and for the public interest. An answer to a notice of hearing is not required.
              (d) An applicant or recipient may file an answer, and waive or fail to request a hearing, without waiving the requirement for findings of fact and conclusions of law or the right to seek Commission review in accordance with the provisions of §§ 4.71 through 4.74. At the time an answer is filed the applicant or recipient may also submit written information or argument for the record if he does not request a hearing.
              (e) An answer or stipulation may consent to the entry of an order in substantially the form set forth in the notice of opportunity for hearing; such order may be entered by the responsible Commission official. The consent of the applicant or recipient to the entry of an order shall constitute a waiver by him of a right to: (1) A hearing under the Act and § 4.48, (2) findings of fact and conclusions of law, and (3) seek Commission review.

              (f) The failure of an applicant or recipient to file an answer within the period prescribed, or, if he requests a hearing, his failure to appear therefor, shall constitute a waiver by him of a right to: (1) A hearing under the Act and § 4.48, (2) conclusions of law, and (3) seek Commission review. In the event of such waiver, the responsible NRC official may find the facts on the basis of the record available and enter an order in substantially the form set forth in the notice of opportunity for hearing.
              (g) An order entered in accordance with paragraph (e) or (f) of this section shall constitute the final decision of the Commission, unless the Commission, on its own motion, within forty-five (45) days after entry of the order, issues its own decision, which shall then constitute the final decision of the Commission.
              (h) A copy of an order entered by the responsible NRC official shall be mailed to the applicant or recipient and to the complainant, if any.
              (i) Nothing in this section shall be deemed to place the burden of proof on the applicant or recipient.
              [29 FR 19277, Dec. 31, 1964, as amended at 38 FR 17928, July 5, 1973; 40 FR 8778, Mar. 3, 1975; 68 FR 51344, Aug. 26, 2003]

            Hearings and Findings

              § 4.61
              Presiding officer.
              One or more members of the Commission or one or more administrative law judges appointed pursuant to section 3105 of title 5 of the United States Code shall: (a) Preside at a hearing and (b) make findings of fact and conclusions of law if an applicant or recipient waives a hearing and submits written information or argument for the record in accordance with § 4.51(d).
              [35 FR 11459, July 17, 1970]

              § 4.62
              Right to counsel.
              In all proceedings under §§ 4.51-4.81, the applicant or recipient and the responsible NRC official shall have the right to be represented by counsel. A notice of appearance shall be filed by counsel prior to participation in any such proceedings.

              § 4.63
              Procedures, evidence, and record.
              (a) The hearing, decision, and any administrative review thereof shall be conducted in conformity with 5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedure Act), and in accordance with such procedures as are proper (and not inconsistent with §§ 4.61 through 4.64) relating to the conduct of the hearing, giving of notices subsequent to those provided for in § 4.51, taking of testimony, exhibits, arguments and briefs, requests for finding, and other related matters. Both the responsible NRC official and the applicant or recipient shall be entitled to introduce all relevant evidence on the issues as stated in the notice of hearing or as determined by the presiding officer at the outset of or during the hearing.
              (b) Technical rules of evidence shall not apply to hearings conducted pursuant to this subpart, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the presiding officer. The presiding officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record.
              (c) Each decision made after a hearing has been held shall be based on the hearing record, and written findings of fact and conclusions of law shall be made.
              (d) If an applicant or recipient waives a hearing and submits written information or argument for the record in accordance with § 4.51(d), written findings of fact and conclusions of law shall be made.
              [29 FR 19277, Dec. 31, 1964, as amended at 35 FR 11459, July 17, 1970; 38 FR 17928, July 5, 1973]

              § 4.64
              Consolidated or joint hearings.

              In cases in which the same or related facts are asserted to constitute noncompliance with this subpart with respect to two or more Federal statutes, authorities, or other means by which Federal financial assistance is extended and to which this subpart applies or noncompliance with this subpart and the regulations of one or more other Federal departments or agencies issued under title VI of the Civil Rights Act of 1964, the Commission may, by agreement with such other departments or agencies, where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules of procedure not inconsistent with this subpart. Final decisions in such cases, insofar as this regulation is concerned shall be made in accordance with § 4.72.
              [29 FR 19277, Dec. 31, 1964, as amended at 40 FR 8778, Mar. 3, 1975; 68 FR 51344, Aug. 26, 2003]

            Decision and Notice

              § 4.71
              Initial decision or certification.
              The officer designated:
              (a) To preside at a hearing, or,
              (b) To make findings of fact and conclusions of law if an applicant or recipient waives a hearing and submits written information or argument for the record in accordance with § 4.51(d), shall render an initial decision on the record, or, if the Commission so directs, shall certify the entire record to the Commission for decision, together with a recommended decision on the record. A copy of such initial decision, or of such certification and recommended decision, shall be mailed to the applicant or recipient.

              § 4.72
              Exceptions and final decision.
              (a) The applicant or recipient, within thirty (30) days of the mailing of an initial decision or a recommended decision, may file with the Commission his exceptions to such decision, with his reasons therefor.
              (b) In the absence of exceptions to an initial decision, the Commission may, on its own motion within forty-five (45) days after the mailing of such initial decision, serve on the applicant or recipient a notice that the Commission will review the decision.
              (c) Upon the filing of exceptions to an initial decision or of a notice of review, the Commission shall review such initial decision and issue its own decision on the record with its reasons therefor.
              (d) In the absence of either exceptions to an initial decision or of a notice of review, such initial decision shall constitute the final decision of the Commission.
              (e) Upon the filing of exceptions to a recommended decision, the Commission shall review such recommended decision and issue its own decision on the record with its reasons therefor.
              (f) In the absence of exceptions to a recommended decision, the Commission shall review such recommended decision and issue its own decision on the record with its reasons therefor.

              § 4.73
              Rulings required.
              Each decision of a presiding officer or the Commission shall set forth the rulings on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this subpart with which it is found that the applicant or recipient has failed to comply.

              § 4.74
              Content of orders.
              The final decision may provide for suspension or termination of, or refusal to grant or continue Federal financial assistance, in whole or in part, to which this regulation applies, and may contain such terms, conditions, and other provisions as are consistent with and will effectuate the purposes of the Act and this subpart, including provisions designed to assure that no Federal financial assistance to which this regulation applies will thereafter be extended to the applicant or recipient determined by such decision to be in default in its performance of an assurance given by it pursuant to this subpart, or to have otherwise failed to comply with this subpart, unless and until it corrects its noncompliance and satisfies the NRC that it will fully comply with this subpart. A copy of the final decision shall be mailed to the applicant or recipient and the complainant, if any.
              [29 FR 19277, Dec. 31, 1964, as amended at 68 FR 51344, Aug. 26, 2003]

              § 4.75
              Post termination proceedings.

              (a) An applicant or recipient adversely affected by an order issued under § 4.74 shall be restored to full eligibility to receive Federal financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this subpart and provides reasonable assurance that it will fully comply with this subpart.

              (b) Any applicant or recipient adversely affected by an order entered pursuant to § 4.74 may at any time request the responsible NRC official to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (a) of this section. If the responsible NRC official determines that those requirements have been satisfied, he shall restore such eligibility.
              (c) If the responsible NRC official denies any such request, the applicant or recipient may submit a request for a hearing in writing, specifying why it believes such official to have been in error. It shall thereupon be given an expeditious hearing, with the decision on the record, in accordance with rules of procedure issued by the responsible NRC official. The applicant or recipient will be restored to such eligibility if it proves at such a hearing that it satisfied the requirements of paragraph (a) of this section. While proceedings under this section are pending, the sanctions imposed by the order issued under § 4.74 shall remain in effect.
              [38 FR 17928, July 5, 1973, as amended at 40 FR 8778, Mar. 3, 1975]

            Judicial Review

              § 4.81
              Judicial review.
              Action taken pursuant to section 602 of the Civil Rights Act of 1964 is subject to judicial review as provided in section 603 of that Act.
              [40 FR 8778, Mar. 3, 1975]

            Effect on Other Regulations; Forms and Instructions

              § 4.91
              Effect on other regulations.
              All regulations, orders, or like directions heretofore issued by any officer of the NRC which impose requirements designed to prohibit any discrimination against individuals on the grounds of sex, race, color, or national origin under any program to which this subpart applies, and which authorize the suspension or termination of or refusal to grant or to continue Federal financial assistance to any applicant for or recipient of such assistance for failure to comply with such requirements, are hereby superseded to the extent that such discrimination is prohibited by this subpart, except that nothing in this subpart shall be deemed to relieve any person of any obligation assumed or imposed under any such superseded regulation, order, instruction, or like direction prior to the effective date of this subpart. Nothing in this subpart, however, shall be deemed to supersede any of the following (including future amendments thereof):
              (a) Executive Orders 10925, 11114, and 11246 and regulations issued thereunder, or
              (b) Executive Order 11063 and regulations issued thereunder and any other regulations or instructions insofar as such order, regulations or instructions prohibit discrimination on the grounds of sex, race, color, or national origin in any program or situation to which this subpart is inapplicable, or prohibit discrimination on any other ground.
              [29 FR 19277, Dec. 31, 1964, as amended at 38 FR 17928, July 5, 1973; 40 FR 8778, Mar. 3, 1975; 68 FR 51344, Aug. 26, 2003]

              § 4.92
              Forms and instructions.
              The responsible NRC official shall issue and promptly make available to interested persons forms and detailed instructions and procedures for effectuating this subpart as applied to programs to which this subpart applies and for which he is responsible.

              § 4.93
              Supervision and coordination.

              The Commission may from time to time assign to officials of other departments or agencies of the Government, with the consent of the department or agency involved, responsibilities in connection with the effectuation of the purposes of title VI of the Civil Rights Act of 1964 and this subpart, other than responsibility for final decision as provided in § 4.72, including the achievement of effective coordination and maximum uniformity within the NRC and within the Executive Branch of the Government in the application of title VI of the Civil Rights Act and this subpart to similar programs and in similar situations. Any action taken, determination made, or requirement imposed by an official of another department or agency acting pursuant to an assignment of responsibility under this section shall have the same effect as though such action had been taken by the responsible NRC official.
              [40 FR 8778, Mar. 3, 1975]

          Subpart B—Regulations Implementing Section 504 of the Rehabilitation Act of 1973, as Amended

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

            § 4.101
            Definitions.
            As used in this subpart:
            (a) Disabled person means any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Such term does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.
            (b) As used in paragraph (a) of this section, the phrase:
            (1) Physical or mental impairment means: (i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive, genitourinary; hemic and lymphatic; skin; and endocrine; or (ii) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, and emotional illness.
            (2) Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
            (3) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
            (4) Is regarded as having an impairment means:
            (i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a recipient as constituting such a limitation;
            (ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
            (iii) Does not have a physical or mental impairment but is treated by a recipient as having such an impairment.
            (c) Qualified disabled person means: (1) With respect to employment, a disabled person who, with reasonable accommodation, can perform essential functions of the job in question and (2) with respect to services, a disabled person who meets the essential eligibility requirements for the receipt of such services.
            (d) Section 504 means section 504 of the Rehabilitation Act of 1973, Pub. L. 93-112, as amended by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L. 95-602 (29 U.S.C. 794).

            Discriminatory Practices

              § 4.121
              General prohibitions against discrimination.
              (a) No qualified disabled person, shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subject to discrimination under any program or activity that receives Federal financial assistance.
              (b)(1) A recipient, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability:

              (i) Deny a qualified disabled person the opportunity to participate in or benefit from the aid, benefit, or service;

              (ii) Afford a qualified disabled person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
              (iii) Provide a qualified disabled person with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
              (iv) Provide different or separate aid, benefits, or services to disabled persons or to any class of disabled persons than is provided to others unless such action is necessary to provide qualified disabled persons with aid, benefits, or services that are as effective as those provided to others;
              (v) Aid or perpetuate discrimination against a qualified disabled person by providing significant assistance to any agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the recipient's program or activity;
              (vi) Deny a qualified disabled person the opportunity to participate as a member of planning or advisory boards; or
              (vii) Otherwise limit a qualified disabled person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
              (2) A recipient may not deny a qualified disabled person the opportunity to participate in aid, benefits, or services that are not separate or different, despite the existence of permissibly separate or different aid, benefits, or services.
              (3) A recipient may not directly or through contractual or other arrangements, utilize criteria or methods of administration:
              (i) That have the effect of subjecting qualified disabled persons to discrimination on the basis of disability,
              (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program or activity with respect to disabled persons, or
              (iii) That perpetuate the discrimination of another recipient if both recipients are subject to common administrative control or are agencies of the same State.
              (4) A recipient may not, in determining the site or location of a facility, make selections:
              (i) That have the effect of excluding disabled persons from, denying them the benefits of, or otherwise subjecting them to discrimination under any program or activity that receives Federal financial assistance or
              (ii) That have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the program or activity with respect to disabled persons.
              (c) The exclusion of nondisabled persons from aid, benefits, or services limited by Federal statute or Executive Order to disabled persons or the exclusion of a specific class of disabled persons from aid, benefits, or services limited by Federal statute or Executive Order to a different class of disabled persons is not prohibited by this subpart.
              (d) Recipients shall administer programs or activities in the most integrated setting appropriate to the needs of qualified disabled persons.
              (e) Recipients shall take appropriate steps to ensure that communications with their applicants, employees, and beneficiaries are available to persons with impaired vision and hearing.
              [45 FR 14535, Mar. 6, 1980, as amended at 68 FR 51345, Aug. 26, 2003]

              § 4.122
              General prohibitions against employment discrimination.
              (a) No qualified disabled person shall, on the basis of disability, be subjected to discrimination in employment under any program or activity that receives Federal financial assistance.
              (b) A recipient shall make all decisions concerning employment under any program or activity to which this subpart applies in a manner which ensures that discrimination on the basis of disability does not occur and may not limit, segregate, or classify applicants or employees in any way that adversely affects their opportunities or status because of disability.

              (c) The prohibition against discrimination in employment applies to the following activities:

              (1) Recruitment, advertising, and the processing of applications for employment;
              (2) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;
              (3) Rates of pay or any other form of compensation and changes in compensation;
              (4) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;
              (5) Leaves of absence, sick leave, or any other leave;
              (6) Fringe benefits available by virtue of employment, whether or not administered by the recipient;
              (7) Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities and selection for leaves of absence to pursue training;
              (8) Employer sponsored activities, including those that are social or recreational; and
              (9) Any other term, condition, or privilege of employment.
              (d) A recipient may not participate in a contractual or other relationship that has the effect of subjecting qualified disabled applicants or employees to discrimination prohibited by this subpart. The relationships referred to in this paragraph include relationships with employment and referral agencies, with labor unions, with organizations providing or administering fringe benefits to employees of the recipient, and with organizations providing training and apprenticeships.
              [45 FR 14535, Mar. 6, 1980, as amended at 68 FR 51345, Aug. 26, 2003]

              § 4.123
              Reasonable accommodation.
              (a) A recipient shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified disabled applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program or activity.
              (b) Reasonable accommodation may include: (1) Making facilities used by employees readily accessible to and usable by disabled persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions. This list is neither all-inclusive nor meant to suggest that an employer must follow all the actions listed.
              (c) In determining pursuant to paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of a recipient's program or activity, factors to be considered include:
              (1) The overall size of the recipient's program or activity with respect to number of employees, number and type of facilities, and size of budget;
              (2) The type of the recipient's operations, including the composition and structure of the recipient's workforce; and
              (3) The nature and cost of the accommodation needed.
              (d) A recipient may not deny any employment opportunity to a qualified disabled employee or applicant if the basis for denial is the need to make reasonable accommodation to the physical or mental limitations of the employee or applicant.
              [45 FR 14535, Mar. 6, 1980, as amended at 68 FR 51345, Aug. 26, 2003]

              § 4.124
              Employment criteria.
              (a) A recipient may not make use of any employment test or other selection criterion that screens out or tends to screen out disabled persons or any class of disabled persons unless:
              (1) The test score or other selection criterion as used by the recipient is shown to be job-related for the position in question; and
              (2) Alternative job-related tests or criteria that do not screen out or tend to screen out as many disabled persons are not available.

              (b) A recipient shall select and administer tests concerning employment so as best to ensure that, when administered to an applicant or employee who has a disability that impairs sensory, manual, or speaking skills, the test results accurately reflect the applicant's or employee's job skills, aptitude, or whatever other factor the test purports to measure, rather than reflecting the applicant's or employee's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).

              § 4.125
              Preemployment inquiries.
              (a) Except as provided in paragraphs (b) and (c) of this section, a recipient may not conduct a preemployment medical examination or may not make preemployment inquiry of an applicant as to whether the applicant is a disabled person or as to the nature of severity of a disability. A recipient may, however, make preemployment inquiry into an applicant's ability to perform job-related functions.

              (b) When a recipient is taking remedial action to correct the effects of past discrimination, or when a recipient is taking voluntary action to overcome the effects of conditions that resulted in limited participation in its federally assisted program or activity, or when a recipient is taking affirmative action pursuant to section 503 of the Rehabilitation Act of 1973, the recipient may invite applicants for employment to indicate whether and to what extent they are disabled: Provided, That:
              (1) The recipient makes clear to the applicant that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary or affirmative action efforts; and
              (2) The recipient makes clear to the applicant that the information is being requested on a voluntary basis, that it will be kept confidential as provided in paragraph (d) of this section, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will be used only in accordance with this subpart.

              (c) Nothing in this section shall prohibit a recipient from conditioning an offer of employment on the results of a medical examination conducted prior to the employee's entrance on duty: Provided, That:
              (1) All entering employees are subjected to such an examination regardless of disability; and
              (2) The results of such an examination are used only in accordance with the requirements of this subpart.
              (d) Information obtained in accordance with this section as to the medical condition or history of the applicant must be collected on separate forms. The recipient shall retain each form as a record for three years from the date the applicant's employment ends, or, if not hired, from the date of application. Each form must be accorded confidentiality as a medical record, except that:
              (1) Supervisors and managers may be informed regarding restrictions on the work or duties that may be assigned to disabled persons and regarding necessary accommodations;
              (2) First aid and safety personnel may be informed, where appropriate, if the condition associated with the disability might require emergency treatment; and
              (3) Government officials investigating compliance with the Rehabilitation Act of 1973 shall be provided relevant information upon request.
              [45 FR 14535, Mar. 6, 1980, as amended at 53 FR 19244, May 27, 1988]

              § 4.126
              General requirement concerning accessibility.
              No qualified disabled person shall, because a recipient's facilities are inaccessible to or unusable by disabled persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity that receives Federal financial assistance.
              [45 FR 14535, Mar. 6, 1980, as amended at 68 FR 51345, Aug. 26, 2003]

              § 4.127
              Existing facilities.
              (a) Accessibility. A recipient shall operate each program or activity so that when each part is viewed in its entirety it is readily accessible to and usable by disabled persons. This paragraph does not necessarily require a recipient to make each of its existing facilities or every part of an existing facility accessible to and usable by disabled persons.
              (b) Methods. A recipient may comply with the requirements of paragraph (a) of this section through such means as redesign of equipment, reassignment of classes or other services to accessible buildings, assignment of aids to beneficiaries, home visits, delivery of health, welfare or other social services at alternate accessible sites, alteration of existing facilities and construction of new facilities in conformance with the requirements of § 4.128 or any other methods that result in making its program or activity accessible to and usable by disabled persons. A recipient is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with paragraph (a) of this section. In choosing among available methods for meeting the requirement of paragraph (a) of this section, a recipient shall give priority to those methods that serve disabled persons in the most integrated setting appropriate.
              (c) Time period. A recipient shall comply with the requirement of paragraph (a) of this section within 60 days of the effective date of this subpart except that where structural changes in facilities are necessary, the changes are to be made within three years of the effective date of this subpart, but in any event, as expeditiously as possible.
              (d) Transition plan. In the event that structural changes to facilities are necessary to meet the requirement of paragraph (a) of this section, a recipient shall develop a transition plan setting forth the steps necessary to complete the changes. The plan is to be developed with the assistance of interested persons, including disabled persons, or organizations representing disabled persons, and the plan is to meet with the approval of the NRC. The recipient shall retain a copy of the transition plan as a record until any structural change to a facility is complete. A copy of the transition plan is to be made available for public inspection. At a minimum, the plan is to:
              (1) Identify physical obstacles in the recipient's facilities that limit the accessibility and usability of its program or activity to disabled persons;
              (2) Describe in detail the methods that will be used to make the facilities accessible to and usable by disabled persons;
              (3) Specify the schedule for taking the steps necessary to achieve full accessibility under paragraph (a) of this section and, if the time period or the transition plan is longer than 1 year, identify steps that will be taken during each year of the transition period; and
              (4) Indicate the person responsible for implementation of the plan.
              (e) Notice. The recipient shall adopt and implement procedures to ensure that interested persons, including persons with impaired vision or hearing, can obtain information concerning the existence and location of services, activities, and facilities that are accessible to, and usable by, disabled persons.
              [45 FR 14535, Mar. 6, 1980, as amended at 53 FR 19244, May 27, 1988; 68 FR 51345, Aug. 26, 2003]

              § 4.128
              New construction.
              (a) Design, construction, and alteration. New facilities shall be designed and constructed to be readily accessible to and usable by disabled persons. Alterations to existing facilities shall, to the maximum extent feasible, be designed and constructed to be readily accessible to and usable by disabled persons.
              (b) Conformance with Uniform Federal Accessibility Standards. (1) Effective as of January 18, 1991, design, construction, or alteration of buildings in conformance with sections 3—8 of the Uniform Federal Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6) shall be deemed to comply with the requirements of this section with respect to those buildings. Departures from particular technical and scoping requirements of UFAS by the use of other methods are permitted where substantially equivalent or greater access to and usability of the building is provided.
              (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall be interpreted to exempt from the requirements of UFAS only mechanical rooms and other spaces that, because of their intended use, will not require accessibility to the public or beneficiaries or result in the employment or residence therein of persons with physical disabilities.

              (3) This section does not require recipients to make building alterations that have little likelihood of being accomplished without removing or altering a load-bearing structural member.
              [55 FR 52138, 52139, Dec. 19, 1990]

            Enforcement

              § 4.231
              Responsibility of applicants and recipients.
              (a) Assurances. An applicant for Federal financial assistance to which this subpart applies shall submit an assurance, on a form specified by the responsible NRC official, that the program or activity will be operated in compliance with the subpart. An applicant may incorporate these assurances by reference in subsequent applications to the NRC.
              (b) Duration of obligation. The assurance will obligate the recipient for the period during which Federal financial assistance is extended.
              (c) Remedial action. (1) If the responsible NRC official finds that a recipient has discriminated against persons on the basis of disability in violation of section 504 or this subpart, the recipient shall take such remedial action as the responsible NRC official deems necessary to overcome the effect of the discrimination.
              (2) Where a recipient is found to have discriminated against persons on the basis of disability in violation of section 504 or this subpart and where another recipient exercises control over the recipient that has discriminated, the responsible NRC official, where appropriate, may require either or both recipients to take remedial action.
              (3) The responsible NRC official may, where necessary to overcome the effects of discrimination in violation of section 504 or this subpart, require a recipient to take remedial action: (i) With respect to disabled persons who are no longer participants in the recipient's program or activity but who were participants in the program when such discrimination occurred or (ii) with respect to disabled persons who would have been participants in the program or activity had the discrimination not occurred.
              (d) Voluntary action. A recipient may take steps, in addition to any action that is required by this subpart, to overcome the effects of conditions that resulted in limited participation in the recipient's program or activity by qualified disabled persons.
              (e) Self-evaluation. (1) A recipient shall as soon as practicable:
              (i) Evaluate, with the assistance of interested persons, including disabled persons or organizations representing disabled persons, its current policies and practices and the effects thereof that do not or may not meet the requirements of this subpart;
              (ii) Modify, after consultation with interested persons, including disabled persons or organizations representing disabled persons, any policies and practices that do not meet the requirements of this subpart; and
              (iii) Take, after consultation with interested persons, including disabled persons or organizations representing disabled persons, appropriate remedial steps to eliminate the effects of any discrimination that resulted from adherence to those policies and practices.
              (2) A recipient shall, for at least three years following completion of the evaluation required under paragraph (e)(1) of this section, maintain on file, make available for public inspection, and provide to the responsible NRC official upon request: (i) A list of the interested persons consulted, (ii) a description of areas examined and any problems identified, and (iii) a description of any modifications made and of any remedial steps taken.
              (f) Designation of responsible employee. A recipient shall designate at least one person to coordinate its efforts to comply with this subpart.
              [45 FR 14535, Mar. 6, 1980, as amended at 68 FR 51345, Aug. 26, 2003]

              § 4.232
              Notice.

              (a) A recipient shall take appropriate initial and continuing steps to notify participants, beneficiaries, applicants, and employees, including those with impaired vision or hearing, and unions or professional organizations holding collective bargaining or professional agreements with the recipient that it does not discriminate on the basis of disability in violation of section 504 and this subpart. The notification shall state, where appropriate, that the recipient does not discriminate in admission or access to, or treatment or employment in, its programs or activities. The notification shall also include an identification of the responsible employee designated pursuant to § 4.231(f). A present recipient shall make the initial notification required by this paragraph within 90 days of the effective date of this subpart. Methods of initial and continuing notification may include the posting of notices, publication in newspapers and magazines, placement of notices in recipients' publications, and distribution of memoranda or other written communications.
              (b) If a recipient publishes or uses recruitment materials or publications containing general information that it makes available to participants, beneficiaries, applicants, or employees, if shall include in those materials or publications a statement of the policy described in paragraph (a) of this section. A recipient may meet the requirement of this paragraph either by including appropriate inserts in existing materials and publications or by revising and reprinting the materials and publications.
              [45 FR 14535, Mar. 6, 1980, as amended at 68 FR 51345, Aug. 26, 2003]

              § 4.233
              Enforcement procedures.
              The enforcement and hearing procedures set forth in §§ 4.41 through 4.75 of subpart A with respect to discrimination based on sex, race, color or national origin shall be used for the enforcement of the regulations in subpart B with respect to discrimination based on disability.

          Subpart C—Regulations Implementing the Age Discrimination Act of 1975, as Amended

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

            General

              § 4.301
              Purpose and scope.
              The purpose of this subpart is to set forth NRC policies and procedures under the Age Discrimination Act of 1975 which prohibits discrimination on the basis of age in programs or activities receiving Federal financial assistance.

              § 4.302
              Application of this subpart.
              (a) The Age Discrimination Act of 1975 and these regulations apply to any program or activity receiving Federal financial assistance from NRC.
              (b) The Age Discrimination Act of 1975 and these regulations do not apply to—
              (1) An age distinction contained in that part of a Federal, State, or local statute or ordinance adopted by an elected, general purpose legislative body that—
              (i) Provides any benefits or assistance to persons based on age; or
              (ii) Establishes criteria for participation in age-related terms; or
              (iii) Describes intended beneficiaries or target groups in age-related terms.

              (2) Any employment practice of any employer, employment agency, labor organization, or any labor-management joint apprenticeship training program, except for any program or activity receiving Federal financial assistance for public service employment under the Comprehensive Employment and Training Act of 1974 (CETA) (29 U.S.C. 801 et seq.).

              § 4.303
              Definitions.
              As used in this subpart:
              (a) Act means the Age Discrimination Act of 1975, as amended, (title III of Pub. L. 94-135; 89 Stat. 713; 42 U.S.C. 3001 note).
              (b) Action means any act, activity, policy, rule, standard, or method of administration; or the use of any policy, rule, standard, or method of administration.
              (c) Age means how old a person is, or the number of elapsed years from the date of a person's birth.
              (d) Age distinction means any action using age or an age-related term.
              (e) Age-related term means a word or words which necessarily imply a particular age or range of ages (for example, “children,” “adult,” “older persons,” but not “student”).
              (f) Subrecipient means any of the entities in the definition of “recipient” to which a recipient extends or passes on Federal financial assistance. A subrecipient is generally regarded as a recipient of Federal financial assistance and has all the duties of a recipient in these regulations.

            Standards for Determining Age Discrimination

              § 4.311
              Rules against age discrimination.
              The rules stated in this section are limited by the exceptions contained in §§ 4.313 and 4.314 of this subpart.
              (a) General rule. No person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.
              (b) Specific rules. A recipient may not, in any program or activity receiving Federal financial assistance, directly or through contractual, licensing, or other arrangements use age distinctions or take any other actions which have the effect, on the basis of age, of—
              (1) Excluding individuals from, denying them the benefits of, or subjecting them to discrimination under, a program or activity receiving Federal financial assistance, or
              (2) Denying or limiting individuals in their opportunity to participate in any program or activity receiving Federal financial assistance.
              (c) The specific forms of age discrimination listed in paragraph (b) of this section do not necessarily constitute a complete list.

              § 4.312
              Definitions of “normal operation” and “statutory objective”.
              For purposes of §§ 4.313 and 4.314, the terms “normal operation” and “statutory objective” have the following meaning:
              (a) Normal operation means the operation of a program or activity without significant changes that would impair its ability to meet its objectives.
              (b) Statutory objective means any purposes of a program or activity expressly stated in any Federal statute State statute, or local statute or ordinance adopted by an elected general purpose legislative body.

              § 4.313
              Exceptions to the rules against age discrimination. Normal operation or statutory objective of any program or activity.
              A recipient is permitted to take an action, otherwise prohibited by § 4.311, if the action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of a program or activity. An action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of a program or activity, if—
              (a) Age is used as a measure or approximation of one or more other characteristics; and
              (b) The other characteristic(s) must be measured or approximated in order for the normal operation of the program or activity to continue, or to achieve any statutory objective of the program or activity; and
              (c) The other characteristic(s) can be reasonably measured or approximated by the use of age; and
              (d) The other characteristic(s) are impractical to measure directly on an individual basis.
              [52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]

              § 4.314
              Exceptions to the rule against age discrimination. Reasonable factors other than age.
              A recipient is permitted to take an action otherwise prohibited by § 4.311 which is based on a factor other than age, even though that action may have a disproportionate effect on persons of different ages. An action may be based on a factor other than age only if the factor bears a direct and substantial relationship to the normal operation of the program or activity or to the achievement of a statutory objective.

              § 4.315
              Burden of proof.
              The burden of proving that an age distinction or other action falls within the exceptions outlined in §§ 4.313 and 4.314 is on the recipient of Federal financial assistance.

            Duties of NRC Recipients

              § 4.321
              Assurance of compliance.
              Each NRC recipient has primary responsibility to ensure that its programs or activities are in compliance with the Act and these regulations. Each recipient will sign an assurance of compliance that its programs or activities will be conducted in compliance with all the requirements imposed by the Act and these regulations. A recipient also has responsibility to maintain records, provide information, and to afford access to its records to NRC, to the extent required to determine whether it is in compliance with the Act and these regulations.
              [52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]

              § 4.322
              Written notice, technical assistance, and educational materials.
              (a) NRC will provide written notice to each recipient of its obligations under the Act and these regulations, including its obligation under paragraph (b) of this section.
              (b) Where a recipient makes available Federal financial assistance from NRC to a subrecipient, the recipient shall provide the subrecipient written notice of the subrecipient's obligations under the Act and these regulations.
              (c) NRC will provide technical assistance, where necessary, to recipients to aid them in complying with the Act and these regulations.
              (d) NRC will make available educational materials which set forth the rights and obligations of recipients and beneficiaries under the Act and these regulations.

              § 4.324
              Information requirements.
              Each recipient shall:
              (a) Make available upon request to NRC information necessary to determine whether the recipient is complying with the Act and these regulations.
              (b) Permit reasonable access by NRC to the recipient's books, records, accounts, facilities, and other sources of information to the extent necessary to determine whether the recipient is in compliance with the Act and these regulations.

            Investigation, Conciliation, and Enforcement Procedures

              § 4.331
              Compliance reviews.
              (a) NRC may conduct compliance reviews and preaward reviews of recipients or use other similar procedures that will permit it to investigate and correct violations of the Act and these regulations. NRC may conduct these reviews even in absence of a complaint against a recipient. The review may be as comprehensive as necessary to determine whether a violation of these regulations has occurred.
              (b) If a compliance review or preaward review indicates a violation of the Act or these regulations, NRC will attempt to achieve voluntary compliance with the Act. If voluntary compliance cannot be achieved, NRC will arrange for enforcement as described in § 4.336.

              § 4.332
              Complaints.
              (a) Any person, individually or as a member of a class or on behalf of others, may file a complaint with NRC, alleging discrimination prohibited by the Act or these regulations based on an action occurring on or after July 1, 1979. A complainant shall file a complaint within 180 days from the date the complainant first had knowledge of the alleged act of discrimination. However, for good cause shown, NRC may extend this time limit.
              (b) NRC will attempt to facilitate the filing of complaints wherever possible, including taking the following measures:
              (1) Accepting a complaint as sufficient for further processing that—
              (i) Is made in writing;
              (ii) Alleges a violation of the Act;
              (iii) Identifies the parties involved and the date the complainant first had knowledge of the alleged violation;
              (iv) Describes generally the action or practice complained of; and
              (v) Is signed by the complainant.
              (2) Freely permitting a complainant to add information to the complaint to meet the requirements of a sufficient complaint.

              (3) Notifying the complainant and the recipient of their rights and obligations under the complaint procedure, including the right to have a representative at all stages of the complaint procedures.
              (4) Notifying the complainant and the recipient (or their representatives) of their right to contact NRC for information and assistance regarding the complaint resolution process.
              (c) Each recipient and complainant shall participate actively in efforts toward speedy resolution of the complaint.
              (d) NRC will return to the complainant any complaint outside the jurisdiction of these regulations, and will state the reason(s) why it is outside the jurisdiction of these regulations.

              § 4.333
              Mediation.
              (a) Referral of complaints for mediation. NRC will refer to a mediation agency designated by the Secretary of the Department of Health and Human Services all complaints that—
              (1) Fall within the jurisdiction of the Act and these regulations; and
              (2) Contain all information necessary for further processing.
              (b) Both the complainant and the recipient shall participate in the mediation process to the extent necessary to reach an agreement or make an informed judgment that an agreement is not possible. There must be at least one meeting with the mediator before NRC will accept a judgment that an agreement is not possible. However, the recipient and the complainant need not meet with the mediator at the same time.
              (c) If the complainant and the recipient reach an agreement, the mediator shall prepare a written statement of the agreement and have the complainant and recipient sign it. The mediator shall send a copy of the agreement to NRC. NRC will take no further action on the complaint unless the complainant or recipient fails to comply with the agreement.
              (d) The mediator shall protect the confidentiality of all information obtained in the course of the mediation process. No mediator shall testify in any adjudicative proceeding, produce any document, or otherwise disclose any information obtained in the course of the mediation process without prior approval of the head of the agency appointing the mediator.
              (e) NRC will use the mediation process for a maximum of 60 days after receiving a complaint. Mediation ends if—
              (1) From the time NRC receives the complaint 60 days elapse; or
              (2) Prior to the end of that 60-day period, the mediator determines an agreement is reached; or
              (3) Prior to the end of that 60-day period, the mediator determines that an agreement cannot be reached.
              (f) The mediator shall return unresolved complaints to NRC.

              § 4.334
              Investigation.
              (a) Informal investigation. (1) NRC will investigate complaints that are unresolved after mediation or are reopened because of a violation of a mediation agreement.
              (2) As part of the initial investigation, NRC will use informal fact-finding methods, including joint or separate discussions with the complaint and recipient to establish the facts and, if possible, settle the complaint on terms that are mutually agreeable to the parties. NRC may seek the assistance of any involved State agency.
              (3) NRC will put any agreement in writing and have it signed by the parties and an authorized official at NRC.
              (4) The settlement shall not affect the operation of any other enforcement effort of NRC, including compliance reviews and investigation of other complaints which may involve the recipient.
              (5) Settlement of a complaint under this section will not constitute a finding of discrimination by the NRC against a recipient or an admission of discrimination by the recipient.
              (b) Formal investigation. If NRC cannot resolve the complaint through informal investigation, it will begin to develop formal findings through further investigation of the complaint. If the investigation indicates a violation of these regulations, NRC will attempt to obtain voluntary compliance. If NRC cannot obtain voluntary compliance, it will begin enforcement as described in § 4.336.
              [52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]

              § 4.335
              Prohibition against intimidation or retaliation.
              A recipient may not engage in acts of intimidation or retaliation against any person who—
              (a) Attempts to assert a right protected by the Act or these regulations; or
              (b) Cooperates in any mediation, investigation, hearing, or other part of NRC's investigation, conciliation, and enforcement process.

              § 4.336
              Compliance procedure.
              (a) NRC may enforce the Act and these regulations through—
              (1) Termination of a recipient's Federal financial assistance from NRC under the program or activity involved where the recipient has violated the Act or these regulations. The determination of the recipient's violation may be made only after a recipient has had an opportunity for a hearing on the record before an administrative law judge. Therefore, cases that are settled in mediation, or prior to a hearing, will not involve termination of a recipient's Federal fiancial assistance from NRC.
              (2) Any other means authorized by law including but not limited to—
              (i) Referral to the Department of Justice for proceedings to enforce any rights of the United States or obligations of the recipients created by the Act or these regulations.
              (ii) Use of any requirement of or referral to any Federal, State, or local government agency that will have the effect of correcting a violation of the Act or these regulations.
              (b) NRC will limit any termination under § 4.336(a)(1) to the particular recipient and particular program or activity NRC finds in violation of Act or these regulations. NRC will not base any part of a termination on a finding with respect to any program or activity of the recipient that does not receive Federal financial assistance from NRC.
              (c) NRC will take no action under paragraph (a) until—
              (1) The Commission, or designee, has advised the recipient of its failure to comply with the Act or these regulations and has determined that voluntary compliance cannot be obtained.
              (2) 30 days have elapsed after the Commission, or designee, has sent a written report of the circumstances and grounds of the action to the committees of the Congress having legislative jurisdiction over the program or activity involved. A report will be filed whenever any action is taken under paragraph (a) of this section.
              (d) NRC also may defer granting new Federal financial assistance to a recipient when termination proceedings under § 4.336(a)(1) are initiated.
              (1) New Federal financial assistance includes all assistance for which NRC requires an application or approval, including renewal or continuation of existing activities or authorization of new activities, during the deferral period. New Federal financial assistance does not include increases in funding as a result of change computation of formula awards or assistance approved prior to the beginning of termination proceedings under § 4.336(a)(1).
              (2) NRC will not begin a deferral until the recipient has received a notice of an opportunity for a hearing under § 4.336(a)(1). NRC will not continue a deferral for more than 60 days unless a hearing has begun within that time or the time for beginning the hearings has been extended by mutual consent of the recipient and NRC. NRC will not continue a deferral for more than 30 days after the close of the hearing, unless the hearing results in a finding against the recipient.
              [52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]

              § 4.337
              Hearings, decisions, post-termination proceedings.
              Certain NRC procedural provisions applicable to title VI of the Civil Rights Act of 1964 apply to NRC enforcement of these regulations. They are §§ 4.61 through 4.64 and §§ 4.71 through 4.75.

              § 4.338
              Remedial and affirmative action by recipients.

              (a) Where NRC finds a recipient has discriminated on the basis of age, the recipient shall take any remedial action that NRC may require to overcome the effects of the discrimination. If another recipient exercises control over the recipient that has discriminated, NRC may require both recipients to take remedial action.
              (b) Even in the absence of a finding of discrimination, a recipient may take affirmative action to overcome the effects of conditions that resulted in limited participation in the recipient's program or activity on the basis of age.
              (c) If a recipient, operating a program that serves the elderly or children in addition to persons of other ages, provides special benefits to the elderly or to children, the provision of those benefits shall be presumed to be voluntary affirmative action provided that it does not have the effect of excluding otherwise eligible persons from participation in the program or activity.
              [52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]

              § 4.339
              Alternate funds disbursal procedure.
              (a) When NRC withholds funds from a recipient under these regulations, the Commission, or designee, may disburse the withheld funds directly to an alternate recipient, any public or nonprofit private organization or agency, or State or political subdivision of the State.
              (b) Any alternative recipient will be required to demonstrate—
              (1) The ability to comply with these regulations; and
              (2) The ability to achieve the goals of the Federal statute authorizing the Federal financial assistance.
              [52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]

              § 4.340
              Exhaustion of administrative remedies.
              (a) A complainant may file a civil action following the exhaustion of administrative remedies under the Act. Administrative remedies are exhausted if—
              (1) 180 days have elapsed since the complainant filed the complaint and NRC has made no finding with regard to the complaint; or
              (2) NRC issues any finding in favor of the recipient.
              (b) If NRC fails to make a finding within 180 days or issues a finding in favor of the recipient, NRC will—
              (1) Promptly advise the complainant; and
              (2) Advise the complainant of his or her right to bring a civil action under section 305(e) of the Act of injunctive relief that will effect the purposes of the Act; and
              (3) Inform the complainant that—
              (i) The complainant may bring a civil action only in a United States District Court for the district in which the recipient is found or transacts business;
              (ii) A complainant prevailing in a civil action has the right to be awarded the costs of the action, including reasonable attorney's fees, but that the complainant must demand these costs in the complaint;
              (iii) That before commencing the action, the complainant shall give 30 days notice by registered mail to the Commission, the Secretary of the Department of Health and Human Services, the Attorney General of the United States, and the recipient;
              (iv) The notice must state the relief requested, the court in which the complainant is bringing the action, and whether or not attorney's fees are demanded in the event the complainant prevails; and
              (v) The complainant may not bring an action if the same alleged violation of the Act by the same recipient is the subject of pending action in any court of the United States.

              § 4.341
              Reports.
              The NRC shall submit to the Secretary of Health and Human Services, not later than December 31 of each year, a report which—
              (a) Describes in detail the steps taken during the preceding fiscal year to carry out the Act; and
              (b) Contains data on the frequency, type, and resolution of complaints and on any compliance reviews, sufficient to permit analysis of the agency's progress in reducing age discrimination in programs or activities receiving Federal financial assistance from NRC; and

              (c) Contains data directly relevant to the extent of any pattern or practice of age discrimination which NRC has identified in any programs or activities receiving Federal financial assistance from NRC and to progress toward eliminating it; and
              (d) Contains evaluative or interpretative information which NRC determines is useful in analyzing agency progress in reducing age discrimination in programs or activities receiving Federal financial assistance from NRC; and
              (e) Contains whatever other data the Secretary of HHS may require.
              [52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]

          Subpart D [Reserved]

          Subpart E—Enforcement of Nondiscrimination on the Basis of Disability in Programs or Activities Conducted by the U.S. Nuclear Regulatory Commission

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

            § 4.501
            Purpose.
            This part effectuates section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of disability in programs or activities conducted by Executive agencies or the United States Postal Service.

            § 4.502
            Application.
            This part applies to all programs or activities conducted by the agency.

            § 4.503
            Definitions.
            For purposes of this part, the term—

              Assistant Attorney General means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.

              Auxiliary aids means services or devices that enable persons with impaired sensory, manual, or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, programs or activities conducted by the agency. For example, auxiliary aids useful for persons with impaired vision include readers, brailled materials, audio recordings, telecommunications devices and other similar services and devices. Auxiliary aids useful for persons with impaired hearing include telephone handset amplifiers, telephones compatible with hearing aids, telecommunication devices for deaf persons (TDD's), interpreters, notetakers, written materials, and other similar services and devices.

              Complete complaint means a written statement that contains the complainant's name and address and describes the agency's alleged discriminatory action in sufficient detail to inform the agency of the nature and date of the alleged violation of section 504. It shall be signed by the complainant or by someone authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination.

              Disabled person means any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
            As used in this definition, the phrase:
            (1) Physical or mental impairment includes—
            (i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
            (ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alcoholism.
            (2) Major life activities includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
            (3) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
            (4) Is regarded as having an impairment means—
            (i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
            (ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
            (iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the agency as having such an impairment.

              Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.

              Historic preservation programs means programs conducted by the agency that have preservation of historic properties as a primary purpose.

              Historic properties means those properties that are listed or eligible for listing in the National Register of Historic Places or properties designated as historic under a statute of the appropriate State or local government body.

              Qualified disabled person means—
            (1) With respect to preschool, elementary, or secondary education services provided by the agency, a disabled person who is a member of a class of persons otherwise entitled by statute, regulation, or agency policy to receive education services from the agency.
            (2) With respect to any other agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, a disabled person who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature;
            (3) With respect to any other program or activity, a disabled person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and
            (4) Qualified disabled person is defined for purposes of employment in 29 CFR 1613.702(f), which is made applicable to this part by § 4.540.

              Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), and the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used in this part, section 504 applies only to programs or activities conducted by Executive agencies and not to federally assisted programs.

              Substantial impairment means a significant loss of the integrity of finished materials, design quality, or special character resulting from a permanent alteration.

            §§ 4.504-4.509
            [Reserved]

            § 4.510
            Self-evaluation.
            (a) The agency shall, by August 24, 1987, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this part, and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.
            (b) The agency shall provide an opportunity to interested persons, including disabled persons or organizations representing disabled persons, to participate in the self-evaluation process by submitting comments (both oral and written).
            (c) The agency shall, until three years following the completion of the self-evaluation, maintain on file and make available for public inspection:
            (1) A description of areas examined and any problems identified, and
            (2) A description of any modifications made.

            § 4.511
            Notice.
            The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the head of the agency finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this regulation.

            §§ 4.512-4.529
            [Reserved]

            § 4.530
            General prohibitions against discrimination.
            (a) No qualified disabled person shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
            (b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability—
            (i) Deny a qualified disabled person the opportunity to participate in or benefit from the aid, benefit, or service;
            (ii) Afford a qualified disabled person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
            (iii) Provide a qualified disabled person with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
            (iv) Provide different or separate aid, benefits, or services to disabled persons or to any class of disabled persons than is provided to others unless such action is necessary to provide qualified disabled persons with aid, benefits, or services that are as effective as those provided to others;
            (v) Deny a qualified disabled person the opportunity to participate as a member of planning or advisory boards; or
            (vi) Otherwise limit a qualified disabled person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
            (2) The agency may not deny a qualified disabled person the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
            (3) The agency may not, directly or through contractual or other arrangments, utilize criteria or methods of administration the purpose or effect of which would—
            (i) Subject qualified disabled persons to discrimination on the basis of disability; or
            (ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to disabled persons.
            (4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
            (i) Exclude disabled persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or
            (ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to disabled persons.
            (5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified disabled persons to discrimination on the basis of disability.
            (6) The agency may not administer a licensing or certification program in a manner that subjects qualified disabled persons to discrimination on the basis of disability, nor may the agency establish requirements for the programs or activities of licensees or certified entities that subject qualified disabled persons to discrimination on the basis of disability. However, the programs or activities of entities that are licensed or certified by the agency are not, themselves, covered by this part.

            (c) The exclusion of nondisabled persons from the benefits of a program limited by Federal statute or Executive order to disabled persons or the exclusion of a specific class of disabled persons from a program limited by Federal statute or Executive order to a different class of disabled persons is not prohibited by this part.
            (d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified disabled persons.

            §§ 4.531-4.539
            [Reserved]

            § 4.540
            Employment.
            No qualified disabled person shall, on the basis of disability, be subjected to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply to employment in federally conducted programs or activities.

            §§ 4.541-4.548
            [Reserved]

            § 4.549
            Program accessibility: Discrimination prohibited.
            Except as otherwise provided in § 4.550, no qualified disabled person shall, because the agency's facilities are inaccessible to or unusable by disabled persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.

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

            § 4.551
            Program accessibility: New construction and alterations.
            Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by disabled persons. The definitions, requirements, and standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this section.

            §§ 4.552-4.559
            [Reserved]

            § 4.560
            Communications.
            (a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
            (1) The agency shall furnish appropriate auxiliary aids where necessary to afford a disabled person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.
            (i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the disabled person.
            (ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
            (2) Where the agency communicates with applicants and beneficiaries by telephone, telecommunication devices for deaf person (TDD's) or equally effective telecommunication systems shall be used.
            (b) The agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
            (c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.

            (d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and adminstrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 4.560 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, disabled persons receive the benefits and services of the program or activity.

            §§ 4.561-4.569
            [Reserved]

            § 4.570
            Compliance procedures.
            (a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of disability in programs or activities conducted by the agency.
            (b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
            (c) The Civil Rights Program Manager, Office of Small Business and Civil Rights, shall be responsible for coordinating implementation of this section. Complaints should be sent to the NRC using an appropriate method listed in § 4.5.
            (d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
            (e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
            (f) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily accessible to and usable by disabled persons.
            (g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
            (1) Findings of fact and conclusions of law;
            (2) A description of a remedy for each violation found; and
            (3) A notice of the right to appeal.
            (h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 4.570(g). The agency may extend this time for good cause.
            (i) Timely appeals shall be accepted and processed by the head of the agency.
            (j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.
            (k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.

            (l) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.
            [51 FR 22888, 22896, June 23, 1986, as amended at 68 FR 58799, Oct. 10, 2003]

            §§ 4.571-4.999
            [Reserved]

            Pt. 4, App. A
            Appendix A to Part 4—Federal Financial Assistance to Which This Part Applies 1

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

            (a) Conferences on regulatory programs. Agreements for financial assistance to State officials, without full-cost recovery, for visits to NRC facilities and offices or to other locations to confer on regulatory programs and related matters.
            (b) Orientation and instruction. Agreements for assistance to State and local officials, without full-cost recovery, to receive orientation and on-the-job instruction at NRC facilities and offices.
            (c) Courses in fundamentals of radiation. Agreements for the conduct of courses for State and local employees, without full-cost recovery, in fundamentals of radiation and radiation protection.
            (d) Participation in meetings and conferences. Agreements for participation, without full-cost recovery, in meetings, conferences, workshops, and symposia to assist scientific, professional or educational institutions or groups.
            (e) Research Support. Agreements for the financial support of basic and applied scientific research and for the exchange of scientific information.
            [29 FR 19277, Dec. 31, 1964, as amended at 38 FR 17929, July 5, 1973; 40 FR 8778, Mar. 3, 1975; 45 FR 14539, Mar. 6, 1980; 52 FR 25361, July 7, 1987]

        Pt. 5
        PART 5—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

            Subpart A—Introduction
            Sec.
            5.100
            Purpose and effective date.
            5.105
            Definitions.
            5.110
            Remedial and affirmative action and self-evaluation.
            5.115
            Assurance required.
            5.120
            Transfers of property.
            5.125
            Effect of other requirements.
            5.130
            Effect of employment opportunities.
            5.135
            Designation of responsible employee and adoption of grievance procedures.
            5.140
            Dissemination of policy.

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

            Subpart C—Discrimination on the Basis of Sex in Admission and Recruitment Prohibited
            5.300
            Admission.
            5.305
            Preference in admission.
            5.310
            Recruitment.

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

            Subpart E—Discrimination on the Basis of Sex in Employment in Education Programs or Activities Prohibited
            5.500
            Employment.
            5.505
            Employment criteria.
            5.510
            Recruitment.
            5.515
            Compensation.
            5.520
            Job classification and structure.
            5.525
            Fringe benefits.
            5.530
            Marital or parental status.
            5.535
            Effect of state or local law or other requirements.
            5.540
            Advertising.
            5.545
            Pre-employment inquiries.

            5.550
            Sex as a bona fide occupational qualification.

            Subpart F—Procedures
            5.600
            Notice of covered programs.
            5.605
            Enforcement procedures.
            Appendix A to Part 5—List of Federal Financial Assistance Administered by the Nuclear Regulatory Commission to Which Title IX Applies

          Authority:
          20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

          Source:
          65 FR 52865, 52875, Aug. 30, 2000, unless otherwise noted.

          Subpart A—Introduction

            § 5.100
            Purpose and effective date.
            The purpose of these Title IX regulations is to effectuate Title IX of the Education Amendments of 1972, as amended (except sections 904 and 906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688), which is designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance, whether or not such program or activity is offered or sponsored by an educational institution as defined in these Title IX regulations. The effective date of these Title IX regulations shall be September 29, 2000.

            § 5.105
            Definitions.
            As used in these Title IX regulations, the term:

              Administratively separate unit means a school, department, or college of an educational institution (other than a local educational agency) admission to which is independent of admission to any other component of such institution.

              Admission means selection for part-time, full-time, special, associate, transfer, exchange, or any other enrollment, membership, or matriculation in or at an education program or activity operated by a recipient.

              Applicant means one who submits an application, request, or plan required to be approved by an official of the Federal agency that awards Federal financial assistance, or by a recipient, as a condition to becoming a recipient.

              Designated agency official means Program Manager, Civil Rights Program.

              Educational institution means a local educational agency (LEA) as defined by 20 U.S.C. 8801(18), a preschool, a private elementary or secondary school, or an applicant or recipient that is an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education, as defined in this section.

              Federal financial assistance means any of the following, when authorized or extended under a law administered by the Federal agency that awards such assistance:
            (1) A grant or loan of Federal financial assistance, including funds made available for:
            (i) The acquisition, construction, renovation, restoration, or repair of a building or facility or any portion thereof; and
            (ii) Scholarships, loans, grants, wages, or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity.
            (2) A grant of Federal real or personal property or any interest therein, including surplus property, and the proceeds of the sale or transfer of such property, if the Federal share of the fair market value of the property is not, upon such sale or transfer, properly accounted for to the Federal Government.
            (3) Provision of the services of Federal personnel.
            (4) Sale or lease of Federal property or any interest therein at nominal consideration, or at consideration reduced for the purpose of assisting the recipient or in recognition of public interest to be served thereby, or permission to use Federal property or any interest therein without consideration.
            (5) Any other contract, agreement, or arrangement that has as one of its purposes the provision of assistance to any education program or activity, except a contract of insurance or guaranty.

              Institution of graduate higher education means an institution that:

            (1) Offers academic study beyond the bachelor of arts or bachelor of science degree, whether or not leading to a certificate of any higher degree in the liberal arts and sciences;
            (2) Awards any degree in a professional field beyond the first professional degree (regardless of whether the first professional degree in such field is awarded by an institution of undergraduate higher education or professional education); or
            (3) Awards no degree and offers no further academic study, but operates ordinarily for the purpose of facilitating research by persons who have received the highest graduate degree in any field of study.

              Institution of professional education means an institution (except any institution of undergraduate higher education) that offers a program of academic study that leads to a first professional degree in a field for which there is a national specialized accrediting agency recognized by the Secretary of Education.

              Institution of undergraduate higher education means:
            (1) An institution offering at least two but less than four years of college-level study beyond the high school level, leading to a diploma or an associate degree, or wholly or principally creditable toward a baccalaureate degree; or
            (2) An institution offering academic study leading to a baccalaureate degree; or
            (3) An agency or body that certifies credentials or offers degrees, but that may or may not offer academic study.

              Institution of vocational education means a school or institution (except an institution of professional or graduate or undergraduate higher education) that has as its primary purpose preparation of students to pursue a technical, skilled, or semiskilled occupation or trade, or to pursue study in a technical field, whether or not the school or institution offers certificates, diplomas, or degrees and whether or not it offers full-time study.

              Recipient means any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and that operates an education program or activity that receives such assistance, including any subunit, successor, assignee, or transferee thereof.

              Student means a person who has gained admission.

              Title IX means Title IX of the Education Amendments of 1972, Public Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-1688) (except sections 904 and 906 thereof), as amended by section 3 of Public Law 93-568, 88 Stat. 1855, by section 412 of the Education Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688).

              Title IX regulations means the provisions set forth at §§ 5.100 through 5.605.

              Transition plan means a plan subject to the approval of the Secretary of Education pursuant to section 901(a)(2) of the Education Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational institution operates in making the transition from being an educational institution that admits only students of one sex to being one that admits students of both sexes without discrimination.

            § 5.110
            Remedial and affirmative action and self-evaluation.
            (a) Remedial action. If the designated agency official finds that a recipient has discriminated against persons on the basis of sex in an education program or activity, such recipient shall take such remedial action as the designated agency official deems necessary to overcome the effects of such discrimination.
            (b) Affirmative action. In the absence of a finding of discrimination on the basis of sex in an education program or activity, a recipient may take affirmative action consistent with law to overcome the effects of conditions that resulted in limited participation therein by persons of a particular sex. Nothing in these Title IX regulations shall be interpreted to alter any affirmative action obligations that a recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
            (c) Self-evaluation. Each recipient education institution shall, within one year of September 29, 2000:
            (1) Evaluate, in terms of the requirements of these Title IX regulations, its current policies and practices and the effects thereof concerning admission of students, treatment of students, and employment of both academic and non-academic personnel working in connection with the recipient's education program or activity;
            (2) Modify any of these policies and practices that do not or may not meet the requirements of these Title IX regulations; and
            (3) Take appropriate remedial steps to eliminate the effects of any discrimination that resulted or may have resulted from adherence to these policies and practices.
            (d) Availability of self-evaluation and related materials. Recipients shall maintain on file for at least three years following completion of the evaluation required under paragraph (c) of this section, and shall provide to the designated agency official upon request, a description of any modifications made pursuant to paragraph (c)(2) of this section and of any remedial steps taken pursuant to paragraph (c)(3) of this section.

            § 5.115
            Assurance required.
            (a) General. Either at the application stage or the award stage, Federal agencies must ensure that applications for Federal financial assistance or awards of Federal financial assistance contain, be accompanied by, or be covered by a specifically identified assurance from the applicant or recipient, satisfactory to the designated agency official, that each education program or activity operated by the applicant or recipient and to which these Title IX regulations apply will be operated in compliance with these Title IX regulations. An assurance of compliance with these Title IX regulations shall not be satisfactory to the designated agency official if the applicant or recipient to whom such assurance applies fails to commit itself to take whatever remedial action is necessary in accordance with § 5.110(a) to eliminate existing discrimination on the basis of sex or to eliminate the effects of past discrimination whether occurring prior to or subsequent to the submission to the designated agency official of such assurance.
            (b) Duration of obligation. (1) In the case of Federal financial assistance extended to provide real property or structures thereon, such assurance shall obligate the recipient or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used to provide an education program or activity.
            (2) In the case of Federal financial assistance extended to provide personal property, such assurance shall obligate the recipient for the period during which it retains ownership or possession of the property.
            (3) In all other cases such assurance shall obligate the recipient for the period during which Federal financial assistance is extended.
            (c) Form. (1) The assurances required by paragraph (a) of this section, which may be included as part of a document that addresses other assurances or obligations, shall include that the applicant or recipient will comply with all applicable Federal statutes relating to nondiscrimination. These include but are not limited to: Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-1688).
            (2) The designated agency official will specify the extent to which such assurances will be required of the applicant's or recipient's subgrantees, contractors, subcontractors, transferees, or successors in interest.

            § 5.120
            Transfers of property.
            If a recipient sells or otherwise transfers property financed in whole or in part with Federal financial assistance to a transferee that operates any education program or activity, and the Federal share of the fair market value of the property is not upon such sale or transfer properly accounted for to the Federal Government, both the transferor and the transferee shall be deemed to be recipients, subject to the provisions of §§ 5.205 through 5.235(a).

            § 5.125
            Effect of other requirements.
            (a) Effect of other Federal provisions. The obligations imposed by these Title IX regulations are independent of, and do not alter, obligations not to discriminate on the basis of sex imposed by Executive Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 (29 U.S.C. 206); and any other Act of Congress or Federal regulation.
            (b) Effect of State or local law or other requirements. The obligation to comply with these Title IX regulations is not obviated or alleviated by any State or local law or other requirement that would render any applicant or student ineligible, or limit the eligibility of any applicant or student, on the basis of sex, to practice any occupation or profession.
            (c) Effect of rules or regulations of private organizations. The obligation to comply with these Title IX regulations is not obviated or alleviated by any rule or regulation of any organization, club, athletic or other league, or association that would render any applicant or student ineligible to participate or limit the eligibility or participation of any applicant or student, on the basis of sex, in any education program or activity operated by a recipient and that receives Federal financial assistance.

            § 5.130
            Effect of employment opportunities.
            The obligation to comply with these Title IX regulations is not obviated or alleviated because employment opportunities in any occupation or profession are or may be more limited for members of one sex than for members of the other sex.

            § 5.135
            Designation of responsible employee and adoption of grievance procedures.
            (a) Designation of responsible employee. Each recipient shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under these Title IX regulations, including any investigation of any complaint communicated to such recipient alleging its noncompliance with these Title IX regulations or alleging any actions that would be prohibited by these Title IX regulations. The recipient shall notify all its students and employees of the name, office address, and telephone number of the employee or employees appointed pursuant to this paragraph.
            (b) Complaint procedure of recipient. A recipient shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by these Title IX regulations.

            § 5.140
            Dissemination of policy.
            (a) Notification of policy. (1) Each recipient shall implement specific and continuing steps to notify applicants for admission and employment, students and parents of elementary and secondary school students, employees, sources of referral of applicants for admission and employment, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient, that it does not discriminate on the basis of sex in the educational programs or activities that it operates, and that it is required by Title IX and these Title IX regulations not to discriminate in such a manner. Such notification shall contain such information, and be made in such manner, as the designated agency official finds necessary to apprise such persons of the protections against discrimination assured them by Title IX and these Title IX regulations, but shall state at least that the requirement not to discriminate in education programs or activities extends to employment therein, and to admission thereto unless §§ 5.300 through 5.310 do not apply to the recipient, and that inquiries concerning the application of Title IX and these Title IX regulations to such recipient may be referred to the employee designated pursuant to § 5.135, or to the designated agency official.
            (2) Each recipient shall make the initial notification required by paragraph (a)(1) of this section within 90 days of September 29, 2000 or of the date these Title IX regulations first apply to such recipient, whichever comes later, which notification shall include publication in:
            (i) Newspapers and magazines operated by such recipient or by student, alumnae, or alumni groups for or in connection with such recipient; and
            (ii) Memoranda or other written communications distributed to every student and employee of such recipient.
            (b) Publications. (1) Each recipient shall prominently include a statement of the policy described in paragraph (a) of this section in each announcement, bulletin, catalog, or application form that it makes available to any person of a type, described in paragraph (a) of this section, or which is otherwise used in connection with the recruitment of students or employees.
            (2) A recipient shall not use or distribute a publication of the type described in paragraph (b)(1) of this section that suggests, by text or illustration, that such recipient treats applicants, students, or employees differently on the basis of sex except as such treatment is permitted by these Title IX regulations.
            (c) Distribution. Each recipient shall distribute without discrimination on the basis of sex each publication described in paragraph (b)(1) of this section, and shall apprise each of its admission and employment recruitment representatives of the policy of nondiscrimination described in paragraph (a) of this section, and shall require such representatives to adhere to such policy.

          Subpart B—Coverage

            § 5.200
            Application.
            Except as provided in §§ 5.205 through 5.235(a), these Title IX regulations apply to every recipient and to each education program or activity operated by such recipient that receives Federal financial assistance.

            § 5.205
            Educational institutions and other entities controlled by religious organizations.
            (a) Exemption. These Title IX regulations do not apply to any operation of an educational institution or other entity that is controlled by a religious organization to the extent that application of these Title IX regulations would not be consistent with the religious tenets of such organization.
            (b) Exemption claims. An educational institution or other entity that wishes to claim the exemption set forth in paragraph (a) of this section shall do so by submitting in writing to the designated agency official a statement by the highest-ranking official of the institution, identifying the provisions of these Title IX regulations that conflict with a specific tenet of the religious organization.

            § 5.210
            Military and merchant marine educational institutions.
            These Title IX regulations do not apply to an educational institution whose primary purpose is the training of individuals for a military service of the United States or for the merchant marine.

            § 5.215
            Membership practices of certain organizations.
            (a) Social fraternities and sororities. These Title IX regulations do not apply to the membership practices of social fraternities and sororities that are exempt from taxation under section 501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership of which consists primarily of students in attendance at institutions of higher education.
            (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These Title IX regulations do not apply to the membership practices of the Young Men's Christian Association (YMCA), the Young Women's Christian Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire Girls.
            (c) Voluntary youth service organizations. These Title IX regulations do not apply to the membership practices of a voluntary youth service organization that is exempt from taxation under section 501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the membership of which has been traditionally limited to members of one sex and principally to persons of less than nineteen years of age.

            § 5.220
            Admissions.
            (a) Admissions to educational institutions prior to June 24, 1973, are not covered by these Title IX regulations.
            (b) Administratively separate units. For the purposes only of this section, §§ 5.225 and 5.230, and §§ 5.300 through 5.310, each administratively separate unit shall be deemed to be an educational institution.
            (c) Application of §§ 5.300 through 5.310. Except as provided in paragraphs (d) and (e) of this section, §§ 5.300 through 5.310 apply to each recipient. A recipient to which §§ 5.300 through 5.310 apply shall not discriminate on the basis of sex in admission or recruitment in violation of §§ 5.300 through 5.310.
            (d) Educational institutions. Except as provided in paragraph (e) of this section as to recipients that are educational institutions, §§ 5.300 through 5.310 apply only to institutions of vocational education, professional education, graduate higher education, and public institutions of undergraduate higher education.
            (e) Public institutions of undergraduate higher education. §§ 5.300 through 5.310 do not apply to any public institution of undergraduate higher education that traditionally and continually from its establishment has had a policy of admitting students of only one sex.

            § 5.225
            Educational institutions eligible to submit transition plans.
            (a) Application. This section applies to each educational institution to which §§ 5.300 through 5.310 apply that:
            (1) Admitted students of only one sex as regular students as of June 23, 1972; or
            (2) Admitted students of only one sex as regular students as of June 23, 1965, but thereafter admitted, as regular students, students of the sex not admitted prior to June 23, 1965.
            (b) Provision for transition plans. An educational institution to which this section applies shall not discriminate on the basis of sex in admission or recruitment in violation of §§ 5.300 through 5.310.

            § 5.230
            Transition plans.
            (a) Submission of plans. An institution to which § 5.225 applies and that is composed of more than one administratively separate unit may submit either a single transition plan applicable to all such units, or a separate transition plan applicable to each such unit.
            (b) Content of plans. In order to be approved by the Secretary of Education, a transition plan shall:
            (1) State the name, address, and Federal Interagency Committee on Education Code of the educational institution submitting such plan, the administratively separate units to which the plan is applicable, and the name, address, and telephone number of the person to whom questions concerning the plan may be addressed. The person who submits the plan shall be the chief administrator or president of the institution, or another individual legally authorized to bind the institution to all actions set forth in the plan.
            (2) State whether the educational institution or administratively separate unit admits students of both sexes as regular students and, if so, when it began to do so.
            (3) Identify and describe with respect to the educational institution or administratively separate unit any obstacles to admitting students without discrimination on the basis of sex.
            (4) Describe in detail the steps necessary to eliminate as soon as practicable each obstacle so identified and indicate the schedule for taking these steps and the individual directly responsible for their implementation.
            (5) Include estimates of the number of students, by sex, expected to apply for, be admitted to, and enter each class during the period covered by the plan.
            (c) Nondiscrimination. No policy or practice of a recipient to which § 5.225 applies shall result in treatment of applicants to or students of such recipient in violation of §§ 5.300 through 5.310 unless such treatment is necessitated by an obstacle identified in paragraph (b)(3) of this section and a schedule for eliminating that obstacle has been provided as required by paragraph (b)(4) of this section.
            (d) Effects of past exclusion. To overcome the effects of past exclusion of students on the basis of sex, each educational institution to which § 5.225 applies shall include in its transition plan, and shall implement, specific steps designed to encourage individuals of the previously excluded sex to apply for admission to such institution. Such steps shall include instituting recruitment programs that emphasize the institution's commitment to enrolling students of the sex previously excluded.

            § 5.235
            Statutory amendments.
            (a) This section, which applies to all provisions of these Title IX regulations, addresses statutory amendments to Title IX.
            (b) These Title IX regulations shall not apply to or preclude:
            (1) Any program or activity of the American Legion undertaken in connection with the organization or operation of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference;
            (2) Any program or activity of a secondary school or educational institution specifically for:
            (i) The promotion of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or
            (ii) The selection of students to attend any such conference;
            (3) Father-son or mother-daughter activities at an educational institution or in an education program or activity, but if such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided to students of the other sex;
            (4) Any scholarship or other financial assistance awarded by an institution of higher education to an individual because such individual has received such award in a single-sex pageant based upon a combination of factors related to the individual's personal appearance, poise, and talent. The pageant, however, must comply with other nondiscrimination provisions of Federal law.
            (c) Program or activity or program means:
            (1) All of the operations of any entity described in paragraphs (c)(1)(i) through (iv) of this section, any part of which is extended Federal financial assistance:
            (i)(A) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
            (B) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
            (ii)(A) A college, university, or other postsecondary institution, or a public system of higher education; or
            (B) A local educational agency (as defined in section 8801 of title 20), system of vocational education, or other school system;
            (iii)(A) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—
            (1) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
            (2) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
            (B) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
            (iv) Any other entity that is established by two or more of the entities described in paragraphs (c)(1)(i), (ii), or (iii) of this section.
            (2)(i) Program or activity does not include any operation of an entity that is controlled by a religious organization if the application of 20 U.S.C. 1681 to such operation would not be consistent with the religious tenets of such organization.

            (ii) For example, all of the operations of a college, university, or other postsecondary institution, including but not limited to traditional educational operations, faculty and student housing, campus shuttle bus service, campus restaurants, the bookstore, and other commercial activities are part of a “program or activity” subject to these Title IX regulations if the college, university, or other institution receives Federal financial assistance.
            (d)(1) Nothing in these Title IX regulations shall be construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion. Medical procedures, benefits, services, and the use of facilities, necessary to save the life of a pregnant woman or to address complications related to an abortion are not subject to this section.
            (2) Nothing in this section shall be construed to permit a penalty to be imposed on any person or individual because such person or individual is seeking or has received any benefit or service related to a legal abortion. Accordingly, subject to paragraph (d)(1) of this section, no person shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, employment, or other educational program or activity operated by a recipient that receives Federal financial assistance because such individual has sought or received, or is seeking, a legal abortion, or any benefit or service related to a legal abortion.

          Subpart C—Discrimination on the Basis of Sex in Admission and Recruitment Prohibited

            § 5.300
            Admission.
            (a) General. No person shall, on the basis of sex, be denied admission, or be subjected to discrimination in admission, by any recipient to which §§ 5.300 through §§ 5.310 apply, except as provided in §§ 5.225 and §§ 5.230.
            (b) Specific prohibitions. (1) In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a recipient to which §§ 5.300 through 5.310 apply shall not:
            (i) Give preference to one person over another on the basis of sex, by ranking applicants separately on such basis, or otherwise;
            (ii) Apply numerical limitations upon the number or proportion of persons of either sex who may be admitted; or
            (iii) Otherwise treat one individual differently from another on the basis of sex.
            (2) A recipient shall not administer or operate any test or other criterion for admission that has a disproportionately adverse effect on persons on the basis of sex unless the use of such test or criterion is shown to predict validly success in the education program or activity in question and alternative tests or criteria that do not have such a disproportionately adverse effect are shown to be unavailable.
            (c) Prohibitions relating to marital or parental status. In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a recipient to which §§ 5.300 through 5.310 apply:
            (1) Shall not apply any rule concerning the actual or potential parental, family, or marital status of a student or applicant that treats persons differently on the basis of sex;
            (2) Shall not discriminate against or exclude any person on the basis of pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or establish or follow any rule or practice that so discriminates or excludes;
            (3) Subject to § 5.235(d), shall treat disabilities related to pregnancy, childbirth, termination of pregnancy, or recovery therefrom in the same manner and under the same policies as any other temporary disability or physical condition; and
            (4) Shall not make pre-admission inquiry as to the marital status of an applicant for admission, including whether such applicant is “Miss” or “Mrs.” A recipient may make pre-admission inquiry as to the sex of an applicant for admission, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with discrimination prohibited by these Title IX regulations.

            § 5.305
            Preference in admission.

            A recipient to which §§ 5.300 through 5.310 apply shall not give preference to applicants for admission, on the basis of attendance at any educational institution or other school or entity that admits as students only or predominantly members of one sex, if the giving of such preference has the effect of discriminating on the basis of sex in violation of §§ 5.300 through 5.310.

            § 5.310
            Recruitment.
            (a) Nondiscriminatory recruitment. A recipient to which §§ 5.300 through 5.310 apply shall not discriminate on the basis of sex in the recruitment and admission of students. A recipient may be required to undertake additional recruitment efforts for one sex as remedial action pursuant to § 5.110(a), and may choose to undertake such efforts as affirmative action pursuant to § 5.110(b).
            (b) Recruitment at certain institutions. A recipient to which §§ 5.300 through 5.310 apply shall not recruit primarily or exclusively at educational institutions, schools, or entities that admit as students only or predominantly members of one sex, if such actions have the effect of discriminating on the basis of sex in violation of §§ 5.300 through 5.310.

          Subpart D—Discrimination on the Basis of Sex in Education Programs or Activities Prohibited

            § 5.400
            Education programs or activities.
            (a) General. Except as provided elsewhere in these Title IX regulations, no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient that receives Federal financial assistance. Sections 5.400 through 5.455 do not apply to actions of a recipient in connection with admission of its students to an education program or activity of a recipient to which §§ 5.300 through 5.310 do not apply, or an entity, not a recipient, to which §§ 5.300 through 5.310 would not apply if the entity were a recipient.
            (b) Specific prohibitions. Except as provided in §§ 5.400 through 5.455, in providing any aid, benefit, or service to a student, a recipient shall not, on the basis of sex:
            (1) Treat one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service;
            (2) Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner;
            (3) Deny any person any such aid, benefit, or service;
            (4) Subject any person to separate or different rules of behavior, sanctions, or other treatment;
            (5) Apply any rule concerning the domicile or residence of a student or applicant, including eligibility for in-state fees and tuition;
            (6) Aid or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person that discriminates on the basis of sex in providing any aid, benefit, or service to students or employees;
            (7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.
            (c) Assistance administered by a recipient educational institution to study at a foreign institution. A recipient educational institution may administer or assist in the administration of scholarships, fellowships, or other awards established by foreign or domestic wills, trusts, or similar legal instruments, or by acts of foreign governments and restricted to members of one sex, that are designed to provide opportunities to study abroad, and that are awarded to students who are already matriculating at or who are graduates of the recipient institution; Provided, that a recipient educational institution that administers or assists in the administration of such scholarships, fellowships, or other awards that are restricted to members of one sex provides, or otherwise makes available, reasonable opportunities for similar studies for members of the other sex. Such opportunities may be derived from either domestic or foreign sources.
            (d) Aids, benefits or services not provided by recipient. (1) This paragraph (d) applies to any recipient that requires participation by any applicant, student, or employee in any education program or activity not operated wholly by such recipient, or that facilitates, permits, or considers such participation as part of or equivalent to an education program or activity operated by such recipient, including participation in educational consortia and cooperative employment and student-teaching assignments.
            (2) Such recipient:
            (i) Shall develop and implement a procedure designed to assure itself that the operator or sponsor of such other education program or activity takes no action affecting any applicant, student, or employee of such recipient that these Title IX regulations would prohibit such recipient from taking; and
            (ii) Shall not facilitate, require, permit, or consider such participation if such action occurs.

            § 5.405
            Housing.
            (a) Generally. A recipient shall not, on the basis of sex, apply different rules or regulations, impose different fees or requirements, or offer different services or benefits related to housing, except as provided in this section (including housing provided only to married students).
            (b) Housing provided by recipient. (1) A recipient may provide separate housing on the basis of sex.
            (2) Housing provided by a recipient to students of one sex, when compared to that provided to students of the other sex, shall be as a whole:
            (i) Proportionate in quantity to the number of students of that sex applying for such housing; and
            (ii) Comparable in quality and cost to the student.
            (c) Other housing. (1) A recipient shall not, on the basis of sex, administer different policies or practices concerning occupancy by its students of housing other than that provided by such recipient.
            (2)(i) A recipient which, through solicitation, listing, approval of housing, or otherwise, assists any agency, organization, or person in making housing available to any of its students, shall take such reasonable action as may be necessary to assure itself that such housing as is provided to students of one sex, when compared to that provided to students of the other sex, is as a whole:
            (A) Proportionate in quantity; and
            (B) Comparable in quality and cost to the student.
            (ii) A recipient may render such assistance to any agency, organization, or person that provides all or part of such housing to students of only one sex.

            § 5.410
            Comparable facilities.
            A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.

            § 5.415
            Access to course offerings.
            (a) A recipient shall not provide any course or otherwise carry out any of its education program or activity separately on the basis of sex, or require or refuse participation therein by any of its students on such basis, including health, physical education, industrial, business, vocational, technical, home economics, music, and adult education courses.
            (b)(1) With respect to classes and activities in physical education at the elementary school level, the recipient shall comply fully with this section as expeditiously as possible but in no event later than one year from September 29, 2000. With respect to physical education classes and activities at the secondary and post-secondary levels, the recipient shall comply fully with this section as expeditiously as possible but in no event later than three years from September 29, 2000.
            (2) This section does not prohibit grouping of students in physical education classes and activities by ability as assessed by objective standards of individual performance developed and applied without regard to sex.

            (3) This section does not prohibit separation of students by sex within physical education classes or activities during participation in wrestling, boxing, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact.

            (4) Where use of a single standard of measuring skill or progress in a physical education class has an adverse effect on members of one sex, the recipient shall use appropriate standards that do not have such effect.
            (5) Portions of classes in elementary and secondary schools, or portions of education programs or activities, that deal exclusively with human sexuality may be conducted in separate sessions for boys and girls.
            (6) Recipients may make requirements based on vocal range or quality that may result in a chorus or choruses of one or predominantly one sex.

            § 5.420
            Access to schools operated by LEAs.
            A recipient that is a local educational agency shall not, on the basis of sex, exclude any person from admission to:
            (a) Any institution of vocational education operated by such recipient; or
            (b) Any other school or educational unit operated by such recipient, unless such recipient otherwise makes available to such person, pursuant to the same policies and criteria of admission, courses, services, and facilities comparable to each course, service, and facility offered in or through such schools.

            § 5.425
            Counseling and use of appraisal and counseling materials.
            (a) Counseling. A recipient shall not discriminate against any person on the basis of sex in the counseling or guidance of students or applicants for admission.
            (b) Use of appraisal and counseling materials. A recipient that uses testing or other materials for appraising or counseling students shall not use different materials for students on the basis of their sex or use materials that permit or require different treatment of students on such basis unless such different materials cover the same occupations and interest areas and the use of such different materials is shown to be essential to eliminate sex bias. Recipients shall develop and use internal procedures for ensuring that such materials do not discriminate on the basis of sex. Where the use of a counseling test or other instrument results in a substantially disproportionate number of members of one sex in any particular course of study or classification, the recipient shall take such action as is necessary to assure itself that such disproportion is not the result of discrimination in the instrument or its application.
            (c) Disproportion in classes. Where a recipient finds that a particular class contains a substantially disproportionate number of individuals of one sex, the recipient shall take such action as is necessary to assure itself that such disproportion is not the result of discrimination on the basis of sex in counseling or appraisal materials or by counselors.

            § 5.430
            Financial assistance.
            (a) General. Except as provided in paragraphs (b) and (c) of this section, in providing financial assistance to any of its students, a recipient shall not:
            (1) On the basis of sex, provide different amounts or types of such assistance, limit eligibility for such assistance that is of any particular type or source, apply different criteria, or otherwise discriminate;
            (2) Through solicitation, listing, approval, provision of facilities, or other services, assist any foundation, trust, agency, organization, or person that provides assistance to any of such recipient's students in a manner that discriminates on the basis of sex; or
            (3) Apply any rule or assist in application of any rule concerning eligibility for such assistance that treats persons of one sex differently from persons of the other sex with regard to marital or parental status.
            (b) Financial aid established by certain legal instruments. (1) A recipient may administer or assist in the administration of scholarships, fellowships, or other forms of financial assistance established pursuant to domestic or foreign wills, trusts, bequests, or similar legal instruments or by acts of a foreign government that require that awards be made to members of a particular sex specified therein; Provided, that the overall effect of the award of such sex-restricted scholarships, fellowships, and other forms of financial assistance does not discriminate on the basis of sex.

            (2) To ensure nondiscriminatory awards of assistance as required in paragraph (b)(1) of this section, recipients shall develop and use procedures under which:
            (i) Students are selected for award of financial assistance on the basis of nondiscriminatory criteria and not on the basis of availability of funds restricted to members of a particular sex;
            (ii) An appropriate sex-restricted scholarship, fellowship, or other form of financial assistance is allocated to each student selected under paragraph (b)(2)(i) of this section; and
            (iii) No student is denied the award for which he or she was selected under paragraph (b)(2)(i) of this section because of the absence of a scholarship, fellowship, or other form of financial assistance designated for a member of that student's sex.
            (c) Athletic scholarships. (1) To the extent that a recipient awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.
            (2) A recipient may provide separate athletic scholarships or grants-in-aid for members of each sex as part of separate athletic teams for members of each sex to the extent consistent with this paragraph (c) and § 5.450.

            § 5.435
            Employment assistance to students.
            (a) Assistance by recipient in making available outside employment. A recipient that assists any agency, organization, or person in making employment available to any of its students:
            (1) Shall assure itself that such employment is made available without discrimination on the basis of sex; and
            (2) Shall not render such services to any agency, organization, or person that discriminates on the basis of sex in its employment practices.
            (b) Employment of students by recipients. A recipient that employs any of its students shall not do so in a manner that violates §§ 5.500 through 5.550.

            § 5.440
            Health and insurance benefits and services.
            Subject to § 5.235(d), in providing a medical, hospital, accident, or life insurance benefit, service, policy, or plan to any of its students, a recipient shall not discriminate on the basis of sex, or provide such benefit, service, policy, or plan in a manner that would violate §§ 5.500 through 5.550 if it were provided to employees of the recipient. This section shall not prohibit a recipient from providing any benefit or service that may be used by a different proportion of students of one sex than of the other, including family planning services. However, any recipient that provides full coverage health service shall provide gynecological care.

            § 5.445
            Marital or parental status.
            (a) Status generally. A recipient shall not apply any rule concerning a student's actual or potential parental, family, or marital status that treats students differently on the basis of sex.
            (b) Pregnancy and related conditions. (1) A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student's pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.
            (2) A recipient may require such a student to obtain the certification of a physician that the student is physically and emotionally able to continue participation as long as such a certification is required of all students for other physical or emotional conditions requiring the attention of a physician.
            (3) A recipient that operates a portion of its education program or activity separately for pregnant students, admittance to which is completely voluntary on the part of the student as provided in paragraph (b)(1) of this section, shall ensure that the separate portion is comparable to that offered to non-pregnant students.

            (4) Subject to § 5.235(d), a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, service, plan, or policy that such recipient administers, operates, offers, or participates in with respect to students admitted to the recipient's educational program or activity.
            (5) In the case of a recipient that does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom as a justification for a leave of absence for as long a period of time as is deemed medically necessary by the student's physician, at the conclusion of which the student shall be reinstated to the status that she held when the leave began.

            § 5.450
            Athletics.
            (a) General. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person, or otherwise be discriminated against in any interscholastic, intercollegiate, club, or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.
            (b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try out for the team offered unless the sport involved is a contact sport. For the purposes of these Title IX regulations, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact.
            (c) Equal opportunity. (1) A recipient that operates or sponsors interscholastic, intercollegiate, club, or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available, the designated agency official will consider, among other factors:
            (i) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
            (ii) The provision of equipment and supplies;
            (iii) Scheduling of games and practice time;
            (iv) Travel and per diem allowance;
            (v) Opportunity to receive coaching and academic tutoring;
            (vi) Assignment and compensation of coaches and tutors;
            (vii) Provision of locker rooms, practice, and competitive facilities;
            (viii) Provision of medical and training facilities and services;
            (ix) Provision of housing and dining facilities and services;
            (x) Publicity.
            (2) For purposes of paragraph (c)(1) of this section, unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the designated agency official may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.
            (d) Adjustment period. A recipient that operates or sponsors interscholastic, intercollegiate, club, or intramural athletics at the elementary school level shall comply fully with this section as expeditiously as possible but in no event later than one year from September 29, 2000. A recipient that operates or sponsors interscholastic, intercollegiate, club, or intramural athletics at the secondary or postsecondary school level shall comply fully with this section as expeditiously as possible but in no event later than three years from September 29, 2000.

            § 5.455
            Textbooks and curricular material.
            Nothing in these Title IX regulations shall be interpreted as requiring or prohibiting or abridging in any way the use of particular textbooks or curricular materials.

          Subpart E—Discrimination on the Basis of Sex in Employment in Education Programs or Activities Prohibited

            § 5.500
            Employment.
            (a) General. (1) No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination in employment, or recruitment, consideration, or selection therefor, whether full-time or part-time, under any education program or activity operated by a recipient that receives Federal financial assistance.
            (2) A recipient shall make all employment decisions in any education program or activity operated by such recipient in a nondiscriminatory manner and shall not limit, segregate, or classify applicants or employees in any way that could adversely affect any applicant's or employee's employment opportunities or status because of sex.
            (3) A recipient shall not enter into any contractual or other relationship which directly or indirectly has the effect of subjecting employees or students to discrimination prohibited by §§ 5.500 through 5.550, including relationships with employment and referral agencies, with labor unions, and with organizations providing or administering fringe benefits to employees of the recipient.
            (4) A recipient shall not grant preferences to applicants for employment on the basis of attendance at any educational institution or entity that admits as students only or predominantly members of one sex, if the giving of such preferences has the effect of discriminating on the basis of sex in violation of these Title IX regulations.
            (b) Application. The provisions of §§ 5.500 through 5.550 apply to:
            (1) Recruitment, advertising, and the process of application for employment;
            (2) Hiring, upgrading, promotion, consideration for and award of tenure, demotion, transfer, layoff, termination, application of nepotism policies, right of return from layoff, and rehiring;
            (3) Rates of pay or any other form of compensation, and changes in compensation;
            (4) Job assignments, classifications, and structure, including position descriptions, lines of progression, and seniority lists;
            (5) The terms of any collective bargaining agreement;
            (6) Granting and return from leaves of absence, leave for pregnancy, childbirth, false pregnancy, termination of pregnancy, leave for persons of either sex to care for children or dependents, or any other leave;
            (7) Fringe benefits available by virtue of employment, whether or not administered by the recipient;
            (8) Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, selection for tuition assistance, selection for sabbaticals and leaves of absence to pursue training;
            (9) Employer-sponsored activities, including social or recreational programs; and
            (10) Any other term, condition, or privilege of employment.

            § 5.505
            Employment criteria.
            A recipient shall not administer or operate any test or other criterion for any employment opportunity that has a disproportionately adverse effect on persons on the basis of sex unless:
            (a) Use of such test or other criterion is shown to predict validly successful performance in the position in question; and
            (b) Alternative tests or criteria for such purpose, which do not have such disproportionately adverse effect, are shown to be unavailable.

            § 5.510
            Recruitment.
            (a) Nondiscriminatory recruitment and hiring. A recipient shall not discriminate on the basis of sex in the recruitment and hiring of employees. Where a recipient has been found to be presently discriminating on the basis of sex in the recruitment or hiring of employees, or has been found to have so discriminated in the past, the recipient shall recruit members of the sex so discriminated against so as to overcome the effects of such past or present discrimination.
            (b) Recruitment patterns. A recipient shall not recruit primarily or exclusively at entities that furnish as applicants only or predominantly members of one sex if such actions have the effect of discriminating on the basis of sex in violation of §§ 5.500 through 5.550.

            § 5.515
            Compensation.
            A recipient shall not make or enforce any policy or practice that, on the basis of sex:
            (a) Makes distinctions in rates of pay or other compensation;
            (b) Results in the payment of wages to employees of one sex at a rate less than that paid to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and that are performed under similar working conditions.

            § 5.520
            Job classification and structure.
            A recipient shall not:
            (a) Classify a job as being for males or for females;
            (b) Maintain or establish separate lines of progression, seniority lists, career ladders, or tenure systems based on sex; or
            (c) Maintain or establish separate lines of progression, seniority systems, career ladders, or tenure systems for similar jobs, position descriptions, or job requirements that classify persons on the basis of sex, unless sex is a bona fide occupational qualification for the positions in question as set forth in § 5.550.

            § 5.525
            Fringe benefits.
            (a) “Fringe benefits” defined. For purposes of these Title IX regulations, fringe benefits means: Any medical, hospital, accident, life insurance, or retirement benefit, service, policy or plan, any profit-sharing or bonus plan, leave, and any other benefit or service of employment not subject to the provision of § 5.515.
            (b) Prohibitions. A recipient shall not:
            (1) Discriminate on the basis of sex with regard to making fringe benefits available to employees or make fringe benefits available to spouses, families, or dependents of employees differently upon the basis of the employee's sex;
            (2) Administer, operate, offer, or participate in a fringe benefit plan that does not provide for equal periodic benefits for members of each sex and for equal contributions to the plan by such recipient for members of each sex; or
            (3) Administer, operate, offer, or participate in a pension or retirement plan that establishes different optional or compulsory retirement ages based on sex or that otherwise discriminates in benefits on the basis of sex.

            § 5.530
            Marital or parental status.
            (a) General. A recipient shall not apply any policy or take any employment action:
            (1) Concerning the potential marital, parental, or family status of an employee or applicant for employment that treats persons differently on the basis of sex; or
            (2) Which is based upon whether an employee or applicant for employment is the head of household or principal wage earner in such employee's or applicant's family unit.
            (b) Pregnancy. A recipient shall not discriminate against or exclude from employment any employee or applicant for employment on the basis of pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.
            (c) Pregnancy as a temporary disability. Subject to § 5.235(d), a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, recovery therefrom, and any temporary disability resulting therefrom as any other temporary disability for all job-related purposes, including commencement, duration, and extensions of leave, payment of disability income, accrual of seniority and any other benefit or service, and reinstatement, and under any fringe benefit offered to employees by virtue of employment.
            (d) Pregnancy leave. In the case of a recipient that does not maintain a leave policy for its employees, or in the case of an employee with insufficient leave or accrued employment time to qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom as a justification for a leave of absence without pay for a reasonable period of time, at the conclusion of which the employee shall be reinstated to the status that she held when the leave began or to a comparable position, without decrease in rate of compensation or loss of promotional opportunities, or any other right or privilege of employment.

            § 5.535
            Effect of state or local law or other requirements.
            (a) Prohibitory requirements. The obligation to comply with §§ 5.500 through 5.550 is not obviated or alleviated by the existence of any State or local law or other requirement that imposes prohibitions or limits upon employment of members of one sex that are not imposed upon members of the other sex.
            (b) Benefits. A recipient that provides any compensation, service, or benefit to members of one sex pursuant to a State or local law or other requirement shall provide the same compensation, service, or benefit to members of the other sex.

            § 5.540
            Advertising.
            A recipient shall not in any advertising related to employment indicate preference, limitation, specification, or discrimination based on sex unless sex is a bona fide occupational qualification for the particular job in question.

            § 5.545
            Pre-employment inquiries.
            (a) Marital status. A recipient shall not make pre-employment inquiry as to the marital status of an applicant for employment, including whether such applicant is “Miss” or “Mrs.”
            (b) Sex. A recipient may make pre-employment inquiry as to the sex of an applicant for employment, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with discrimination prohibited by these Title IX regulations.

            § 5.550
            Sex as a bona fide occupational qualification.
            A recipient may take action otherwise prohibited by §§ 5.500 through 5.550 provided it is shown that sex is a bona fide occupational qualification for that action, such that consideration of sex with regard to such action is essential to successful operation of the employment function concerned. A recipient shall not take action pursuant to this section that is based upon alleged comparative employment characteristics or stereotyped characterizations of one or the other sex, or upon preference based on sex of the recipient, employees, students, or other persons, but nothing contained in this section shall prevent a recipient from considering an employee's sex in relation to employment in a locker room or toilet facility used only by members of one sex.

          Subpart F—Procedures

            § 5.600
            Notice of covered programs.

            Within 60 days of September 29, 2000, each Federal agency that awards Federal financial assistance shall publish in the Federal Register a notice of the programs covered by these Title IX regulations. Each such Federal agency shall periodically republish the notice of covered programs to reflect changes in covered programs. Copies of this notice also shall be made available upon request to the Federal agency's office that enforces Title IX.

            § 5.605
            Enforcement procedures.
            The investigative, compliance, and enforcement procedural provisions of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (“Title VI”) are hereby adopted and applied to these Title IX regulations. These procedures may be found at 10 CFR 4.21 through 4.75.
            [65 FR 52875, Aug. 30, 2000]

            Pt. 5, App. A
            Appendix A to Part 5—List of Federal Financial Assistance Administered by the Nuclear Regulatory Commission to Which Title IX Applies

              Note:

              All recipients of Federal financial assistance from NRC are subject to Title IX, but Title IX's anti-discrimination prohibitions are limited to the educational components of the recipient's program or activity, if any. Failure to list a type of Federal assistance below shall not mean, if Title IX is otherwise applicable, that a program or activity is not covered by Title IX.

            (a) Conferences on regulatory programs and related matters. Agreements for financial assistance to State and local officials, without full-cost recovery, to confer on regulatory programs and related matters at NRC facilities and offices, or other locations.
            (b) Orientations and instruction. Agreements for financial assistance to State and local officials, without full-cost recovery, to receive orientation and on-the-job instruction at NRC facilities and offices, or other locations.
            (c) Technical training courses. Agreements for financial assistance to State and local officials, without full-cost recovery to attend training on nuclear material licensing, inspection and emergency response regulatory responsibilities to ensure compatibility between NRC and Agreement State regulation.
            (d) Participation in meetings and conferences. Agreements for participation, without full-cost recovery, in meetings, conferences, workshops, and symposia to assist scientific, professional or educational institutions or groups.
            (e) Research support. Agreements for the financial support of basic and applied scientific research and for the exchanges of scientific information.
            [66 FR 709, Jan. 4, 2001]

        Pt. 7
        PART 7—ADVISORY COMMITTEES

          Sec.
          7.1
          Policy.
          7.2
          Definitions.
          7.3
          Interpretations.
          7.4
          Establishment of advisory committees.
          7.5
          Consultation with Committee Management Secretariat on establishment of advisory committees; advisory committee charters.
          7.6
          Amendments to advisory committee charters.
          7.7
          Termination, renewal, and rechartering of advisory committees.
          7.8
          Charter filing requirements.
          7.9
          Public notice of advisory committee establishment, reestablishment, or renewal.
          7.10
          The NRC Advisory Committee Management Officer.
          7.11
          The Designated Federal Officer.
          7.12
          Public participation in and public notice of advisory committee meetings.
          7.13
          Minutes of advisory committee meetings.
          7.14
          Public information on advisory committees.
          7.15
          Procedures for closing an NRC advisory committee meeting.
          7.16
          Annual comprehensive review.
          7.17
          Reports required for advisory committees.
          7.18
          Appointment, compensation, and expense reimbursement of advisory committee members, staffs, and consultants.
          7.19
          Advisory committee members with disabilities.
          7.20
          Conflict of interest reviews of advisory committee members' outside interests.
          7.21
          Costs of duplication of documents.
          7.22
          Fiscal and administrative responsibilities.

          Authority:
          Atomic Energy Act of 1954, sec. 161 (42 U.S.C. 2201); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 5 U.S.C. Appendix (Federal Advisory Committee Act).

          Source:
          54 FR 26948, June 27, 1989, unless otherwise noted.

          § 7.1
          Policy.
          The regulations in this part define the policies and procedures to be followed by the Nuclear Regulatory Commission in the establishment, utilization, and termination of advisory committees. In general, it is the policy of the Commission that—
          (a) Except where there is express legal authority to the contrary, the function of NRC advisory committees shall be advisory only.
          (b) Each NRC advisory committee shall function in compliance with the Federal Advisory Committee Act and this part.
          (c) The number of NRC advisory committees shall be kept to the minimum necessary, and the number of members of each NRC advisory committee shall be limited to the fewest necessary to accomplish committee objectives.
          (d)(1) An NRC advisory committee shall be established only:
          (i) When establishment of the committee is required by law;
          (ii) When the Commission determines that the committee is essential to the conduct of NRC business; or
          (iii) When the information to be obtained is not available through an existing advisory committee or a source within the Federal Government.
          (2) Before establishing an advisory committee, the Commission shall consider whether:

          (i) Committee deliberations will result in a significant contribution to the creation, amendment, or elimination of regulations, guidelines, or rules affecting NRC business;
          (ii) The information to be obtained is available through another source within the Federal Government;
          (iii) The committee will make recommendations resulting in significant improvements in service or reductions in cost; or
          (iv) The committee's recommendations will provide an important additional perspective or viewpoint relating to NRC's mission. The advice or recommendations of an advisory committee should be the result of the advisory committee's independent judgment.
          (e) Except where otherwise required by law, an NRC advisory committee shall be terminated whenever the stated objectives of the committee have been accomplished, the subject matter or work of the committee has become obsolete, the committee's main functions have been assumed by another entity within the Federal Government, or the cost of operating the committee has become excessive in relation to the benefits accruing to the Federal Government from its activities.
          (1) An advisory committee not required to be established by statute terminates no later than two years after its establishment or last renewal, unless renewed.
          (2) An advisory committee required to be established by statute terminates upon the expiration of the time explicitly specified in the statute or implied by operation of the statute.
          (f) NRC advisory committees shall be balanced in their membership in terms of the points of view represented and the functions to be performed.
          (g) The Congress shall be kept informed of the number, purpose, membership, activities, and cost of NRC advisory committees.
          (h) NRC advisory committee meetings shall be open to the public, except where closure is determined to be justified under § 7.15.
          (i) The Commission may periodically invite feedback from the public regarding the effectiveness of NRC advisory committees.
          [54 FR 26948, June 27, 1989, as amended at 67 FR 79838, Dec. 31, 2002]

          § 7.2
          Definitions.

            Act means the Federal Advisory Committee Act, as amended, 5 U.S.C. App.

            Administrator means the Administrator of General Services.

            Advisory committee means any committee, board, commission, council, conference, panel, task force, or similar group, or any subcommittee or other subgroup thereof, that is established by statute for the purpose of providing advice or recommendations on issues of policy to an official, branch, or agency of the Federal Government, or that is established or utilized by the President or any agency official to obtain advice or recommendations on issues or policies that fall within the scope of his or her responsibilities, except that the term “advisory committee” does not include the following advisory meetings or groups:
          (1) Any group composed wholly of full-time officers or employees of the Federal Government;
          (2) Any group specifically exempted from the Act or these regulations by an Act of Congress;
          (3) Any local civic group whose primary function is that of rendering a public service with respect to a Federal program, or any State or local committee, council, board, commission, or similar group established to advise or make recommendations to any State or local government unit or an official thereof;
          (4) Any group that performs primarily operational functions specifically provided by law. Operational functions are those specifically authorized by statute or Presidential directive, such as making or implementing Government decisions or policy, as long as the group does not become primarily advisory in nature;
          (5) Any meeting initiated by the President or one or more Federal employees for the purpose of obtaining advice or recommendations from one individual;

          (6) Any meeting between an NRC employee with a non-governmental individual or group where advice or recommendations are provided by the attendees on an individual basis and are not sought from the group as a whole;

          (7) Any meeting with a committee or group created by a non-Federal entity that is not managed or controlled by the President or a Federal employee;
          (8) Any meeting of two or more advisory committee members convened solely to:
          (i) Discuss administrative matters relating to the operation of their advisory committee;
          (ii) Receive administrative information from a Federal employee;
          (iii) Gather information or conduct research for a chartered advisory committee to analyze relevant issues and facts for their advisory committee; or
          (iv) Draft proposed position papers for deliberation by their advisory committee;
          (9) Any meeting with a group initiated by the President or by one or more Federal employees for the purpose of exchanging facts or information;
          (10) Any meeting attended only by full-time or permanent part-time officers or employees of the Federal Government and elected officers of State, local, and Tribal governments (or their designated employees with authority to act on their own behalf), acting in their official capacities. However, the purpose of the meeting must be solely to exchange views, information, or advice relating to the management or implementation of Federal programs established pursuant to statute, that explicitly or inherently share intergovernmental responsibilities or administration;
          (11) Any meeting of an NRC contractor, applicant, or licensee with an NRC employee to discuss specific matters involving the solicitation, issuance, or implementation of a contract or the Commission's effort to ensure compliance with its regulations; and
          (12) Any meeting of a subcommittee or other subgroup of an advisory committee where the subgroup's recommendations will be reviewed by its parent advisory committee.

            Agency means an agency of the Government of the United States as defined in 5 U.S.C. 551(1).

            Commission means the Nuclear Regulatory Commission of five members, or a quorum thereof, sitting as a body, as provided by section 201 of the Energy Reorganization Act of 1974, 42 U.S.C. 5841, (88 Stat. 1242).

            Committee Management Secretariat means the organization established within the General Services Administration, pursuant to section 7(a) of the Act, which is responsible for all matters relating to advisory committees, and carries out the responsibilities of the Administrator of the General Services Administration under the Act and Executive Order 12024 (42 FR 61445; December 1, 1977).

            Committee meeting means any gathering of advisory committee members (whether in person, by telephone, or through electronic means) held with the approval of an agency for the purpose of deliberating on the substantive matters upon which the advisory committee provides advice or recommendations.

            Committee member means an individual who is appointed to serve on an advisory committee and has the full right and obligation to participate in the activities of the committee, including voting on committee recommendations.

            Designated Federal Officer means a government employee appointed, pursuant to § 7.11(a), to chair or attend each meeting of an NRC advisory committee to which he or she is assigned.

            Discretionary advisory committee means any advisory committee that is established, but not required to be established, under the authority of an agency head, and its establishment or termination is within the legal discretion of an agency head.

            GSA means the General Services Administration.

            Non-discretionary advisory committee means any advisory committee either required by statute or Presidential directive. A non-discretionary committee required by statute generally is identified specifically in a statute by name, purpose, or functions and its establishment is mandated.

            NRC means the agency established by title II of the Energy Reorganization Act of 1974, 42 U.S.C. 5801 (88 Stat. 1233), and known as the Nuclear Regulatory Commission.

            NRC Advisory Committee Management Officer means the individual appointed, pursuant to § 7.10(a), to supervise and control the establishment and management of NRC advisory committees.

            NRC Public Document Room means the Public Document Room maintained by the NRC at 11555 Rockville Pike, Rockville, Maryland 20852-2738.

            Presidential advisory committee means an advisory committee established by statute or directed by the President to advise the President.

            Staff member means any individual who serves in a support capacity to an advisory committee.

            Subcommittee means a subgroup of an advisory committee, whether or not its members are drawn in whole or in part from the parent advisory committee.

            Utilized committee means a committee or group not established by the Federal Government, but whose operations are managed or controlled by a Federal agency.
          [67 FR 79839, Dec. 31, 2002, as amended at 80 FR 74978, Dec. 1, 2015]

          § 7.3
          Interpretations.
          Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by an NRC officer or employee, other than a written interpretation by the General Counsel, shall be binding upon the Commission.

          § 7.4
          Establishment of advisory committees.
          (a) An NRC advisory committee may be established under this part only if its establishment—
          (1) Is specifically directed or authorized by statute or by Executive Order of the President; or
          (2) Has been determined by the Commission to be in the public interest and essential to the performance of the duties imposed on the Commission by law.
          The determination required by paragraph (a)(2) of this section shall be a matter of formal record, and shall include a statement of a clearly defined purpose for the advisory committee.

          § 7.5
          Consultation with Committee Management Secretariat on establishment of advisory committees; advisory committee charters.
          (a) Before establishing a discretionary advisory committee, the NRC shall consult with the Committee Management Secretariat. With a full understanding of the background and purpose behind the proposed advisory committee, the Committee Management Secretariat may share its knowledge and experience with the NRC on how best to make use of the proposed committee, alternate methods of attaining the agency's purpose, or whether a pre-existing advisory committee performs similar functions. Such consultation should include the transmittal of the proposed committee charter and the following information:
          (1) A request for a review of the proposed charter;
          (2) An explanation stating why the committee is essential to the conduct of NRC business and is in the public interest;
          (3) An explanation stating why the committee's functions cannot be performed by the NRC, an existing NRC advisory committee, or other means (such as a public hearing); and
          (4) A description of NRC's plan to attain balanced membership on the committee. The plan must ensure that, in the selection of members for the advisory committee, the NRC will consider a cross-section of those directly affected, interested, and qualified, as appropriate to the nature and functions of the committee. For purposes of attaining balance in an NRC advisory committee's membership, the Commission shall consider for membership interested persons and groups with professional, technical, or personal qualifications or experience that will contribute to the functions and tasks to be performed.
          (b) Each proposed committee charter submitted for review pursuant to paragraph (a) of this section shall contain the following information:
          (1) The committee's official designation;

          (2) The committee's objectives and the scope of its activity;

          (3) The period of time necessary for the committee to carry out its purposes;
          (4) The NRC official to whom the committee will report;
          (5) The NRC office responsible for providing support for the committee;
          (6) A description of the duties that the committee will perform, and if such duties are not solely advisory, a specification of the authority for the functions that are not advisory;
          (7) The estimated annual operating costs, in dollars and person years, for the committee;
          (8) The estimated number and frequency of committee meetings; and
          (9) The committee's termination date, if less than two years from the date of the committee's establishment.
          (c) The requirements of this part, including the requirements of paragraphs (a) and (b) of this section, shall apply to any subcommittee that functions independently of the parent advisory committee (such as by making recommendations directly to the agency rather than to the parent advisory committee), regardless of whether the subcommittee's members are drawn in whole or in part from the parent advisory committee.
          (d) After the Committee Management Secretariat has notified the Commission of the results of its review of a proposal to establish or utilize an NRC discretionary advisory committee, submitted pursuant to paragraph (a) of this section, the Commission shall notify the Committee Management Secretariat whether the advisory committee is actually being established. Filing of the advisory committee charter pursuant to § 7.8 shall be deemed to fulfill this notification requirement. If the advisory committee is not being established, the Commission shall so advise the Committee Management Secretariat, stating whether NRC intends to take any further action with respect to the proposed advisory committee.
          (e) The date of filing of an advisory committee charter pursuant to § 7.8 shall be added to the charter when such filing takes place, shall appear on the face of the charter, and shall constitute the date of establishment, renewal, or reestablishment of the committee.
          [67 FR 79840, Dec. 31, 2002]

          § 7.6
          Amendment to advisory committee charters.
          (a) Final authority for amending the charter of an NRC advisory committee established or utilized by the NRC is vested in the Commission.
          (b) Any proposed changes made to a current charter for an NRC advisory committee shall be coordinated with the General Counsel to ensure that they are consistent with applicable legal requirements. When a statute or Executive Order that directed or authorized the establishment of an advisory committee is amended, those sections of the advisory committee's charter affected by the amendments shall also be amended.
          (c)(1) The charter of an NRC advisory committee established under general agency authority may be amended when the Commission determines that the existing charter no longer reflects the objectives or functions of the committee. Such changes may be minor (such as revising the name of the advisory committee or modifying the estimated number or frequency of meetings), or they may be major (such as revising the objectives or composition of the committee).
          (2) The procedures in paragraph (b) of this section shall be used in the case of charter amendments involving minor changes. A proposed major amendment to the charter of an advisory committee established under general agency authority shall be submitted to the Committee Management Secretariat for review with an explanation of the purpose of the changes and why they are necessary.
          (3) A committee charter that has been amended pursuant to this paragraph is subject to the filing requirements set forth in § 7.8.
          (4) Amendment of an existing advisory committee charter pursuant to this paragraph does not constitute renewal of the committee for purposes of § 7.7.
          [67 FR 79840, Dec. 31, 2002]

          § 7.7
          Termination, renewal, and rechartering of advisory committees.
          (a) Except as provided in paragraph (b)(1) of this section, each NRC advisory committee shall terminate two years after it is established, reestablished, or renewed, unless—
          (1) It has been terminated sooner;
          (2) It has been renewed or reestablished before the end of such period in accordance with the procedures set forth in paragraph (b) of this section; or
          (3) Its duration has been otherwise designated by law. The NRC Committee Management Officer shall notify the Committee Management Secretariat of the effective date of termination of any advisory committee that has been terminated by the NRC.
          (b)(1) An NRC advisory committee that is established by statute shall require rechartering by the filing of a new charter every 2 years after the date of enactment of the statute establishing the committee. If a new charter is not filed, the committee is not terminated, but it may not meet or take any actions.
          (2) Any other NRC advisory committee may be renewed, provided that such renewal is carried out in compliance with the procedures set forth in § 7.5, except that an advisory committee established by the President may be renewed by appropriate action of the President and the filing of a new charter. Renewal of an NRC advisory committee shall not be deemed to terminate the appointment of any committee member who was previously appointed to serve on the committee.
          [54 FR 26948, June 27, 1989, as amended at 67 FR 79840, Dec. 31, 2002]

          § 7.8
          Charter filing requirements.
          No advisory committee may meet or take any action until a charter has been filed by the Committee Management Officer designated in accordance with § 7.10.
          (a) To establish, renew, or reestablish a discretionary advisory committee, a charter must be filed with:
          (1) The Commission;
          (2) The Committee on Environment and Public Works of the United States Senate and the Committee on Energy and Commerce of the United States House of Representatives;
          (3) The Library of Congress, Anglo-American Acquisitions Division, Government Documents Section, Federal Advisory Committee Desk, 101 Independence Avenue, S.E., Washington, DC 20540-4172; and
          (4) The Committee Management Secretariat, indicating the date the charter was filed with the congressional committees.
          (b) Charter filing requirements for non-discretionary advisory committees are the same as those in paragraph (a) of this section, except the date of establishment for a Presidential advisory committee is the date the charter is filed with the Secretariat.
          (c) Subcommittees that report directly to a Federal employee or agency must comply with this subpart.
          [67 FR 79841, Dec. 31, 2002]

          § 7.9
          Public notice of advisory committee establishment, reestablishment, or renewal.

          (a) After the Commission has received notice from the Committee Management Secretariat that its review of a proposal to establish, reestablish, renew, or utilize an NRC discretionary advisory committee has been completed, the Commission shall publish a notice in the Federal Register that the committee is being established, reestablished, renewed, or utilized. In the case of a new committee, the notice shall also describe the nature and purpose of the committee and shall include a statement that the committee is necessary and in the public interest.
          (b) Notices required to be published pursuant to paragraph (a) of this section shall be published at least 15 calendar days before the committee charter is filed pursuant to § 7.8, except that the Committee Management Secretariat may approve publication for less than 15 days for good cause shown. The 15-day advance notice requirement does not apply to advisory committee renewals, notices of which may be published concurrently with the filing of the charter.
          [67 FR 79841, Dec. 31, 2002]

          § 7.10
          The NRC Advisory Committee Management Officer.
          (a) The Chairman of the Commission or designee shall appoint an NRC Advisory Committee Management Officer to carry out the functions specified in paragraph (b) of this section.
          (b) The NRC Advisory Committee Management Officer shall—
          (1) Carry out all responsibilities relating to NRC advisory committees delegated to such officer by the Commission;
          (2) Ensure that administrative guidelines and management controls are issued that apply to all NRC advisory committees;
          (3) Exercise control and supervision over the establishment, procedures, and accomplishments of NRC advisory committees;
          (4) Assemble and maintain the reports, records, and other papers of any such committee during this existence;
          (5) Carry out, on behalf of the NRC, the provisions of the Freedom of Information Act (5 U.S.C. 552) and implementing NRC regulations (10 CFR part 9, subpart A) with respect to such reports, records, and other papers;

          (6) Ensure that, subject to the Freedom of Information Act and implementing NRC regulations at 10 CFR part 9, subpart A, copies of the records, reports, transcript minutes, appendices, working papers, drafts, studies, agenda, or other documents that were made available to or prepared for or by each NRC advisory committee are available for public inspection and copying at the NRC Web site, http://www.nrc.gov, at the NRC Public Document Room, or both, until the advisory committee ceases to exist;
          (7) Ensure that, subject to the Freedom of Information Act and implementing NRC regulations, at least eight copies of each report made by each NRC advisory committee and, where appropriate, background papers prepared by consultants, shall be filed with the Library of Congress;
          (8) Ensure that NRC keeps such records as will fully disclose the disposition of any funds that may be at the disposal of NRC advisory committees and the nature and extent of their activities; and
          (9) Ensure that NRC keeps such other records and provides such support services as are required by § 7.22.
          (c) For purposes of paragraph (b) of this section, the term “records” includes (but is not limited to):
          (1) A set of approved charters and membership lists for each NRC advisory committee;
          (2) Copies of NRC's portion of the Committee Management Secretariat Annual Comprehensive Review of Federal advisory committees required by section 7(b) of the Act;
          (3) NRC guidelines on committee management operations and procedures as maintained and updated; and
          (4) NRC determinations to close advisory committee meetings made pursuant to § 7.15.
          [54 FR 26948, June 27, 1989; 54 FR 28554, July 6, 1989; 54 FR 31646, Aug. 1, 1989; 64 FR 48949, Sept. 9, 1999; 67 FR 79841, Dec. 31, 2002]

          § 7.11
          The Designated Federal Officer.
          (a) The Chairman of the Commission or designee shall appoint a Designated Federal Officer or alternate Designated Federal Officer for each NRC advisory committee. The individual holding either position must be employed by the Federal Government on either a full-time or a permanent part-time basis.
          (b) All meetings of an NRC advisory committee must be convened or approved by the committee's Designated Federal Officer or alternate, and the agenda for each committee meeting (except a meeting of a Presidential advisory committee) must be approved by that individual.
          (c) An NRC advisory committee may not hold a meeting in the absence of its Designated Federal Officer or alternate.
          (d) It shall also be the responsibility of the Designated Federal Officer or alternate to:
          (1) Attend all meetings of the committee for which he or she has been appointed;
          (2) Adjourn the meetings of the committee when such adjournment is in the public interest;

          (3) Chair the meetings of the committee when so directed by the Commission;

          (4) Ensure compliance with the requirements of § 7.13 regarding minutes of meetings of the committee; and

          (5) Make copies of committee documents required to be maintained for public inspection and copying pursuant to § 7.14(b) and ensure their availability at the NRC Web site, http://www.nrc.gov, at the NRC Public Document Room, or both.
          [67 FR 79841, Dec. 31, 2002]

          § 7.12
          Public participation in and public notice of advisory committee meetings.
          (a) Each meeting of an NRC advisory committee shall be held at a reasonable time and in a place reasonably accessible to the public, including persons with disabilities. Any advisory committee meeting conducted in whole or part by teleconference, video conference, the Internet, or other electronic medium must comply with this section. The size of the meeting room must be sufficient to accommodate advisory committee members, committee or agency staff, and interested members of the public, except that the provisions of this paragraph relating to the room size shall not apply to any part of an NRC advisory committee meeting that has been closed pursuant to § 7.15.
          (b) Any member of the public who wishes to do so shall be permitted to file a written statement with an NRC advisory committee regarding any matter discussed at a meeting of the committee. The committee chairman may also permit members of the public to speak at meetings of the committee in accordance with procedures established by the committee.

          (c)(1) Except when the President or designee determines in writing that no notice should be published for reasons of national security, at least 15 days prior to an NRC advisory committee meeting, a notice that includes the following information shall be published in the Federal Register:

          (i) The exact name of the advisory committee as chartered;
          (ii) The time, date, place, and purpose of the meeting;
          (iii) A summary of the agenda of the meeting;
          (iv) Whether all or part of the meeting is open to the public; and
          (v) The name and telephone number of the Designated Federal Officer, alternate, or other responsible agency employee who may be contacted for additional information concerning the meeting.
          (2) If any part of the meeting is closed, the notice shall provide the reasons for the closure, citing the specific matter that has been determined to justify the closure under § 7.15. The Commission may publish a single notice announcing multiple meetings; however, a meeting may not be announced so far in advance as to prevent the public from being adequately informed of an NRC advisory committee's schedule.

          (d) In exceptional circumstances, less than 15 days notice of an advisory committee meeting may be given, provided that there is as much prior notice as possible and the reasons for the shorter time are included in the committee meeting notice published in the Federal Register.

          (e) In addition to notice required by paragraph (c) of this section, the NRC may also use other forms of notice, such as press releases, posting the information on the NRC Web site, http://www.nrc.gov, or notice by mail, to inform the public of advisory committee meetings. To that end, the Designated Federal Officer or alternate for each NRC advisory committee will, to the extent practicable, maintain lists of people and organizations interested in that advisory committee and notify them of meetings by mail.
          (f) Meetings of a subcommittee whose recommendations will not be reviewed by its parent advisory committee shall be conducted in accordance with all notice and openness requirements contained in this section and in §§ 7.13, 7.14, and 7.15.
          [54 FR 26948, June 27, 1989, as amended at 67 FR 79841, Dec. 31, 2002]

          § 7.13
          Minutes of advisory committee meetings.

          (a) Detailed minutes shall be kept of each NRC advisory committee meeting. The minutes shall include the following information:

          (1) The time, date, and place of the meeting;
          (2) A list of the attendees at the meeting who are advisory committee members or staff, agency employees, or members of the public who presented oral or written statements;
          (3) An estimate of the number of other members of the public who were present;
          (4) The extent of public participation; and
          (5) An accurate description of each matter discussed during the meeting and its resolution, if any, by the committee.
          (b) The minutes of an NRC advisory committee meeting shall include a copy of each report or other document received, issued, or approved by the committee in connection with the meeting. If it is impracticable to attach a document to the minutes, the minutes shall describe the document in sufficient detail to permit it to be identified readily.
          (c) The chairperson of an NRC advisory committee shall certify the accuracy of the minutes of each of the committee's meetings.
          (d) A verbatim transcript of an advisory committee meeting may be substituted for minutes required by this section, providing that the use of such a transcript is in accordance with the requirements of paragraphs (a), (b), and (c) of this section.
          [54 FR 26948, June 27, 1989, as amended at 67 FR 79842, Dec. 31, 2002]

          § 7.14
          Public information on advisory committees.

          (a) The Nuclear Regulatory Commission shall maintain systematic information on the nature, functions, and operations of each NRC advisory committee. A complete set of the charters of NRC advisory committees and copies of the annual reports required by § 7.17(a) will be maintained for public inspection at either the NRC Web site, http://www.nrc.gov, at the NRC Public Document Room, or both.

          (b) Subject to the provisions of the Freedom of Information Act (5 U.S.C. 552) and NRC's Freedom of Information Act regulations at 10 CFR part 9, subpart A, copies of NRC advisory committees' records, reports, transcripts, minutes, appendices, working papers, drafts, studies, agenda, and other documents shall be maintained for public inspection and copying at the NRC Web site, http://www.nrc.gov, at the NRC Public Document Room, or both. To provide the public a meaningful opportunity to comprehend fully the work undertaken by an NRC advisory committee, advisory committee records should be available to the public as soon as practicable. Members of the public or other interested parties may review non-exempt advisory committee records without filing a request for these records under the Freedom of Information Act.

          (c) Official records generated by or for an advisory committee must be retained for the duration of the advisory committee. Upon termination of the advisory committee, the records must be processed in accordance with the Federal Records Act (44 U.S.C. Chapters 21, 29-33) and regulations issued by the National Archives and Records Administration (see 36 CFR Parts 1220, 1222, 1228, and 1234), or in accordance with the Presidential Records Act (44 U.S.C. Chapter 22).
          [67 FR 79842, Dec. 31, 2002]

          § 7.15
          Procedures for closing an NRC advisory committee meeting.
          (a) To close all or part of a meeting of an NRC advisory committee, the committee shall submit a written request for closure to the General Counsel, citing specific exemptions listed in the Government in the Sunshine Act (5 U.S.C. 552b), as implemented by 10 CFR 9.104, that justify the closure. The request shall provide the General Counsel sufficient time for review in order to make a determination prior to publication of the meeting notice pursuant to § 7.12.

          (b) If the General Counsel finds that the request for closure is consistent with the provisions of the Government in the Sunshine Act and this part, a determination shall be issued in writing that all or part of the meeting will be closed. The determination shall include a statement of the reasons for the closing, citing the applicable exemptions in the Government in the Sunshine Act (as implemented by 10 CFR 9.104).

          (c) Except when the President or designee determines in writing that no notice should be published for reasons of national security, the Secretary of the Commission shall make a copy of the determination to close all or part of an NRC advisory committee meeting available to the public upon request. If such a determination has been issued, the meeting notice published in the Federal Register should comply with the provisions of § 7.12 applicable to closed meetings.
          [67 FR 79842, Dec. 31, 2002]

          § 7.16
          Annual comprehensive review.
          (a) The Chairman of the Commission shall conduct an annual comprehensive review of the activities and responsibilities of each NRC advisory committee to determine whether the committee—
          (1) Is carrying out its purposes or, consistent with the provisions of applicable statutes, its responsibilities should be revised.
          (2) Should be merged with another advisory committee.
          (3) Should be terminated.
          (b) The comprehensive review required by paragraph (a) of this section shall include consideration of such information regarding the committee as is required for the Commission's annual report to the GSA Secretariat pursuant to § 7.17(a) and such other information as may be requested from the Committee by the NRC Advisory Committee Management Officer. The results of such review shall be included in the annual report to the GSA Secretariat.
          (c) If, as a result of the review required by this section, the Commission determines that an advisory committee is no longer needed, the committee shall be terminated; except that in the case of an advisory committee established by an Act of Congress or the President, the committee's termination shall be recommended to the President or the Congress, as the case may be.
          [54 FR 26948, June 27, 1989, as amended at 67 FR 79842, Dec. 31, 2002]

          § 7.17
          Reports required for advisory committees.

          (a) The Commission shall furnish a report on the activities of NRC advisory committees annually to the Committee Management Secretariat on a fiscal year basis. The report must contain information regarding NRC advisory committees consistent with instructions provided by the Committee Management Secretariat. A copy of the report shall be made available at the NRC Web site, http://www.nrc.gov, at the NRC Public Document Room, or both. The information provided by the Commission regarding its advisory committees is contained in the Committee Management Secretariat's report which is available on its Web site, http://www.gsa.gov/committeemanagement.

          (b) Any NRC advisory committee holding closed or partially closed meetings shall issue a report, at least annually, setting forth a summary of its activities consistent with the policy of the Government in the Sunshine Act (5 U.S.C. 552b), as implemented by 10 CFR 9.104. A copy of the report shall be made available at the NRC Web site, http://www.nrc.gov, at the NRC Public Document Room, or both.
          (c) Subject to the Freedom of Information Act (5 U.S.C. 552) and implementing NRC regulations (10 CFR part 9, subpart A), eight copies of each report made by an advisory committee, including any report on closed meetings pursuant to paragraph (b) of this section, and, where appropriate, background papers prepared by consultants, shall be filed for public inspection and use with the Library of Congress, Anglo-American Acquisitions Division, Government Documents Section, Federal Advisory Committee Desk, 101 Independence Avenue, SE., Washington, DC 20540-4172.
          [67 FR 79842, Dec. 31, 2002]

          § 7.18
          Appointment, compensation, and expense reimbursement of advisory committee members, staffs, and consultants.

          (a) Unless otherwise provided by law, advisory committee members serve at the pleasure of the Commission and their terms are at the sole discretion of the Commission.

          (b) Except where otherwise provided by law, the Commission may accept the gratuitous services of an NRC advisory committee member, staff member, or consultant who agrees in advance to serve without compensation.
          (c)(1) Subject to the provisions of paragraph (c)(2) of this section, if the Commission determines that compensation of a member of an NRC advisory committee is appropriate, the amount that will be paid shall be fixed by the Chairman of the Commission at a rate that is the daily equivalent of a rate in NRC's General Grade Salary Schedule, unless the member is appointed as a consultant and compensated at a rate applicable to NRC consultants.
          (2) In determining an appropriate rate of pay for a member of an NRC advisory committee, the Chairman of the Commission shall give consideration to the significance, scope, and technical complexity of the matters with which the advisory committee is concerned and the qualifications required of the committee member; provided that the Chairman may not set the rate of pay for an NRC advisory committee member higher than the daily equivalent rate for level IV of the Executive Schedule under 5 U.S.C. 5315, unless a higher rate is expressly allowed by another statute. The Chairman may authorize a rate of basic pay in excess of the maximum rate of basic pay established for NRC's General Grade Salary Schedule. This maximum rate includes an applicable locality payment. The Commission may pay advisory committee members on either an hourly or a daily rate basis. The Commission may not provide additional compensation in any form, such as bonuses or premium pay. The Chairman may not delegate the responsibility for making a determination that a higher rate of pay than that established by NRC's General Grade Salary Schedule is necessary and justified for an NRC advisory committee member, and such a determination must be reviewed annually.
          (d)(1) Each NRC advisory committee staff member may be paid at a rate that is the daily equivalent of a rate in NRC's General Grade Salary Schedule in which the staff member's position would appropriately be placed.
          (2) A staff member of an NRC advisory committee may not be paid at a rate higher than the daily equivalent of the maximum rate for a GG-15 under NRC's General Grade Salary Schedule, unless the Chairman of the Commission determines that the staff member's position would appropriately be placed at a grade higher than GG-15, provided that in establishing rates of compensation, the Chairman shall comply with any applicable statutes, regulations, Executive Orders, and administrative guidelines. The Commission may provide advisory committee staff members with additional compensation, such as bonuses or premium pay, as long as the aggregate compensation does not exceed the rate of pay for Executive Schedule level IV.
          (3) A Federal employee may serve as a staff member of an NRC advisory committee only with the knowledge of the advisory committee's Designated Federal Officer or alternate and the approval of the employee's direct supervisor. A staff member who is not otherwise a Federal employee shall be appointed in accordance with applicable agency procedures, following consultation with the advisory committee.
          (e)(1) Subject to the limitations in paragraph (e)(2) of this section, the following factors shall be considered in determining an appropriate rate of pay for a consultant to an NRC advisory committee:
          (i) The qualifications required of the consultant, and
          (ii) The significance, scope, and technical complexity of the work for which his services are required;

          (2) The rate of pay for an NRC advisory committee consultant may not be higher than the maximum rate of basic pay established by NRC's General Salary Schedule (that is, the GG-15, step 10 rate, excluding locality pay or any other supplement), unless a higher rate is expressly allowed by another statute. The appointment and compensation of NRC experts and consultants must be in conformance with applicable regulations issued by the United States Office of Personnel Management (see 5 CFR part 304).

          (f) A member or staff member of an NRC advisory committee engaged in the performance of duties away from his or her home or regular place of business may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by section 5703, title 5, United States Code, for persons employed intermittently in the Government service.
          (g) Nothing in this section shall:
          (1) Prevent any full-time Federal employee who provides services to an NRC advisory committee from receiving compensation at a rate at which he or she would otherwise be compensated as a full-time Federal employee;
          (2) Prevent any individual who provides services to an NRC advisory committee, and who immediately before providing such services was a full-time Federal employee, from receiving compensation at a rate at which he or she was compensated as a full-time Federal employee; or
          (3) Affect a rate of pay or a limitation on a rate of pay that is specifically established by law or a rate of pay established under the NRC's General Grade Salary Schedule and evaluation system.
          [67 FR 79843, Dec. 31, 2002]

          § 7.19
          Advisory committee members with disabilities.
          An NRC advisory committee member who is disabled may be provided services by a personal assistant while performing advisory committee duties, if the member;
          (a) Qualifies as disabled under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 794) ; and
          (b) Does not otherwise qualify for assistance under 5 U.S.C. 3102 by reason of being an employee of NRC.
          [67 FR 79843, Dec. 31, 2002]

          § 7.20
          Conflict of interest reviews of advisory committee members' outside interests.
          The Designated Federal Officer or alternate for each NRC advisory committee and the General Counsel or designee shall review the interests and affiliations of each member of the Designated Federal Officer's advisory committee annually, and upon the commencement of the member's appointment to the committee, for the purpose of ensuring that such appointment is consistent with the laws and regulations on conflict of interest applicable to that member.
          [67 FR 79843, Dec. 31, 2002]

          § 7.21
          Cost of duplication of documents.
          Copies of the records, reports, transcripts, minutes, appendices, working papers, drafts, studies, agenda, or other documents that were made available to or prepared for or by an NRC advisory committee shall be made available to any person at the actual cost of duplication prescribed in part 9 of this chapter. (For availability of information on advisory committees, see § 7.14.)

          § 7.22
          Fiscal and administrative responsibilities.
          (a) The Office of the Chief Financial Officer shall keep such records as will fully disclose the disposition of any funds that may be at the disposal of NRC advisory committees.
          (b) The Office of the Chief Information Officer shall keep such records as will fully disclose the nature and extent of activities of NRC advisory committees.
          (c) NRC shall provide support services (including staff support and meeting space) for each advisory committee established by or reporting to it unless the establishing authority provides otherwise. Where any such advisory committee reports to another agency in addition to NRC, only one agency shall be responsible for support services at any one time, and the establishing authority shall designate the agency responsible for providing such services.
          [54 FR 26948, June 27, 1989, as amended at 63 FR 15742, Apr. 1, 1998; 80 FR 74978, Dec. 1, 2015]

        PART 8 [RESERVED]

        Pt. 9
        PART 9—PUBLIC RECORDS

          Sec.
          9.1
          Scope and purpose.
          9.3
          Definitions.
          9.5
          Interpretations.
          9.6
          Communications.

          9.8
          Information collection requirements: OMB approval.

            Subpart A—Freedom of Information Act Regulations
            9.11
            Scope of subpart.
            9.13
            Definitions.
            9.15
            Availability of records.
            9.17
            Agency records exempt from public disclosure.
            9.19
            Segregation of exempt information and deletion of identifying details.
            9.21
            Publicly available records.
            9.23
            Requests for records.
            9.25
            Initial disclosure determination.
            9.27
            Form and content of responses.
            9.28
            Predisclosure notification procedures for information containing trade secrets or confidential commercial or financial information.
            9.29
            Appeal from initial determination.
            9.30
            Contact for dispute resolution services.
            9.31
            Extension of time for response.
            9.33
            Search, review, and special service fees.
            9.34
            Assessment of interest and debt collection.
            9.35
            Duplication fees.
            9.37
            Fees for search and review of agency records by NRC personnel.
            9.39
            Search and duplication provided without charge.
            9.40
            Assessment of fees.
            9.41
            Requests for waiver or reduction of fees.
            9.43
            Processing of requests for a waiver or reduction of fees.
            9.45
            Annual report to the Attorney General of the United States and Director of the Office of Government Information Services.

            Subpart B—Privacy Act Regulations
            9.50
            Scope of subpart.
            9.51
            Definitions.

              Procedures Applicable to Requests by Individuals for Information, Access or Amendment of Records Maintained About Them

              presentation of requests
              9.52
              Types of requests.
              9.53
              Requests; how and where presented.
              9.54
              Verification of identity of individuals making requests.
              9.55
              Specification of records.
              9.56
              Accompanying persons.

              nrc procedures for processing requests
              9.60
              Acknowledgement of requests.
              9.61
              Procedures for processing requests for records exempt in whole or in part.
              9.62
              Records under control of another Government agency.

              determinations and appeals
              9.65
              Access determinations; appeals.
              9.66
              Determinations authorizing or denying correction of records; appeals.
              9.67
              Statements of disagreement.
              9.68
              NRC statement of explanation.
              9.69
              Notices of correction or dispute.

              disclosure to others of records about individuals
              9.80
              Disclosure of record to persons other than the individual to whom it pertains.
              9.81
              Notices of subpoenas.
              9.82
              Notices of emergency disclosures.

              fees
              9.85
              Fees.

              enforcement
              9.90
              Violations.

              exemptions
              9.95
              Specific exemptions.

            Subpart C—Government in the Sunshine Act Regulations
            9.100
            Scope of subpart.
            9.101
            Definitions.
            9.102
            General requirement.
            9.103
            General provisions.
            9.104
            Closed meetings.
            9.105
            Commission procedures.
            9.106
            Persons affected and motions for reconsideration.
            9.107
            Public announcement of Commission meetings.
            9.108
            Certification, transcripts, recordings and minutes.
            9.109
            Report to Congress.

            Subpart D—Production or Disclosure in Response to Subpoenas or Demands of Courts or Other Authorities
            9.200
            Scope of subpart.
            9.201
            Production or disclosure prohibited unless approved by appropriate NRC official.
            9.202
            Procedure in the event of a demand for production or disclosure.
            9.203
            Procedure where response to demand is required prior to receiving instructions.
            9.204
            Procedure in the event of an adverse ruling.

          Authority:
          Atomic Energy Act of 1954, sec. 161 (42 U.S.C. 2201); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note.
          Subpart A also issued under 31 U.S.C. 9701.
          Subpart B also issued under 5 U.S.C. 552a.
          Subpart C also issued under 5 U.S.C. 552b.

          Editorial Note:
          Nomenclature changes to part 9 appear at 82 FR 52825, Nov. 15, 2017.

          § 9.1
          Scope and purpose.
          (a) Subpart A implements the provisions of the Freedom of Information Act, 5 U.S.C. 552, concerning the availability to the public of Nuclear Regulatory Commission records for inspection and copying.
          (b) Subpart B implements the provisions of the Privacy Act of 1974, 5 U.S.C. 552a, concerning disclosure and availability of certain Nuclear Regulatory Commission records maintained on individuals.
          (c) Subpart C implements the provisions of the Government in the Sunshine Act, 5 U.S.C. 552b, concerning the opening of Commission meetings to public observation.
          (d) Subpart D describes procedures governing the production of agency records, information, or testimony in response to subpoenas or demands of courts or other judicial or quasi-judicial authorities in State and Federal proceedings.
          [52 FR 49355, Dec. 31, 1987]

          § 9.3
          Definitions.
          As used in this part:

            Commission means the Commission of five members or a quorum thereof sitting as a body, as provided by section 201 of the Energy Reorganization Act of 1974.

            Government agency means any executive department, military department, Government corporation, Government-controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.

            NRC means the Nuclear Regulatory Commission, established by the Energy Reorganization Act of 1974.

            NRC personnel means employees, consultants, and members of advisory boards, committees, and panels of the NRC; members of boards designated by the Commission to preside at adjudicatory proceedings; and officers or employees of Government agencies, including military personnel, assigned to duty at the NRC.

            Working days mean Monday through Friday, except legal holidays.
          [52 FR 49355, Dec. 31, 1987]

          § 9.5
          Interpretations.
          Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by an officer or employee of the Commission other than a written interpretation by the General Counsel will be recognized as binding upon the Commission.
          [52 FR 49356, Dec. 31, 1987]

          § 9.6
          Communications.

          Except as otherwise indicated, communications relating to this part shall be addressed to the Freedom of Information Act and Privacy Act Officer, may be sent to the NRC by mail addressed to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland; or, where practicable, by electronic submission via facsimile to (301) 415-5130 or e-mail to foia@nrc.gov. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information.
          [68 FR 58799, Oct. 10, 2003, as amended at 74 FR 62680, Dec. 1, 2009; 80 FR 74978, Dec. 1, 2015]

          § 9.8
          Information collection requirements: OMB approval.

          (a) The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in this part under control number 3150-0043.
          (b) The approved information collection requirements contained in this part appear in §§ 9.23, 9.25, 9.28, 9.29, 9.40, 9.41, 9.53, 9.54, 9.55, 9.65, 9.66, and 9.67.
          [62 FR 52184, Oct. 6, 1997, as amended at 63 FR 2876, Jan. 20, 1998; 70 FR 34306, June 14, 2005]

          Subpart A—Freedom of Information Act Regulations

            Source:
            63 FR 2876, Jan. 20, 1998, unless otherwise noted.

            § 9.11
            Scope of subpart.
            This subpart prescribes procedures for making NRC agency records available to the public for inspection and copying pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552) and provides notice of procedures for obtaining NRC records otherwise publicly available. This subpart does not affect the dissemination or distribution of NRC-originated, or NRC contractor-originated, information to the public under any other NRC public, technical, or other information program or policy.

            § 9.13
            Definitions.

              Agency record means a record in the possession and control of the NRC that is associated with Government business. Agency record does not include records such as—
            (1) Publicly-available books, periodicals, or other publications that are owned or copyrighted by non-Federal sources;
            (2) Records solely in the possession and control of NRC contractors;
            (3) Personal records in possession of NRC personnel that have not been circulated, were not required to be created or retained by the NRC, and can be retained or discarded at the author's sole discretion, or records of a personal nature that are not associated with any Government business; or
            (4) Non-substantive information in logs or schedule books of the Chairman or Commissioners, uncirculated except for typing or recording purposes.

              Commercial-use request means a request made under § 9.23(b) for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made.

              Direct costs mean the expenditures that an agency incurs in searching for and duplicating agency records. For a commercial-use request, direct costs include the expenditures involved in reviewing records to respond to the request. Direct costs include the salary of the employee category performing the work based on that basic rate of pay plus 16 percent of that rate to cover fringe benefits and the cost of operating duplicating machinery.

              Duplication means the process of making a copy of a record necessary to respond to a request made under § 9.23. Copies may take the form of paper copy, microform, audio-visual materials, disk, magnetic tape, or machine readable documentation, among others.

              Educational institution means an institution that operates a program or programs of scholarly research. Educational institution refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education.

              Freedom of Information Act and Privacy Act Officer means the NRC official designated to fulfill the responsibilities for implementing and administering the Freedom of Information Act and the Privacy Act as specifically designated under the regulations in this part.

              Noncommercial scientific institution means an institution that is not operated on a commercial basis, as the term “commercial” is referred to in the definition of “commercial-use request,” and is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.

              Office, unless otherwise indicated, means all offices, boards, panels, and advisory committees of the NRC.

              Record means any information that would be an agency record subject to the requirements of the Freedom of Information Act when maintained by the NRC in any format, including an electronic format. Record also includes a book, paper, map, drawing, diagram, photograph, brochure, punch card, magnetic tape, paper tape, sound recording, pamphlet, slide, motion picture, or other documentary material regardless of form or characteristics. Record does not include an object or article such as a structure, furniture, a tangible exhibit or model, a vehicle, or piece of equipment.

              Representative of the news media means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term news means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of “news”) who make their products available for purchase or subscriptions by the general public.

              Review time means the period devoted to examining records retrieved in response to a request to determine whether they are exempt from disclosure in whole or in part. Review time also includes the period devoted to examining records to determine which Freedom of Information Act exemptions, if any, are applicable and identifying records, or portions thereof, to be disclosed.

              Search time means the period devoted to looking for agency records, either manually or by automated means, for the purpose of locating those records that are responsive to a request. This includes a page-by-page or line-by-line identification of responsive information within the records.

              Unusual circumstances mean—
            (1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
            (2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records demanded in a single request; or
            (3) The need for consultation, which will be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the NRC having substantial subject-matter interest therein.
            [63 FR 2876, Jan. 20, 1998, as amended at 70 FR 34306, June 14, 2005]

            § 9.15
            Availability of records.
            The NRC will make available for public inspection and copying any reasonably described agency record in the possession and control of the NRC under the provisions of this subpart, and upon request by any person. Records will be made available in any form or format requested by a person if the record is readily reproducible by NRC in that form or format. NRC will make reasonable efforts to maintain its records in forms or formats that are reproducible. NRC will make reasonable efforts to search for records in electronic form or format when requested, except when these efforts would significantly interfere with the operation of any of the NRC's automated information systems. Records that the NRC routinely makes publicly available are described in § 9.21. Procedures and conditions governing requests for records are set forth in § 9.23.

            § 9.17
            Agency records exempt from public disclosure.
            (a) The following types of agency records are exempt from public disclosure under § 9.15:
            (1) Records—
            (i) That are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy, and
            (ii) That are in fact properly classified pursuant to such Executive Order;

            (2) Records related solely to the internal personnel rules and practices of the agency;

            (3) Records specifically exempted from disclosure by statute (other than 5 U.S.C. 552b), provided that the statute—
            (i) Requires that the matters be withheld from the public in a manner that leaves no discretion on the issue; or
            (ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;
            (4) Trade secrets and commercial or financial information obtained from a person that are privileged or confidential;
            (5) Interagency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;
            (6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
            (7) Records or information compiled for law enforcement purposes, but only to the extent that the production of these law enforcement records or information—
            (i) Could reasonably be expected to interfere with enforcement proceedings;
            (ii) Would deprive a person of a right to a fair trial or an impartial adjudication;
            (iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;
            (iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority, or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, or information furnished by a confidential source;
            (v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, if the disclosure could reasonably be expected to risk circumvention of the law; or
            (vi) Could reasonably be expected to endanger the life or physical safety of any individual;
            (8) Matters contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions; or
            (9) Geological and geophysical information and data, including maps, concerning wells.
            (b) Nothing in this subpart authorizes withholding of information or limiting the availability of records to the public except as specifically provided in this part, nor is this subpart authority to withhold information from Congress.
            (c)(1) The NRC shall withhold information under this subpart only if—
            (i) The NRC reasonably foresees that disclosure would harm an interest protected by an exemption described in paragraph (a) of this section; or
            (ii) Disclosure is prohibited by law.
            (2) Nothing in this subpart requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under 5 U.S.C. 552(b)(3).
            (d) Whenever a request is made that involves access to agency records described in paragraph (a)(7) of this section, the NRC may, during only the time as that circumstance continues, treat the records as not subject to the requirements of this subpart when—
            (1) The investigation or proceeding involves a possible violation of criminal law; and
            (2) There is reason to believe that—
            (i) The subject of the investigation or proceeding is not aware of its pendency; and
            (ii) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.
            [63 FR 2876, Jan. 20, 1998, as amended at 81 FR 96346, Dec. 30, 2016]

            § 9.19
            Segregation of exempt information and deletion of identifying details.
            (a) For records required to be made available under 5 U.S.C. 552(a)(2), the NRC shall delete information that is exempt under one or more of the exemptions cited in § 9.17. The amount of information deleted will be indicated on the released portion of the record, unless providing this indication would harm an interest protected by the exemption(s) under which the matter has been withheld.
            (b) In responding to a request for information submitted under § 9.23, in which it has been determined to withhold exempt information, the NRC shall segregate—
            (1) Information that is exempt from public disclosure under § 9.17 from nonexempt information; and
            (2) Factual information from advice, opinions, and recommendations in predecisional records unless the information is inextricably intertwined, or is contained in drafts, legal work products, and records covered by the lawyer-client privilege, or is otherwise exempt from disclosure.
            (c) In denying a request for records, in whole or in part, NRC will make a reasonable effort to estimate the volume of any information requested that is denied and provide the estimate to the person making the request, unless providing the estimate would harm an interest protected by the exemption(s) under which the information has been denied.
            (d) When entire records or portions thereof are denied and deletions are made from parts of the record by computer, the amount of information deleted will be indicated on the released portion of the record, unless providing this indication would harm an interest protected by the exemption(s) under which the matter has been denied.
            [63 FR 2876, Jan. 20, 1998, as amended at 81 FR 96346, Dec. 30, 2016]

            § 9.21
            Publicly available records.
            (a) Single copies of NRC publications in the NUREG series, NRC Regulatory Guides, and Standard Review Plans can be ordered from the National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia, 22161.

            (b) For the convenience of persons who may wish to inspect without charge, or purchase copies of a record or a limited category of records for a fee, publicly available records of the NRC's activities described in paragraph (c) of this section are also made available at the NRC Web site, http://www.nrc.gov, and/or at the Public Document Room located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852-2738, between 7:45 am and 4:15 pm on Monday through Friday except Federal holidays.
            (c) The following records of NRC activities are available for public inspection in an electronic format:
            (1) Final opinions including concurring and dissenting opinions as well as orders of the NRC issued as a result of adjudication of cases;

            (2) Statements of policy and interpretations that have been adopted by the NRC and have not been published in the Federal Register;
            (3) Nuclear Regulatory Commission rules and regulations;
            (4) Nuclear Regulatory Commission Manuals and instructions to NRC personnel that affect any member of the public;
            (5) Copies of all records, regardless of form or format—
            (i) That have been released to any person under § 9.23; and
            (ii)(A) That because of the nature of their subject matter, the NRC determines have become or are likely to become the subject of subsequent requests for substantially the same records; or
            (B) That have been requested 3 or more times;

            (6) Individual indexes to publicly available records, including those records specified in paragraph (c) of this section, may be created by using the search features of the Agencywide Documents Access and Management System (ADAMS), located at the NRC Web site, http://www.nrc.gov. This capability made it unnecessary for the NRC to continue publishing its monthly publication, Documents Made Publicly Available (NUREG-0540) after March 1999.

            (d) The published versions of the records made publicly available under paragraph (c)(1) of this section are available under the title, Nuclear Regulatory Issuances, NUREG-0750, for purchase through the National Technical Information Service.
            [64 FR 48950, Sept. 9, 1999, as amended at 67 FR 67098, Nov. 4, 2002; 70 FR 34306, June 14, 2005; 81 FR 96346, Dec. 30, 2016]

            § 9.23
            Requests for records.
            (a)(1) A person may request access to records routinely made available by the NRC under § 9.21 in person, by telephone, by e-mail, facsimile, or U.S. mail from the NRC Public Document Room, One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852-2738.
            (i) Each record requested must be described in sufficient detail to enable the NRC Public Document Room staff to locate the record.
            (ii) To obtain copies of records expeditiously, a person may open an account with the NRC Public Document Room reproduction contractor. Payment for reproduction services will be made directly to the contractor.
            (2) [Reserved]
            (b) A person may request agency records by submitting a request authorized by 5 U.S.C. 552(a)(3) to the Freedom of Information Act and Privacy Act Officer by an appropriate method listed in § 9.6 of this chapter. The request must be in writing and clearly state on the envelope and in the letter that it is a “Freedom of Information Act request.” The NRC does not consider a request as received until the date it is actually received by the Freedom of Information Act and Privacy Act Officer.
            (1) A Freedom of Information Act request covers only agency records that are in existence on the date the Freedom of Information Act and Privacy Act Officer receives the request. A request does not cover agency records destroyed or discarded before receipt of a request or which are created after the date of the request.
            (2) All Freedom of Information Act requests for copies of agency records must reasonably describe the agency records sought in sufficient detail to permit the NRC to identify the requested agency records. Where possible, the requester should provide specific information regarding dates, titles, docket numbers, file designations, and other information which may help identify the agency records. If a requested agency record is not described in sufficient detail to permit its identification, the Freedom of Information Act and Privacy Act Officer will contact the requester within 10 working days after receipt of the request and inform the requester of the additional information or clarification needed to process the request.
            (3) Upon receipt of a request made under paragraph (b) of this section, the NRC will provide written notification to the requester that indicates the request has been received, the name and telephone number of the NRC point of contact to find out the status of the request, and other pertinent matters regarding the processing of the request.
            (4)(i) The NRC shall advise a requester that fees will be assessed if—
            (A) A request involves anticipated costs in excess of the minimum specified in § 9.39; and
            (B) Search and duplication is not provided without charge under § 9.39; or
            (C) The requester does not specifically state that the cost involved is acceptable or acceptable up to a specified limit.
            (ii) The NRC has discretion to discontinue processing a request made under this paragraph until—
            (A) A required advance payment has been received;
            (B) The requester has agreed to bear the estimated costs;
            (C) A determination has been made on a request for waiver or reduction of fees; or
            (D) The requester meets the requirements of § 9.39.

            (c) If a requested agency record that has been reasonably described is located at a place other than at the NRC Web site, http://www.nrc.gov, the NRC Public Document Room, or the NRC headquarters, the NRC may, at its discretion, make the record available for inspection and copying at either of the locations.
            (d) Except as provided in § 9.39—

            (1) If the record requested under paragraph (b) of this section is a record available through the National Technical Information Service, the NRC shall refer the requester to the National Technical Information Service; and

            (2) If the requested record has been placed on the NRC Internet Web site, under § 9.21, the NRC may inform the requester that the record is available at the NRC Web site, http://www.nrc.gov, and/or at the NRC Public Document Room, and that the record may be obtained in accordance with the procedures set forth in paragraph (a) of this section.

            (e) The Freedom of Information Act and Privacy Act Officer will promptly forward a Freedom of Information Act request made under paragraph (b) of this section for an agency record to the head of the office(s) primarily concerned with the records requested, as appropriate. The responsible office will conduct a search for the agency records responsive to the request and compile those agency records to be reviewed for initial disclosure determination and/or identify those that have already been made publicly available at the NRC Web site, http://www.nrc.gov, and/or at the NRC Public Document Room.
            [63 FR 2876, Jan. 20, 1998, as amended at 64 FR 48950, Sept. 9, 1999; 67 FR 67098, Nov. 4, 2002; 68 FR 58800, Oct. 10, 2003; 70 FR 34306, June 14, 2005]

            § 9.25
            Initial disclosure determination.
            (a) Time for initial disclosure determination. The NRC will notify a requester within 20 working days of its determination. If the NRC cannot act upon the request within this period, the NRC will provide the requester with the reasons for the delay and provide a projected response date.
            (b) Extension of time limit in unusual circumstances. In unusual circumstances, the NRC may extend the time limit prescribed in paragraph (a) of this section by not more than 10 working days. The extension may be made by written or telephonic notice to the person making the request to explain the reasons for the extension and indicate the date on which a determination is expected to be made. “Unusual circumstances” is limited to one or more of the following reasons for delay:
            (1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
            (2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
            (3) The need for consultation, which will be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the NRC having substantial subject-matter interest therein.
            (c) Exceptional circumstances. A requester may be notified in certain exceptional circumstances, when it appears that a request cannot be completed within the allowable time, and will be provided an opportunity to limit the scope of the request so that it may be processed in the time limit, or to agree to a reasonable alternative time frame for processing. When notifying a requester under this paragraph, the NRC, to aid the requester, shall make available its FOIA Public Liaison to assist in the resolution of any disputes between the requester and the agency and shall notify the requester of the requester's right to seek dispute resolution services from the Office of Government Information Services within the National Archives and Records Administration. For purposes of this paragraph, the term “exceptional circumstances” does not include delays that result from the normal predictable workload of FOIA requests or a failure by the NRC to exercise due diligence in processing the request. A requester's unwillingness to agree to reasonable modification of the request or an alternative time for processing the request may be considered as factors in determining whether exceptional circumstances exist and whether the agency exercised due diligence in responding to the request.
            (d) Multiple-Track processing. To ensure the most equitable treatment possible of all requesters, the NRC will process requests on a first-in, first-out basis, using multiple tracking systems based upon the estimated time it will take to process the request.
            (1) NRC uses a three-track system.

            (i) The first track is for requests of simple to moderate complexity that are expected to be completed within 20 working days.
            (ii) The second track is for requests involving “unusual circumstances” that are expected to take between 21-30 working days to complete (e.g. requests involving possible records from two or three offices and/or various types of files of moderate volume, of which, some are expected to be exempt)
            (iii) The third track is for requests that, because of their unusual volume or other complexity, are expected to take more than 30 working days to complete (e.g. requests involving several offices, regional offices, another agency's records, classified records requiring declassification review, records from businesses that are required to be referred to the submitter for their proprietary review prior to disclosure, records in large volumes which require detailed review because of the sensitive nature of the records such as investigative records or legal opinions and recordings of internal deliberations of agency staff).
            (2) Upon receipt of requests, NRC will notify requesters of the track in which the request has been placed for processing and the estimated time for completion. Should subsequent information substantially change the estimated time to process a request, the requester will be notified telephonically or in writing. A requester may modify the request to allow it to be processed faster or to reduce the cost of processing. Partial responses may be sent to requesters as documents are obtained by the FOIA office from the supplying offices.
            (e) Expedited processing. (1) NRC may place a person's request at the front of the queue for the appropriate track for that request upon receipt of a written request that clearly demonstrates a compelling need for expedited processing. For purposes of determining whether to grant expedited processing, the term compelling need means—
            (i) That a failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
            (ii) With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.
            (2) A person requesting expedited processing must include a statement certifying the compelling need given to be true and correct to the best of his or her knowledge and belief. The certification requirement may be waived by the NRC as a matter of agency discretion.
            (3) The Freedom of Information Act and Privacy Act Officer will make the initial determination whether to grant or deny a request for expedited processing and will notify a requester within 10 calendar days after the request has been received whether expedited processing will be granted.
            (f) Disclosure review. The head of the responsible office shall review agency records located in a search under § 9.23(b) to determine whether the agency records are exempt from disclosure under § 9.17. If the head of the office determines that, although exempt, the disclosure of the agency records will not be contrary to the public interest and will not affect the rights of any person, the head of the office may authorize disclosure of the agency records. If the head of the office authorizes disclosure of the agency records, the head of the office will furnish the agency records to the Freedom of Information Act and Privacy Act Officer, who will notify the requester of the determination in the manner provided in § 9.27.
            (g)(1) Initial disclosure determination on requests for records originated by, or located in the files of the Office of the Inspector General. If, as a result of the review specified in paragraph (f) of this section, the Assistant Inspector General for Investigations finds that agency records that are originated by or located in the Office of the Inspector General are exempt from disclosure and should be denied in whole or in part, and disclosure of the records is contrary to the public interest and will adversely affect the rights of any person, the Assistant Inspector General for Investigations will submit that finding to the Freedom of Information Act and Privacy Act Officer who will notify the requester of the determination in the manner provided in § 9.27.
            (2) Initial disclosure determinations on requests for records originated by or transmitted to the Commission, or a Commissioner, or records originated by, or for which the Office of the Secretary or an Advisory Committee has primary responsibility. If, as a result of the review specified in paragraph (f) of this section, the Executive Assistant to the Secretary of the Commission finds that agency records originated by or transmitted to the Commission or a Commissioner, or records originated by, or for which the Office of the Secretary or an Advisory Committee has primary responsibility, are exempt from disclosure and should be denied in whole or in part, and disclosure of the records is contrary to the public interest and will adversely affect the rights of any person, the Executive Assistant to the Secretary of the Commission will submit that finding to the Freedom of Information Act and Privacy Act Officer who will notify the requester of the determination in the manner provided in § 9.27.
            (3) Initial disclosure determination for records originated by, or for which the Office of the General Counsel has principal responsibility. If, as a result of the review specified in paragraph (f) of this section, the General Counsel finds that agency records that are originated by, or for which the Office of the General Counsel has primary responsibility, are exempt from disclosure and should be denied in whole or in part, and disclosure of the records is contrary to the public interest and will adversely affect the rights of any person, the General Counsel will submit that finding to the Freedom of Information Act and Privacy Act Officer who will notify the requester of the determination in the manner provided in § 9.27.
            (h) Initial disclosure determinations on requests for records other than those for which the initial disclosure determination is made by the Assistant Inspector General for Investigations, the Executive Assistant to the Secretary of the Commission, or the General Counsel. If, as a result of the review specified in paragraph (f) of this section, the head of the responsible office finds that agency records other than those described in paragraph (g) of this section, that are originated by, or for which the office has primary responsibility, should be denied in whole or in part, the head of the office will submit that finding to the Freedom of Information Act and Privacy Act Officer, who will, in consultation with the Office of the General Counsel, make an independent determination whether the agency records should be denied in whole or in part. If the Freedom of Information Act and Privacy Act Officer determines that the agency records sought are exempt from disclosure and disclosure of the records is contrary to the public interest and will adversely affect the rights of any person, the Freedom of Information Act and Privacy Act Officer will notify the requester of the determination in the manner provided in § 9.27.
            (i) Records and information originated by another Federal agency. If a requested record is located that was originated or contains information originated by another Federal Government agency, or deals with subject matter over which an agency other than the NRC has exclusive or primary responsibility, the NRC will promptly refer the record to that Federal Government agency for disposition or for guidance regarding disposition.
            (j) If the NRC does not respond to a request within the 20 working-day period, or within the extended periods described in paragraph (b) of this section, the requester may treat that delay as a denial of the request and immediately appeal as provided in § 9.29(a) or sue in a Federal District Court as noted in § 9.29(c).
            [63 FR 2876, Jan. 20, 1998, as amended at 70 FR 34306, June 14, 2005; 81 FR 96346, Dec. 30, 2016]

            § 9.27
            Form and content of responses.

            (a) When the NRC has located a requested agency record and has determined to disclose the agency record, the Freedom of Information Act and Privacy Act Officer will promptly furnish the agency record or notify the requester where and when the agency record will be available for inspection and copying. The NRC's response will notify the requester of the requester's right to seek assistance from the NRC's FOIA Public Liaison. The NRC will also advise the requester of any applicable fees under §§ 9.35 and 9.37. The NRC will routinely make copies of non-sensitive records disclosed in response to Freedom of Information Act requests publicly available through the Agencywide Document Access and Management System (ADAMS) located in the NRC Library that can be accessed via the NRC Web site at http://www.nrc.gov/NRC/reading-rm/adams.html. Records that contain information personal to the requester, involve matters that are not likely to be of public interest to anyone other than the requester or contain privileged or confidential information that should only be disclosed to the requester will not be made publicly available on the NRC Web site.
            (b) When the NRC denies access to a requested agency record or denies a request for expedited processing or for a waiver or reduction of fees, the Freedom of Information Act and Privacy Act Officer will notify the requester in writing. The denial will include as appropriate—
            (1) The reason for the denial;
            (2) A reference to the specific exemption under the Freedom of Information Act, or other appropriate reason, and the Commission's regulations authorizing the denial;
            (3) The name and title or position of each person responsible for the denial of the request, including the head of the office recommending denial of the record;
            (4) A statement stating why the request does not meet the requirements of § 9.41 if the request is for a waiver or reduction of fees; and
            (5) A statement that the denial may be appealed within 90 calendar days from the date of the denial to the Executive Director for Operations, to the Secretary of the Commission, or to the Inspector General, as appropriate.
            (6) A statement that the requester has a right to seek assistance from the NRC's FOIA Public Liaison; and
            (7) A statement that the requester has a right to seek dispute resolution services from the NRC's FOIA Public Liaison or the Office of Government Information Services within the National Archives and Records Administration.
            (c) The Freedom of Information Act and Privacy Act Officer will maintain a copy of each letter granting or denying requested agency records, denying a request for expedited processing, or denying a request for a waiver or reduction of fees in accordance with the NRC Comprehensive Records Disposition Schedule.
            [63 FR 2876, Jan. 20, 1998, as amended at 70 FR 34307, June 14, 2005; 76 FR 72084, Nov. 22, 2011; 81 FR 96346, Dec. 30, 2016]

            § 9.28
            Predisclosure notification procedures for information containing trade secrets or confidential commercial or financial information.
            (a) Notice of opportunity to object to NRC's initial disclosure determination. Whenever NRC makes an initial determination that information should be disclosed in response to a Freedom of Information Act request or a Freedom of Information Act appeal which has been designated by the submitter as trade secrets or confidential commercial or financial information, or the NRC believes the information contains such trade secrets or confidential commercial or financial information, the NRC will give the submitter of the information written notice of NRC's initial determination, or NRC's need for information on which to base a determination, and an opportunity to object. The notice must describe the business information requested or include copies of the requested records or record portions containing the information.
            (b) Submitter objection to disclosure. The submitter will be allowed 30 calendar days from date of the notice described in paragraph (a) of this section to object to disclosure, unless the Commission determines that a shorter period of time to respond is necessary in a particular instance. If a submitter has any objection to disclosure, the submitter must provide a detailed written statement. The statement must specify all grounds that support why the information is a trade secret or commercial or financial information that is privileged or confidential. If a submitter fails to respond to the notice within the time specified in the notice, the submitter will be considered to have no objection to disclosure of the information. Information provided by the submitter that is not received until after the date specified for response will not be considered unless that date is extended by the Freedom of Information Act and Privacy Act Officer upon request by the submitter.
            (c) Notice of final decision to disclose. The NRC shall consider a submitter's written statement and specific grounds for nondisclosure. If the NRC agrees to withhold the information from public disclosure, the NRC will inform the requester in the manner described in § 9.27 of the agency decision to deny access to the requested information. Whenever the NRC denies the submitter's request for nondisclosure and decides to disclose the information, the NRC shall give the submitter written notice, which must include:
            (1) A statement of the reason(s) for the determination;
            (2) A description of the business information to be disclosed; and
            (3) A specified disclosure date, which will be 30 calendar days subsequent to the date of the notice, or less, as provided under paragraph (b) of this section, after which the information will be made available to the public.
            (d) Corresponding notice to requesters. When the NRC provides a submitter with notice and opportunity to object to disclosure under paragraph (b) of this section, the NRC shall also notify the requester(s). Whenever the NRC notifies a submitter of its final decision to disclose the requested information under paragraph (c) of this section, the NRC shall also notify the requester(s). When a submitter files a lawsuit seeking to prevent the disclosure of trade secrets or confidential commercial or financial information, the NRC shall notify the requester(s).
            (e) Notice to submitter of Freedom of Information Act lawsuit. Whenever a requester files a lawsuit seeking to compel disclosure of trade secrets or confidential commercial or financial information, the NRC shall promptly notify the submitter.
            [70 FR 34307, June 14, 2005]

            § 9.29
            Appeal from initial determination.
            (a) A requester may appeal a notice of denial of a Freedom of Information Act request for access to agency records, denial of a request for waiver or reduction of fees, or denial of a request for expedited processing under this subpart within 90 calendar days of the date of the NRC's denial.
            (b) For agency records to which access is denied by the Assistant Inspector General for Investigations, the appeal must be in writing directed to the Inspector General and sent to the Freedom of Information Act and Privacy Act Officer by an appropriate method listed in § 9.6. The appeal should clearly state on the envelope and in the letter that it is an “Appeal from Initial Freedom of Information Act Decision.” The NRC does not consider an appeal received until the date it is actually received by the Freedom of Information Act and Privacy Act Officer. The Inspector General will make the NRC determination on the appeal within 20 working days after the receipt of the appeal. If the Inspector General denies an appeal of access to records, in whole or in part, the Inspector General will notify the requester of the denial, explaining the exemptions relied upon and how the exemptions apply to the agency records withheld. The notice will inform the requester that the denial is a final agency action and that judicial review is available in a district court of the United States in the district in which the requester resides or has a principal place of business, in which the agency records are situated, or in the District of Columbia.

            (c) For agency records to which access is denied by the Executive Assistant to the Secretary of the Commission, the General Counsel, or an office director reporting to the Commission, the appeal must be in writing directed to the Secretary of the Commission and sent to the Freedom of Information Act and Privacy Act Officer by an appropriate method listed in § 9.6. The appeal should clearly state on the envelope and in the letter that it is an “Appeal from Initial Freedom of Information Act Decision.” The NRC does not consider an appeal received until the date it is actually received by the Freedom of Information Act and Privacy Act Officer. The Secretary of the Commission will make the NRC determination on the appeal within 20 working days after the receipt of the appeal. If the Secretary of the Commission denies an appeal of access to records, in whole or in part, the Secretary of the Commission will notify the requester of the denial, explaining the exemptions relied upon and how the exemptions apply to the agency records withheld. The notice will inform the requester that the denial is a final agency action and that judicial review is available in a district court of the United States in the district in which the requester resides or has a principal place of business, in which the agency records are situated, or in the District of Columbia.
            (d) For agency records to which access is denied by agency officials other than the Assistant Inspector General for Investigations, the Executive Assistant to the Secretary of the Commission, the General Counsel, or other office director reporting to the Commission, the appeal must be in writing directed to the Executive Director for Operations and sent to the Freedom of Information Act and Privacy Act Officer by an appropriate method listed in § 9.6. The appeal should clearly state on the envelope and in the letter that it is an “Appeal from Initial FOIA Decision.” The NRC does not consider an appeal received until the date it is actually received by the Freedom of Information Act and Privacy Act Officer. The Executive Director for Operations or a Deputy Executive Director will make the NRC determination on the appeal within 20 working days after the receipt of the appeal. If the Executive Director for Operations or a Deputy Executive Director denies an appeal of access to records, in whole or in part, the Executive Director for Operations or a Deputy Executive Director, will notify the requester of the denial, explaining the exemptions relied upon and how the exemptions apply to the agency records withheld. The notice will inform the requester that the denial is a final agency action and that judicial review is available in a district court of the United States in the district in which the requester resides or has a principal place of business, in which the agency records are situated, or in the District of Columbia.
            (e) For the denial of a request for expedited processing the appeal must be in writing directed to the Executive Director for Operations and sent to the Freedom of Information Act and Privacy Act Officer by an appropriate method listed in § 9.6. The appeal should clearly state on the envelope and in the letter that it is an “Appeal from Initial FOIA Decision.” The NRC does not consider an appeal received until the date it is actually received by the Freedom of Information Act and Privacy Act Officer. The NRC will make a determination on the appeal within 10 working days after the receipt of the appeal. If the Executive Director for Operations or a Deputy Executive Director denies an appeal for expedited processing, the Executive Director for Operations or a Deputy Executive Director, will notify the person making the request of the decision to sustain the denial, including a statement explaining why the request does not meet the requirements of § 9.25(e)(1) and (2). The notice will inform the requester that the denial is a final agency action and that judicial review is available in a district court of the United States in the district in which the requester resides or has a principal place of business, in which the agency records are situated, or in the District of Columbia.

            (f) For denial of a waiver or reduction of fees for locating and reproducing agency records, the appeal must be in writing directed to the Executive Director for Operations and sent to the Freedom of Information Act and Privacy Act Officer by an appropriate method listed in § 9.6. The appeal should clearly state on the envelope and in the letter that it is an “Appeal from Initial FOIA Decision.” The NRC does not consider an appeal received until the date it is actually received by the Freedom of Information Act and Privacy Act Officer. The NRC will make a determination on the appeal within 20 working days after the receipt of the appeal. If the Executive Director for Operations or a Deputy Executive Director denies an appeal of a waiver or reduction of fees for locating and reproducing agency records, the Executive Director for Operations or a Deputy Executive Director, will notify the person making the request of the decision to sustain the denial, including a statement explaining why the request does not meet the requirements of § 9.41. The notice will inform the requester that the denial is a final agency action and that judicial review is available in a district court of the United States in the district in which the requester resides or has a principal place of business, in which the agency records are situated, or in the District of Columbia.
            (g) The Executive Director for Operations, a Deputy Executive Director, the Secretary of the Commission, or the Inspector General will furnish copies of all appeals and written determinations on appeals to the Freedom of Information Act and Privacy Act Officer.
            [70 FR 34307, June 14, 2005, as amended at 81 FR 96346, Dec. 30, 2016]

            § 9.30
            Contact for dispute resolution services.
            (a) NRC's FOIA Public Liaison:
            (1) By mail—11555 Rockville Pike, Rockville, MD 20852;
            (2) By facsimile—301-415-5130; and
            (3) By email—FOIA.Resource@nrc.gov.

            (b) Office of Government Information Services within National Archives and Records Administration:
            (1) By mail—8601 Adelphi Road-OGIS, College Park, MD 20740;
            (2) By facsimile—202-741-5769; and
            (3) By email—ogis@nara.gov.

            [81 FR 96346, Dec. 30, 2016]

            § 9.31
            Extension of time for response.
            (a) In unusual circumstances defined in § 9.13, the NRC may extend the time limits prescribed in § 9.25 or § 9.29 by not more than 10 working days. The extension may be made by written notice to the person making the request to explain the reasons for the extension and indicate the date on which a determination is expected to be dispatched.
            (b) An extension of the time limits prescribed in §§ 9.25 and 9.29 may not exceed a combined total of 10 working days per request, unless a requester has agreed to an alternative time frame as described in § 9.25 (c).

            § 9.33
            Search, review, and special service fees.
            (a) The NRC charges fees for—
            (1) Search, duplication, and review, when agency records are requested for commercial use;
            (2) Duplication of agency records provided in excess of 100 pages when agency records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, or a representative of the news media;
            (3) Search time that exceeds two hours and duplication of agency records of more than 100 pages for requests from all other categories of requesters not described in paragraphs (a)(1) and (a)(2) of this section;
            (4) The direct costs of searching for agency records. The NRC will assess fees even when no agency records are located as a result of the search or when agency records that are located as a result of the search are not disclosed; and
            (5) Computer searches which includes the cost of operating the Central Processing Unit for the portion of operating time that is directly attributable to searching for agency records plus the operator/programmer salary apportionable to the search.
            (b) The NRC may charge requesters who request the following services for the direct costs of the service:
            (1) Certifying that records are true copies;
            (2) Sending records by special methods, such as express mail, package delivery service, courier, and other means other than first class mail; or
            (3) Producing or converting records to formats specified by a requester other than ordinary copying processes that are readily available in NRC.

            § 9.34
            Assessment of interest and debt collection.
            (a) The NRC will assess interest on the fee amount billed starting on the 31st day following the day on which the billing was sent in accordance with NRC's regulations set out in § 15.37 of this chapter. The rate of interest is prescribed in 31 U.S.C. 3717.
            (b) The NRC will use its debt collection procedures under part 15 of this chapter for any overdue fees.

            § 9.35
            Duplication fees.

            (a)(1) The charges by the duplicating service contractor for the duplication of records made available under § 9.21 at the NRC Public Document Room (PDR), One White Flint North, 11555 Rockville Pike, Room O-1F23, Rockville, Maryland, may be found on the NRC's Web site at http://www.nrc.gov/reading-rm/pdr/copy-service.html or by calling the PDR at 1-800-397-4209 or 301-415-4737, by e-mail pdr@nrc.gov and are as follows:
            (i) Paper-to-paper reproduction is $0.30 per page for standard size (up to and including 11″ × 14″ reduced). Pages 11″ × 17″ are $0.30 per page. Pages larger than 11″ × 17″, including engineering drawings, are $1.50 per square foot.
            (ii) Pages larger than 11″ × 17″ are $1.50 per square foot.
            (iii) Microfiche-to-paper reproduction is $0.30 per page. Aperture card blowback to paper is $3.00 per square foot.
            (iv) Microfiche card duplication is $5.00 per card; CD-ROM duplication is $10.00 each.
            (v) The charges for Electronic Full Text (EFT) (ADAMS documents) copying are as follows:
            (A) Electronic Full Text (EFT) copying of ADAMS documents to paper (applies to images, OCR TIFF, and PDF text) is $0.30 per page.
            (B) EFT copying of ADAMS documents to CD-ROM is $5.00 per CD plus $0.15 per page.
            (C) CD-ROM-to-paper reproduction is $0.30 per page.
            (vi) Priority rates (rush processing) are as follows:
            (A) The priority rate offered for standard size paper-to-paper reproduction is $0.35, microfiche-to-paper reproduction is $0.40, EFT copying of ADAMS documents to paper and CD-ROM-to-paper production is $0.35 per page.
            (B) The priority rate for aperture cards is $3.50 per square foot. The priority rate for copying EFT to CD-ROM is $6.00 per CD-ROM plus $0.20 per page.
            (vii) Facsimile charges are $1.00 per page for local calls; $2.00 per page for U.S. long distance calls, and $6.00 per page for foreign long distance calls, plus the regular per page copying charge.
            (2) A requester may submit mail-order requests for contractor duplication of NRC records made by writing to the NRC Public Document Room. The charges for mail-order duplication of records are the same as those set out in paragraph (a)(1) of this section, plus mailing or shipping charges.
            (3) A requester may open an account with the duplicating service contractor. A requester may obtain the name and address and billing policy of the contractor from the NRC Public Document Room.

            (4) Any change in the costs specified in this section will become effective immediately pending completion of the final rulemaking that amends this section to reflect the new charges. The Commission will post the charges that will be in effect for the interim period at the NRC Public Document Room. The Commission will publish a final rule in the Federal Register that includes the new charges within 15 working days from the beginning of the interim period.
            (b) The NRC will assess the following charges for copies of records to be duplicated by the NRC at locations other than the NRC Public Document Room located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland.
            (1) Sizes up to 81/2 × 14 inches made on office copying machines—$0.20 per page of copy; and
            (2) The charge for duplicating records other than those specified in paragraphs (a) and (b) of this section is computed on the basis of NRC's direct costs.
            (c) In compliance with the Federal Advisory Committee Act, a requester may purchase copies of transcripts of testimony in NRC Advisory Committee proceedings, which are transcribed by a reporting firm under contract with the NRC directly from the reporting firm at the cost of reproduction as provided for in the contract with the reporting firm. A requester may also purchase transcripts from the NRC at the cost of reproduction as set out in paragraphs (a) and (b) of this section.

            (d) Copyrighted material may not be reproduced in violation of the copyright laws. Requesters will be given the citation to any copyrighted publication and advised to contact the NRC Public Document Room to arrange to view the publication.
            [63 FR 2876, Jan. 20, 1998, as amended at 64 FR 48951, Sept. 9, 1999; 67 FR 67098, Nov. 4, 2002; 70 FR 34308, June 14, 2005; 71 FR 54571, Sept. 18, 2006]

            § 9.37
            Fees for search and review of agency records by NRC personnel.
            The NRC will charge the following hourly rates for search and review of agency records by NRC personnel:
            (a) Clerical search and review at a salary rate that is equivalent to a GG-9/step 7, plus 16 percent fringe benefits;
            (b) Professional/managerial search and review at a salary rate that is equivalent to a GG-14/step 7, plus 16 percent fringe benefits; and
            (c) Senior executive or Commissioner search and review at a salary rate that is equivalent to an ES-Maximum, plus 16 percent fringe benefits.
            [63 FR 2876, Jan. 20, 1998, as amended at 75 FR 41369, July 16, 2010; 83 FR 65077, Dec. 19, 2018]

            § 9.39
            Search and duplication provided without charge.
            (a) The NRC will search for agency records requested under § 9.23(b) without charges when agency records are not sought for commercial use and the records are requested by an educational or noncommercial scientific institution, or a representative of the news media.
            (b) The NRC will search for agency records requested under § 9.23(b) without charges for the first two hours of search for any request not sought for commercial use and not covered in paragraph (a) of this section.
            (c) The NRC will duplicate agency records requested under § 9.23(b) without charge for the first 100 pages of standard paper copies, or the equivalent cost of 100 pages of standard paper copies when providing the requester copies in microfiche or electronic form such as computer disks, if the requester is not a commercial use requester.
            (d) The NRC may not bill any requester for fees if the cost of collecting the fee would be equal to or greater than the fee itself.
            (e) The NRC may aggregate requests in determining search and duplication to be provided without charge as provided in paragraphs (a) and (b) of this section, if the NRC finds a requester or group of requesters acting in concert, has filed multiple requests that actually constitute a single request, and that the requests involve clearly-related matters.
            (f)(1) Except as described in paragraphs (f)(2), (3), and (4) of this section, if the NRC fails to comply with any time limit under §§ 9.25 or 9.29, it may not charge search fees or, in the case of requests from requesters described in § 9.33(a)(2), may not charge duplication fees.
            (2) If the NRC has determined that unusual circumstances, as defined in § 9.13, apply and the NRC provided timely written notice to the requester in accordance with the Freedom of Information Act, a failure to comply with the time limit shall be excused for an additional 10 days.
            (3) If the NRC has determined that unusual circumstances, as defined in § 9.13, apply and more than 5,000 pages are necessary to respond to the request, the NRC may charge search fees or, in the case of requests from requesters described in § 9.33(a)(2), may charge duplication fees, if the NRC has provided timely written notice to the requester in accordance with the Freedom of Information Act and the NRC has discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii).
            (4) If a court has determined that exceptional circumstances exist, as defined by 5 U.S.C. 552(a)(6)(C), a failure to comply with the time limit shall be excused for the length of time provided by the court order.
            [63 FR 2876, Jan. 20, 1998, as amended at 81 FR 96346, Dec. 30, 2016]

            § 9.40
            Assessment of fees.

            (a) If the request is expected to require the NRC to assess fees in excess of $25 for search and/or duplication, the NRC will notify the requester that fees will be assessed unless the requester has indicated in advance his or her willingness to pay fees as high as estimated.
            (b) In the notification, the NRC will include the estimated cost of search fees and the nature of the search required and estimated cost of duplicating fees.
            (c) The NRC will encourage requesters to discuss with the NRC the possibility of narrowing the scope of the request with the goal of reducing the cost while retaining the requester's original objective.
            (d) If the fee is determined to be in excess of $250, the NRC will require an advance payment.
            (e) Unless a requester has agreed to pay the estimated fees or, as provided for in paragraph (d) of this section, the requester has paid an estimated fee in excess of $250, the NRC may not begin to process the request.
            (f) If the NRC receives a new request and determines that the requester has previously failed to pay a properly charged fee under the Freedom of Information Act to the NRC or other Federal agency within 30 calendar days of receipt of the bill on a previous request, the NRC may refuse to accept the new request for processing until payment is made of the full amount owed on the prior request, plus any applicable interest assessed as provided in § 9.34.
            (g) Within 10 working days of the receipt of NRC's notice that fees will be assessed, the requester will provide advance payment if required, notify the NRC in writing that the requester agrees to bear the estimated costs, or submit a request for a waiver or reduction of fees pursuant to § 9.41.
            [63 FR 2876, Jan. 20, 1998, as amended at 70 FR 34308, June 14, 2005]

            § 9.41
            Requests for waiver or reduction of fees.
            (a)(1) The NRC will collect fees for searching for, reviewing, and duplicating agency records, except as provided in § 9.39, unless a requester submits a request in writing for a waiver or reduction of fees. To ensure that there will be no delay in the processing of Freedom of Information Act requests, the request for a waiver or reduction of fees should be included in the initial Freedom of Information Act request letter.
            (2) Each request for a waiver or reduction of fees should be addressed to the Office of the Chief Information Officer, and sent using an appropriate method listed in § 9.6.
            (b) A person requesting the NRC to waive or reduce search, review, or duplication fees will—
            (1) Describe the purpose for which the requester intends to use the requested information;
            (2) Explain the extent to which the requester will extract and analyze the substantive content of the agency record;
            (3) Describe the nature of the specific activity or research in which the agency records will be used and the specific qualifications the requester possesses to utilize information for the intended use in such a way that it will contribute to public understanding;
            (4) Describe the likely impact on the public's understanding of the subject as compared to the level of public understanding of the subject before disclosure;
            (5) Describe the size and nature of the public to whose understanding a contribution will be made;
            (6) Describe the intended means of dissemination to the general public;
            (7) Indicate if public access to information will be provided free of charge or provided for an access fee or publication fee; and
            (8) Describe any commercial or private interest the requester or any other party has in the agency records sought.
            (c) The NRC will waive or reduce fees, without further specific information from the requester if, from information provided with the request for agency records made under § 9.23(b), it can determine that disclosure of the information in the agency records is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Federal Government and is not primarily in the commercial interest of the requester.

            (d) In making a determination regarding a request for a waiver or reduction of fees, the NRC will consider the following factors:

            (1) How the subject of the requested agency records concerns the operations or activities of the Federal Government;
            (2) How the disclosure of the information is likely to contribute significantly to public understanding of Federal Government operations or activities;
            (3) The extent to which, the requester has a commercial interest that would be furthered by the disclosure of the requested agency records; and whether that commercial interest exceeds the public interest in disclosure.
            (e) The Freedom of Information Act and Privacy Act Officer will make an initial determination whether a request for a waiver or reduction of fees meets the requirements of this section. The Freedom of Information Act and Privacy Act Officer will inform requesters whenever their request for a waiver or reduction of fees is denied and will inform them of their appeal rights under § 9.29.
            [63 FR 2876, Jan. 20, 1998, as amended at 68 FR 58800, Oct. 10, 2003; 80 FR 74978, Dec. 1, 2015]

            § 9.43
            Processing requests for a waiver or reduction of fees.
            (a) Within 20 working days after receipt of a request for access to agency records for which the NRC agrees to waive fees under § 9.39 (a) through (d) or § 9.41(c), the NRC will respond to the request as provided in § 9.25.
            (b) In making a request for a waiver or reduction of fees, a requester shall provide the information required by § 9.41(b).
            (c) After receipt of a request for the waiver or reduction of fees made in accordance with § 9.41, the NRC will either waive or reduce the fees and notify the requester of the NRC's intent to provide the agency records promptly or deny the request and provide a statement to the requester explaining why the request does not meet the requirements of § 9.41(b).
            (d) As provided in § 9.29, a requester may appeal a denial of a request to waive or reduce fees to the Executive Director for Operations. The appeal must be submitted within 90 calendar days from the date of the notice.
            [63 FR 2876, Jan. 20, 1998, as amended at 70 FR 34308, June 14, 2005; 81 FR 96347, Dec. 30, 2016]

            § 9.45
            Annual report to the Attorney General of the United States and Director of the Office of Government Information Services.
            (a) On or before February 1 of each year, the NRC will submit a report covering the preceding fiscal year to the Attorney General of the United States and to the Director of the Office of Government Information Services which shall include the information required by 5 U.S.C. 552(e)(1).

            (b) The NRC will make its annual FOIA reports available to the public at the NRC Web site, http://www.nrc.gov.

            [81 FR 96347, Dec. 30, 2016]

          Subpart B—Privacy Act Regulations

            Source:
            40 FR 44484, Sept. 26, 1975, unless otherwise noted.

            § 9.50
            Scope of subpart.
            This subpart implements the provisions of section 3 of the Privacy Act of 1974, Pub. L. 93-579, 5 U.S.C. 552a, with respect to (a) the procedures by which individuals may determine the existence of, seek access to and request correction of NRC records concerning themselves, and (b) the requirements applicable to NRC personnel with respect to the use and dissemination of such records. The regulations in this subpart apply to all records which are retrievable from a system of records under the control of the Nuclear Regulatory Commission by the use of an individual's name or of an identifying number, symbol, or other identifying particular assigned to such individual. Except where specifically provided otherwise, this subpart applies to all NRC records maintained on individuals whether they predate or postdate September 27, 1975.

            § 9.51
            Definitions.
            As used in this subpart:

            (a) Individual means a citizen of the United States or an alien lawfully admitted for permanent residence.
            (b) The term maintain includes maintain, collect, use or disseminate.
            (c) Record means any item, collection or grouping of information about an individual that is maintained by the NRC, including, but not limited to, his or her education, financial transactions, medical history, employment history or criminal history, and that contains the individual's name, or the identifying number, symbol or other identifying particular assigned to the individual, such as a finger or voice print or a photograph.
            (d) System manager means the NRC official responsible for maintaining a system of records.
            (e) Systems of records means a group of records under the control of the NRC from which information is retrieved by the name of an individual or by an identifying number, symbol, or other identifying particular assigned to an individual.
            (f) Statistical record means a record in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual, except as provided by the Census Act, 13 U.S.C. 8.
            (g) Routine use means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected, as described in a notice published in the Federal Register.

            Procedures Applicable to Requests by Individuals for Information, Access or Amendment of Records Maintained About Them

            presentation of requests

              § 9.52
              Types of requests.
              (a) Individuals may make the following requests respecting records about themselves maintained by NRC in a system of records subject to the provisions of the Privacy Act of 1974:
              (1) Request a determination whether a record about the individual is contained in a system of records.
              (2) Request access to a record about the individual. Access requests may include requests to review the record and to have a copy made of all or any portion thereof in a form comprehensible to the individual.
              (3) Request correction or amendment of a record about the individual.
              (b) Requests for accounting of disclosures. Individuals may, at any time, request an accounting by NRC of disclosures to any other person or Government agency of any record about themselves contained in a system of records controlled by NRC, except the following: (1) Disclosures made pursuant to the Freedom of Information Act, 5 U.S.C. 552; (2) disclosures made within the Nuclear Regulatory Commission; (3) disclosures made to another Government agency or instrumentality for an authorized law enforcement activity pursuant to 5 U.S.C. 552a(b)(7); (4) disclosures expressly exempted by NRC regulations from the requirements of 5 U.S.C. 552a(c)(3) pursuant to 5 U.S.C. 552a (j)(2) and (k).
              [40 FR 44484, Sept. 26, 1975, as amended at 60 FR 63900, Dec. 13, 1995]

              § 9.53
              Requests; how and where presented.
              (a) Requests may be made in person or in writing. Assistance regarding equests or other matters relating to the Privacy Act of 1974 may be obtained by writing to the Freedom of Information Act and Privacy Act Officer, by an appropriate method listed in § 9.6. Requests relating to records in multiple systems of records should be made to the same Officer. That Officer shall assist the requestor in identifying his or her request more precisely and shall be responsible for forwarding the request to the appropriate system manager.

              (b) All written requests must be made to the Freedom of Information Act and Privacy Act Officer, U.S. Nuclear Regulatory Commission, and sent by an appropriate method listed in § 9.6, and should clearly state on the envelope and in the letter, as appropriate: “Privacy Act Request,” “Privacy Act Disclosure Accounting Request,” “Privacy Act Correction Request.” The NRC does not consider a request received until the date it is actually received by the Freedom of Information Act and Privacy Act Officer.

              (c) Requests may be made in person during official hours at the U.S. Nuclear Regulatory Commission office where the record is located, as listed in the “Notice of System of Records” for the system in which the record is contained.
              [40 FR 44484, Sept. 26, 1975, as amended at 41 FR 20645, May 20, 1976; 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 63 FR 15743, Apr. 1, 1998; 68 FR 58800, Oct. 10, 2003; 70 FR 34308, June 14, 2005]

              § 9.54
              Verification of identity of individuals making requests.
              (a) Identification requirements in paragraphs (a) (1) and (2) of this section are applicable to any individual who makes requests respecting records about himself or herself, except that no verification of identity shall be required if the records requested are available to the public under the provisions of the Freedom of Information Act. With respect to certain sensitive records, additional requirements for verification of identity stated in the appropriate published “Notice of System of Records” may be imposed.
              (1) Written requests. An individual making a written request respecting a record about himself or herself may establish his or her identity by a signature, address, date of birth, employee identification number, if any, and one other item of identification such as a copy of a driver's license or other document.
              (2) Requests in person. An individual making a request in person respecting a record about himself or herself may establish his or her identity by the presentation of a single document bearing a photograph (such as a passport or identification badge) or by the presentation of two items of identification which do not bear a photograph but do bear a name, address and signature (such, as a driver's license or credit card).
              (b) Inability to provide requisite documentation of identity. An individual making a request in person or in writing respecting a record about himself or herself who cannot provide the necessary documentation of identity may provide a notarized statement, swearing or affirming to his or her identity and to the fact that he or she understands that penalties for false statements may be imposed pursuant to 18 U.S.C. 1001, and that penalties for obtaining a record concerning an individual under false pretenses may be imposed pursuant to 5 U.S.C. 552a(i)(3). Forms for such notarized statements may be obtained on request from the Freedom of Information Act and Privacy Act Officer, and sent by an appropriate method listed in § 9.6.
              (c) Verification of parentage or guardianship. In addition to establishing the identity of the minor, or other individual he or she represents as required in paragraph (a) of this section, the parent or legal guardian of a minor or of an individual judicially determined to be incompetent shall establish his or her status as parent or guardian by furnishing a copy of a birth certificate of the minor showing parentage or a copy of a court order establishing guardianship.
              [40 FR 44484, Sept. 26, 1975, as amended at 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 63 FR 15743, Apr. 1, 1998; 68 FR 58800, Oct. 10, 2003; 70 FR 34309, June 14, 2005]

              § 9.55
              Specification of records.
              (a)(1) Requests relating to records shall, insofar as practicable, specify the nature of the record sought, the approximate dates covered by the record, the system of records in which the record is thought to be included and the system manager having custody of the record system as shown in the annual compilation, “Notices of Records Systems”, published by the General Services Administration. Requests shall, in addition, comply with any additional specification requirements contained in the published “Notice of System of Records” for that system.
              (2) Requests for correction or amendment of records shall, in addition, specify the particular record involved, state the nature of the correction or amendment sought and furnish justification for the correction or amendment.

              (b) Requests which do not contain information sufficient to identify the record requested will be returned promptly to the requestor, with a notice indicating what information is lacking. Individuals making requests in person will be informed of any deficiency in the specification of records at the time the request is made. Individuals making requests in writing will be notified of any such deficiency when their request is acknowledged.

              § 9.56
              Accompanying persons.
              An individual requesting access to records about himself or herself may be accompanied by another individual of his or her own choosing. Both the individual requesting access and the individual accompanying him or her shall sign the required form indicating that the Nuclear Regulatory Commission is authorized to discuss the contents of the subject record in the presence of both individuals.

            nrc procedures for processing requests

              § 9.60
              Acknowledgement of requests.
              (a) Written requests by individuals to verify the existence of, obtain access to or correct or amend records about themselves maintained by NRC in a system of records subject to the provisions of the Privacy Act of 1974, shall be acknowledged in writing by the Freedom of Information Act and Privacy Act Officer within ten working days after date of actual receipt. The acknowledgement shall advise the requestor if any additional information is needed to process the request. Wherever practicable, the acknowledgement shall notify the individual whether his or her request to obtain access to the record or to correct or amend the record has been granted or denied.
              (b) When an individual requests access to records or permission to correct or amend records in person, every effort will be made to make an immediate determination as to whether access or correction or amendment should be granted. If an immediate determination cannot be made, the request will be processed in the same manner as a written request. Records will be made available for immediate inspection whenever possible.
              [40 FR 44484, Sept. 26, 1975, as amended at 53 FR 17689, May 18, 1988; 54 FR 53316, Dec. 28, 1989; 63 FR 15743, Apr. 1, 1998]

              § 9.61
              Procedures for processing requests for records exempt in whole or in part.
              (a) When an individual requests information concerning the existence of, or access to, records about himself or herself which have been compiled in reasonable anticipation of a civil action or proceeding in either a court or before an administrative tribunal, the NRC shall advise the individual only that no record available to him or her pursuant to the Privacy Act of 1974 has been identified.
              (b) General exemptions. Generally, 5 U.S.C. 552a(j)(2) allows the exemption of any system of records within the NRC from any part of section 552a except subsections (b), (c) (1) and (2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and (11), and (i) of the act if the system of records is maintained by an NRC component that performs as one of its principal functions any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crimes, or to apprehend criminals, and consists of—
              (1) Information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release and parole, and probation status;
              (2) Information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or
              (3) Reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.
              (c) Specific exemptions under 5 U.S.C. 552a(k). Individual requests for access to records which have been exempted from access under the provisions of 5 U.S.C. 552a(k) shall be processed as follows:
              (1) Information classified under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy, and exempted under 5 U.S.C. 552a(k)(1). (i) Requested information classified by NRC will be reviewed by the responsible official of the NRC to determine whether it continues to warrant classification under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy.
              (ii) Information which no longer warrants classification under these criteria shall be declassified and made available to the individual. If the requested information has been classified by another agency, the responsible official of the NRC will request the classifying agency to review the information to ascertain if classification is still warranted. If the information continues to warrant classification, the individual shall be advised that the information sought is classified, that it has been reviewed and continues to warrant classification, and that it has been exempted from access pursuant to 5 U.S.C. 552a(k)(1).
              (2) Investigatory material compiled for law enforcement purposes exempted pursuant to 5 U.S.C. 552a(k)(2). Requests shall be responded to in the manner provided in paragraph (a) of this section unless a review of the information indicates that the information has been used or is being used to deny the individual any right, privilege or benefit for which he or she is eligible or to which he or she would otherwise be entitled under Federal law. In that event, the individual shall be advised of the existence of the information and shall be provided the information except to the extent it would reveal the identity of a confidential source. Information that would reveal the identity of a confidential source shall be extracted or summarized in a manner which protects the source and the summary or extract shall be provided to the requesting individual.
              (3) Material within a system of records required by statute to be maintained and used solely as statistical records and exempted pursuant to 5 U.S.C. 552a(k)(4). The exempted information requested will be reviewed by the responsible official of the NRC to determine whether it continues to warrant exemption. Information which no longer warrants exemption shall be made available to the individual. If the information continues to warrant exemption, the individual shall be advised that the information sought is exempt from disclosure, that it has been reviewed and continues to warrant exemption, and that it has been exempted from access pursuant to 5 U.S.C. 552a(k)(4).
              (4) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, Federal contracts, or access to classified information and exempted pursuant to 5 U.S.C. 552a(k)(5). Information exempted pursuant to 5 U.S.C. 552a(k)(5) shall be made available to an individual upon request except to the extent that the information would reveal the identity of a confidential source. Material that would reveal the identity of a confidential source shall be extracted or summarized in a manner which protects the source and the summary or extract shall be provided to the requesting individual.
              (5) Testing or examination material exempted pursuant to 5 U.S.C. 552a(k)(6). Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service which has been exempted pursuant to 5 U.S.C. 552a(k)(6) shall not be made available to an individual if disclosure would compromise the objectivity or fairness of the testing or examination process but may be made available if no possibility of such compromise exists.
              [40 FR 44484, Sept. 26, 1975, as amended at 44 FR 50804, Aug. 30, 1979; 50 FR 50284, Dec. 10, 1985; 60 FR 63900, Dec. 13, 1995; 70 FR 34309, June 14, 2005]

              § 9.62
              Records under control of another Government agency.
              Requests received by NRC pertaining to records under the control of another Government agency will be returned to the requester with the name of the controlling Government agency, if known, within ten working days after receipt by the NRC.
              [70 FR 34309, June 14, 2005]

            determinations and appeals

              § 9.65
              Access determinations; appeals.
              (a) Initial determinations. For agency records located in the Office of the Inspector General, the Assistant Inspector General for Investigations shall determine whether access to the record is available under the Privacy Act. For all other agency records, the Freedom of Information Act and Privacy Act Officer with the advice of the system manager having control of the record to which access is requested, shall determine whether access to the record is available under the Privacy Act. The Freedom of Information Act and Privacy Act Officer shall notify the requesting individual in person or in writing of the determination. Unless the request presents unusual difficulties or involves extensive numbers of records, individuals shall be notified of determinations to grant or deny access within 30 working days after receipt of the request.
              (1) Notices granting access shall inform the individual when and where the requested record may be seen, how copies may be obtained, and of any fees or anticipated charges which may be incurred pursuant to § 9.85 of this subpart.
              (2) Notices denying access must state the reasons for the denial, and advise the individual that the denial may be appealed to the Inspector General, for agency records located in the Office of Inspector General, or the Executive Director for Operations, for all other agency records, in accordance with the procedures set forth in this section.
              (b) Appeals from denials of access. If an individual has been denied access to a record the individual may request a final review and determination of that individual's request by the Inspector General or the Executive Director for Operations, as appropriate. A request for final review of an initial determination must be filed within 60 calendar days of the receipt of the initial determination. For agency records denied by the Assistant Inspector General for Investigations, the appeal must be in writing directed to the Inspector General and sent to the Freedom of Information Act and Privacy Act Officer by an appropriate method listed in § 9.6. For agency records denied by the Freedom of Information Act and Privacy Act Officer, the appeal must be in writing directed to the Executive Director for Operations and sent to the Freedom of Information Act and Privacy Act Officer by an appropriate method listed in § 9.6. The appeal should clearly state on the envelope and in the letter “Privacy Act Appeal-Denial of Access.” The NRC does not consider an appeal received until the date it is actually received by the Freedom of Information Act and Privacy Act Officer.
              (c) Final determinations. (1) The Inspector General, or the Executive Director for Operations or the EDO's designee, shall make a final determination within 30 working days of the receipt of the request for final review, unless the time is extended for good cause shown such as the need to obtain additional information, the volume of records involved, or the complexity of the issue. The extension of time may not exceed 30 additional working days. The requester shall be advised in advance of any extension of time and of the reasons therefor.
              (2) If the Inspector General, or the Executive Director for Operations or the EDO's designee, determines that access was properly denied because the information requested has been exempted from disclosure, the Inspector General, or the Executive Director for Operations or the EDO's designee shall undertake a review of the exemption to determine whether the information should continue to be exempt from disclosure. The Inspector General, or the Executive Director for Operations or the EDO's designee, shall notify the individual in writing of the final agency determination to grant or deny the request for access. Notices denying access must state the reasons therefor and must advise the individual of his/her right to judicial review pursuant to 5 U.S.C. 552a(g).
              [40 FR 44484, Sept. 26, 1975, as amended at 41 FR 20645, May 20, 1976; 41 FR 25997, June 24, 1976; 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 55 FR 33647, Aug. 17, 1990; 63 FR 15743, Apr. 1, 1998; 68 FR 58800, Oct. 10, 2003; 70 FR 34309, June 14, 2005]

              § 9.66
              Determinations authorizing or denying correction of records; appeals.
              (a) Initial determinations. (1) For agency records located in the Office of the Inspector General, the Assistant Inspector General for Investigations shall determine whether to authorize or refuse correction or amendment of a record. For all other agency records, the Freedom of Information Act and Privacy Act Officer with the advice of the system manager having control of the record, shall determine whether to authorize or refuse correction or amendment of a record. The Freedom of Information Act and Privacy Act Officer shall notify the requesting individual. Unless the request presents unusual difficulties or involves extensive numbers of records, individuals must be notified of determinations to authorize or refuse correction or amendment of a record within 30 working days after receipt of the request. In making this determination, the NRC official shall be guided by the following standards:
              (i) Records shall contain only such information about an individual as is relevant and necessary to accomplish an NRC function required to be accomplished by statute or by executive order of the President;
              (ii) Records used by NRC in making any determination about any individual shall be as accurate, relevant, current, and complete as is reasonably necessary to assure fairness to the individual in the determination;
              (iii) No record shall describe how any individual has exercised rights guaranteed by the First Amendment unless such record is expressly authorized by statute or by the individual about whom the record is maintained, or is pertinent to and within the scope of an authorized law enforcement activity.
              (2) For agency records located in the Office of Inspector General, if correction or amendment of a record is authorized, the Assistant Inspector General for Investigations shall correct or amend the record. For all other agency records, the Freedom of Information Act and Privacy Act Officer shall correct or amend the record. The Freedom of Information Act and Privacy Act Officer shall notify the requesting individual in writing that the correction or amendment has been made and provide the individual with a courtesy copy of the corrected record.
              (3) If correction or amendment of a record is refused, the Freedom of Information Act and Privacy Act Officer shall notify the requesting individual in writing of the refusal and the reasons therefor, and shall advise the individual that the refusal may be appealed to the Inspector General or the Executive Director for Operations, as appropriate, in accordance with the procedures set forth in this section.
              (b) Appeals from initial adverse determinations. If an individual's request to amend or correct a record has been denied, in whole or in part, the individual may appeal that action and request a final review and determination of that individual's request by the Inspector General or the Executive Director for Operations, as appropriate. An appeal of an initial determination must be filed within 60 calendar days of the receipt of the initial determination. For agency records denied by the Assistant Inspector General for Investigations, the appeal must be in writing directed to the Inspector General and sent to the Freedom of Information Act and Privacy Act Officer by an appropriate method listed in § 9.6. For agency records denied by the Freedom of Information Act and Privacy Act Officer the appeal must be in writing directed to the Executive Director for Operations and sent to the Freedom of Information Act and Privacy Act Officer by an appropriate method listed in § 9.6. The appeal should clearly state on the envelope and in the letter “Privacy Act Correction Appeal.” The NRC does not consider an appeal received until the date it is actually received by the Freedom of Information Act and Privacy Act Officer. Requests for final review must set forth the specific item of information sought to be corrected or amended and should include, where appropriate, records supporting the correction or amendment.
              (c) Final determinations. (1) The Inspector General, for agency records located in the Office of the Inspector General, or the Executive Director for Operations or the EDO's designee, for all other agency records, shall make a final agency determination within 30 working days of receipt of the request for final review, unless the time is extended for good cause shown such as the need to obtain additional information, the volume of records involved, or the complexity of the issue. The extension of time may not exceed 30 additional working days. The requester shall be advised in advance of any extension of time and of the reasons therefor.
              (2) For agency records located in the Office of the Inspector General, if the Inspector General makes a final determination that an amendment or correction of the record is warranted on the facts, the Inspector General or the IG's designee, shall correct or amend the record pursuant to the procedures in § 9.66(a)(2). For all other agency records, if the Executive Director for Operations, or the EDO's designee, makes a final determination that an amendment or correction of the record is warranted on the facts, the EDO or the EDO's designee, shall notify the Freedom of Information Act and Privacy Act Officer to correct or amend the record to the procedures in § 9.66(a)(2).
              (3) If the Inspector General, or the Executive Director for Operations or the EDO's designee, makes a final determination that an amendment or correction of the record is not warranted on the facts, the individual shall be notified in writing of the refusal to authorize correction or amendment of the record in whole or in part, and of the reasons therefor, and the individual shall be advised of his/her right to provide a “Statement of Disagreement” for the record and of his/her right to judicial review pursuant to 5 U.S.C. 552a(g).
              [40 FR 44484, Sept. 26, 1975, as amended at 41 FR 20645, May 20, 1976; 41 FR 25997, June 24, 1976; 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 55 FR 33647, Aug. 17, 1990; 63 FR 15743, Apr. 1, 1998; 68 FR 58800, Oct. 10, 2003; 70 FR 34309, June 14, 2005]

              § 9.67
              Statements of disagreement.
              (a) Written “Statements of Disagreement” may be furnished by the individual within 30 calendar days of the date of receipt of the final adverse determination of the Inspector General or the Executive Director for Operations. “Statements of Disagreement” directed to the Executive Director for Operations must be sent to the Freedom of Information Act and Privacy Act Officer by an appropriate method listed in § 9.6, and should be clearly marked on the statement and on the envelope, “Privacy Act Statement of Disagreement.” “Statements of Disagreement” directed to the Inspector General must be sent to the Freedom of Information Act and Privacy Officer by an appropriate method listed in § 9.6, and should be clearly marked on the statement and on the envelope “Privacy Act Statement of Disagreement”.
              (b) The Inspector General or the Executive Director for Operations, or their designees, as appropriate, are responsible for ensuring that: (1) The “Statement of Disagreement” is included in the system or systems of records in which the disputed item of information is maintained; and (2) the original record is marked to indicate the information disputed, the existence of a “Statement of Disagreement” and the location of the “Statement of Disagreement” within the system of records.
              [55 FR 33848, Aug. 17, 1990, as amended at 68 FR 58800, Oct. 10, 2003; 70 FR 34309, June 14, 2005]

              § 9.68
              NRC statement of explanation.
              The Inspector General, or the Executive Director for Operations or the EDO's designee, may if deemed appropriate, prepare a concise statement of the reasons why the requested amendments or corrections were not made. Any NRC “Statement of Explanation” must be included in the system of records in the same manner as the “Statement of Disagreement”. Courtesy copies of the NRC statement and of the notation of the dispute as marked on the original record must be furnished to the individual who requested correction or amendment of the record.
              [55 FR 33648, Aug. 17, 1990]

              § 9.69
              Notices of correction or dispute.

              (a) When a record has been corrected upon request or when a “Statement of Disagreement” has been filed, the Freedom of Information Act and Privacy Act Officer shall, within 30 working days thereof, advise all prior recipients of the affected record whose identity can be determined pursuant to an accounting of disclosures required by the Privacy Act or any other accounting previously made, of the correction or of the filing of the “Statement of Disagreement”.
              (b) Any disclosure of disputed information occurring after a “Statement of Disagreement” has been filed shall clearly identify the specific information disputed and be accompanied by a copy of the “Statement of Disagreement” and a copy of any NRC “Statement of Explanation”.
              [40 FR 44484, Sept. 26, 1975, as amended at 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 63 FR 15743, Apr. 1, 1998]

            disclosure to others of records about individuals

              § 9.80
              Disclosure of record to persons other than the individual to whom it pertains.
              (a) NRC Commissioners and NRC personnel shall not disclose any record which is contained in a system of records maintained by NRC by any means of communication to any person, or to another Government agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record is:
              (1) To NRC Commissioners and NRC personnel who have a need for the record in the performance of their duties;
              (2) Required under 5 U.S.C. 552;
              (3) For a routine use published in the Federal Register;
              (4) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of Title 13 of the United States Code;
              (5) To a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record and the record is transferred in a form that is not individually identifiable. The advance written statement of assurance shall (i) state the purpose for which the record is requested, and (ii) certify that the record will be used only for statistical purposes. Prior to release for statistical purposes in accordance with the provisions of this paragraph, the record shall be stripped of all personally identifying information and reviewed to ensure that the identity of any individual cannot reasonably be determined by combining two or more statistical records;
              (6) To the National Archives and Records Administration as a record that has sufficient historical or other value to warrant its continued preservation by the United States Government, or to the Archivist of the United States or designee for evaluation to determine whether the record has such value;

              (7) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the NRC specifying the particular portion of the record desired and the law enforcement activity for which the record is sought. A record may be disclosed to a law enforcement agency at the initiative of the NRC if criminal conduct is suspected, provided that such disclosure has been established as a routine use by publication in the Federal Register, and the instance of misconduct is directly related to the purpose for which the record is maintained;
              (8) To any person upon a showing of compelling circumstances affecting the health or safety of any individual;
              (9) To either House of Congress or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof or to any joint committee of the Congress or to any subcommittee of such joint committee;
              (10) To the Comptroller General, or any authorized representatives, in the course of the performance of the duties of the General Accounting Office;
              (11) Pursuant to the order of a court of competent jurisdiction; or

              (12) To a consumer reporting agency in accordance with 31 U.S.C. 3711(f).

              (b) [Reserved]
              [40 FR 44484, Sept. 26, 1975, as amended at 60 FR 63900, Dec. 13, 1995]

              § 9.81
              Notices of subpoenas.
              When records concerning an individual are subpoenaed or otherwise disclosed pursuant to court order, the NRC officer or employee served with the subpoena shall be responsible for assuring that the individual is notified of the disclosure within five days after such subpoena or other order becomes a matter of public record. The notice shall be mailed to the last known address of the individual and shall contain the following information: (a) The date the subpoena is returnable; (b) the court in which it is returnable; (c) the name and number of the case or proceeding; and (d) the nature of the information sought.

              § 9.82
              Notices of emergency disclosures.
              When information concerning an individual has been disclosed to any person under compelling circumstances affecting health or safety, the NRC officer or employee who made or authorized the disclosure shall notify the individual at his or her last known address within five days of the disclosure. The notice shall contain the following information: (a) The nature of the information disclosed; (b) the person or agency to whom the information was disclosed; (c) the date of the disclosure; and (d) the compelling circumstances justifying the disclosure.

            fees

              § 9.85
              Fees.
              Fees shall not be charged for search or review of records requested under this subpart or for making copies or extracts of records to make them available for review, although fees may be charged for additional copies. Fees established under 31 U.S.C. 483c and 5 U.S.C. 552a(f)(5) shall be charged according to the schedule contained in § 9.35 for actual copies of records disclosed under the Freedom of Information Act from Privacy Act Systems of Records.
              [70 FR 34309, June 14, 2005]

            enforcement

              § 9.90
              Violations.
              (a) An injunction or other court order may be obtained pursuant to 5 U.S.C. 552a(g) (1-3) to compel NRC to permit an individual to review, amend or copy a record pertaining to him, or to be accompanied by someone of his or her own choosing when he or she reviews his or her record. A court order may be obtained for the payment of a civil penalty imposed pursuant to 5 U.S.C. 552a(g)(4) if NRC intentionally or willfully fails to maintain a record accurately, or fails to comply with any provision of 5 U.S.C. 552a, or any provision of this subpart, if such failure results in an adverse determination or has an adverse effect on an individual. Court costs and attorney's fees may be awarded in civil actions.
              (b) Any officer or employee of NRC who willfully maintains a system of records without meeting the notice requirements of 5 U.S.C. 552a(e)(4), or who willfully discloses information knowing such disclosure to be prohibited by 5 U.S.C. 552a or by any rules or regulations issued thereunder, may be guilty of a criminal misdemeanor and upon conviction may be fined up to $5000. Any person who knowingly and willfully requests or obtains any record concerning an individual from NRC under false pretenses may be convicted of a criminal misdemeanor and upon conviction may be fined up to $5,000.

            exemptions

              § 9.95
              Specific exemptions.

              Exemptions applicable to Privacy Act Systems of Records are stated in each Privacy Act System of Records Notice which is published in the Federal Register and is available at the NRC Web site, http://www.nrc.gov.

              [70 FR 34309, June 14, 2005]

          Subpart C—Government in the Sunshine Act Regulations

            Source:
            42 FR 12877, Mar. 7, 1977, unless otherwise noted.

            § 9.100
            Scope of subpart.
            This subpart prescribes procedures pursuant to which NRC meetings shall be open to public observation pursuant to the provisions of 5 U.S.C. 552b. This subpart does not affect the procedures pursuant to which NRC records are made available to the public for inspection and copying which remain governed by subpart A, except that the exemptions set forth in § 9.104(a) shall govern in the case of any request made pursuant to § 9.23 to copy or inspect the transcripts, recordings, or minutes described in § 9.108. Access to records considered at NRC meetings shall continue to be governed by subpart A of this part.
            [52 FR 49362, Dec. 31, 1987]

            § 9.101
            Definitions.
            As used in this subpart:
            (a) Commission means the collegial body of five Commissioners or a quorum thereof as provided by section 201 of the Energy Reorganization Act of 1974, or any subdivision of that collegial body authorized to act on its behalf, and shall not mean any body not composed of members of that collegial body.
            (b) Commissioner means an individual who is a member of the Commission.
            (c) Meeting means the deliberations of at least a quorum of Commissioners where such deliberations determine or result in the joint conduct or disposition of official Commission business, that is, where discussions are sufficiently focused on discrete proposals or issues as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency. Deliberations required or permitted by §§ 9.105, 9.106, or 9.108(c) do not constitute “meetings” within this definition.
            (d) Closed meeting means a meeting of the Commission closed to public observation as provided by § 9.104.
            (e) Open meeting means a meeting of the Commission open to public observation pursuant to this subpart.
            (f) Secretary means the Secretary to the Commission.
            (g) General Counsel means the General Counsel of the commission as provided by section 25(b) of the Atomic Energy Act of 1954 and section 201(f) of the Energy Reorganization Act of 1974, and, until such time as the offices of that officer are in the same location as those of the Commission, any member of his or her office specially designated in writing by him or her pursuant to this subsection to carry out his or her responsibilities under this subpart.
            [42 FR 12877, Mar. 7, 1977, as amended at 50 FR 20891, May 21, 1985]

            § 9.102
            General requirement.
            Commissioners shall not jointly conduct or dispose of Commission business in Commission meetings other than in accordance with this subpart. Except as provided in § 9.104, every portion of every meeting of the Commission shall be open to public observation.

            § 9.103
            General provisions.
            The Secretary shall ensure that all open Commission meetings are held in a location such that there is reasonable space and adequate visibility and acoustics, for public observation. No additional right to participate in Commission meetings is granted to any person by this subpart. An open meeting is not part of the formal or informal record of decision of the matters discussed therein except as otherwise required by law. Statements of views or expressions of opinion made by Commissioners or NRC employees at open meetings are not intended to represent final determinations or beliefs. Such statements may not be pleaded, cited, or relied upon before the Commission or in any proceeding under part 2 of these regulations (10 CFR part 2) except as the Commission may direct. Members of the public attending open Commission meetings may use small electronic sound recorders to record the meeting, but the use of other electronic recording equipment and cameras requires the advance written approval of the Secretary.
            [42 FR 12877, Mar. 7, 1977, as amended at 43 FR 13055, Mar. 29, 1978; 43 FR 37421, Aug. 23, 1978]

            § 9.104
            Closed meetings.
            (a) Except where the Commission finds that the public interest requires otherwise, Commission meetings shall be closed, and the requirements of §§ 9.105 and 9.107 shall not apply to any information pertaining to such meeting otherwise required by this subpart to be disclosed to the public, where the Commission determines in accordance with the procedures of § 9.105 that opening such meetings or portions thereof or disclosing such information, is likely to:
            (1) Disclose matters that are (i) specifically authorized under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy, and (ii) in fact properly classified pursuant to such Executive order;
            (2) Relate solely to the internal personnel rules and practices of the Commission;
            (3) Disclose matters specifically exempted from disclosure by statute (other than 5 U.S.C. 552) provided that such statute (i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
            (4) Disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential, including such information as defined in § 2.790(d) of this title;
            (5) Involve accusing any person of a crime, imposing a civil penalty on any person pursuant to 42 U.S.C. 2282 or 42 U.S.C. 5846, or any revocation of any license pursuant to 42 U.S.C. sec. 2236, or formally censuring any person;
            (6) Disclose information of a personal nature where such disclosure would constitute a clearly unwarranted invasion of personal privacy;

            (7) Disclose investigatory reports compiled for law enforcement purposes, including specifically enforcement of the Atomic Energy Act of l1954, as amended, 42 U.S.C. 2011 et seq., and the Energy Reorganization Act of 1974, as amended, 42 U.S.C. 5801 et seq., or information which if written would be contained in such records, but only to the extent that the production of such records or information would: (i) Interfere with enforcement proceedings, (ii) deprive a person of a right to a fair trial or an impartial adjudication, (iii) constitute an unwarranted invasion of personal privacy, (iv) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (v) disclose investigative techniques and procedures, or (vi) endanger the life or physical safety of law enforcement personnel;
            (8) [Reserved]
            (9) Disclose information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed Commission action, except that this subparagraph shall not apply in any instance where the Commission has already disclosed to the public the content or nature of its proposed action, or where the Commission is required to make such disclosure on its own initative prior to taking final action on such proposal; or
            (10) Specifically concern the Commission's issuance of a subpoena, or the Commission's participation in a civil action or proceeding or an action or proceeding before a state or federal administrative agency, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct or disposition by the Commission of a particular case of formal agency adjudication pursuant to 5 U.S.C. 554 or otherwise involving a determination on the record after an opportunity for a hearing pursuant to part 2 or similar provisions.

            (b) Examples of situations in which Commission action may be deemed to be significantly frustrated are: (1) If opening any Commission meeting or negotiations would be likely to disclose information provided or requests made to the Commission in confidence by persons outside the Commission and which would not have been provided or made otherwise; (2) if opening a meeting or disclosing any information would reveal legal or other policy advice, public knowledge of which could substantially affect the outcome or conduct of pending or reasonably anticipated litigation or negotiations; or (3) if opening any meeting or disclosing any information would reveal information requested by or testimony or proposals to be given to other agencies of government, including the Congress and the Executive Branch before the requesting agency would receive the information, testimony or proposals. The examples in the above sentence are for illustrative purposes only and are not intended to be exhaustive.

            § 9.105
            Commission procedures.
            (a) Action under § 9.104 shall be taken only when a majority of the entire membership of the Commission votes to take such action. A separate vote of the Commissioners shall be taken with respect to each Commission meeting a portion or portions of which are proposed to be closed to the public pursuant to § 9.104, or which respect to any information which is proposed to be withheld under § 9.105(c). A single vote may be taken with respect to a series of meetings, a portion or portions of which are proposed to be closed to the public, or with respect to any information concerning such series of meetings, so long as each meeting in such series involves the same particular matters and is scheduled to be held no more than thirty days after the initial meeting in such series. The vote of each Commissioner participating in such vote shall be recorded and no proxies shall be allowed.

            (b) Within one day of any vote taken pursuant to paragraph (a) of this section, § 9.106(a), or § 9.108(c), the Secretary shall make publicly available at the NRC Web site, http://www.nrc.gov, a written copy of such vote reflecting the vote of each member on the question. If a portion of a meeting is to be closed to the public, the Secretary shall, within one day of the vote taken pursuant to paragraph (a) of this section or § 9.106(a), make publicly available at the NRC Web site, http://www.nrc.gov, a full written explanation of its action closing the portion together with a list of all persons expected to attend the meeting and their affiliation.
            (c) The notices and lists required by paragraph (b) of this section to be made public may be withheld from the public to the extent that the Commission determines that such information itself would be protected against disclosure by § 9.104(a). Any such determination shall be made independently of the Commission's determination pursuant to paragraph (a) of this section to close a meeting, but in accordance with the procedure of that subsection. Any such determination, including a written explanation for the action and the specific provision or provisions of § 9.104(a) relied upon, must be made publicly available to the extent permitted by the circumstances.
            [42 FR 12877, Mar. 7, 1977, as amended at 64 FR 48951, Sept. 9, 1999]

            § 9.106
            Persons affected and motions for reconsideration.
            (a) Whenever any person whose interests may be directly affected by a portion of a meeting requests that the Commission close such portion to the public for any of the reasons referred to in paragraphs (a) (5), (6), or (7) of § 9.104, the Commission, upon request of any one Commissioner, shall vote by recorded vote whether to close such meeting.
            (b) Any person may petition the Commission to reconsider its action under § 9.105(a) or paragraph (a) of this section by filing a petition for reconsideration with the Commission within seven days after the date of such action and before the meeting in question is held.
            (c) A petition for reconsideration filed pursuant to paragraph (b) of this section shall state specifically the grounds on which the Commission action is claimed to be erroneous, and shall set forth, if appropriate, the public interest in the closing or opening of the meeting. The filing of such a petition shall not act to stay the effectiveness of the Commission action or to postpone or delay the meeting in question unless the Commission orders otherwise.

            § 9.107
            Public announcement of Commission meetings.

            (a) In the case of each meeting, the Secretary shall make public announcement, at least one week before the meeting, of the time, place, and subject matter of the meeting, whether it is to be open or closed to the public, and the name and phone number of the official designated by the Commission to respond to requests for information about the meeting. Such announcement shall be made unless a majority of the members of the Commission determines by a recorded vote that Commission business requires that such meeting be called at an earlier date, in which case the Secretary shall make public announcement of the time, place and subject matter of such meeting, and whether open or closed to the public, at the earliest practical time.
            (b) The time or place of a meeting may be changed following the public announcement required by paragraph (a) of this section only if the Secretary publicly announces such changes at the earliest practicable time. The subject matter of as meeting, or the determination of the Commission to open or close a meeting, or portion of a meeting, to the public, may be changed following the public announcement required by this subsection only if: (1) A majority of the entire membership of the Commission determines by a recorded vote that Commission business so requires and that no earlier announcement of the change was possible, and (2) the Secretary publicly announces such change and the vote of each member upon such change at the earliest practicable time.

            (c) Immediately following each public announcement required by this section, notice of the time, place, and subject matter of a meeting, whether the meeting is open or closed, any change in one of the preceding, and the name and phone number of the official designated by the Commission to respond to requests for information about the meeting, shall also be submitted for publication in the Federal Register.

            (d) The public announcement required by paragraph (a) of this section shall consist of the Secretary:

            (1) Publicly posting a copy of the document at the NRC Web site, http://www.nrc.gov and, to the extent appropriate under the circumstances;
            (2) Mailing a copy to all persons whose names are on a mailing list maintained for this purpose;
            (3) Submitting a copy for possible publication to at least two newspapers of general circulation in the Washington, DC metropolitan area;
            (4) Any other means which the Secretary believes will serve to further inform any persons who might be interested.
            (e) Action under the second sentence of paragraph (a) or (b) of this section shall be taken only when the Commission finds that the public interest in prompt Commission action or the need to protect the common defense or security or to protect the public health or safety overrides the public interest in having full prior notice of Commission meetings.
            [42 FR 12877, Mar. 7, 1977, as amended at 53 FR 43420, Oct. 27, 1988; 64 FR 48951, Sept. 9, 1999]

            § 9.108
            Certification, transcripts, recordings and minutes.

            (a) For every meeting closed pursuant to paragraphs (a) (1) through (10) of § 9.104 and for every determination pursuant to § 9.105(c), the General Counsel shall publicly certify at the time of the public announcement of the meeting, or if there is no public announcement at the earliest practical time, that, in his or her opinion, the meeting may be closed to the public and shall state each relevant exemptive provision unless the Commission votes pursuant to § 9.105(c) that such certification is protected against disclosure by § 9.104(a). A copy of such certification, together with a statement from the presiding officer of the meeting setting forth the time and place of the meeting, and the persons present, shall be retained by the Commission. The Commission shall maintain a complete transcript or electronic recording adequate to record fully the proceedings of each meeting, or portion of a meeting closed to the public, except that in the case of a meeting, or portion of a meeting, closed to the public pursuant to paragraph (c)(10) of § 9.104, the Commission shall maintain such a transcript, or recording or a set of minutes. Such minutes shall fully and clearly describe all matters discussed and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any rollcall vote (reflecting the vote of each Commissioner on the question). All documents considered in connection with any action shall be identified in such minutes.

            (b) The Commission shall make promptly available to the public at the NRC Web site, http://www.nrc.gov, the transcript, electronic recording, or minutes (as required by paragraph (a) of this section) of the discussion of any item on the agenda, or of any item of the testimony of any witness received at the meeting, except for such item or items of such discussion or testimony as the Commission determines pursuant to paragraph (c) of this section to contain information which may be withheld under § 9.104 or § 9.105(c). Copies of such transcript, or minutes, or a transcription of such recording disclosing the identity of each speaker, shall be furnished to any person upon payment of the actual cost of duplication or transcription as provided in § 9.14. The Secretary shall maintain a complete verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic recording of each meeting, or portion of a meeting, closed to the public, for a period of at least two years after such meeting, or until one year after the conclusion of any Commission proceeding with respect to which the meeting or portion was held, whichever occurs later.
            (c) In the case of any meeting closed pursuant to § 9.104, the Secretary of the Commission, upon the advice of the General Counsel and after consultation with the Commission, shall determine which, if any, portions of the electronic recording, transcript or minutes and which, if any, items of information withheld pursuant to § 9.105(c) contain information which should be withheld pursuant to § 9.104, in the event that a request for the recording, transcript, or minutes is received within the period during which the recording, transcript, or minutes must be retained, under paragraph (b) of this section.
            (d) If at some later time the Commission determines that there is no further justification for withholding any transcript, recording or other item of information from the public which has previously been withheld, then such information shall be made available.
            [42 FR 12877, Mar. 7, 1977, as amended at 50 FR 20891, May 21, 1985; 64 FR 48951, Sept. 9, 1999]

            § 9.109
            Report to Congress.
            The Secretary shall annually report to the Congress regarding the Commission's compliance with the Government in the Sunshine Act, including a tabulation of the total number of open meetings, the total number of closed meetings, the reasons for closing such meetings and a description of any litigation brought against the Commission pursuant to the Government in the Sunshine Act, including any cost assessed against the Commission in such litigation (whether or not paid by the Commission).

          Subpart D—Production or Disclosure in Response to Subpoenas or Demands of Courts or Other Authorities

            Source:
            50 FR 37645, Sept. 17, 1985, unless otherwise noted.

            § 9.200
            Scope of subpart.
            (a) This subpart sets forth the procedures to be followed when a subpoena, order, or other demand (hereinafter referred to as a “demand”) for the production of NRC records or disclosure of NRC information, including testimony regarding such records, is issued by a court or other judicial or quasi-judicial authority in a proceeding, excluding Federal grand jury proceedings, to which the NRC is not a party. Information and documents subject to this subpart include:
            (1) Any material contained in the files of the NRC;
            (2) Any information relating to material contained in the files of the NRC.
            (b) For purposes of this subpart, the term “employee of the NRC” includes all NRC personnel as that term is defined in § 9.3 of this part, including NRC contractors.

            (c) This subpart is intended to provide instructions regarding the internal operations of the NRC and is not intended, and does not, and may not, be relied upon to create any right or benefit, substantive or procedural, enforceable at law by a party against the NRC.
            [50 FR 37645, Sept. 17, 1985, as amended at 52 FR 49362, Dec. 31, 1987]

            § 9.201
            Production or disclosure prohibited unless approved by appropriate NRC official.
            (a) No employee of the NRC shall, in response to a demand of a court or other judicial or quasi-judicial authority, produce any material contained in the files of the NRC or disclose, through testimony or other means, any information relating to material contained in the files of the NRC, or disclose any information or produce any material acquired as part of the performance of that employee's official duties or official status without prior approval of the appropriate NRC official. When the demand is for material contained in the files of the Office of the Inspector General or for information acquired by an employee of that Office, the Inspector General is the appropriate NRC official. In all other cases, the General Counsel is the appropriate NRC official.
            (b) Any NRC response to a demand of a court or other judicial or quasi-judicial authority that requires an employee of the NRC to expend more than 50 hours of official time shall be subject to hourly fees in accordance with 10 CFR 170.12(d).
            [81 FR 41185, June 24, 2016]

            § 9.202
            Procedure in the event of a demand for production or disclosure.
            (a) Prior to or simultaneous with a demand upon an employee of the NRC for the production of material or the disclosure of information described in § 9.200, the party seeking production or disclosure shall serve the General Counsel of the NRC with an affidavit or statement as described in paragraphs (b) (1) and (2) of this section. Except for employees in the Office of Inspector General, whenever a demand is made upon an employee of the NRC for the production of material or the disclosure of information described in § 9.200, that employee shall immediately notify the General Counsel. If the demand is made upon a regional NRC employee, that employee shall immediately notify the Regional Counsel who, in turn, shall immediately request instructions from the General Counsel. If the demand is made upon an employee in the Office of Inspector General, that employee shall immediately notify the Inspector General. The Inspector General shall immediately provide a copy of the demand to the General Counsel, and as deemed necessary, consult with the General Counsel.
            (b)(1) If oral testimony is sought by the demand, a summary of the testimony desired must be furnished to the General Counsel by a detailed affidavit or, if that is not feasible, a detailed statement by the party seeking the testimony or the party's attorney. This requirement may be waived by the General Counsel in appropriate circumstances.
            (2) The General Counsel may request a plan from the party seeking discovery of all demands then reasonably foreseeable, including but not limited to, names of all NRC personnel from whom discovery is or will be sought, areas of inquiry, length of time away from duty involved, and identification of documents to be used in each deposition, where appropriate.
            (c) The Inspector General or the General Counsel will notify the employee and such other persons, as circumstances may warrant, of the decision on the matter.
            [50 FR 37645, Sept. 17, 1985, as amended at 55 FR 33648, Aug. 17, 1990]

            § 9.203
            Procedure where response to demand is required prior to receiving instructions.

            If a response to the demand is required before the instructions from the Inspector General or the General Counsel are received, a U.S. attorney or NRC attorney designated for the purpose shall appear with the employee of the NRC upon whom the demand has been made, and shall furnish the court or other authority with a copy of the regulations contained in this subpart and inform the court or other authority that the demand has been, or is being, as the case may be, referred for the prompt consideration of the appropriate NRC official and shall respectfully request the court or authority to stay the demand pending receipt of the requested instructions. In the event that an immediate demand for production or disclosure is made in circumstances which would preclude the proper designation or appearance of a U.S. or NRC attorney on the employee's behalf, the employee shall respectfully request the demanding authority for sufficient time to obtain advice of counsel.
            [55 FR 33649, Aug. 17, 1990]

            § 9.204
            Procedure in the event of an adverse ruling.

            If the court or other judicial or quasi-judicial authority declines to stay the effect of the demand in response to a request made in accordance with § 9.203 pending receipt of instructions, or if the court or other authority rules that the demand must be complied with irrespective of instructions not to produce the material or disclose the information sought, the employee upon whom the demand has been made shall respectfully decline to comply with the demand, citing these regulations and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

        Pt. 10
        PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE

            Subpart A—General Provisions
            Sec.
            10.1
            Purpose.
            10.2
            Scope.
            10.3
            [Reserved]
            10.4
            Policy.
            10.5
            Definitions.

            Subpart B—Criteria for Determining Eligibility for Access to Restricted Data or National Security Information or an Employment Clearance
            10.10
            Application of the criteria.
            10.11
            Criteria.
            10.12
            Interview and other investigation.

            Subpart C—Procedures
            10.20
            Purpose of the procedures.
            10.21
            Suspension of access authorization and/or employment clearance.
            10.22
            Notice to individual.
            10.23
            Failure of individual to request a hearing.
            10.24
            Procedures for hearing and review.
            10.25
            NRC Hearing Counsel.
            10.26
            Appointment of Hearing Examiner.
            10.27
            Prehearing proceedings.
            10.28
            Conduct of hearing.
            10.29
            Recommendation of the Hearing Examiner.
            10.30
            New evidence.
            10.31
            Actions on the recommendations.
            10.32
            Recommendation of the NRC Personnel Security Review Panel.
            10.33
            Action by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs.
            10.34
            Action by the Commission.
            10.35
            Reconsideration of cases.

            Subpart D—Miscellaneous
            10.36
            Terminations.
            10.37
            Attorney representation.
            10.38
            Certifications.

          Authority:
          Atomic Energy Act of 1954, secs. 145, 161 (42 U.S.C. 2165, 2201); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); E.O. 10450, 18 FR 2489, 3 CFR, 1949-1953 Comp., p. 936, as amended; E.O. 10865, 25 FR 1583, 3 CFR, 1959-1963 Comp., p. 398, as amended; E.O. 12968, 60 FR 40245, 3 CFR, 1995 Comp., p. 391.

          Source:
          47 FR 38676, Sept. 2, 1982, unless otherwise noted.

          Editorial Note:
          Nomenclature changes to part 10 appear at 70 FR 30897, May 31, 2005; 77 FR 39904, July 6, 2012; 81 FR 86909, Dec. 2, 2016.

          Subpart A—General Provisions

            § 10.1
            Purpose.
            (a) This part establishes the criteria, procedures, and methods for resolving questions concerning:

            (1) The eligibility of individuals who are employed by or applicants for employment with NRC contractors, agents, and other individuals who are NRC employees or applicants for NRC employment, and other persons designated by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs of the NRC, for access to Restricted Data under the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, or for access to national security information;

            (2) The eligibility of NRC employees, or the eligibility of applicants for employment with the NRC, for employment clearance; and
            (3) The eligibility of individuals who are employed by or are applicants for employment with NRC licensees, certificate holders, holders of standard design approvals under part 52 of this chapter, applicants for licenses, certificates, and NRC approvals, and others who may require access related to a license, certificate, or NRC approval, or other activities as the Commission may determine, for access to Restricted Data under the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, or for access to national security information.
            (b) This part is published to implement the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, Executive Order 10865, 25 FR 1583 (February 24, 1960) Executive Order 10450, 18 FR 2489 (April 27, 1954), and Executive Order 12968, 60 FR 40245 (August 2, 1995).
            [64 FR 15641, Apr. 1, 1999, as amended at 72 FR 49483, Aug. 28, 2007]

            § 10.2
            Scope.
            The criteria and procedures in this part shall be used in determining eligibility for NRC access authorization and/or employment clearance involving:
            (a) Employees (including consultants) of contractors and agents of the Nuclear Regulatory Commission and applicants for employment;
            (b) NRC licensees, certificate holders and holders of standard design approvals under part 52 of this chapter, applicants for licenses, certificates, and standard design approvals under part 52 of this chapter, and their employees (including consultants) and applicants for employment (including consulting);
            (c) NRC employees (including consultants) and applicants for employment; and
            (d) Any other person designated by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs of the Nuclear Regulatory Commission.
            [47 FR 38676, Sept. 2, 1982, as amended at 64 FR 15641, Apr. 1, 1999; 72 FR 49483, Aug. 28, 2007]

            § 10.3
            [Reserved]

            § 10.4
            Policy.
            It is the policy of the Nuclear Regulatory Commission to carry out its responsibility for the security of the nuclear energy program in a manner consistent with traditional American concepts of justice. To this end, the Commission has established criteria for determining eligibility for access authorization and/or employment clearance and will afford those individuals described in § 10.2 the opportunity for administrative review of questions concerning their eligibility for access authorization and/or employment clearance.

            § 10.5
            Definitions.

              Access authorization means an administrative determination that an individual (including a consultant) who is employed by or an applicant for employment with the NRC, NRC contractors, agents, and licensees of the NRC, or other person designated by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs, is eligible for a security clearance for access to Restricted Data or National Security Information.

              Commission means the Nuclear Regulatory Commission of five members or a quorum thereof sitting as a body, as provided by section 201 of the Energy Reorganization Act of 1974, or its designee.

              Eligible or Eligibility means both initial eligibility and continued eligibility of an individual for access authorization and/or employment clearance.

              Employment Clearance means an administrative determination that an individual (including a consultant) who is an NRC employee or applicant for NRC employment and other persons designated by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs of the NRC is eligible for employment or continued employment pursuant to subsection 145(b) of the Atomic Energy Act of 1954, as amended.

              Hearing Counsel means an NRC attorney assigned by the General Counsel to prepare and administer hearings in accordance with this part.

              Hearing Examiner means a qualified attorney appointed by the Director, Office of Administration, to conduct a hearing in accordance with this part.

              National Security Information means information that has been determined under Executive Order 13526 or any predecessor or successor order to require protection against unauthorized disclosure and that is so designated.

              NRC Personnel Security Review Panel means an appeal panel appointed by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs and consisting of three members, two of whom shall be selected from outside the security field. One member of the Panel shall be designated as Chairman.

              Personnel Security Review Examiners are persons designated by the Executive Director for Operations to conduct a review of the record in accordance with this part.

              Restricted Data means all data concerning design, manufacture, or utilization of atomic weapons, the production of special nuclear material, or the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 142 of the Atomic Energy Act of 1954, as amended.
            [47 FR 38676, Sept. 2, 1982, as amended at 51 FR 35999, Oct. 8, 1986; 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 64 FR 15641, Apr. 1, 1999; 75 FR 73938, Nov. 30, 2010]

          Subpart B—Criteria for Determining Eligibility for Access to Restricted Data or National Security Information or an Employment Clearance

            § 10.10
            Application of the criteria.
            (a) The decision as to access authorization and/or employment clearance is a comprehensive, common-sense judgment, made after consideration of all the information, favorable or unfavorable, relevant to whether the granting of access authorization and/or employment clearance would not endanger the common defense and security and would be clearly consistent with the national interest.
            (b) The criteria in § 10.11 set forth a number of the types of derogatory information used to assist in making determinations of eligibility for access authorization and/or employment clearance. These criteria are not exhaustive but contain the principal types of derogatory information which create a question as to the individual's eligibility for access authorization and/or employment clearance. While there must necessarily be adherence to such criteria, the NRC is not limited to them, nor precluded from exercising its judgment that information or facts in a case under its cognizance are derogatory although at variance with, or outside the scope of, the stated categories. These criteria are subject to continuing review and may be revised from time to time as experience and circumstances may make desirable.

            (c) When the reports of investigation of an individual contain information reasonably tending to establish the truth of one or more of the items in the criteria, such information shall be regarded as derogatory and shall create a question as to the individual's eligibility for access authorization and/or employment clearance. A question concerning the eligibility of an individual for access authorization and/or employment clearance shall be resolved in accordance with the procedures set forth in § 10.20 et seq.

            (d) In resolving a question concerning the eligibility or continued eligibility of an individual for access authorization and/or employment clearance, the following principles shall be applied by the Director, Division of Facilities and Security, Hearing Examiners, and the NRC Personnel Security Review Panel:
            (1) Information reasonably tending to establish the truth of one or more of the items in the criteria shall be the basis for recommending denial or revocation of access authorization and/or employment clearance unless evidence to support faith in the individual's reliability and trust-worthiness is affirmatively shown.
            (2) When deemed material to the deliberations, the extent of the activity, conduct, or condition, the period in which they occurred or existed, the length of time which has since elapsed, and the attitude and convictions of the individual shall be considered in determining whether the recommendation will be adverse or favorable.
            [47 FR 38676, Sept. 2, 1982, as amended at 64 FR 15641, Apr. 1, 1999]

            § 10.11
            Criteria.
            (a) The criteria for determining eligibility for access authorization and/or employment clearance shall relate, but not be limited, to the following where an individual:
            (1) Committed, attempted to commit, aided, or abetted another who committed or attempted to commit any act of sabotage, espionage, treason, sedition, or terrorism.
            (2) Publicly or privately advocated actions that may be inimical to the interest of the United States, or publicly or privately advocated the use of force or violence to overthrow the Government of the United States or the alteration of the form of government of the United States by unconstitutional means.
            (3) Knowingly established or continued a sympathetic association with a saboteur, spy, traitor, seditionist, anarchist, terrorist, or revolutionist, or with an espionage agent or other secret agent or representative of a foreign nation whose interests may be inimical to the interests of the United States, or with any person who advocates the use of force or violence to overthrow the Government of the United States or the alteration of the form of government of the United States by unconstitutional means.
            (4) Joined or engaged in any activity knowingly in sympathy with or in support of any foreign or domestic organization, association, movement, group, or combination of persons which unlawfully advocates or practices the commission of acts of force or violence to prevent others from exercising their rights under the Constitution or laws of the United States or any State or any subdivisions thereof by unlawful means, or which advocate the use of force and violence to overthrow the Government of the United States or the alteration of the form of government of the United States by unconstitutional means. (Ordinarily, criteria (3) and (4) will not include chance or casual meetings or contacts limited to normal business or official relations.)
            (5) Deliberately misrepresented, falsified or omitted relevant and material facts from or in a personnel security questionnaire, a personal qualifications statement, a personnel security interview, or any other information submitted pursuant this part.
            (6) Willfully violated or disregarded security regulations or was grossly negligent with respect thereto to a degree which could endanger the common defense and security; or by intention or gross carelessness disclosed Restricted Data or national security information to any person not authorized to receive it.
            (7) Has any illness or mental condition which in the opinion of competent medical authority may cause significant defect in the judgment or reliability of the individual.
            (8) Has been convicted of crimes indicating habitual criminal tendencies.
            (9) Has been convicted of a crime, or has a background, where the facts, circumstances, or conduct are of a nature indicating poor judgment, unreliabilty, or untrustworthiness.
            (10) Is a user of alcohol habitually and to excess, or has been such without adequate evidence of rehabilitation.

            (11) Has been, or is, a user of a drug or other substance listed in the schedules of Controlled Substances established pursuant to the Controlled Substances Act of 1970 (such as amphetamines, barbiturates, narcotics, etc.), except as prescribed or administered by a physician licensed to dispense drugs in the practice of medicine, without adequate evidence of rehabilitation.
            (12) Refused, without satisfactory explanation, to answer questions before a congressional committee, Federal or state court, or Federal administrative body including the NRC regarding charges relevant to the individual's eligibility for access authorization and/or employment clearance.
            (13) Engaged in any other conduct or is subject to any other circumstances which tend to show that the individual is not reliable or trustworthy, or which furnishes reason to believe that the individual may be subject to coercion, influence, or pressures which may cause the individual to act contrary to the national interest.

            § 10.12
            Interview and other investigation.
            (a) The Director, Division of Facilities and Security, Office of Administration, may authorize the granting of access authorization and/or employment clearance on the basis of the information in the possession of the NRC or may authorize an interview with the individual, if the individual consents to be interviewed, or other investigation as the Director deems appropriate. On the basis of this interview and/or an investigation, the Director may authorize the granting of access authorization and/or employment clearance.
            (b) The individual may elect on constitutional or other grounds not to participate in an interview or other investigation; however, such refusal or failure to furnish or authorize the furnishing of relevant and material information is deemed to be derogatory information pursuant to § 10.11(a) (5) and (12).

            (c) If the Director, Division of Facilities and Security, cannot make a favorable finding regarding the eligibility of an individual for access authorization and/or employment clearance, the question of the individual's eligibility must be resolved in accordance with the procedures set forth in § 10.20 et seq.

            [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 64 FR 15642, Apr. 1, 1999]

          Subpart C—Procedures

            § 10.20
            Purpose of the procedures.
            These procedures establish methods for the conduct of hearings and administrative review of questions concerning an individual's eligibility for an access authorization and/or an employment clearance pursuant to the Atomic Energy Act of 1954, as amended, and Executive Orders 10450, 10865, and 12968 when a resolution favorable to the individual cannot be made on the basis of the interview or other investigation.
            [64 FR 15642, Apr. 1, 1999]

            § 10.21
            Suspension of access authorization and/or employment clearance.
            In those cases where information is received which raises a question concerning the continued eligibility of an individual for an access authorization and/or an employment clearance, the Director, Division of Facilities and Security, through the Director, Office of Administration, shall forward to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs or other Deputy Executive Director, his or her recommendation as to whether the individual's access authorization and/or employment clearance should be suspended pending the final determination resulting from the operation of the procedures provided in this part. In making this recommendation the Director, Division of Facilities and Security, shall consider factors such as the seriousness of the derogatory information developed, the degree of access of the individual to classified information, and the individual's opportunity by reason of his or her position to commit acts adversely affecting the national security. An individual's access authorization and/or employment clearance may not be suspended except by the direction of the Executive Director for Operations, Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs or other Deputy Executive Director.
            [64 FR 15642, Apr. 1, 1999]

            § 10.22
            Notice to individual.
            A notification letter, prepared by the Division of Facilities and Security, approved by the Office of the General Counsel, and signed by the Director, Office of Administration, must be presented to each individual whose eligibility for an access authorization and/or an employment clearance is in question. Where practicable, the letter will be presented to the individual in person. The letter will be accompanied by a copy of this part and must state:
            (a) That reliable information in the possession of the NRC has created a substantial doubt concerning the individual's eligibility for an access authorization and/or an employment clearance;
            (b) The information that creates a substantial doubt regarding the individual's eligibility for an access authorization and/or an employment clearance, that must be as comprehensive and detailed as the national security interests and other applicable law permit;
            (c) That the individual has the right to be represented by counsel or other representative at their own expense;
            (d) That the individual may request within 20 days of the date of the notification letter, any documents, records and reports which form the basis for the question of their eligibility for an access authorization and/or an employment clearance. The individual will be provided within 30 days all such documents, records and reports to the extent they are unclassified and do not reveal a confidential source. The individual may also request the entire investigative file, which will be promptly provided, as permitted by the national security interests and other applicable law;
            (e) That unless the individual files with the Director, Office of Administration, a written request for a hearing within 20 days of the individual's receipt of the notification letter or 20 days after receipt of the information provided in response to a request made under paragraph (d) of this section, whichever is later, the Director, Division of Facilities and Security, through the Director, Office of Administration, will submit a recommendation as to the final action to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programson the basis of the information in the possession of the NRC;
            (f) That if the individual files a written request for a hearing with the Director, Office of Administration, the individual shall file with that request a written answer under oath or affirmation that admits or denies specifically each allegation and each supporting fact contained in the notification letter. A general denial is not sufficient to controvert a specific allegation. If the individual is without knowledge, he or she shall so state and that statement will operate as a denial. The answer must also state any additional facts and information that the individual desires to have considered in explanation or mitigation of allegations in the notification letter. Failure to specifically deny or explain or deny knowledge of any allegation or supporting fact will be deemed an admission that the allegation or fact is true.
            (g) That if the individual does not want to exercise his or her right to a hearing, but does want to submit an answer to the allegations in the notification letter, the individual may do so by filing with the Director, Office of Administration, within 20 days of receipt of the notification letter or 20 days after receipt of the information provided in response to a request made under paragraph (d) of this section, whichever is later, a written answer in accordance with the requirements of paragraph (f) of this section;
            (h) That the procedures in § 10.24 et seq. will apply to any hearing and review.
            [64 FR 15642, Apr. 1, 1999]

            § 10.23
            Failure of individual to request a hearing.

            (a) In the event the individual fails to file a timely written request for a hearing pursuant to § 10.22, a recommendation as to the final action to be taken will be made by the Director, Division of Facilities and Security, through the Director, Office of Administration, to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs on the basis of the information in the possession of the NRC, including any answer filed by the individual.
            (b) The Director, Office of Administration, may for good cause shown, at the request of the individual, extend the time for filing a written request for a hearing or for filing a written answer to the matters contained in the notification letter.
            [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 64 FR 15642, Apr. 1, 1999]

            § 10.24
            Procedures for hearing and review.
            (a) Upon receipt of a timely filed request for a hearing and answer complying with the requirements set forth in § 10.22, the Director, Office of Administration, shall forthwith appoint a Hearing Examiner, and the General Counsel shall forthwith assign an NRC attorney to act as Hearing Counsel. The Director, Office of Administration, shall promptly notify the individual of the identity of the Hearing Examiner and proposed hearing date, which shall be selected with due regard for the convenience of the parties and their representatives.
            (b) Within 72 hours of being notified of the identity of the Hearing Examiner, the individual may request that the Hearing Examiner be disqualified for cause by filing with the Director, Office of Administration, a written statement of the individual's reasons for seeking disqualification. The time for filing the request may be extended by the Director, Office of Administration, for good cause shown. If the Director, Office of Administration, grants the request the procedures of paragraph (a) of this section and this paragraph shall be followed just as though there had been no prior appointment.
            (c) The individual shall have the right to appear at the hearing before the Hearing Examiner, to be represented by counsel or other representative, to introduce documentary or other evidence, and to call, examine, and cross-examine witnesses, subject to the provisions and limitations set forth in this part.
            [47 FR 38676, Sept. 2, 1982, as amended at 51 FR 35999, Oct. 8, 1986; 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989]

            § 10.25
            NRC Hearing Counsel.
            (a) Hearing Counsel assigned pursuant to § 10.24 will, before the scheduling of the hearing, review the information in the case and will request the presence of witnesses and the production of documents and other physical evidence relied upon by the Director, Division of Facilities and Security, in making a finding that a question exists regarding the eligibility of the individual for an NRC access authorization and/or an employment clearance in accordance with the provisions of this part. When the presence of a witness and the production of documents and other physical evidence is deemed by the Hearing Counsel to be necessary or desirable for a determination of the issues, the Director, Division of Facilities and Security, will make arrangements for the production of evidence and for witnesses to appear at the hearing by subpoena or otherwise.
            (b) Hearing Counsel is authorized to consult directly with individual's counsel or representative or the individual, if the individual is not so represented, for purposes of reaching mutual agreement upon arrangements for expeditious hearing of the case. Such arrangements may include clarification of issues and stipulations with respect to testimony and contents of documents and other physical evidence. Such stipulations when entered into shall be binding upon the individual and the NRC for the purposes of this part. Prior to any consultation with the individual, the Hearing Counsel shall advise the individual of his or her rights under this part, of his or her right to counsel or other representation, and of the possibility that any statement made by the individual to the Hearing Counsel may be used in subsequent proceedings.

            (c) The individual is responsible for producing witnesses in his or her own behalf and/or presenting other evidence before the Hearing Examiner to support the individual's answer and defense to the allegations contained in the notification letter. When requested by the individual, however, the Hearing Counsel may assist the individual to the extent practicable and necessary. The Hearing Counsel may at his or her discretion request the Director, Division of Facilities and Security, to arrange for the issuance of subpoenas for witnesses to attend the hearing in the individual's behalf, or for the production of specific documents or other physical evidence, provided a showing of the necessity for assistance has been made.
            [47 FR 38676, Sept. 2, 1982, as amended at 64 FR 15643, Apr. 1, 1999]

            § 10.26
            Appointment of Hearing Examiner.
            The appointment of a Hearing Examiner, pursuant to § 10.24 of this part, shall be from a list of qualified attorneys possessing the highest degree of integrity, ability, and good judgment. To qualify, an attorney shall have an NRC “Q” access authorization and may be an employee of the NRC, its contractors, agents or licensees. However, no employee or consultant of the NRC shall serve as Hearing Examiner hearing the case of an employee (including a consultant) or applicant for employment with the NRC; nor shall any employee or consultant of an NRC contractor, agent or licensee serve as Hearing Examiner hearing the case of an employee (including a consultant) or an applicant for employment of that contractor, agent, or licensee. No Hearing Examiner shall be selected who has knowledge of the case or of any information relevant to the disposition of it, or who for any reason would be unable to issue a fair and unbiased recommendation.

            § 10.27
            Prehearing proceedings.
            (a) After the appointment of the Hearing Examiner, he or she shall be furnished the record in the case, which shall consist of the letter of notification, the request for hearing and its supporting answer, and the notice of hearing, if it has been issued, and any stipulations agreed to by the individual and the Hearing Counsel.
            (b) The Hearing Examiner may on his or her own motion, or on that of either party, convene a prehearing conference with the Hearing Counsel and the individual and his or her counsel or representative, if any, for the purpose of clarifying the issues, identifying witnesses who may be called, identifying documents and other physical evidence that may be offered into evidence, and entering into stipulations of fact.
            (c) The parties will be notified by the Hearing Examiner at least ten days in advance of the hearing of the time and place of the hearing. For good cause shown, the Hearing Examiner may order postponements or continuances from time to time. If, after due notice, the individual fails to appear at the hearing, or appears but is not prepared to proceed, the Hearing Examiner shall, unless good cause is shown, return the case to the Director, Division of Facilities and Security, who shall make a recommendation on final action to be taken, through the Director, Office of Administration, to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs on the basis of the information in the possession of the NRC.
            [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 64 FR 15643, Apr. 1, 1999]

            § 10.28
            Conduct of hearing.
            (a) The Hearing Examiner shall conduct the hearing in an orderly, impartial and decorous manner. Technical rules of evidence may be relaxed so that a full evidentiary record may be made based on all material and relevant facts. Hearsay evidence may for good cause shown be received at the discretion of the Hearing Examiner and accorded such weight as the circumstances warrant.
            (b) The proceedings shall be open only to duly authorized representatives of the staff of the NRC, the individual, his or her counsel or representative, and such persons as may be officially authorized by the Hearing Examiner. Witnesses shall not testify in the presence of other witnesses except that the Hearing Examiner may, at his or her discretion, allow for expert witnesses to be present during testimony relevant to their own testimony.

            (c) Witnesses, including the individual, shall be examined under oath or affirmation by the party who called them and may be cross-examined by the other. The Hearing Examiner shall rule on all evidentiary matters, may further examine any witness, and may call for additional witnesses or the production of documentary or other physical evidence if, in the exercise of his or her discretion, such additional evidence is deemed necessary to the resolution of an issue.
            (d) If it appears during the hearing that Restricted Data or national security information may be disclosed, the Hearing Examiner shall assure that disclosure is made only to persons authorized to receive it.
            (e) The Hearing Examiner may, at any time during the hearing, permit the Hearing Counsel to amend the notification letter to add or modify allegations to be considered. In the event of such an amendment to the notification letter, the individual shall be given an opportunity to answer the amended allegations. If the changes are of such a substantial nature that the individual cannot answer the amended allegations without additional time, the Hearing Examiner shall grant such additional time as he or she deems necessary.
            (f) The Hearing Examiner may receive and consider evidence in the form of depositions or responses to interrogatories upon a showing that the witness is not available for good reason such as death, serious illness or similar cause, or in the form of depositions, interrogatories, affidavits or statements with agreement of the parties. The Hearing Examiner may take official notice at any stage of the proceeding, where appropriate, of any fact not subject to reasonable dispute in that it is either (1) generally known within the United States or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking such official notice. In the absence of prior notification the request may be made after notice is taken.
            (g) Hearing Counsel shall examine and cross-examine witnesses and otherwise assist the Hearing Examiner in such a manner as to bring out a full and true disclosure of all facts, both favorable and unfavorable, having a bearing on the issues before the Hearing Examiner. In performing these duties, the Hearing Counsel shall avoid the attitude of a prosecutor and shall always bear in mind that the proceeding is an administrative hearing and not a trial.
            (h) Hearing Counsel shall not participate in the deliberations of the Hearing Examiner, and shall express no opinion to the Hearing Examiner concerning the merits of the case. Hearing Counsel shall also, during the course of the hearing, advise the individual of his or her rights under these procedures when the individual is not represented by counsel or other representative.
            (i) The individual shall be afforded an opportunity to cross-examine persons who have made oral or written statements adverse to the individual relating to a controverted issue except that any such statement may be received and considered by the Hearing Examiner without affording such opportunity in either of the following circumstances:
            (1) The head of the department or agency supplying the statement certifies that the person who furnished the information is a confidential informant who has been engaged in obtaining intelligence information for the Government and that disclosure of the informant's identity would substantially harm the national interest or would endanger the well-being of the informant.
            (2) The Commission has determined, after considering the information furnished by the investigative agency concerning the reliability of the person who furnished the information and the accuracy of the statement concerned, that the statement appears to be reliable and material, and that failure of the Hearing Examiner to receive and consider such statement would, in view of the fact that access authorization and/or employment clearance is being sought, be substantially harmful to the national security and that the person who furnished the information cannot appear to testify due to death, serious illness, or similar cause.
            (j)(1) Whenever the procedure under paragraph (i)(1) of this section is used, the individual shall be given a summary of the information which shall be as comprehensive and detailed as the national security permits.

            (2) Whenever the procedure under paragraph (i)(2) is used, the individual shall be provided the identity of the person and the information to be considered.
            (3) In both paragraph (i) (1) and (2) procedures, appropriate consideration shall be accorded to the fact that the individual did not have an opportunity to cross-examine such informant or person.
            (k) Records provided by investigative agencies that were compiled as a regular or routine procedure by the business or agency from which obtained, or other physical evidence other than investigative reports, may be received and considered subject to rebuttal without authenticating witnesses, provided that the investigative agency furnished such information to the NRC pursuant to its responsibilities in connection with assisting the NRC in determining the individual's eligibility for access authorization and/or employment clearance.
            (l) Records compiled in the regular course of business, or other physical evidence other than investigative reports, relating to a controverted issue which, because they are classified, may not be inspected by the individual, may be received and considered provided that:
            (1) The Commission has made a determination that such records or other physical evidence appears to be material;
            (2) The Commission has made a determination that failure to receive and consider such records or other physical evidence would, in view of the fact that access authorization and/or employment clearance is being sought, be substantially harmful to the national security; and
            (3) To the extent that national security permits, a summary or description of such records or other physical evidence is made available to the individual. In every such case, information as to the authenticity and accuracy of such physical evidence furnished by the investigative agency shall be considered.
            (m) If the Hearing Examiner determines that additional investigation of any material information is required, he or she shall request in writing that the Director, Office of Administration, arrange for the investigation and shall specify those issues upon which more evidence is requested and identify, where possible, any persons or sources that might provide the evidence sought.
            (n) A written transcript of the entire proceeding must be made by a person possessing appropriate NRC access authorization and/or employment clearance and, except for portions containing Restricted Data or National Security Information, or other lawfully withholdable information, a copy of the transcript will be furnished the individual without cost. The transcript or recording will be made part of the applicant's or employee's personnel security file.
            [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 64 FR 15643, Apr. 1, 1999]

            § 10.29
            Recommendation of the Hearing Examiner.
            (a) The Hearing Examiner's findings and recommendation shall be based upon the entire record consisting of the transcript of the hearing, the documentary and other evidence adduced therein, and the letter of notification and answer. The Hearing Examiner shall also consider the circumstances of the receipt of evidence pursuant to § 10.28, the individual's record of past employment, and the nature and sensitivity of the job the individual is or may be expected to perform.
            (b) The Hearing Examiner shall make specific findings on each allegation in the notification letter including the reasons for his or her findings, and shall make a recommendation as to the action which should be taken in the case.

            (c) The Hearing Examiner's recommendation shall be predicated upon his or her findings. If, after considering all the factors in light of the criteria in this part, the Hearing Examiner is of the opinion that granting or continuing access authorization and/or employment clearance to the individual will not endanger the common defense and security and will be clearly consistent with the national interest, a favorable recommendation shall be made; otherwise, an adverse recommendation shall be made.

            (d) The Hearing Examiner shall submit his or her findings and recommendation in a signed report together with the record of the case to the Director, Office Administration, with the least practical delay.
            (e) The Hearing Examiner shall not consider the possible impact of the loss of the individual's services upon the NRC program.
            [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989]

            § 10.30
            New evidence.
            After the close of the hearing, in the event the individual discovers new evidence not previously available or known to him or her, the individual may petition the Hearing Examiner if the Hearing Examiner's recommendation has not yet been issued, or thereafter, the Director, Office of Administration, to reopen the record to receive that evidence. If the Hearing Examiner or the Director, respectively, deem it material and appropriate, the record may be reopened to accept the evidence either by stipulation, with the agreement of the Hearing Counsel, or in a reconvened hearing.
            [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31610, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989]

            § 10.31
            Actions on the recommendations.
            (a) Upon receipt of the findings and recommendation from the Hearing Examiner, and the record, the Director, Office of Administration, shall forthwith transmit it to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs who has the discretion to return the record to the Director, Office of Administration, for further proceedings by the Hearing Examiner with respect to specific matters designated by theDeputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs .
            (b)(1) In the event of a recommendation by the Hearing Examiner that an individual's access authorization and/or employment clearance be denied or revoked, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programsshall immediately notify the individual in writing of the Hearing Examiner's findings with respect to each allegation contained in the notification letter, and that the individual has a right to request a review of his or her case by the NRC Personnel Security Review Panel and of the right to submit a brief in support of his or her contentions. The request for a review must be submitted to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs within five days after the receipt of the notice. The brief will be forwarded to the , for transmission to the NRC Personnel Security Review Panel not later than 10 days after receipt of the notice.
            (2) In the event the individual fails to request a review by the NRC Personnel Security Review Panel of an adverse recommendation within the prescribed time, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs may at his or her discretion request a review of the record of the case by the NRC Personnel Security Review Panel. The request will set forth those matters at issue in the hearing on which the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programsdesires a review by the NRC Personnel Security Review Panel.

            (c) Where the Hearing Examiner has made a recommendation favorable to the individual, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programsmay at his or her discretion request a review of the record of the case by the NRC Personnel Security Review Panel. If this request is made, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programsshall immediately cause the individual to be notified of that fact and of those matters at issue in the hearing on which the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programsdesires a review by the NRC Personnel Security Review Panel. The Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programswill further inform the individual that within 10 days of receipt of this notice, the individual may submit a brief concerning those matters at issue for the consideration of the NRC Personnel Security Review Panel. The brief must be forwarded to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs for transmission to the NRC Personnel Security Review Panel.
            (d) In the event of a request for a review pursuant to paragraphs (b) and (c) of this section, the Hearing Counsel may file a brief within 10 days of being notified by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programsthat a review has been requested. The brief will be forwarded to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programsfor transmission to the NRC Personnel Security Review Panel.
            (e) The Hearing Counsel may also request a review of the case by the NRC Personnel Security Review Panel. The request for review, which will set forth those matters at issue in the hearing on which the Hearing Counsel desires a review, will be submitted to the Deputy Director Executive for Management Services within five days after receipt of the Hearing Examiner's findings and recommendation. Within 10 days of the request for review, the Hearing Counsel may file a brief which will be forwarded to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs and Chief for transmission to the NRC Personnel Security Review Panel. A copy of the request for review, and a copy of any brief filed, will be immediately sent to the individual. If the Hearing Counsel's request is for a review of a recommendation favorable to the individual, the individual may, within 10 days of receipt of a copy of the request for review, submit a brief concerning those matters at issue for consideration of the NRC Personnel Security Review Panel. The brief will be forwarded to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs and Chief Information Officer for transmission to the NRC Personnel Security Review Panel and Hearing Counsel. A copy of the brief will be made a part of the applicant's personnel security file.
            (f) The time limits imposed by this section for requesting reviews and the filing of briefs may be extended by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs for good cause shown.
            (g) In the event a request is made for a review of the record by the NRC Personnel Security Review Panel, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs shall send the record, with all findings and recommendations and any briefs filed by the individual and the Hearing Counsel, to the NRC Personnel Security Review Panel. If neither the individual, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs and, nor the Hearing Counsel requests a review, the final determination will be made by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs on the basis of the record with all findings and recommendations.
            [64 FR 15643, Apr. 1, 1999]

            § 10.32
            Recommendation of the NRC Personnel Security Review Panel.

            (a) The Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programsshall designate an NRC Personnel Security Review Panel to conduct a review of the record of the case. The NRC Personnel Security Review Panel shall be comprised of three members, two of whom shall be selected from outside the security field. To qualify as an NRC Personnel Security Review Panel member, the person designated shall have an NRC “Q” access authorization and may be an employee of the NRC, its contractors, agents, or licensees. However, no employee or consultant of the NRC shall serve as an NRC Personnel Security Review Panel member reviewing the case of an employee (including a consultant) or applicant for employment with the NRC; nor shall any employee or consultant of an NRC contractor, agent or licensee serve as an NRC Personnel Security Review Panel member reviewing the case of an employee (including a consultant) or an applicant for employment of that contractor, agent, or licensee. No NRC Personnel Security Review Panel member shall be selected who has knowledge of the case or of any information relevant to the disposition of it, or who for any reason would be unable to issue a fair and unbiased recommendation.
            (b) The NRC Personnel Security Review Panel shall consider the matter under review based upon the record supplemented by any brief submitted by the individual or the Hearing Counsel. The NRC Personnel Security Review Panel may request additional briefs as the Panel deems appropriate. When the NRC Personnel Security Review Panel determines that additional evidence or further proceedings are necessary, the record may be returned to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs with a recommendation that the case be returned to the Director, Office of Administration, for appropriate action, which may include returning the case to the Hearing Examiner and reconvening the hearing to obtain additional testimony. When additional testimony is taken by the Hearing Examiner, a written transcript of the testimony will be made a part of the record and will be taken by a person possessing an appropriate NRC access authorization and/or employment clearance and, except for portions containing Restricted Data or National Security Information, or other lawfully withholdable information, a copy of the transcript will be furnished the individual without cost.
            (c) In conducting the review, the NRC Personnel Security Review Panel shall make its findings and recommendations as to the eligibility or continued eligibility of an individual for an access authorization and/or an employment clearance on the record supplemented by additional testimony or briefs, as has been previously determined by the NRC Personnel Security Review Panel as appropriate.
            (d) The NRC Personnel Security Review Panel shall not consider the possible impact of the loss of the individual's services upon the NRC program.
            (e) If, after considering all the factors in light of the criteria set forth in this part, the NRC Personnel Security Review Panel is of the opinion that granting or continuing an access authorization and/or an employment clearance to the individual will not endanger the common defense and security and will be clearly consistent with the national interest, the NRC Personnel Security Review Panel shall make a favorable recommendation; otherwise, the NRC Personnel Security Review Panel shall make an adverse recommendation. The NRC Personnel Security Review Panel shall prepare a report of its findings and recommendations and submit the report in writing to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs , who shall furnish a copy to the individual. The findings and recommendations must be fully supported by stated reasons.
            [64 FR 15644, Apr. 1, 1999]

            § 10.33
            Action by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs.

            (a) The Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs, on the basis of the record accompanied by all findings and recommendations, shall make a final determination whether access authorization and/or employment clearance shall be granted, denied, or revoked, except when the provisions of § 10.28 (i), (j), or (l) have been used and the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs determination is adverse, the Commission shall make the final agency determination.
            (b) In making the determination as to whether an access authorization and/or an employment clearance shall be granted, denied, or revoked, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs or the Commission shall give due recognition to the favorable as well as the unfavorable information concerning the individual and shall take into account the value of the individual's services to the NRC's program and the consequences of denying or revoking access authorization and/or employment clearance.
            (c) In the event of an adverse determination, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs shall promptly notify the individual through the Director, Office of Administration, of his or her decision that an access authorization and/or an employment clearance is being denied or revoked and of his or her findings with respect to each allegation contained in the notification letter for transmittal to the individual.
            (d) In the event of a favorable determination, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs shall promptly notify the individual through the Director, Office of Administration.
            [64 FR 15644, Apr. 1, 1999]

            § 10.34
            Action by the Commission.
            (a) Whenever, under the provisions of § 10.28(i), (j), or (l) an individual has not been afforded an opportunity to confront and cross-examine witnesses who have furnished information adverse to the individual and an adverse recommendation has been made by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs , the Commission shall review the record and determine whether an access authorization and/or an employment clearance should be granted, denied, or revoked, based upon the record.
            (b) When the Commission determines to deny or revoke access authorization and/or employment clearance, the individual shall promptly be notified through the Director, Office of Administration, of its decision that access authorization and/or employment clearance is being denied or revoked and of its findings and conclusions with respect to each allegation contained in the notification letter for transmittal to the individual.
            (c) Nothing contained in these procedures shall be deemed to limit or affect the responsibility and powers of the Commission to deny or revoke access to Restricted Data or national security information if the security of the nation so requires. Such authority may not be delegated and may be exercised when the Commission determines that invocation of the procedures prescribed in this part is inconsistent with the national security. Such determination shall be conclusive.
            [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31610, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 64 FR 15645, Apr. 1, 1999]

            § 10.35
            Reconsideration of cases.

            (a) Where, pursuant to the procedures set forth in §§ 10.20 through 10.34, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs or the Commission has made a determination granting an access authorization and/or an employment clearance to an individual, the individual's eligibility for an access authorization and/or an employment clearance will be reconsidered only when subsequent to the time of that determination, new derogatory information has been received or the scope or sensitivity of the Restricted Data or National Security Information to which the individual has or will have access has significantly increased. All new derogatory information, whether resulting from the NRC's reinvestigation program or other sources, will be evaluated relative to an individual's continued eligibility in accordance with the procedures of this part.
            (b) Where, pursuant to these procedures, the Commission or Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs has made a determination denying or revoking an access authorization and/or an employment clearance to an individual, the individual's eligibility for an access authorization and/or an employment clearance may be reconsidered when there is a bona fide offer of employment and/or a bona fide need for access to Restricted Data or National Security Information and either material and relevant new evidence is presented, which the individual and his or her representatives are without fault in failing to present before, or there is convincing evidence of reformation or rehabilitation. Requests for reconsideration must be submitted in writing to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs through the Director, Office of Administration. Requests must be accompanied by an affidavit setting forth in detail the information referred to above. The Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs shall cause the individual to be notified as to whether his or her eligibility for an access authorization and/or an employment clearance will be reconsidered and if so, the method by which a reconsideration will be accomplished.
            (c) Where an access authorization and/or an employment clearance has been granted to an individual by the Director, Division of Facilities and Security, without recourse to the procedures set forth in §§ 10.20 through 10.34, the individual's eligibility for an access authorization and/or an employment clearance will be reconsidered only in a case where, subsequent to the granting of the access authorization and/or employment clearance, new derogatory information has been received or the scope or sensitivity of the Restricted Data or National Security Information to which the individual has or will have access has significantly increased. All new derogatory information, whether resulting from the NRC's reinvestigation program or other sources, will be evaluated relative to an individual's continued eligibility in accordance with the procedures of this part.
            [64 FR 15645, Apr. 1, 1999]

          Subpart D—Miscellaneous

            § 10.36
            Terminations.
            In the event the individual is no longer an applicant for access authorization and/or employment clearance or no longer requires such, the procedures of this part shall be terminated without a final determination as to the individual's eligibility for access authorization and/or employment clearance.

            § 10.37
            Attorney representation.
            In the event the individual is represented by an attorney or other representative, the individual shall file with the Director, Office of Administration, a document designating such attorney or representative and authorizing such attorney or representative to receive all correspondence, transcripts, and other documents pertaining to the proceeding under this part.
            [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31610, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989]

            § 10.38
            Certifications.
            Whenever information is made a part of the record under the exceptions authorized by § 10.28 (i), (j), or (l), the record shall contain certificates evidencing that the required determinations have been made.

        Pt. 11
        PART 11—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO OR CONTROL OVER SPECIAL NUCLEAR MATERIAL

            General Provisions
            Sec.
            11.1
            Purpose.
            11.3
            Scope.
            11.5
            Policy.
            11.7
            Definitions.
            11.8
            Information collection requirements: OMB approval.
            11.9
            Specific exemptions.
            11.10
            Maintenance of records.

            Requirements for Special Nuclear Material Access Authorization
            11.11
            General requirements.
            11.13
            Special requirements for transportation.
            11.15
            Application for special nuclear material access authorization.
            11.16
            Cancellation of request for special nuclear material access authorization.

            Criteria for Determining Eligibility for Access to, or Control Over, Special Nuclear Material
            11.21
            Application of the criteria.

            Violations
            11.30
            Violations.
            11.32
            Criminal penalties.

          Authority:
          Atomic Energy Act of 1954, secs. 161, 223 (42 U.S.C. 2201, 2273); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note.
          Section 11.15(e) also issued under 31 U.S.C. 9701; 42 U.S.C. 2214.

          Source:
          45 FR 76970, Nov. 21, 1980, unless otherwise noted.

          General Provisions

            § 11.1
            Purpose.
            This part establishes the requirements for special nuclear material access authorization, and the criteria and procedures for resolving questions concerning the eligibility of individuals to receive special nuclear material access authorization for conduct of certain activities, licensed or otherwise, which involve access to or control over special nuclear material.

            § 11.3
            Scope.
            (a) The requirements, criteria, and procedures of this part apply to the establishment of and eligibility for special nuclear material access authorization for employees, contractors, consultants of, and applicants for employment with licensees or contractors of the Nuclear Regulatory Commission. This employment, contract, service, or consultation may involve any duties or assignments within the criteria of § 11.11 or § 11.13 requiring access to, or control over, formula quantities of special nuclear material (as defined in part 73 of this chapter).
            (b) The requirements, criteria, and procedures of this part are in addition to and not in lieu of any requirements, criteria, or procedures for access to or control over classified special nuclear material.
            [45 FR 76970, Nov. 21, 1980, as amended at 64 FR 15645, Apr. 1, 1999]

            § 11.5
            Policy.
            It is the policy of the Nuclear Regulatory Commission to carry out its authority to establish and administer, in a manner consistent with traditional American concepts of justice, a personnel security program in the interests of the common defense and security for the purpose of safeguarding special nuclear material and preventing sabotage which would endanger the public by exposure to radiation. To this end, the Commission has established criteria for determining eligibility for special nuclear material access authorization and will afford affected individuals the opportunity for administrative review of questions concerning their eligibility for special nuclear material access authorization.

            § 11.7
            Definitions.
            As used in this part:
            Terms defined in parts 10, 25, 50, 70, 72, 73, and 95 of this chapter have the same meaning when used in this part.

              NRC-“R” special nuclear material access authorization means an administrative determination based upon a national agency check with law and credit investigation that an individual in the course of employment is eligible to work at a job falling within the criterion of § 11.11(a)(2).

              NRC-“U” special nuclear material access authorization means an administrative determination based upon a single scope background investigation, normally conducted by the Office of Personnel Management, that an individual in the course of employment is eligible to work at a job falling within the criterion of 11.11(a)(1) or 11.13.

              Special nuclear material access authorization means an administrative determination that an individual (including a contractor or consultant) who is employed by or is an applicant for employment with an affected Commission contractor, licensee of the Commission, or contractor of a licensee of the Commission may work at a job which affords access to or control over special nuclear material and that permitting the individual to work at that job would not be inimical to the common defense and security.
            [45 FR 76970, Nov. 21, 1980, as amended at 46 FR 58282, Dec. 1, 1981; 50 FR 39077, Sept. 27, 1985; 55 FR 11574, Mar. 29, 1990; 64 FR 15645, Apr. 1, 1999]

            § 11.8
            Information collection requirements: OMB approval.

            (a) The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act (44 U.S.C. et seq.). The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in this part under control number 3150-0062.
            (b) The approved information collection requirements contained in this part appear in §§ 11.9, 11.11, 11.13, 11.15, and 11.16.
            [62 FR 52185, Oct. 6, 1997]

            § 11.9
            Specific exemptions.
            The Commission may, upon application of any interested party, grant an exemption from the requirements of this part. Exemptions will be granted only if they are authorized by law and will not constitute an undue risk to the common defense and security. Documentation related to the request, notification and processing of an exemption shall be maintained for three years beyond the period covered by the exemption.
            [45 FR 76970, Nov. 21, 1980, as amended at 53 FR 19245, May 27, 1988]

            § 11.10
            Maintenance of records.
            Each record required by this part must be legible throughout the retention period specified by each Commission regulation. The record may be the original or a reproduced copy or a microform provided that the copy or microform is authenticated by authorized personnel and that the microform is capable of producing a clear copy throughout the required retention period. The record may also be stored in electronic media with the capability for producing legible, accurate, and complete records during the required retention period. Records such as letters, drawing, specification, must include all pertinent information such as stamps, initials, and signatures etc. The licensee shall maintain adequate safeguards against tampering with and loss of records.
            [53 FR 19245, May 27, 1988]

          Requirements for Special Nuclear Material Access Authorization

            § 11.11
            General requirements.
            (a) Each licensee who uses, processes, stores, transports, or delivers to a carrier for transport, formula quantities of special nuclear material (as defined in part 73 of this chapter) subject to the physical protection requirements of §§ 73.20, 73.25, 73.26, 73.45, and 73.46, and each person subject to the general licensing requirements of § 70.20a, shall identify at its facility or plant (excluding all non-power reactor facilities and storage of fuel incident thereto and facilities and plants in which the licensee possesses or uses only irradiated special nuclear material subject to the exemption of § 73.6(b)), describe, and if not already provided, provide to the Commission, by December 26, 1985 by amendment to its security plan:

            (1) All jobs in which an individual could steal or divert special nuclear material, or commit sabotage which would endanger the public by exposure to radiation, by working alone or in cooperation with an individual who does not possess an NRC-U special nuclear material access authorization, or by directing or coercing any individual to assist in the theft, diversion, or sabotage. Such jobs include but are not limited to:
            (i) All positions in the licensee's security force,
            (ii) Management positions with the authority to:
            (A) Direct the actions of members of the security force or alter security procedures, or
            (B) Direct routine movements of special nuclear material, or
            (C) Direct the routine status of vital equipment.
            (iii) All jobs which require unescorted access within onsite alarm stations.
            (iv) All jobs which require unescorted access 2
               to special nuclear material or within vital areas.

                2 This does not alter the requirement for methods to observe individuals within material access areas as stated in § 73.46(e)(9) of this chapter.

            (2) All jobs which require unescorted access within protected areas and which do not fall within the criterion of paragraph (a)(1) of this section.
            (b) After 365 days following Commission approval of the amended security plan submitted in accordance with paragraph (a) of this section, no individual may be permitted to work at any job determined by the Commission to fall within the criterion of paragraph (a)(1) of this section without an NRC-U special nuclear material access authorization, and no individual may be permitted unescorted access to any protected area at any site subject to this part without either an NRC-U or NRC-R special nuclear material access authorization. The exceptions to the requirement for an NRC-U and NRC-R special nuclear material access authorization are as follows:
            (1) Exceptions to the requirement for an NRC-U special nuclear material access authorization for an individual to work at a job within the criteria of paragraph (a)(1) are provided for:
            (i) Any individual employed in such a job on October 28, 1985, who is not yet in receipt of an NRC-U special nuclear material access authorization from the Commission, provided that a complete application has been submitted to and is pending before the NRC for processing for that employee in accordance with § 11.15 (a) and (b); or
            (ii) Any individual in possession of an NRC-L or R access authorization or an equivalent active Federal security clearance but not yet in receipt of the NRC-U special nuclear material access authorization, provided that a complete application has been submitted to and is pending before the NRC for processing for that employee in accordance with § 11.15 (a) or (b), or both.
            (2) Exceptions to the requirement for an NRC-R special nuclear material access authorization for an individual to have unescorted access to a protected area are provided for:
            (i) Any individual employed in such a job on October 28, 1985 who is not yet in receipt of an NRC-R special nuclear material access authorization from the Commission, provided that a complete application has been submitted to and is pending before the NRC for processing for that employee in accordance with § 11.15 (a) and (b); or
            (ii) Any individual in possession of an NRC-L access authorization or an equivalent active Federal security clearance, provided that a complete application has been submitted to the NRC for processing for that employee in accordance with § 11.15 (a) or (b), or both.
            [45 FR 76970, Nov. 21, 1980, as amended at 46 FR 56599, Nov. 18, 1981; 50 FR 39077, Sept. 27, 1985]

            § 11.13
            Special requirements for transportation.

            (a) All individuals who, after 365 days following approval of the amended security plan submitted in accordance with § 11.11(a), transport, arrange for transport, drive motor vehicles in road shipments of special nuclear material, pilot aircraft in air shipments of special nuclear material, act as monitors at transfer points, or escort road, rail, sea, or air shipments of special nuclear material subject to the appropriate physical protection requirements of §§ 73.20, 73.25, 73.26, or 73.27 of this chapter, or who are authorized to alter the scheduling and routing of such transport shall have NRC-U special nuclear material access authorization. Exceptions are provided for:
            (1) Any individual who is employed in such a job on October 28, 1985 and who is not yet in receipt of an NRC-U special nuclear material access authorization from the Commission, provided that a complete application has been submitted to and is pending before the NRC for processing for that employee in accordance with § 11.15 (a) and (b) or
            (2) Any individual in possession of an NRC-L or R access authorization or equivalent active Federal security clearance but not yet in receipt of the NRC-U special nuclear material access authorization, provided that a complete application has been submitted to and is pending before the NRC for processing for that employee in accordance with § 11.15 (a) or (b), or both.
            (b) Each licensee who, 365 days after Commission approval of the amended security plan submitted in accordance with § 11.11(a), transports or delivers to a carrier for transport special nuclear material subject to the physical protection requirement of §§ 73.20, 73.25, 73.26, or 73.27 of this chapter shall confirm and record prior to shipment the name and special nuclear material access authorization number of all individuals identified in paragraph (a) of this section assigned to the shipment. The licensee shall retain this record for three years after the last shipment is made. However, the licensee need not confirm and record the special nuclear material access authorization number in the case of any individual for whom an application has been submitted and is pending before the NRC in accordance with paragraph (a) of this section.
            [50 FR 39078, Sept. 27, 1985, as amended at 53 FR 19245, May 27, 1988]

            § 11.15
            Application for special nuclear material access authorization.

            (a)(1) Application for special nuclear material access authorization, renewal, or change in level must be filed by the licensee on behalf of the applicant with the Director, Division of Facilities and Security, Mail Stop T7-D57, either by mail addressed to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland; or, where practicable, by electronic submission, for example, via Electronic Information Exchange, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information. Applications for affected individuals employed on October 28, 1985, shall be submitted within 60 days of notification of Commission approval of the amended security plan.
            (2) Licensees who wish to secure NRC-U or NRC-R special nuclear material access authorizations for individuals in possession of an active NRC Q or L access authorization or other security clearance granted by another Federal agency based on an equivalent investigation shall submit a “Security Acknowledgment” (NRC Form 176) and a “Request for Access Authorization” (NRC Form 237). NRC will process these requests by verifying the data on an NRC-cleared individual, or by contacting the Federal agency that granted the clearance, requesting certification of the security clearance, and determining the investigative basis and level of the clearance. Licensees may directly request the Federal agency that administered the security clearance, if other than NRC, to certify to the NRC that it has on file an active security clearance for an individual and to specify the investigative basis and level of the clearance.
            (b) Applications for special nuclear material access authorization for individuals, other than those qualifying under the provisions of § 11.15(a)(2), must be made on forms supplied by the Commission, including:

            (1) Questionnaire for National Security Positions (SF-86, Parts 1 and 2);

            (2) Two completed standard fingerprint cards (FD-258);
            (3) Security Acknowledgment (NRC Form 176);
            (4) Other related forms where specified in accompanying instruction (NRC-254); and
            (5) A statement by the employer, prospective employer, or contractor identifying the job to be assigned to or assumed by the individual and the level of authorization needed, justified by appropriate reference to the licensee's security plan.
            (c)(1) Except as provided in paragraph (c)(2) of this section, NRC-U special nuclear material access authorizations must be renewed every five years from the date of issuance. Except as provided in paragraph (c)(3) of this section, NRC-R special nuclear material access authorizations must be renewed every ten years from the date of issuance. An application for renewal must be submitted at least 120 days before the expiration of the five-year period for NRC-U and ten-year period for NRC-R, respectively, and must include:
            (i) A statement by the licensee that at the time of application for renewal the individual's assigned or assumed job requires an NRC-U or an NRC-R special nuclear material access authorization, justified by appropriate reference to the licensee's security plan;
            (ii) The Questionnaire for National Security Positions (SF-86, Parts 1 and 2);
            (iii) Two completed standard fingerprint cards (FD-258); and
            (iv) Other related forms specified in accompanying NRC instructions (NRC Form 254).
            (2) An exception to the time for submission of NRC-U special nuclear material access authorization renewal applications and the paperwork required is provided for individuals who have a current and active DOE-Q access authorization and are subject to DOE Reinvestigation Program requirements. For these individuals, the submission to DOE of the SF-86 pursuant to DOE Reinvestigation Program requirements (generally every five years) will satisfy the NRC renewal submission and paperwork requirements even if less than five years has passed since the date of issuance or renewal of the NRC-U access authorization. Any NRC-U special nuclear material access authorization renewed in response to provisions of this paragraph will not be due for renewal until the date set by DOE for the next reinvestigation of the individual pursuant to DOE's Reinvestigation Program.
            (3) An exception to the time for submission of NRC-R special nuclear material access authorization renewal applications and the paperwork required is provided for individuals who have a current and active DOE-L or DOE-Q access authorization and are subject to DOE Reinvestigation Program requirements. For these individuals, the submission to DOE of the SF-86 pursuant to DOE Reinvestigation Program requirements will satisfy the NRC renewal submission and paperwork requirements even if less than ten years have passed since the date of issuance or renewal of the NRC-R access authorization. Any NRC-R special nuclear material access authorization renewed pursuant to this paragraph will not be due for renewal until the date set by DOE for the next reinvestigation of the individual pursuant to DOE's Reinvestigation Program.
            (4) Notwithstanding the provisions of paragraph (c)(2) of this section, the period of time for the initial and each subsequent NRC-U renewal application to NRC may not exceed seven years.
            (5) Notwithstanding the provisions of paragraph (c)(3) of this section, the period of time for the initial and each subsequent NRC-R renewal application to NRC may not exceed twelve years. Any individual who is subject to the DOE Reinvestigation Program requirements but, for administrative or other reasons, does not submit reinvestigation forms to DOE within seven years of the previous submission, for a NRC-U renewal or twelve years of the previous submission for a NRC-R renewal, shall submit a renewal application to NRC using the forms prescribed in paragraph (c)(1) of this section before the expiration of the seven year period for NRC-U or twelve year period for NRC-R renewal.

            (d) If at any time, due to new assignment or assumption of duties, a change in a special nuclear material access authorization level from NRC “R” to “U” is required, the individual shall apply for a change of level of special nuclear material access authorization. The application must include a description of the new duties to be assigned or assumed, justified by appropriate reference to the licensee's security plan.
            (e) The Office of Personnel Management (OPM) bills the NRC for the cost of each background investigation conducted in support of an application for special nuclear material access authorization (application). The combined cost of the OPM investigation and the NRC's application processing overhead (NRC processing fee) are recovered through a material access authorization fee imposed on applicants for special nuclear material access authorization.

            (1) Each application for a special nuclear material access authorization, renewal, or change in level must be accompanied by a remittance, payable to the U.S. Nuclear Regulatory Commission, which is equal to the NRC material access authorization fee. This fee must be determined using the following formula: the OPM investigation billing rates on the day of NRC receipt of the application + the NRC processing fee = the NRC material access authorization fee. The NRC processing fee is determined by multiplying the OPM investigation billing rate on the day of NRC receipt of the application by 55.8 percent (i.e., OPM rate × 55.8 percent).

            (2) Updated OPM investigation billing rates are published periodically in a Federal Investigations Notice (FIN) issued by the OPM's Federal Investigative Services. Copies of the current OPM investigation billing rates schedule can be obtained by contacting the NRC's Personnel Security Branch, Division of Facilities Security, Office of Administration by email to: Licensee_

              Access_Authorization_Fee.Resource@

              nrc.gov.

            (3) The NRC's Material Access Authorization Program (MAAP) is considered reimbursable work representing services provided to an organization for which the NRC is entitled payment. The NRC is authorized to receive and retain fees from licensees for services performed. The NRC's Office of the Chief Financial Officer periodically reviews the fees charged for MAAP and makes recommendations on revising those charges to reflect costs incurred by the NRC in providing those services. The reviews are performed using cost analysis techniques to determine the direct and indirect costs. Based on this review the MAAP fees are adjusted to reflect the current cost for the program. Copies of the current NRC material access authorization fee may be obtained by contacting the NRC's Personnel Security Branch, Division of Facilities Security, Office of Administration by email to: Licensee_Access_

              Authorization_Fee.Resource@nrc.gov. Any change in the NRC's access authorization fees will be applicable to each access authorization request received on or after the effective date of the OPM's most recently published investigation billing rates schedule. Applicants shall calculate the access authorization fee according to the stated formula (i.e., OPM rate × 55.8 percent) and with reference to the following table:

                The NRC application fee for an access authorization of type . . .
                Is the sum of the current OPM investigation billing rate charged for an investigation of type . . .
                Plus the NRC's processing fee (rounded to the nearest dollar), which is equal to the OPM investigation billing rate for the type of investigation referenced multiplied by . . .

                i. NRC-R 1

                NACLC—National Agency Check with Law and Credit (Standard Service, Code C)
                55.8%

                ii. NRC—R Based on Certification of Comparable Investigation 2

                No fee assessed for most applications

                iii. NRC—R renewal 1

                NACLC—National Agency Check with Law and Credit (Standard Service, Code C)
                55.8%

                iv. NRC—U requiring single scope investigation
                SSBI—Single Scope Background Investigation (Standard Service, Code C)
                55.8%

                v. NRC—U requiring single scope investigation (expedited processing)
                SSBI—Single Scope Background Investigation (Priority Handling, Code A)
                55.8%

                vi. NRC—U based on certification of comparable investigation 2

                No fee assessed for most applications

                vii. NRC—U renewal 2

                SSBI-PR—Periodic Reinvestigation for SSBI (Standard Service, Code C)
                55.8%

                1 If the NRC, having reviewed the available data, deems it necessary to perform a single scope investigation, the appropriate NRC-U fee will be assessed before the conduct of the investigation.

                2 If the NRC determines, based on its review of available data, that a single scope investigation is necessary, the appropriate NRC-U fee will be assessed before the conduct of the investigation.

            (4) Certain applications from individuals having current Federal access authorizations may be processed expeditiously at no cost to the licensee because the Commission, at its discretion, may decide to accept the certification of access authorizations and investigative data from other Federal government agencies that grant personnel access authorizations.
            (f)(1) Any Federal employee, employee of a contractor of a Federal agency, licensee, or other person visiting an affected facility for the purpose of conducting official business, who possesses an active NRC or DOE-Q access authorization or an equivalent Federal security clearance granted by another Federal agency (“Top Secret”) based on a comparable single scope background investigation may be permitted, in accordance with § 11.11, the same level of unescorted access that an NRC-U special nuclear material access authorization would afford.
            (2) Any Federal employee, employee of a contractor of a Federal agency, licensee, or other person visiting an affected facility for the purpose of conducting official business, who possesses an active NRC or DOE-L access authorization or an equivalent security clearance granted by another Federal agency (“Secret”) based on a comparable or greater background investigation consisting of a national agency check with law and credit may be permitted, in accordance with § 11.11, the same level of unescorted access that an NRC-R special nuclear material access authorization would afford. An NRC or DOE-L access authorization or an equivalent security clearance (“Secret”), based on a background investigation or national agency check with credit granted or being processed by another Federal agency before January 1, 1998, is acceptable to meet this requirement.
            [64 FR 15645, Apr. 1, 1999, as amended at 68 FR 62511, Nov. 5, 2003; 68 FR 65765, Nov. 21, 2003; 68 FR 58800, Oct. 10, 2003; 72 FR 27410, May 16, 2007; 74 FR 62680, Dec. 1, 2009; 77 FR 26152, May 3, 2012; 77 FR 46257, Aug. 3, 2012; 80 FR 74978, Dec. 1, 2015]

            § 11.16
            Cancellation of request for special nuclear material access authorization.
            When a request for an individual's access authorization is withdrawn or canceled, the licensee shall notify the Chief, Personnel Security Branch, NRC Division of Facilities and Security immediately, by telephone, so that the investigation may be discontinued. The caller shall provide the full name and date of birth of the individual, the date of request, and the type of access authorization originally requested (“U” or “R”). The licensee shall promptly submit written confirmation of the telephone notification to the Personnel Security Branch, NRC Division of Facilities and Security. A portion of the fee for the “U” special nuclear material access authorization may be refunded depending upon the status of the single scope investigation at the time of withdrawal or cancellation.
            [64 FR 15647, Apr. 1, 1999]

          Criteria for Determining Eligibility for Access to, or Control Over, Special Nuclear Material

            § 11.21
            Application of the criteria.

            (a) The decision to grant or deny special nuclear material access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, that to grant or deny special nuclear material access authorization is or is not inimical to the common defense and security and is or is not clearly consistent with the national interest.
            (b) To assist in making these determinations, on the basis of all the information in a particular case, there are set forth in § 10.11 of this chapter a number of specific types of derogatory information. These criteria are not exhaustive but contain the principal types of derogatory information which in the opinion of the Commission create a question as to the individual's eligibility for special nuclear material access authorization. These criteria are subject to continuing review and may be revised from time to time as experience and circumstances may make desirable.
            (c) When the reports of an investigation of an individual contain information reasonably falling within one or more of the classes of derogatory information listed in § 10.11, it creates a question as to the individual's eligibility for special nuclear material access authorization. In these cases, the application of the criteria must be made in light of and with specific regard to whether the existence of the information supports a reasonable belief that the granting of a special nuclear material access authorization would be inimical to the common defense and security. The Director, Division of Facilities and Security, may authorize the granting of a special nuclear material access authorization on the basis of the information in the case or may authorize the conduct of an interview with the individual and, on the basis of the interview and other investigation as the Director deems appropriate, may authorize the granting of a special nuclear material access authorization. Otherwise, a question concerning the eligibility of an individual for a special nuclear material access authorization must be resolved in accordance with the procedures set forth in §§ 10.20 through 10.38 of this chapter.
            (d) In resolving a question concerning the eligibility or continued eligibility of an individual for a special nuclear material access authorization by action of the Hearing Examiner or a Personnel Security Review Panel, 3
               the following principle shall be applied by the Examiner and the Personnel Security Review Panel: Where there are sufficient grounds to establish a reasonable belief as to the truth of the information regarded as substantially derogatory and when the existence of this information supports a reasonable belief that granting access would be inimical to the common defense and security, this will be the basis for a recommendation for denying or revoking special nuclear material access authorization if not satisfactorily rebutted by the individual or shown to be mitigated by circumstance.

                3 The functions of the Hearing Examiner and the Personnel Security Review Panel are described in part 10 of this chapter.

            [45 FR 76970, Nov. 21, 1980, as amended at 47 FR 38683, Sept. 2, 1982; 64 FR 15647, Apr. 1, 1999]

          Violations

            § 11.30
            Violations.
            (a) The Commission may obtain an injunction or other court order to prevent a violation of the provisions of—
            (1) The Atomic Energy Act of 1954, as amended;
            (2) Title II of the Energy Reorganization Act of 1974, as amended; or
            (3) A regulation or order issued pursuant to those Acts.
            (b) The Commission may obtain a court order for the payment of a civil penalty imposed under section 234 of the Atomic Energy Act:
            (1) For violations of—
            (i) Sections 53, 57, 62, 63, 81, 82, 101, 103, 104, 107, or 109 of the Atomic Energy Act of 1954, as amended;
            (ii) Section 206 of the Energy Reorganization Act;
            (iii) Any rule, regulation, or order issued pursuant to the sections specified in paragraph (b)(1)(i) of this section;
            (iv) Any term, condition, or limitation of any license issued under the sections specified in paragraph (b)(1)(i) of this section.

            (2) For any violation for which a license may be revoked under section 186 of the Atomic Energy Act of 1954, as amended.
            [57 FR 55070, Nov. 24, 1992]

            § 11.32
            Criminal penalties.
            (a) Section 223 of the Atomic Energy Act of 1954, as amended, provides for criminal sanctions for willful violation of, attempted violation of, or conspiracy to violate, any regulation issued under sections 161b, 161i, or 161o of the Act. For purposes of section 223, all regulations in part 11 are issued under one or more of sections 161b, 161i, or 161o, except for the sections listed in paragraph (b) of this section.
            (b) The regulations in part 11 that are not issued under sections 161b, 161i, or 161o for the purposes of section 223 are as follows: §§ 11.1, 11.3, 11.5, 11.7, 11.8, 11.9, 11.16, 11.21, 11.30, and 11.32.
            [57 FR 55070, Nov. 24, 1992]

        Pt. 12
        PART 12—IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS

            Subpart A—General Provisions
            Sec.
            12.101
            Purpose.
            12.102
            When the EAJA applies.
            12.103
            Proceedings covered.
            12.104
            Eligibility of applicants.
            12.105
            Standards for awards.
            12.106
            Allowable fees and expenses.
            12.107
            Rulemaking on maximum rates for attorney fees.
            12.108
            Awards against other agencies.
            12.109
            Decisionmaking authority.

            Subpart B—Information Required From Applicants
            12.201
            Contents of application.
            12.202
            Net worth exhibit.
            12.203
            Documentation of fees and expenses.
            12.204
            When an application may be filed.

            Subpart C—Procedures for Considering Applications
            12.301
            Filing and service of documents.
            12.302
            Answer to application.
            12.303
            Reply.
            12.304
            Comments by other parties.
            12.305
            Settlement.
            12.306
            Further proceedings.
            12.307
            Decision.
            12.308
            Agency review.
            12.309
            Judicial review.
            12.310
            Payment of award.

          Authority:
          5 U.S.C. 504(c)(1).

          Source:
          59 FR 23121, May 5, 1994, unless otherwise noted.

          Subpart A—General Provisions

            § 12.101
            Purpose.
            The purpose of this part is to state the regulatory requirements for award of attorney fees to eligible individuals and entities in certain administrative proceedings before the Nuclear Regulatory Commission, in implementation of the Equal Access to Justice Act, 5 U.S.C. 504 (EAJA), which provides for the award of attorney fees and other expenses to parties to “adversary adjudications”, as defined in 5 U.S.C. 504(b)(1)(C). In general, an “adversary adjudication” is an adjudication that is required by statute to be determined on the record after opportunity for hearing before an agency of the United States and in which the position of the agency, or any component of the agency, is presented by an attorney or other representative who enters an appearance and participates in the proceeding. However, some agency adjudications are expressly excluded from coverage by 5 U.S.C. 504 (e.g., an adjudication for the purpose of granting or renewing a license) even though they fall within this general definition, and certain appeals before an agency board of contract appeals and Program Fraud Civil Remedies Act hearings conducted under 31 U.S.C. ch. 38 are expressly covered.
            An eligible party may receive an award in an adversary adjudication when the party prevails over the Commission, unless the Commission's position was substantially justified or special circumstances make an award unjust. The regulations in this part describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards that the Commission will use to make them.

            § 12.102
            When the EAJA applies.
            The EAJA applies to any covered adversary adjudication pending or commenced before the Commission on or after August 5, 1985.

            § 12.103
            Proceedings covered.
            (a) The EAJA applies to the following proceedings:
            (1) Hearings under the Program Fraud Civil Remedies Act (31 U.S.C. 3801-12);
            (2) Any appeal of a decision made pursuant to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before an agency board of contract appeals as provided in section 8 of that Act (41 U.S.C. 607); and
            (3) Adversary adjudications conducted by the Commission pursuant to any other statutory provision that requires a proceeding before the Nuclear Regulatory Commission to be so conducted as to fall within the meaning of “adversary adjudication” under 5 U.S.C. 504(b)(1)(C).
            (b) The Commission's failure to identify a type of proceeding as an adversary adjudication shall not preclude the filing of an application by a party who believes the proceeding is covered by the EAJA. Whether the proceeding is covered will then be an issue for resolution in proceedings on the application.
            (c) If a proceeding includes both matters covered by the EAJA and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues.

            § 12.104
            Eligibility of applicants.
            (a) To be eligible for an award of attorney fees and other expenses under the EAJA, the applicant must be a party to the adversary adjudication for which it seeks an award. The term “party” is defined in 5 U.S.C. 551(3). The applicant must show that it meets all conditions of eligibility set out in this subpart and in subpart B.
            (b) The types of eligible applicants are as follows:
            (1) An individual with a net worth of not more than $2 million;
            (2) The sole owner of an unincorporated business who has a net worth of not more than $7 million, including both personal and business interests, and not more than 500 employees;
            (3) A charitable or other tax-exempt organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) with not more than 500 employees;
            (4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 employees; and
            (5) Any other partnership, corporation, association, unit of local government, or organization with a net worth of not more than $7 million and not more than 500 employees.
            (c) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was initiated.
            (d) An applicant who owns an unincorporated business will be considered as an “individual” rather than a “sole owner of an unincorporated business” if the issues on which the applicant prevails are related primarily to personal interests rather than to business interests.
            (e) The employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under the applicant's direction and control. Part-time employees shall be included on a proportional basis.
            (f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. Any individual, corporation, or other entity that directly or indirectly controls or owns a majority of the voting shares or other interests of the applicant, or any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an affiliate for purposes of this part, unless the adjudicative officer determines that such treatment would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities. In addition, the adjudicative officer may determine that financial relationships of the applicant other than those described in this paragraph constitute special circumstances that would make an award unjust.
            (g) An applicant that participates in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible is not itself eligible for an award.

            § 12.105
            Standards for awards.
            (a) A prevailing applicant may receive an award for fees and expenses incurred in connection with a proceeding or a significant and discrete substantive portion of the proceeding, unless the position of the Commission over which the applicant has prevailed was substantially justified. The position of the Commission includes, in addition to the position taken by the Commission in the adversary adjudication, the action or failure to act by the Commission upon which the adversary adjudication is based. The burden of proof that an award should not be made to a prevailing applicant because the Commission's position was substantially justified is on the Commission counsel.
            (b) An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust.

            § 12.106
            Allowable fees and expenses.
            (a) Awards will be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents, and expert witnesses, even if the services were made available without charge or at reduced rate to the applicant.
            (b) No award for the fee of an attorney or agent under this part may exceed $75.00 per hour. No award to compensate an expert witness may exceed the highest rate at which the Commission pays expert witnesses. However, an award may also include the reasonable expenses of the attorney, agent, or witness as a separate item, if the attorney, agent, or witness ordinarily charges clients separately for these expenses.
            (c) In determining the reasonableness of the fee sought for an attorney, agent, or expert witness, the adjudicative officer shall consider the following:
            (1) If the attorney, agent, or witness is in private practice, his or her customary fees for similar services, or, if an employee of the applicant, the fully allocated costs of the services;
            (2) The prevailing rate for similar services in the community in which the attorney, agent, or witness ordinarily performs services;
            (3) The time actually spent in the representation of the applicant;
            (4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and
            (5) Other factors that bear on the value of the services provided.
            (d) The reasonable cost of any study, analysis, engineering report, test, project, or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the services does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of applicant's case.

            § 12.107
            Rulemaking on maximum rates for attorney fees.
            (a) If warranted by an increase in the cost of living or by special circumstances (such as limited availability of attorneys qualified to handle certain types of proceedings), the Commission may adopt regulations providing that attorney fees may be awarded at a rate higher than $75 per hour in some, or all of the types of proceedings covered by this part. The Commission will conduct any rulemaking proceedings for this purpose under the informal rulemaking procedures of the Administrative Procedure Act.
            (b) Any person may file with the Commission a petition for rulemaking to increase the maximum rate for attorney fees, in accordance with the requirements of 10 CFR 2.802. The petition should identify the rate the petitioner believes the Commission should establish and the types of proceedings in which the rate should be used. It should also explain fully the reasons why the higher rate is warranted. Within 90 days after the petition is filed, the Commission will determine whether it will initiate a rulemaking proceeding, deny the petition, or take other appropriate action on the petition. The Commission will act on the petition in accordance with 10 CFR 2.803.

            § 12.108
            Awards against other agencies.
            If an applicant is entitled to an award because it prevails over another agency of the United States that participates in a proceeding before the Commission and takes a position that is not substantially justified, the award or an appropriate portion of the award shall be made against that agency.

            § 12.109
            Decisionmaking authority.
            Unless otherwise ordered by the Commission in a particular proceeding, each application under this part shall be assigned for decision to the official or decisionmaking body that entered the decision in the adversary adjudication. That official or decisionmaking body is referred to in this part as the “adjudicative officer.”

          Subpart B—Information Required From Applicants

            § 12.201
            Contents of application.
            (a) An application for an award of fees and expenses under the EAJA shall identify the applicant and the proceeding for which an award is sought. The application shall show that the applicant has prevailed and identify the position of the Commission or other agency that the applicant alleges was not substantially justified. Unless the applicant is an individual, the application shall also state the number of employees of the applicant and describe briefly the type and purpose of its organization or business.
            (b) The application shall also include a statement that the applicant's net worth does not exceed $2 million (if an individual) or $7 million (for all other applicants, including their affiliates). However, an applicant may omit this statement if:
            (1) The applicant attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant's belief that it qualifies under this section; or
            (2) The applicant states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
            (c) The application shall state the amount of fees and expenses for which an award is sought.
            (d) The application may also include any other matters that the applicant wishes the Commission to consider in determining whether, and in what amount, an award should be made.
            (e) The application shall be signed by the applicant or an authorized officer or attorney of the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of perjury that the information provided in the application is true and correct.

            § 12.202
            Net worth exhibit.
            (a) Each applicant, except a qualified tax-exempt organization or cooperative association must provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates (as defined in § 12.104(f) of this part) when the proceeding was initiated. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant's and its affiliates' assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in this part. The adjudicative officer may require an applicant to file additional information to determine its eligibility for an award.

            (b) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure may submit that portion of the exhibit directly to the adjudicative officer in a sealed envelope labeled “Confidential Financial Information,” accompanied by a motion to withhold the information from public disclosure. The motion shall describe the information sought to be withheld and explain, in detail, why it falls within one or more of the specific exemptions from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the information would adversely affect the applicant, and why disclosure is not required in the public interest. The material in question shall be served on counsel representing the agency against which the applicant seeks an award, but need not be served on any other party to the proceeding. If the adjudicative officer finds that the information should not be withheld from disclosure, it shall be placed in the public record of the proceeding. Otherwise, any request to inspect or copy the exhibit shall be disposed of in accordance with the Commission's established procedures under the Freedom of Information Act, 10 CFR part 9, subpart A.

            § 12.203
            Documentation of fees and expenses.
            The application shall be accompanied by full documentation of the fees and expenses, including the cost of any study, analysis, engineering report, test, project, or similar matter for which an award is sought. A separate itemized statement shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual, a description of the specific services performed, the rates at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the applicant or by any other person or entity for the services provided. The adjudicative officer may require the applicant to provide vouchers, receipts, logs, or other substantiation for any fees or expenses claimed, pursuant to § 12.306 of this part.

            § 12.204
            When an application may be filed.
            (a) An application may be filed whenever the applicant has prevailed in the proceeding or in a significant and discrete substantive portion of the proceeding, but in no case later than 30 days after the date on which a decision or order disposing of the merits of the proceeding or any other complete resolution of the proceeding, such as a settlement or voluntary dismissal, becomes final and unappealable, both within the NRC and to the courts.
            (b) If after the filing of an application for an award, review or reconsideration is sought or taken of a decision as to which an applicant believes it has prevailed, proceedings for the award of fees shall be stayed pending final disposition of the underlying controversy. When the United States appeals the underlying merits of an adversary adjudication to a court, no decision on an application for fees and other expenses in connection with that adversary adjudication shall be made until a final and unreviewable decision is rendered by the court on the appeal or until the underlying merits of the case have been finally determined pursuant to the appeal.

          Subpart C—Procedures for Considering Applications

            § 12.301
            Filing and service of documents.
            Any application for an award or other pleading or document related to an application shall be filed and served on all parties to the proceeding in the same manner as other pleadings in the proceeding, except as provided in § 12.202(b) for confidential financial information.

            § 12.302
            Answer to application.
            (a) Within 30 days after service of an application, counsel representing the NRC against which an award is sought may file an answer to the application. Unless the NRC counsel requests an extension of time for filing or files a statement of intent to negotiate under paragraph (b) of this section, failure to file an answer within the 30-day period may be treated as a consent to the award requested.

            (b) If the NRC counsel and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer for an additional 30 days, and further extensions may be granted by the adjudicative officer upon request by the NRC counsel and the applicant.

            (c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of the NRC counsel's position. If the answer is based on any alleged facts not already in the record of the proceeding, the NRC counsel shall include with the answer either supporting affidavits or a request for further proceedings under § 12.306.

            § 12.303
            Reply.
            Within 15 days after service of an answer, the applicant may file a reply. If the reply is based on any alleged facts not already in the record of the proceeding, the applicant shall include with the reply either supporting affidavits or a request for further proceedings under § 12.306.

            § 12.304
            Comments by other parties.
            Any party to a proceeding other than the applicant and the NRC counsel may file comments on an application within 30 days after it is served, or on an answer within 15 days after it is served. A commenting party may not participate further in proceedings on the application unless the adjudicative officer determines that the public interest requires participation in order to permit full exploration of matters raised in the comments.

            § 12.305
            Settlement.
            The applicant and the NRC counsel may agree on a proposed settlement of the award before final action on the application, either in connection with a settlement of the underlying proceeding, or after the underlying proceeding has been concluded, in accordance with the NRC's standard settlement procedure. If a prevailing party and the NRC's counsel agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed settlement.

            § 12.306
            Further proceedings.
            (a) Ordinarily, the determination of an award will be made on the basis of the written record. However, on request of either the applicant or the NRC counsel, or on the adjudicative officer's own initiative, the adjudicative officer may order further proceedings, such as an informal conference, oral argument, additional written submissions or, as to issues other than substantial justification (such as the applicant's eligibility or substantiation of fees and expenses), pertinent discovery or an evidentiary hearing. Further proceedings shall be held only when necessary for full and fair resolution of the issues arising from the application, and shall be conducted as promptly as possible. Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.
            (b) A request that the adjudicative officer order further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues.

            § 12.307
            Decision.
            (a) The adjudicative officer shall issue an initial decision on the application within 90 days after completion of proceedings on the application. If the adjudicative officer fails to issue an initial decision within 90 days, he or she shall notify the parties of the reason for the delay and shall set a new deadline.
            (b) The initial decision shall include written findings and conclusions on the applicant's eligibility and status as a prevailing party, and an explanation of the reasons for any difference between the amount requested and the amount awarded. The decision shall also include, if at issue, findings on whether the NRC's position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust. If the applicant has sought an award against more than one agency, the decision shall allocate responsibility for payment of any award made among the agencies, and shall explain the reasons for the allocation made.

            § 12.308
            Agency review.

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

            (b) Notwithstanding anything to the contrary in any other part of the Commission's regulations, the initial decision shall be inoperative (i.e., the decision shall not be final and any award made shall not be paid) until the later of—
            (1) The expiration of the 120 day period provided in paragraph (a) of this section; or
            (2) If within the 120 day period provided in paragraph (a) of this section the Commission elects to review the decision, the Commission's issuance of a final decision on review of the initial decision.
            (c) Whether to review a decision on its own motion is a matter within the discretion of the Commission. If review is taken, the Commission will issue a final decision on the application or remand the application to the adjudicative officer for further proceedings.
            [59 FR 23121, May 5, 1994, as amended at 77 FR 46599, Aug. 3, 2012]

            § 12.309
            Judicial review.
            Judicial review of final agency decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).

            § 12.310
            Payment of award.
            An applicant seeking payment of an award shall submit to the appropriate official of the paying agency a copy of the Commission's final decision granting the award, accompanied by a certification that the applicant will not seek review of the decision in the United States courts. Where the award is granted against the Commission, the applicant shall make the submission to the Director, Division of Accounting and Finance, Office of the Controller, U.S. Nuclear Regulatory Commission, Washington, DC 20555. The NRC will pay the amount awarded to the applicant within 60 days.

        Pt. 13
        PART 13—PROGRAM FRAUD CIVIL REMEDIES

          Sec.
          13.1
          Basis and purpose.
          13.2
          Definitions.
          13.3
          Basis for civil penalties and assessments.
          13.4
          Investigation.
          13.5
          Review by the reviewing official.
          13.6
          Prerequisites for issuing a complaint.
          13.7
          Complaint.
          13.8
          Service of complaint.
          13.9
          Answer.
          13.10
          Default upon failure to file an answer.
          13.11
          Referral of complaint and answer to the ALJ.
          13.12
          Notice of hearing.
          13.13
          Parties to the hearing.
          13.14
          Separation of functions.
          13.15
          Ex parte contacts.
          13.16
          Disqualification of reviewing official or ALJ.
          13.17
          Rights of parties.
          13.18
          Authority of the ALJ.
          13.19
          Prehearing conferences.
          13.20
          Disclosure of documents.
          13.21
          Discovery.
          13.22
          Exchange of witness lists, statements, and exhibits.
          13.23
          Subpoenas for attendance at hearing.
          13.24
          Protective order.
          13.25
          Fees.
          13.26
          Filing and service of papers.
          13.27
          Computation of time.
          13.28
          Motions.
          13.29
          Sanctions.
          13.30
          The hearing and burden of proof.
          13.31
          Determining the amount of penalties and assessments.
          13.32
          Location of hearing.
          13.33
          Witnesses.
          13.34
          Evidence.
          13.35
          The record.
          13.36
          Post-hearing briefs.
          13.37
          Initial decision.
          13.38
          Reconsideration of initial decision.
          13.39
          Appeal to authority head.
          13.40
          Stays ordered by the Department of Justice.
          13.41
          Stay pending appeal.
          13.42
          Judicial review.
          13.43
          Collection of civil penalties and assessments.
          13.44
          Right to administrative offset.
          13.45
          Deposit in Treasury of United States.
          13.46
          Compromise or settlement.
          13.47
          Limitations.

          Authority:
          31 U.S.C. 3801 through 3812; 44 U.S.C. 3504 note.

          Section 13.3 also issued under 28 U.S.C. 2461 note.
          Section 13.13 also issued under 31 U.S.C. 3730.

          Source:
          56 FR 47135, Sept. 18, 1991, unless otherwise noted.

          § 13.1
          Basis and purpose.
          (a) Basis. This part implements the Program Fraud Civil Remedies Act of 1986, Public Law No. 99-509, §§ 6101-6104, 100 Stat. 1874 (October 21, 1986) (31 U.S.C. 3801-3812). 31 U.S.C. 3809 requires each authority head to promulgate regulations necessary to implement the provisions of that Act.
          (b) Purpose. This part (1) establishes administrative procedures for imposing civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to authorities or to their agents, and (2) specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments.

          § 13.2
          Definitions.
          As used in this part:

            ALJ means an Administrative Law Judge in the authority appointed pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 U.S.C. 3344.

            Authority means the Nuclear Regulatory Commission.

            Authority head means the Commission of five members or a quorum thereof sitting as a body, as provided by section 201 of the Energy Reorganization Act of 1974 (88 Stat. 1242).

            Benefit means, in the context of “statement”, anything of value, including but not limited to any advantage, preference, privilege, license, permit, favorable decision, ruling, status, or loan guarantee.

            Claim means any request, demand, or submission—
          (a) Made to the authority for property, services, or money (including money representing grants, loans, insurance, or benefits);
          (b) Made to a recipient of property, services, or money from the authority or to a party to a contract with the authority—
          (1) For property or services if the United States—
          (i) Provided such property or services;
          (ii) Provided any portion of the funds for the purchase of such property or services; or
          (iii) Will reimburse such recipient or party for the purchase of such property or services; or
          (2) For the payment of money (including money representing grants, loans, insurance, or benefits) if the United States—
          (i) Provided any portion of the money requested or demanded; or
          (ii) Will reimburse such recipient or party for any portion of the money paid on such request or demand; or
          (c) Made to the authority which has the effect of decreasing an obligation to pay or account for property, services, or money.

            Complaint means the administrative complaint served by the reviewing official on the defendant under § 13.7.

            Defendant means any person alleged in a complaint under § 13.7 to be liable for a civil penalty or assessment under § 13.3.

            Digital ID certificate means a file stored on a participant's computer that contains the participant's name, e-mail address, and participant's digital signature, proves the participant's identity when filing documents and serving participants electronically through the E-Filing system, and contains public keys, which allow for the encryption and decryption of documents so that the documents can be securely transferred over the Internet.

            Electronic acknowledgment means a communication transmitted electronically from the E-Filing system to the submitter confirming receipt of electronic filing and service.

            Electronic Hearing Docket means the publicly available Web site which houses a visual presentation of the docket and a link to its files.

            E-Filing System means an electronic system that receives, stores, and distributes documents filed in proceedings for which an electronic hearing docket has been established.

            Government means the United States Government.

            Guidance for Electronic Submissions to the NRC means the document issued by the Commission that sets forth the transmission methods and formatting standards for filing and service under E-Filing. The document can be obtained by visiting the NRC's Web site at http://www.nrc.gov.

            Individual means a natural person.

            Initial decision means the written decision of the ALJ required by § 13.10 or § 13.37, and includes a revised initial decision issued following a remand or a motion for reconsideration.

            Investigating official means the Inspector General of the Nuclear Regulatory Commission or the Assistant Inspector General for Investigations, Office of the Inspector General.

            Knows or has reason to know means that a person, with respect to a claim or statement—
          (a) Has actual knowledge that the claim or statement is false, fictitious, or fraudulent;
          (b) Acts in deliberate ignorance of the truth or falsity of the claim or statement; or
          (c) Acts in reckless disregard of the truth or falsity of the claim or statement.

            Makes, wherever it appears, shall include the terms presents, submits, and causes to be made, presented, or submitted. As the context requires, making or made shall likewise include the corresponding forms of such terms.

            Optical Storage Media means any physical computer component that meets E-Filing Guidance standards for storing, saving, and accessing electronic documents.

            Participant means an individual or organization 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 affected Federally-recognized Indian Tribe that seeks to participate in a proceeding in accordance with § 2.315(c). For the purpose of service of documents, the NRC staff is considered a participant even if not participating as a party.

            Person means any individual, partnership, corporation, association, or private organization and includes the plural of that term.

            Representative means any person designated by a party in writing.

            Reviewing official means the General Counsel of the Nuclear Regulatory Commission or his or her designee who is—
          (a) Not subject to supervision by, or required to report to, the investigating official;
          (b) Not employed in the organizational unit of the authority in which the investigating official is employed; and
          (c) Serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for grade GS-16 under the General Schedule.

            Statement means any representation, certification, affirmation, document, record, or accounting or bookkeeping entry made—
          (a) With respect to a claim or to obtain the approval or payment of a claim (including relating to eligibility to make a claim); or
          (b) With respect to (including relating to eligibility for)—
          (1) A contract with, or a bid or proposal for a contract with, or
          (2) A grant, loan, or benefit from,
          (i) The authority, or
          (ii) Any State, political subdivision of a State, or other party, if the United States government provides any portion of the money or property under such contract or for such grant, loan, or benefit, or if the Government will reimburse such State, political subdivision, or party for any portion of the money or property under such contract or for such grant, loan, or benefit.
          [56 FR 47135, Sept. 18, 1991; 56 FR 49945, Oct. 2, 1991, as amended at 62 FR 40427, July 29, 1997; 65 FR 59272, Oct. 4, 2000; 71 FR 15007, Mar. 27, 2006; 72 FR 49152, Aug. 28, 2007; 72 FR 64529, Nov. 16, 2007]

          § 13.3
          Basis for civil penalties and assessments.
          (a) Claims. (1) Any person who makes a claim that the person knows or has reason to know—
          (i) Is false, fictitious, or fraudulent;

          (ii) Includes or is supported by any written statement which asserts a material fact which is false, fictitious, or fraudulent;
          (iii) Includes or is supported by any written statement that—
          (A) Omits a material fact;
          (B) Is false, fictitious, or fraudulent as a result of such omission; and
          (C) Is a statement in which the person making such statement has a duty to include such material fact; or
          (iv) Is for payment for the provision of property or services which the person has not provided as claimed, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $11,463 for each such claim.
          (2) Each voucher, invoice, claim form, or other individual request or demand for property, services, or money constitutes a separate claim.
          (3) A claim shall be considered made to the authority, recipient, or party when such claim is actually made to an agent, fiscal intermediary or other entity, including any State or political subdivision thereof, acting for or on behalf of the authority, recipient, or party.
          (4) Each claim for property, services, or money is subject to a civil penalty regardless of whether such property, services, or money is actually delivered or paid.
          (5) If the Government has made any payment (including transferred property or provided services) on a claim, a person subject to a civil penalty under paragraph (a)(1) of this section shall also be subject to an assessment of not more than twice the amount of such claim or that portion thereof that is determined to be in violation of paragraph (a)(1) of this section. Such assessment shall be in lieu of damages sustained by the Government because of such claim.
          (b) Statements. (1) Any person who makes a written statement that—
          (i) The person knows or has reason to know—
          (A) Asserts a material fact which is false, fictitious, or fraudulent; or
          (B) Is false, fictitious, or fraudulent because it omits a material fact that the person making the statement has a duty to include in such statement; and
          (ii) Contains or is accompanied by an express certification or affirmation of the truthfulness and accuracy of the contents of the statement, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $11,463 for each such statement.
          (2) Each written representation, certification, or affirmation constitutes a separate statement.
          (3) A statement shall be considered made to the authority when such statement is actually made to an agent, fiscal intermediary, or other entity, including any State or political subdivision thereof, acting for or on behalf of the authority.
          (c) No proof of specific intent to defraud is required to establish liability under this section.
          (d) In any case in which it is determined that more than one person is liable for making a claim or statement under this section, each such person may be held liable for a civil penalty under this section.
          (e) In any case in which it is determined that more than one person is liable for making a claim under this section on which the Government has made payment (including transferred property or provided services), an assessment may be imposed against any such person or jointly and severally against any combination of such persons.
          [56 FR 47135, Sept. 18, 1991, as amended at 61 FR 53555, Oct. 11, 1996; 62 FR 59275, Nov. 3, 1997; 65 FR 59273, Oct. 4, 2000; 71 FR 15007, Mar. 27, 2006; 73 FR 54673, Sept. 23, 2008; 81 FR 43021, July 1, 2016; 82 FR 8135, Jan. 24, 2017; 83 FR 1517, Jan. 12, 2018; 84 FR 2435, Feb. 7, 2019]

          § 13.4
          Investigation.
          (a) If an investigating official concludes that a subpoena pursuant to the authority conferred by 31 U.S.C. 3804(a) is warranted—
          (1) The subpoena so issued shall notify the person to whom it is addressed of the authority under which the subpoena is issued and shall identify the records or documents sought;

          (2) The investigating official may designate a person to act on his or her behalf to receive the documents sought; and

          (3) The person receiving such subpoena shall be required to tender to the investigating official or the person designated to receive the documents a certification that the documents sought have been produced, or that such documents are not available and the reasons therefor, or that such documents, suitably identified, have been withheld based upon the assertion of an identified privilege.
          (b) If the investigating official concludes that an action under the Program Fraud Civil Remedies Act may be warranted, the investigating official shall submit a report containing the findings and conclusions of such investigation to the reviewing official. To the extent possible, before initiating an investigation or submitting a report involving a licensee false statement to the reviewing official, the investigating official shall consult with the Executive Director for Operations to ascertain whether any other agency action is under consideration, pending, or may be taken with regard to the licensee, and to allow for coordination between any action under this part and other enforcement action.
          (c) Nothing in this section shall preclude or limit an investigating official's discretion to refer allegations directly to the Department of Justice for suit under the False Claims Act or other civil relief, or to refer the matter to the Executive Director for Operations for enforcement action under the Atomic Energy Act, or to defer initiating an investigation or postpone a report or referral to the reviewing official to avoid interference with other enforcement action by the Commission or with a criminal investigation or prosecution.
          (d) Nothing in this section modifies any responsibility of an investigating official to report violations of criminal law to the Attorney General.

          § 13.5
          Review by the reviewing official.
          (a) If, based on the report of the investigating official under § 13.4(b), the reviewing official determines that there is adequate evidence to believe that a person is liable under § 13.3 of this part, the reviewing official shall transmit to the Attorney General a written notice of the reviewing official's intention to issue a complaint under § 13.7.
          (b) Such notice shall include—
          (1) A statement of the reviewing official's reasons for issuing a complaint;
          (2) A statement specifying the evidence that supports the allegations of liability;
          (3) A description of the claims or statements upon which the allegations of liability are based;
          (4) An estimate of the amount of money or the value of property, services, or other benefits requested or demanded in violation of § 13.3 of this part;
          (5) A statement of any exculpatory or mitigating circumstances that may relate to the claims or statements known by the reviewing official or the investigating official; and
          (6) A statement that there is a reasonable prospect of collecting an appropriate amount of penalties and assessments.

          § 13.6
          Prerequisities for issuing a complaint.
          (a) The reviewing official may issue a complaint under § 13.7 only if—
          (1) The Department of Justice approves the issuance of a complaint in a written statement described in 31 U.S.C. 3803(b)(1), and
          (2) In the case of allegations of liability under § 13.3(a) with respect to a claim, the reviewing official determines that, with respect to such claim or a group of related claims submitted at the same time such claim is submitted (as defined in paragraph (b) of this section), the amount of money or the value of property or services demanded or requested in violation of § 13.3(a) does not exceed $150,000.
          (b) For the purposes of this section, a related group of claims submitted at the same time shall include only those claims arising from the same transaction (e.g., grant, loan, application, or contract) that are submitted simultaneously as part of a single request, demand, or submission.

          (c) Nothing in this section shall be construed to limit the reviewing official's authority to join in a single complaint against a person claims that are unrelated or were not submitted simultaneously, regardless of the amount of money, or the value of property or services, demanded or requested.
          [56 FR 47135, Sept. 18, 1991; 56 FR 49945, Oct. 2, 1991]

          § 13.7
          Complaint.
          (a) On or after the date the Department of Justice approves the issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the reviewing official may serve a complaint on the defendant, as provided in § 13.8.
          (b) The complaint shall state—
          (1) The allegations of liability against the defendant, including the statutory basis for liability, an identification of the claims or statements that are the basis for the alleged liability, and the reasons why liability allegedly arises from such claims or statements;
          (2) The maximum amount of penalties and assessments for which the defendant may be held liable;
          (3) Instructions for filing an answer to request a hearing, including a specific statement of the defendant's right to request a hearing by filing an answer and to be represented by a representative; and
          (4) That failure to file an answer within 30 days of service of the complaint will result in the imposition of the maximum amount of penalties and assessments without right to appeal, as provided in § 13.10.
          (c) At the same time the reviewing official serves the complaint, he or she shall serve the defendant with a copy of these regulations.

          § 13.8
          Service of complaint.
          (a) Service of a complaint must be made by certified or registered mail or by delivery in any manner authorized by Rule 4(d) of the Federal Rules of Civil Procedure. Service is complete upon receipt.
          (b) Proof of service, stating the name and address of the person on whom the complaint was served, and the manner and date of service, may be made by—
          (1) Affidavit of the individual serving the complaint by delivery;
          (2) A United States Postal Service return receipt card acknowledging receipt; or
          (3) Written acknowledgment of receipt by the defendant or his or her representative.
          [56 FR 47135, Sept. 18, 1991, as amended at 71 FR 15007, Mar. 27, 2006]

          § 13.9
          Answer.
          (a) The defendant may request a hearing by filing an answer with the reviewing official within thirty (30) days of service of the complaint. Service of an answer shall be made by electronically delivering a copy to the reviewing official in accordance with § 13.26. An answer shall be deemed a request for hearing.
          (b) In the answer, the defendant—
          (1) Shall admit or deny each of the allegations of liability made in the complaint;
          (2) Shall state any defense on which the defendant intends to rely;
          (3) May state any reasons why the defendant contends that the penalties and assessments should be less than the statutory maximum; and
          (4) Shall state the name, address, and telephone number of the person authorized by the defendant to act as defendant's representative, if any.
          (c) If the defendant is unable to file an answer meeting the requirements of paragraph (b) of this section within the time provided, the defendant may, before the expiration of 30 days from service of the complaint, file with the reviewing official a general answer denying liability and requesting a hearing, and a request for an extension of time within which to file an answer meeting the requirements of paragraph (b) of this section. The reviewing official shall file promptly with the ALJ the complaint, the general answer denying liability, and the request for an extension of time as provided in § 13.11. For good cause shown, the ALJ may grant the defendant up to 30 additional days within which to file an answer meeting the requirements of paragraph (b) of this section.
          [56 FR 47135, Sept. 18, 1991; 56 FR 64839, Dec. 12, 1991; 72 FR 49152, Aug. 28, 2007]

          § 13.10
          Default upon failure to file an answer.

          (a) If the defendant does not file an answer within the time prescribed in § 13.9(a), the reviewing official may refer the complaint to the ALJ.
          (b) Upon the referral of the complaint, the ALJ shall promptly serve on defendant in the manner prescribed in § 13.8 a notice that an initial decision will be issued under this section.
          (c) The ALJ shall assume the facts alleged in the complaint to be true, and, if such facts establish liability under § 13.3, the ALJ shall issue an initial decision imposing the maximum amount of penalties and assessments allowed under the statute.
          (d) Except as otherwise provided in this section, by failing to file a timely answer, the defendant waives any right to further review of the penalties and assessments imposed under paragraph (c) of this section and the initial decision shall become final and binding upon the parties 30 days after it is issued.
          (e) If, before such an initial decision becomes final, the defendant files a motion with the ALJ seeking to reopen on the grounds that extraordinary circumstances prevented the defendant from filing an answer, the initial decision shall be stayed pending the ALJ's decision on the motion.
          (f) If, on such motion, the defendant can demonstrate extraordinary circumstances excusing the failure to file a timely answer, the ALJ shall withdraw the initial decision in paragraph (c) of this section if such a decision has been issued, and shall grant the defendant an opportunity to answer the complaint.
          (g) A decision of the ALJ denying a defendant's motion under paragraph (e) of this section is not subject to reconsideration under § 13.38.
          (h) The defendant may appeal to the authority head the decision denying a motion to reopen by filing a notice of appeal with the authority head within 15 days after the ALJ denies the motion. The timely filing of a notice of appeal shall stay the initial decision until the authority head decides the issue.
          (i) If the defendant files a timely notice of appeal with the authority head, the ALJ shall forward the record of the proceeding to the authority head.
          (j) The authority head shall decide expeditiously whether extraordinary circumstances excuse the defendant's failure to file a timely answer based solely on the record before the ALJ.
          (k) If the authority head decides that extraordinary circumstances excused the defendant's failure to file a timely answer, the authority head shall remand the case to the ALJ with instructions to grant the defendant an opportunity to answer.
          (l) If the authority head decides that the defendant's failure to file a timely answer is not excused, the authority head shall reinstate the initial decision of the ALJ, which shall become final and binding upon the parties 30 days after the authority head issues such decision.

          § 13.11
          Referral of complaint and answer to the ALJ.
          Upon receipt of an answer, the reviewing official shall file the complaint and answer with the ALJ.

          § 13.12
          Notice of hearing.
          (a) When the ALJ receives the complaint and answer, the ALJ shall promptly serve a notice of hearing upon the defendant in the manner prescribed by § 13.8. At the same time, the ALJ shall send a copy of such notice to the representative of the authority.
          (b) Such notice shall include—
          (1) The tentative time and place, and the nature of the hearing;
          (2) The legal authority and jurisdiction under which the hearing is to be held;
          (3) The matters of fact and law to be asserted;
          (4) A description of the procedures for the conduct of the hearing;
          (5) The name, address, and telephone number of the representative of the authority and of the defendant, if any; and
          (6) Such other matters as the ALJ deems appropriate.

          § 13.13
          Parties to the hearing.
          (a) The parties to the hearing shall be the defendant and the authority.
          (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the False Claims Act may participate in these proceedings to the extent authorized by the provisions of that Act.

          § 13.14
          Separation of functions.
          (a) The investigating official, the reviewing official, and any employee or agent of the authority who takes part in investigating, preparing, or presenting a particular case may not, in such case or a factually related case—
          (1) Participate in the hearing as the ALJ;
          (2) Participate or advise in the initial decision or the review of the initial decision by the authority head, except as a witness or a representative in public proceedings; or
          (3) Make the collection of penalties and assessments under 31 U.S.C. 3806.
          (b) The ALJ shall not be responsible to, or subject to the supervision or direction of, the investigating official or the reviewing official.
          (c) Except as provided in paragraph (a) of this section, the representative for the Government may be employed anywhere in the authority, including in the offices of either the investigating official or the reviewing official.
          [56 FR 47135, Sept. 18, 1991; 56 FR 64839, Dec. 12, 1991]

          § 13.15
          Ex parte contacts.
          No party or person (except employees of the ALJ's office) shall communicate in any way with the ALJ on any matter at issue in a case, unless on notice and opportunity for all parties to participate. This provision does not prohibit a person or party from inquiring about the status of a case or asking routine questions concerning administrative functions or procedures.

          § 13.16
          Disqualification of reviewing official or ALJ.
          (a) A reviewing official or ALJ in a particular case may disqualify himself or herself at any time.
          (b) A party may file with the ALJ a motion for disqualification of a reviewing official or an ALJ. Such motion shall be accompanied by an affidavit alleging personal bias or other reason for disqualification.
          (c) Such motion and affidavit shall be filed promptly upon the party's discovery of reasons requiring disqualification, or such objections, shall be deemed waived.
          (d) Such affidavit shall state specific facts that support the party's belief that personal bias or other reason for disqualification exists and the time and circumstances of the party's discovery of such facts. It shall be accompanied by a certificate of the representative of record that it is made in good faith.
          (e) Upon the filing of such a motion and affidavit, the ALJ shall proceed no further in the case until he or she resolves the matter of disqualification in accordance with paragraph (f) of this section.
          (f)(1) If the ALJ determines that a reviewing official is disqualified, the ALJ shall dismiss the complaint without prejudice.
          (2) If the ALJ disqualifies himself or herself, the case shall be reassigned promptly to another ALJ.
          (3) If the ALJ denies a motion to disqualify, the authority head may determine the matter only as part of its review of the initial decision upon appeal, if any.

          § 13.17
          Rights of parties.
          Except as otherwise limited by this part, all parties may—
          (a) Be accompanied, represented, and advised by a representative;
          (b) Participate in any conference held by the ALJ;
          (c) Conduct discovery;
          (d) Agree to stipulation of fact or law, which shall be made part of the record;
          (e) Present evidence relevant to the issues at the hearing;
          (f) Present and cross-examine witnesses;
          (g) Present oral arguments at the hearing as permitted by the ALJ; and
          (h) Submit written briefs and proposed findings of fact and conclusions of law after the hearing.

          § 13.18
          Authority of the ALJ.
          (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceeding is made.
          (b) The ALJ has the authority to—

          (1) Set and change the date, time, and place of the hearing upon reasonable notice to the parties;

          (2) Continue or recess the hearing in whole or in part for a reasonable period of time;
          (3) Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding;
          (4) Administer oaths and affirmations;
          (5) Issue subpoenas requiring the attendance of witnesses and the production of documents at depositions or at hearings;
          (6) Rule on motions and other procedural matters;
          (7) Regulate the scope and timing of discovery;
          (8) Regulate the course of the hearing and the conduct of representatives and parties;
          (9) Examine witnesses;
          (10) Receive, rule on, exclude, or limit evidence;
          (11) Upon motion of a party, take official notice of facts;
          (12) Upon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material fact;
          (13) Conduct any conference, argument, or hearing on motions in person or by telephone; and
          (14) Exercise such other authority as is necessary to carry out the responsibilities of the ALJ under this part.
          (c) The ALJ does not have the authority to find Federal statutes or regulations invalid.

          § 13.19
          Prehearing conferences.
          (a) The ALJ may schedule prehearing conferences as appropriate.
          (b) Upon the motion of any party, the ALJ shall schedule at least one prehearing conference at a reasonable time in advance of the hearing.
          (c) The ALJ may use prehearing conferences to discuss the following:
          (1) Simplification of the issues;
          (2) The necessity or desirability of amendments to the pleadings, including the need for a more definite statement;
          (3) Stipulations and admissions of fact or as to the contents and authenticity of documents;
          (4) Whether the parties can agree to submission of the case on a stipulated record;
          (5) Whether a party chooses to waive appearance at an oral hearing and to submit only documentary evidence (subject to the objection of other parties) and written argument;
          (6) Limitation of the number of witnesses;
          (7) Scheduling dates for the exchange of witness lists and of proposed exhibits;
          (8) Discovery;
          (9) The time and place for the hearing; and
          (10) Such other matters as may tend to expedite the fair and just disposition of the proceedings.
          (d) The ALJ may issue an order containing all matters agreed upon by the parties or ordered by the ALJ at a prehearing conference.

          § 13.20
          Disclosure of documents.
          (a) Upon written request to the reviewing official, the defendant may review any relevant and material documents, transcripts, records, and other materials that relate to the allegations set out in the complaint and upon which the findings and conclusions of the investigating official under § 13.4(b) are based, unless such documents are subject to a privilege under Federal law. Upon payment of fees for duplication, the defendant may obtain copies of such documents.
          (b) Upon written request to the reviewing official, the defendant also may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating official relating to the allegations in the complaint, even if it is contained in a document that would otherwise be privileged. If the document would otherwise be privileged, only that portion containing exculpatory information must be disclosed.
          (c) The notice sent to the Attorney General from the reviewing official as described in § 13.5 is not discoverable under any circumstances.
          (d) The defendant may file a motion to compel disclosure of the documents subject to the provisions of this section. Such a motion may only be filed with the ALJ following the filing of an answer pursuant to § 13.9.

          § 13.21
          Discovery.
          (a) The following types of discovery are authorized:
          (1) Requests for production of documents for inspection and copying;
          (2) Requests for admissions of the authenticity of any relevant document or of the truth of any relevant fact;
          (3) Written interrogatories; and
          (4) Depositions.
          (b) For the purpose of this section and §§ 13.22 and 13.23, the term “documents” includes information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence. Nothing contained herein shall be interpreted to require the creation of a document.
          (c) Unless mutually agreed to by the parties, discovery is available only as ordered by the ALJ. The ALJ shall regulate the timing of discovery.
          (d) Motions for discovery. (1) A party seeking discovery may file a motion with the ALJ. Such a motion shall be accompanied by a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition.
          (2) Within ten days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in § 13.24.
          (3) The ALJ may grant a motion for discovery only if he or she finds that the discovery sought—
          (i) Is necessary for the expeditious, fair, and reasonable consideration of the issues;
          (ii) Is not unduly costly or burdensome;
          (iii) Will not unduly delay the proceeding; and
          (iv) Does not seek privileged information.
          (4) The burden of showing that discovery should be allowed is on the party seeking discovery.
          (5) The ALJ may grant discovery subject to a protective order under § 13.24.
          (e) Depositions. (1) If a motion for deposition is granted, the ALJ shall issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena shall specify the time and place at which the deposition will be held.
          (2) The party seeking to depose shall serve the subpoena in the manner prescribed in § 13.8.
          (3) The deponent may file with the ALJ a motion to quash the subpoena or a motion for a protective order within ten days of service.
          (4) The party seeking to depose shall provide for the taking of a verbatim transcript of the deposition, which it shall make available to all other parties for inspection and copying.
          (f) Each party shall bear its own costs of discovery.

          § 13.22
          Exchange of witness lists, statements, and exhibits.
          (a) At least 15 days before the hearing or at such other times as may be ordered by the ALJ, the parties shall exchange witness lists, copies of prior statements of proposed witnesses, and copies of proposed hearing exhibits, including copies of any written statements that the party intends to offer in lieu of live testimony in accordance with § 13.33(b). At the time the above documents are exchanged, any party that intends to rely on the transcript of deposition testimony in lieu of live testimony at the hearing, if permitted by the ALJ, shall provide each party with a copy of the specific pages of the transcript it intends to introduce into evidence.
          (b) If a party objects, the ALJ shall not admit into evidence the testimony of any witness whose name does not appear on the witness list or any exhibit not provided to the opposing party as provided above unless the ALJ finds good cause for the failure or that there in no prejudice to the objecting party.
          (c) Unless another party objects within the time set by the ALJ, documents exchanged in accordance with paragraph (a) of this section shall be deemed to be authentic for the purpose of admissibility at the hearing.

          § 13.23
          Subpoenas for attendance at hearing.
          (a) A party wishing to procure the appearance and testimony of any individual at the hearing may request that the ALJ issue a subpoena.

          (b) A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at the hearing.
          (c) A party seeking a subpoena shall file a written request therefor not less than 15 days before the date fixed for the hearing unless otherwise allowed by the ALJ for good cause shown. Such request shall specify any documents to be produced and shall designate the witnesses and describe the address and location thereof with sufficient particularity to permit such witnesses to be found.
          (d) The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce.
          (e) The party seeking the subpoena shall serve it in the manner prescribed in § 13.8. A subpoena on a party or upon an individual under the control of a party may be served by first class mail.
          (f) A party or the individual to whom the subpoena is directed may file with the ALJ a motion to quash the subpoena within ten days after service or on or before the time specified in the subpoena for compliance if it is less than ten days after service.

          § 13.24
          Protective order.
          (a) A party or a prospective witness or deponent may file a motion for a protective order with respect to discovery sought by an opposing party or with respect to the hearing, seeking to limit the availability or disclosure of evidence.
          (b) In issuing a protective order, the ALJ may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
          (1) That the discovery not be had;
          (2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
          (3) That the discovery may be had only through a method of discovery other than that requested;
          (4) That certain matters not be inquired into, or that the scope of discovery be limited to certain matters;
          (5) That discovery be conducted with no one present except persons designated by the ALJ;
          (6) That the contents of discovery or evidence by sealed;
          (7) That a deposition after being sealed be opened only by order of the ALJ;
          (8) That a trade secret or other confidential research, development, commercial information, or facts pertaining to any criminal investigation, proceeding, or other administrative investigation not be disclosed or be disclosed only in a designated way; or
          (9) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the ALJ.

          § 13.25
          Fees.
          The party requesting a subpoena shall pay the cost of the fees and mileage of any witness subpoenaed in the amounts that would be payable to a witness in a proceeding in United States District Court. A check for witness fees and mileage shall accompany the subpoena when served, except that when a subpoena is issued on behalf of the authority, a check for witness fees and mileage need not accompany the subpoena.

          § 13.26
          Filing and service of papers.
          (a) Filing. (1) Unless otherwise provided by order, all filings must be made as electronic submissions in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions may be found in the E-Filing Guidance and on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html. If a filing contains sections of information or electronic formats that may not be transmitted electronically for security or other reasons, portions not containing those sections will be transmitted electronically to the E-Filing system. In addition, optical storage media (OSM) containing the entire filing must be physically delivered or mailed. In such cases, the submitter does not need to apply to the Commission for an exemption to deviate from the requirements in paragraph (a) of this section.

          (2) Electronic transmission exemption. The ALJ may relieve a participant who is filing electronic documents of the transmission requirements in paragraph (a) of this section. Such a participant will file electronic documents by physically delivering or mailing an OSM containing the documents. The electronic formatting requirement in paragraph (a) of this section must be met.
          (3) Electronic document exemption. The ALJ may relieve a participant of both the electronic (computer file) formatting and transmission requirements in paragraph (a)(1) of this section. Such a participant will file paper documents physically or by mail to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff. Filing by mail is complete upon deposit in the mail.
          (4) Requesting an exemption. A participant seeking an exemption under paragraphs (a)(2) or (a)(3) of this section must submit the exemption request with its first filing in the proceeding. In the request, the requestor must show good cause as to why it cannot file electronically. The filer may not change its formats and delivery methods for filing until a ruling on the exemption request is issued. Exemption requests submitted after the first filing in the proceeding will be granted only if the requestor shows that the interests of fairness so require.
          (5) Every pleading and document filed in the proceeding shall contain a caption setting forth the title of the action, the case number assigned by the presiding officer, and a designation of the document (e.g., motion to quash subpoena).
          (6) Filing is complete when the filer performs the last act that it must perform to submit a document, such as hitting the send/submit/transmit button for an electronic transmission or depositing the document, in its entirety, in a mailbox.
          (b) Signatures. The original of each document must be signed by the participant or its authorized representative, or by an attorney having authority with respect to it. The document must state the capacity of the person signing; his or her address, phone number, and e-mail address; and the date of signature. The signature of a person signing a pleading or other similar document submitted by a participant is a representation that the document has been subscribed in the capacity specified with full authority, that he or she has read it and knows the contents, that to the best of his or her knowledge, information, and belief the statements made in it are true, and that it is not interposed for delay. The signature of a person signing an affidavit or similar document, which should be submitted in accord with the form outlined in 28 U.S.C. 1746, is a representation that, under penalty of perjury, the document is true and correct to the best of that individual's knowledge and belief. If a document is not signed, or is signed with intent to defeat the purpose of this section, it may be struck.
          (1) An electronic document must be signed using a participant's or a participant representative's digital ID certificate. Additional signatures can be added to the electronic document, including to any affidavits that accompany the document, by a typed-in designation that indicates the signer understands and acknowledges that he or she is assenting to the representations in paragraph (d) of this section.
          (i) When signing an electronic document using a digital ID certificate, the signature page for the electronic document should contain a typed signature block that includes the phrase “Signed (electronically) by” typed onto the signature line; the name and the capacity of the person signing; the person's address, phone number, and e-mail address; and the date of signature.

          (ii) If additional individuals need to sign an electronic document, including any affidavits that accompany the document, these individuals must sign by inserting a typed signature block in the electronic document that includes the phrase “Executed in Accord with 10 CFR 2.304(d)” or its equivalent typed on the signature line as well as the name and the capacity of the person signing; the person's address, phone number, and e-mail address; and the date of signature to the extent any of these items are different from the information provided for the digital ID certificate signer.

          (2) Paper documents must be signed in ink.
          (c) Service. A participant filing a document with the ALJ shall at the time of filing, serve a copy of such document on every other participant. Service upon any participant of any document other than those required to be served as prescribed in § 13.8 shall be made electronically to the E-Filing system. When a participant is represented by a representative, service shall be made upon such representative in lieu of the actual participant. Upon an order from the ALJ permitting alternative filing methods under paragraphs (a)(2) or (a)(3) of this section, service may be made by physical delivery or mail. As to each participant that cannot serve electronically, the ALJ shall require service by the most expeditious means permitted under this paragraph that are available to the participant, unless the ALJ finds that this requirement would impose undue burden or expense on the participant.
          (1) Unless otherwise provided in this paragraph, a participant will serve documents on the other participants by the same method that those participants filed.
          (2) A participant granted an exemption under paragraph (a)(2) of this section will serve the participants in the proceeding that filed electronically by physically delivering or mailing an OSM containing the electronic document.
          (3) A participant granted an exemption under paragraph (a)(3) will serve the other participants in the proceeding by physically delivering or mailing a paper copy.
          (4) A certificate of service stating the names and addresses of the persons served as well as the method and date of service must accompany any paper served upon participants to the proceeding.
          (5) Proof of service, which states the name and address of the person served as well as the method and date of service, may be made as required by law, by rule, or by order of the Commission.
          [72 FR 49152, Aug. 28, 2007]

          § 13.27
          Computation of time.
          (a) In computing any period of time under this part or in an order issued thereunder, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday or Sunday, a Federal legal holiday at the place where the action or event is to occur, or a day on which, because of emergency closure of the federal government in Washington, DC, NRC Headquarters does not open for business, in which event it includes the next day that is not a Saturday, Sunday, holiday or emergency closure.
          (b) When the period of time allowed is less than seven (7) days, intermediate Saturdays, Sundays, Federal legal holidays, and emergency closures shall be excluded from the computation.
          (c) Whenever an action is required within a prescribed period by a document served pursuant to § 13.26, no additional time is added to the prescribed period except in the following circumstances:
          (1) If a notice or document is served upon a participant, by first-class mail only, three (3) calendar days will be added to the prescribed period for all the participants in the proceeding.
          (2) If a notice or document is served upon a participant, by express mail or other expedited service only, two (2) calendar days will be added to the prescribed period for all the participants in the proceeding.
          (3) If a document is to be served by multiple service methods, such as partially electronic and entirely on an OSM, the additional number of days is computed according to the service method used to deliver the entire document, excluding courtesy copies, to all of the other participants in the proceeding. The presiding officer may determine the calculation of additional days when a participant is not entitled to receive an entire filing served by multiple methods.

          (4) In mixed service proceedings where all participants are not using the same filing and service method, the number of days for service will be determined by the presiding officer based on considerations of fairness and efficiency. The same number of additional days will be added to the prescribed period for all the participants in the proceeding with the number of days being determined by the slowest method of service being used in the proceeding.
          (d) To be considered timely, a document must be served:
          (1) By 5 p.m. Eastern Time for a document served in person or by expedited service; and
          (2) By 11:59 p.m. Eastern Time for a document served by the E-Filing system.
          [72 FR 49153, Aug. 28, 2007]

          § 13.28
          Motions.
          (a) Any application to the ALJ for an order or ruling shall be by motion. Motions shall state the relief sought, the authority relied upon, and the facts alleged, and shall be filed with the ALJ and served on all other parties.
          (b) Except for motions made during a prehearing conference or at the hearing, all motions shall be in writing. The ALJ may require that oral motions be reduced to writing.
          (c) Within 15 days after a written motion is served, or such other time as may be fixed by the ALJ, any party may file a response to such motion.
          (d) The ALJ may not grant a written motion before the time for filing responses thereto has expired, except upon consent of the parties or following a hearing on the motion, but may overrule or deny such motion without awaiting a response.
          (e) The ALJ shall make a reasonable effort to dispose of all outstanding motions prior to the beginning of the hearing.

          § 13.29
          Sanctions.
          (a) The ALJ may sanction a person, including any party or representative for—
          (1) Failing to comply with an order, rule, or procedure governing the proceeding;
          (2) Failing to prosecute or defend an action; or
          (3) Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.
          (b) Any such sanction, including but not limited to those listed in paragraphs (c), (d), and (e) of this section, shall reasonably relate to the severity and nature of the failure or misconduct.
          (c) When a party fails to comply with an order, including an order for taking a deposition, the production of evidence within the party's control, or a request for admission, the ALJ may—
          (1) Draw an inference in favor of the requesting party with regard to the information sought;
          (2) In the case of requests for admission, deem each matter of which an admission is requested to be admitted;
          (3) Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon testimony relating to the information sought; and
          (4) Strike any part of the pleadings or other submissions of the party failing to comply with such request.
          (d) If a party fails to prosecute or defend an action under this part commenced by service of a notice of hearing, the ALJ may dismiss the action or may issue an initial decision imposing penalties and assessments.
          (e) The ALJ may refuse to consider any motion, request, response, brief or other document which is not filed in a timely fashion.

          § 13.30
          The hearing and burden of proof.
          (a) The ALJ shall conduct a hearing on the record in order to determine whether the defendant is liable for a civil penalty or assessment under § 13.3 and, if so, the appropriate amount of any such civil penalty or assessment considering any aggravating or mitigating factors.
          (b) The authority shall prove defendant's liability and any aggravating factors by a preponderance of the evidence.
          (c) The defendant shall prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.
          (d) The hearing shall be open to the public unless otherwise ordered by the ALJ for good cause shown.

          § 13.31
          Determining the amount of penalties and assessments.

          (a) In determining an appropriate amount of civil penalties and assessments, the ALJ and the authority head, upon appeal, should evaluate any circumstances that mitigate or aggravate the violation and should articulate in their opinions the reasons that support the penalties and assessments they impose. Because of the intangible costs of fraud, the expense of investigating such conduct, and the need to deter others who might be similarly tempted, ordinarily double damages and a significant civil penalty should be imposed.

          (b) Although not exhaustive, the following factors are among those that may influence the ALJ and the authority head in determining the amount of penalties and assessments to impose with respect to the misconduct (i.e., the false, fictitious, or fraudulent claims or statements) charged in the complaint:
          (1) The number of false, fictitious, or fraudulent claims or statements;
          (2) The time period over which such claims or statements were made;
          (3) The degree of the defendant's culpability with respect to the misconduct;
          (4) The amount of money or the value of the property, services, or benefit falsely claimed;
          (5) The value of the Government's actual loss as a result of the misconduct, including foreseeable consequential damages and the costs of investigation;
          (6) The relationship of the amount imposed as civil penalties to the amount of the Government's loss;
          (7) The potential or actual impact of the misconduct upon national defense, public health or safety, or public confidence in the management of Government programs and operations, including particularly the impact on the intended beneficiaries of such programs;
          (8) Whether the defendant has engaged in a pattern of the same or similar misconduct;
          (9) Whether the defendant attempted to conceal the misconduct;
          (10) The degree to which the defendant has involved others in the misconduct or in concealing it;
          (11) Where the misconduct of employees or agents is imputed to the defendant, the extent to which the defendant's practices fostered or attempted to preclude such misconduct;
          (12) Whether the defendant cooperated in or obstructed an investigation of the misconduct;
          (13) Whether the defendant assisted in identifying and prosecuting other wrongdoers;
          (14) The complexity of the program or transaction, and the degree of the defendant's sophistication with respect to it, including the extent of the defendant's prior participation in the program or in similar transactions;
          (15) Whether the defendant has been found, in any criminal, civil, or administrative proceeding to have engaged in similar misconduct or to have dealt dishonestly with the Government of the United States or of a State, directly or indirectly; and
          (16) The need to deter the defendant and others from engaging in the same or similar misconduct.
          (c) Nothing in this section shall be construed to limit the ALJ or the authority head from considering any other factors that in any given case may mitigate or aggravate the offense for which penalties and assessments are imposed.

          § 13.32
          Location of hearing.
          (a) The hearing may be held—
          (1) In any judicial district of the United States in which the defendant resides or transacts business;
          (2) In any judicial district of the United States in which the claim or statement in issue was made; or
          (3) In such other place as may be agreed upon by the defendant and the ALJ.
          (b) Each party shall have the opportunity to present argument with respect to the location of the hearing.
          (c) The hearing shall be held at the place and at the time ordered by the ALJ.

          § 13.33
          Witnesses.
          (a) Except as provided in paragraph (b) of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation.

          (b) At the discretion of the ALJ, testimony may be admitted in the form of a written statement or deposition. Any such written statement must be provided to all other parties along with the last known address of such witness, in a manner which allows sufficient time for other parties to subpoena such witness for cross-examination at the hearing. Prior written statements of witnesses proposed to testify at the hearing and deposition transcripts shall be exchanged as provided in § 13.22(a).
          (c) The ALJ shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to—
          (1) Make the interrogation and presentation effective for the ascertainment of the truth;
          (2) Avoid needless consumption of time; and
          (3) Protect witnesses from harassment or undue embarrassment.
          (d) The ALJ shall permit the parties to conduct such cross-examination as may be required for a full and true disclosure of the facts.
          (e) At the discretion of the ALJ, a witness may be cross-examined on matters relevant to the proceeding without regard to the scope of his or her direct examination. To the extent permitted by the ALJ, cross-examination on matters outside the scope of direct examination shall be conducted in the manner of direct examination and may proceed by leading questions only if the witness is a hostile witness, an adverse party, or a witness identified with an adverse party.
          (f) Upon motion of any party, the ALJ shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize exclusion of—
          (1) A party who is an individual;
          (2) In the case of a party that is not an individual, an officer or employee of the party appearing for the entity pro se or designated by the party's representative; or
          (3) An individual whose presence is shown by a party to be essential to the presentation of its case, including an individual employed by the Government engaged in assisting the representative for the Government.

          § 13.34
          Evidence.
          (a) The ALJ shall determine the admissibility of evidence.
          (b) Except as provided in this part, the ALJ shall not be bound by the Federal Rules of Evidence. However, the ALJ may apply the Federal Rules of Evidence where appropriate, e.g., to exclude unreliable evidence.
          (c) The ALJ shall exclude irrelevant and immaterial evidence.
          (d) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay or needless presentation of cumulative evidence.
          (e) Although relevant, evidence may be excluded if it is privileged under Federal law.
          (f) Evidence concerning offers of compromise or settlement shall be inadmissible to the extent provided in Rule 408 of the Federal Rules of Evidence.
          (g) The ALJ shall permit the parties to introduce rebuttal witnesses and evidence.
          (h) All documents and other evidence offered or taken for the record shall be open to examination by all parties, unless otherwise ordered by the ALJ pursuant to § 13.24.

          § 13.35
          The record.
          (a) The hearing will be recorded and transcribed. Transcripts may be obtained following the hearing from the ALJ at a cost not to exceed the actual cost of duplication.
          (b) The transcript of testimony, exhibits and other evidence admitted at the hearing, and all papers and requests filed in the proceeding constitute the record for the decision by the ALJ and the authority head.
          (c) The record may be inspected and copied (upon payment of a reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant to § 13.24.

          § 13.36
          Post-hearing briefs.
          The ALJ may require the parties to file post-hearing briefs. In any event, any party may file a post-hearing brief. The ALJ shall fix the time for filing such briefs, not to exceed 60 days from the date the parties receive the transcript of the hearing or, if applicable, the stipulated record. Such briefs may be accompanied by proposed findings of fact and conclusions of law. The ALJ may permit the parties to file reply briefs.

          § 13.37
          Initial decision.
          (a) The ALJ shall issue an initial decision based only on the record, which shall contain findings of fact, conclusions of law, and the amount of any penalties and assessments imposed.
          (b) The findings of fact shall include a finding on each of the following issues:
          (1) Whether the claims or statements identified in the complaint, or any portions thereof, violate § 13.3; and
          (2) If the person is liable for penalties or assessments, the appropriate amount of any such penalties or assessments considering any mitigating or aggravating factors that he or she finds in the case, such as those described in § 13.31.
          (c) The ALJ shall promptly serve the initial decision on all parties within 90 days after the time for submission of post-hearing briefs and reply briefs (if permitted) has expired. The ALJ shall at the same time serve all parties with a statement describing the right of any defendant determined to be liable for a civil penalty or assessment to file a motion for reconsideration with the ALJ or a notice of appeal with the authority head. If the ALJ fails to meet the deadline contained in this paragraph, he or she shall notify the parties of the reason for the delay and shall set a new deadline.
          (d) Unless the initial decision of the ALJ is timely appealed to the authority head, or a motion for reconsideration of the initial decision is timely filed, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued by the ALJ.

          § 13.38
          Reconsideration of initial decision.
          (a) Except as provided in paragraph (d) of this section, any party may file a motion for reconsideration of the initial decision within 20 days of receipt of the initial decision. If service was made by mail, receipt will be presumed to be five days from the date of mailing in the absence of contrary proof.
          (b) Every such motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. Such motion shall be accompanied by a supporting brief.
          (c) Responses to such motions shall be allowed only upon request of the ALJ.
          (d) No party may file a motion for reconsideration of an initial decision that has been revised in response to a previous motion for reconsideration.
          (e) The ALJ may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision.
          (f) If the ALJ denies a motion for reconsideration, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after the ALJ denies the motion, unless the initial decision is timely appealed to the authority head in accordance with § 13.39.
          (g) If the ALJ issues a revised initial decision, that decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued, unless it is timely appealed to the authority head in accordance with § 13.39.

          § 13.39
          Appeal to authority head.
          (a) Any defendant who has filed a timely answer and who is determined in an initial decision to be liable for a civil penalty or assessment may appeal such decision to the authority head by filing a notice of appeal with the authority head in accordance with this section.
          (b)(1) A notice of appeal may be filed at any time within 30 days after the ALJ issues an initial decision. However, if another party files a motion for reconsideration under § 13.38, consideration of the appeal shall be stayed automatically pending resolution of the motion for reconsideration.
          (2) If a motion for reconsideration is timely filed, a notice of appeal may be filed within 30 days after the ALJ denies the motion or issues a revised initial decision, whichever applies.
          (3) The authority head may extend the initial 30 day period for an additional 30 days if the defendant files with the authority head a request for an extension within the initial 30 day period and shows good cause.

          (c) If the defendant files a timely notice of appeal with the authority head and the time for filing motions for reconsideration under § 13.38 has expired, the ALJ shall forward the record of the proceeding to the authority head.
          (d) A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions.
          (e) The representative for the Government may file a brief in opposition to exceptions within 30 days of receiving the notice of appeal and accompanying brief.
          (f) There is no right to appear personally before the authority head.
          (g) There is no right to appeal any interlocutory ruling by the ALJ.
          (h) In reviewing the initial decision, the authority head shall not consider any objection that was not raised before the ALJ unless a demonstration is made of extraordinary circumstances causing the failure to raise the objection.
          (i) If any party demonstrates to the satisfaction of the authority head that additional evidence not presented at each hearing is material and that there were reasonable grounds for the failure to present such evidence at such hearing, the authority head shall remand the matter to the ALJ for consideration of such additional evidence.
          (j) The authority head may affirm, reduce, reverse, compromise, remand, or settle any penalty or assessment, determined by the ALJ in any initial decision.
          (k) The authority head shall promptly serve each party to the appeal with a copy of the decision of the authority head and a statement describing the right of any person determined to be liable for a penalty or assessment to seek judicial review.
          (l) Unless a petition for review is filed as provided in 31 U.S.C. 3805 after a defendant has exhausted all administrative remedies under this part and within 60 days after the date on which the authority head serves the defendant with a copy of the authority head's decision, a determination that a defendant is liable under § 13.3 is final and is not subject to judicial review.

          § 13.40
          Stays ordered by the Department of Justice.
          If at any time the Attorney General or an Assistant Attorney General designated by the Attorney General transmits to the authority head a written finding that continuation of the administrative process described in this part with respect to a claim or statement may adversely affect any pending or potential criminal or civil action related to such claim or statement, the authority head shall stay the process immediately. The authority head may order the process resumed only upon receipt of the written authorization of the Attorney General.

          § 13.41
          Stay pending appeal.
          (a) An initial decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the authority head.
          (b) No administrative stay is available following a final decision of the authority head.

          § 13.42
          Judicial review.
          Section 3805 of title 31, United States Code, authorizes judicial review by an appropriate United States District Court of a final decision of the authority head imposing penalties or assessments under this part and specifies the procedures for such review.

          § 13.43
          Collection of civil penalties and assessments.
          Sections 3806 and 3808(b) of title 31, United States Code, authorize actions for collection of civil penalties and assessments imposed under this part and specify the procedures for such actions.

          § 13.44
          Right to administrative offset.
          The amount of any penalty or assessment which has become final, or for which a judgment has been entered under § 13.42 or § 13.43, or any amount agreed upon in a compromise or settlement under § 13.46, may be collected by administrative offset under 31 U.S.C. 3716, except that an administrative offset may not be made under this subsection against a refund of an overpayment of Federal taxes, then or later owing by the United States to the defendant.

          § 13.45
          Deposit in Treasury of United States.
          All amounts collected pursuant to this part shall be deposited as miscellaneous receipts in the Treasury of the United States, except as provided in 31 U.S.C. 3806(g).

          § 13.46
          Compromise or settlement.
          (a) Parties may make offers of compromise or settlement at any time.
          (b) The reviewing official has the exclusive authority to compromise or settle a case under this part at any time after the date on which the reviewing official is permitted to issue a complaint and before the date on which the ALJ issues an initial decision.
          (c) The authority head has exclusive authority to compromise or settle a case under this part at any time after the date on which the ALJ issues an initial decision, except during the pendency of any review under § 13.42 or during the pendancy of any action to collect penalties and assessments under § 13.43.
          (d) The Attorney General has exclusive authority to compromise or settle a case under this part during the pendancy of any review under § 13.42 or of any action to recover penalties and assessments under 31 U.S.C. 3806.
          (e) The investigating officer may recommend settlement terms to the reviewing official, the authority head, or the Attorney General, as appropriate. The reviewing official may recommend settlement terms to the authority head, or the Attorney General, as appropriate.
          (f) Any compromise or settlement must be in writing.

          § 13.47
          Limitations.
          (a) The notice of hearing with respect to a claim or statement must be served in the manner specified in § 13.8 within 6 years after the date on which such claim or statement is made.
          (b) If the defendant fails to serve a timely answer, service of a notice under § 13.10(b) shall be deemed a notice of hearing for purposes of this section.
          (c) The statute of limitations may be extended by agreement of the parties.

        Pt. 14
        PART 14—ADMINISTRATIVE CLAIMS UNDER FEDERAL TORT CLAIMS ACT

            Subpart A—General
            Sec.
            14.1
            Scope of regulations.
            14.3
            Limit on attorney fees; penalty.

            Subpart B—Filing Procedures and Requirements
            14.11
            Who may file a claim.
            14.13
            When is a claim presented to NRC.
            14.15
            Where to present a claim to NRC.
            14.17
            A claim must be presented to the appropriate agency.
            14.19
            When a claim is filed with more than one agency.
            14.21
            Filing a claim after an agency final denial.
            14.23
            Evidence and information to be submitted.
            14.25
            Amending a claim.
            14.27
            Time limit.

            Subpart C—Commission Action and Authority
            14.31
            Investigation.
            14.33
            Officials authorized to act.
            14.35
            Limitation on NRC's authority.
            14.37
            Final denial of claim.
            14.39
            Reconsideration of a claim.
            14.41
            Payment of approved claims.
            14.43
            Acceptance of payment constitutes release.

            Subpart D—Employee Drivers
            14.51
            Procedures when employee drivers are sued.
            14.53
            Scope of employment report.
            14.55
            Removal of State court proceedings.
            14.57
            Suit against the United States exclusive remedy.

          Authority:
          28 U.S.C. 2672, 2679; Atomic Energy Act of 1954, sec. 161 (42 U.S.C. 2201); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 28 CFR 14.11.

          Source:
          47 FR 8983, Mar. 3, 1982, unless otherwise noted.

          Subpart A—General

            § 14.1
            Scope of regulations.

            (a) The terms “Nuclear Regulatory Commission” and “NRC” as used in this part mean the agency established by section 201(a) of the Energy Reorganization Act of 1974, but do not include any contractor with the Nuclear Regulatory Commission.

            (b) The regulations in this part supplement the Department of Justice's regulations in 28 CFR parts 14 and 15.
            (c) These regulations apply to administrative claims under the Federal Tort Claims Act, as amended, asserted on or after the effective date of this rule, for money damages against the United States for damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the NRC while acting within the scope of his or her office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
            (d) These regulations also set forth the procedures when lawsuits are commenced against an employee of the NRC resulting from the operation of a motor vehicle while acting within the scope of his or her employment.

            § 14.3
            Limit on attorney fees; penalty.
            (a) An attorney may not charge or receive fees in excess of:
            (1) 25 percent of any judgment rendered under 28 U.S.C. 1346(b);
            (2) 25 percent of any settlement made under 28 U.S.C. 2677; or
            (3) 20 percent of any award, compromise, or settlement made under 28 U.S.C. 2672.
            (b) Any attorney who charges or receives any amount in excess of that allowed under this section is subject to a fine of not more than $2,000 or imprisonment for not more than one year, or both. (28 U.S.C. 2678)

          Subpart B—Filing Procedures and Requirements

            § 14.11
            Who may file a claim.
            (a) A claim for damage to or loss of property may be presented by the owner of the property interest which is the subject of the claim, his or her duly authorized agent, or his or her legal representative.
            (b) A claim for personal injury may be presented by the injured person, his or her duly authorized agent, or his or her legal representative.
            (c) A claim based on death may be presented by the executor or administrator of the decedent's estate, or by any other person legally entitled to assert the claim under applicable State law.
            (d) A claim for loss wholly compensated by an insurer with the rights of a subrogee may be presented by the insurer. A claim for loss partially compensated by an insurer with the rights of a subrogee may be presented by the insurer or the insured individually, to the extent of their respective interests, or jointly. Whenever an insurer presents a claim asserting the rights of a subrogee, the insurer shall present with the claim appropriate evidence that the insurer has the rights of a subrogee.
            (e) If a claim is presented by an agent or legal representative that person shall:
            (1) Present the claim in the name of the claimant;
            (2) Sign the claim;
            (3) Show the title or legal capacity of the person signing the claim; and
            (4) Include with the claim evidence of his or her authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.

            § 14.13
            When is a claim presented to NRC.
            For purposes of the provisions of 28 U.S.C. 2672, a claim is presented when NRC receives from a claimant, or the claimant's duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident. An executed Standard Form 95 or written notification must be accompanied by a claim for money damages in a sum certain for damage to or loss of property, personal injury, or death alleged to have occurred by reason of the incident.

            § 14.15
            Where to present a claim to NRC.

            A claimant shall mail or deliver the claim to the office of employment of the NRC employee whose negligent or wrongful act or omission is alleged to have caused the loss or injury. If the office of employment is not known, the claimant shall file the claim with the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
            [47 FR 8983, Mar. 3, 1982, as amended at 51 FR 35999, Oct. 8, 1986]

            § 14.17
            A claim must be presented to the appropriate agency.
            A claimant shall present the claim to the Federal agency whose activities gave rise to the claim. If a claim is erroneously presented to the NRC, the NRC shall transfer it to the appropriate agency, if the proper agency can be identified from the claim, and shall advise the claimant of the transfer. If transfer is not feasible, the NRC shall return the claim to the claimant. The fact of transfer does not, in itself, preclude further transfer, return of the claim to the claimant, or other appropriate disposition of the claim. A claim shall be presented, as required by 28 U.S.C. 2401(b), as of the date it is received by the appropriate agency.

            § 14.19
            When a claim is filed with more than one agency.
            (a) If the NRC and one or more other Federal agencies is or may be involved in the events giving rise to the claim, and if the claim is filed with the NRC, the NRC shall contact all other affected agencies in order to designate the single agency which will investigate and decide the merits of the claim.
            (1) In the event that an agreed upon designation cannot be made by the affected agencies, the Department of Justice will be consulted and will designate a primary agency to investigate and decide the merits of the claim. If the NRC is designated as the primary agency, it shall notify the claimant that all future correspondence concerning the claim shall be directed to the NRC.
            (2) All involved Federal agencies can agree either to conduct their own administrative reviews and to coordinate the results or to have the investigations conducted by the primary agency. In either event, the primary agency is responsible for the final determination of the claim.
            (b) A claimant presenting a claim arising from an incident to more than one agency should identify each agency to which the claim is submitted at the time each claim is presented. If a claim arising from an incident is presented to more than one Federal agency without any indication that more than one agency is involved, and any one of the concerned Federal agencies takes final action on that claim, the final action is conclusive on the claims presented to the other agencies in regard to the time required for filing suit set forth in 28 U.S.C. 2401(b). However, if NRC, as a subsequently involved Federal agency, desires to take further action with a view towards settling the claim, the NRC may treat the matter as a request for reconsideration of the final denial under 10 CFR 14.39, unless suit has been filed in the interim, and advise the claimant of the action.

            § 14.21
            Filing a claim after an agency final denial.
            If, after a final denial by another agency, the claimant files with the NRC a claim arising out of the same incident on which the claim filed with the other agency was based, the submission of the claim to NRC will not toll the requirement of 28 U.S.C. 2401(b) that suit must be filed within six months of the final denial by the other agency, unless the other agency specifically and explicitly treats the submission to NRC as a request for reconsideration under 10 CFR 14.39 and advises the claimant of the action.

            § 14.23
            Evidence and information to be submitted.
            (a) Death. In support of a claim based on death, the claimant may be required to submit the following evidence or information:
            (1) An authenticated death certificate or other competent evidence showing cause of death, date of death, and age of decedent.

            (2) Decedent's employment or occupation at time of death, including his or her monthly or yearly salary or earnings (if any), and the duration of his or her last employment or occupation.

            (3) Full names, addresses, birth dates, kinship, and marital status of the decedent's survivors, including identification of those survivors who were dependent for support upon the decedent at the time of death.
            (4) Degree of support afforded by the decedent to each survivor dependent upon him or her for support at the time of death.
            (5) Decedent's general physical and mental condition before death.
            (6) Itemized bills for medical and burial expenses incurred by reason of the incident causing death, or itemized receipts of payment for these expenses.
            (7) If damages for pain and suffering prior to death are claimed, a physician's detailed statement specifying the injuries suffered, duration of pain and suffering, any drugs administered for pain, and the decedent's physical condition in the interval between injury and death.
            (8) Any other evidence or information which may have a bearing on either the responsibility of the United States for the death or the amount of damages claimed.
            (b) Personal injury. In support of a claim for personal injury, including pain and suffering, the claimant may be required to submit the following evidence or information:
            (1) A written report by the attending physician or dentist setting forth the nature and extent of the injury, nature and extent of treatment, any degree of temporary or permanent disability and prognosis, period of hospitalization, and any diminished earning capacity. In addition, the claimant may be required to submit to a physical or mental examination by a physician employed by the NRC or another Federal agency. The claimant may request in writing a copy of the report of the examining physician if the claimant has:
            (i) Furnished the report referred to in paragraph (a)(1) of this section on request; and
            (ii) Made or agrees to make available to the NRC all other reports of the claimant's physical or mental condition which have been or are made by any physician.
            (2) Itemized bills for medical, dental, and hospital expenses incurred, or itemized receipts of payment for these expenses.
            (3) If the prognosis reveals the necessity for future treatment, a statement of expected expenses for the treatment.
            (4) If a claim is made for loss of time from employment, a written statement from his or her employer showing actual time lost from employment, whether he or she is a full- or part-time employee, and wages or salary actually lost.
            (5) If a claim is made for loss of income and the claimant is self-employed, documentary evidence showing the amount of earnings actually lost.
            (6) Any other evidence or information which may have a bearing on either the responsibility of the United States for the personal injury or the damages claimed.
            (c) Property damage. In support of a claim for damage to or loss of property, real or personal, the claimant may be required to submit the following evidence or information:
            (1) Proof of ownership of the property interest which is the subject of the claim.
            (2) A detailed statement of the amount claimed with respect to each item of property.
            (3) An itemized receipt of payment for necessary repairs or itemized written estimates of the cost of these repairs.
            (4) A statement listing date of purchase, purchase price, and salvage value, where repair is not economical.
            (5) Any other evidence or information which may have a bearing on either the responsibility of the United States for the injury to or loss of property or the damages claimed.

            § 14.25
            Amending a claim.

            The claimant may amend a claim presented in compliance with 10 CFR 14.13 at any time prior to final agency action or prior to the exercise of the claimant's option under 28 U.S.C. 2675(a). The claimant or his or her duly authorized agent or legal representative shall sign each amendment and submit it in writing. Upon the timely filing of an amendment to a pending claim, the agency shall have six months in which to make a final disposition of the claim as amended and the claimant's option under 28 U.S.C. 2675(a) does not accrue until six months after the filing of an amendment.

            § 14.27
            Time limit.
            The claimant shall furnish evidence and information of the types described in 10 CFR 14.23, to the extent reasonably practicable, when the claim is initially presented. If the claimant fails to furnish sufficient evidence and information within six months after the claim was initially presented to enable NRC to adjust, determine, compromise and settle the claim, NRC may consider the claim a nullity.

          Subpart C—Commission Action and Authority

            § 14.31
            Investigation.
            The NRC may:
            (a) Require the claimant to furnish any evidence or information which is relevant to its consideration of the claim;
            (b) Examine the claimant; or
            (c) Investigate, or request any other Federal agency to investigate, a claim filed under this part.

            § 14.33
            Officials authorized to act.
            The General Counsel or the General Counsel's designee shall exercise the authority to adjust, determine, compromise and settle a claim under the provisions of 28 U.S.C. 2672.
            [51 FR 35999, Oct. 8, 1986]

            § 14.35
            Limitation on NRC's authority.
            (a) The NRC shall effect an award, compromise, or settlement of a claim hereunder in excess of $25,000 only with the prior written approval of the Attorney General or his designee. For the purposes of this paragraph, a principal claim and any derivative or subrogated claim are treated as a single claim.
            (b) The NRC may adjust, determine, compromise, or settle a claim under this part only after consultation with the Department of Justice if, in the opinion of the Office of the General Counsel:
            (1) A new precedent or a new point of law is involved;
            (2) A question of policy is or may be involved;
            (3) The United States is or may be entitled to indemnity or contribution from a third party and the NRC is unable to adjust the third party claim; or
            (4) The compromise of a particular claim, as a practical matter, will or may control the disposition of a related claim in which the amount to be paid may exceed $25,000.
            (c) The NRC may adjust, determine, compromise, or settle a claim under this part only after consultation with the Department of Justice if the NRC is informed or is otherwise aware that the United States, or an employee, agent, or cost-plus contractor of the United States, is involved in litigation based on a claim arising out of the same incident or transaction.
            (d) When Department of Justice approval or consultation is required under this section or the advice of the Department of Justice is otherwise requested, the NRC shall direct the referral or request to the Assistant Attorney General, Civil Division, Department of Justice, in writing. The NRC shall ensure that the referral or request contains:
            (1) A short and concise statement of the facts and the reasons for the referral or request;
            (2) Copies of relevant portions of NRC's claim file; and
            (3) A statement of the recommendations or views of the NRC.
            A referral or request to the Department of Justice may be made at any time after presentment of a claim to the NRC.
            [47 FR 8983, Mar. 3, 1982, as amended at 51 FR 35999, Oct. 8, 1986]

            § 14.37
            Final denial of claim.

            The NRC shall send notice of a final denial of a claim in writing to the claimant, his or her attorney or legal representative, by certified or registered mail. The notification of final denial may include a statement of the reasons for the denial. The NRC shall include a statement in the notification of final denial that, if the claimant is dissatisfied with NRC's action, he or she may file suit in an appropriate U.S. District Court not later than 6 months after the date of mailing of the notification.

            § 14.39
            Reconsideration of a claim.
            Prior to the commencement of suit and prior to the expiration of the 6-month period provided in 28 U.S.C. 2401(b), a claimant, or his or her duly authorized agent, or legal representative, may file a written request with the NRC for reconsideration of a final denial of a claim. Upon the timely filing of a request for reconsideration, the NRC shall have 6 months from the date of filing in which to make a final disposition of the claim, and the claimant's option under 28 U.S.C. 2675(a) does not accrue until 6 months after the filing of a request for reconsideration. Final NRC action on a request for reconsideration shall be effected in accordance with the provisions of 10 CFR 14.37.

            § 14.41
            Payment of approved claims.
            (a) The NRC shall pay any award, compromise, or settlement in an amount of $2,500 or less made under the provisions of 28 U.S.C. 2672 out of the appropriations available to it. The NRC shall obtain payment of any award, compromise, or settlement in excess of $2,500 from the Department of the Treasury by forwarding Standard Form 1145 to the Payment Branch, Claims Group, General Accounting Office. If an award, compromise, or settlement is in excess of $25,000, Standard Form 1145 must be accompanied by evidence that the award, compromise, or settlement has been approved by the Attorney General or the Attorney General's designee. When the use of Standard Form 1145 is required, it must be executed by the claimant or it must be accompanied by either a claims settlement agreement or a Standard Form 95 executed by the claimant.
            (b) If a claimant is represented by an attorney, the voucher for payment must designate both the claimant and his or her attorney as payees, and the check must be delivered to the attorney whose address appears on the voucher.

            § 14.43
            Acceptance of payment constitutes release.
            Acceptance by the claimant, his agent, or legal representative, of any award, compromise, or settlement made under the provisions of 28 U.S.C. 2672 or 2677, is final and conclusive on the claimant, his or her agent or legal representative and any other person on whose behalf or for whose benefit the claim has been presented. Acceptance constitutes a complete release of any claim against the United States and against any employee of the Government whose act or omission gave rise to the claim.

          Subpart D—Employee Drivers

            § 14.51
            Procedures when employee drivers are sued.
            (a) Any NRC employee against whom a civil action or proceeding is brought for damage to property, or for personal injury or death, on account of the employee's operation of a motor vehicle in the scope of his or her office or employment with the NRC, shall promptly deliver all process and pleadings served upon the employee, or an attested true copy, to the Office of the General Counsel. If the action is brought against an employee's estate, this procedure applies to the employee's personal representative.
            (b) In addition, upon the employee's receipt of any process or pleadings, or any prior information regarding the commencement of a civil action or proceeding, the employee shall immediately advise the Office of the General Counsel by telephone or telegraph.
            [47 FR 8983, Mar. 3, 1982, as amended at 51 FR 35999, Oct. 8, 1986]

            § 14.53
            Scope of employment report.

            A report containing all data bearing upon the question whether the employee was acting within the scope of his or her office or employment will be furnished by the General Counsel or designee to the United States Attorney for the district encompassing the place where the civil action or proceeding is brought. A copy of the report also will be furnished to the Director of the Torts Branch, Civil Division, Department of Justice, at the earliest possible date, or within the time specified by the United States Attorney.
            [51 FR 35999, Oct. 8, 1986]

            § 14.55
            Removal of State court proceedings.
            Upon a certification by the United States Attorney that the defendant employee was acting within the scope of his or her office or employment at the time of the incident out of which the suit arose, any civil action or proceeding commenced in a State court may be removed to the district court of the United States for the district and division encompassing the place where the action or proceeding is pending in accordance with 28 U.S.C. 2679.

            § 14.57
            Suit against United States exclusive remedy.
            The remedy against the United States provided by 28 U.S.C. 1346(b) and 2672 for damage to or loss of property or personal injury or death, resulting from the operation by an employee of the Government of any motor vehicle while acting within the scope of his or her office or employment, is exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his or her estate whose act or omission gave rise to the claim.

        Pt. 15
        PART 15—DEBT COLLECTION PROCEDURES

            Subpart A—Application and Coverage
            Sec.
            15.1
            Application.
            15.2
            Definitions.
            15.3
            Communications.
            15.5
            Claims that are covered.
            15.7
            Monetary limitation on NRC's authority.
            15.8
            Information collection requirements: OMB approval.
            15.9
            No private rights created.
            15.11
            Form of payment.
            15.13
            Subdivision of claims.

            Subpart B—Administrative Collection of Claims
            15.20
            Aggressive agency collection activity.
            15.21
            Written demands for payment.
            15.23
            Telephone or internet inquiries and investigations.
            15.25
            Personal interviews.
            15.26
            Reporting claims.
            15.27
            Contact with debtor's employing agency.
            15.29
            Suspension or revocation of license.
            15.31
            Disputed debts.
            15.32
            Contracting for collection services.
            15.33
            Collection by administrative offset.
            15.35
            Payments.
            15.37
            Interest, penalties, and administrative costs.
            15.38
            Use of credit reports.
            15.39
            Bankruptcy claims.

            Subpart C—Compromise of a Claim
            15.41
            When a claim may be compromised.
            15.43
            Reasons for compromising a claim.
            15.45
            Consideration of tax consequences to the Government.
            15.47
            Finality of a compromise.
            15.49
            Mutual releases of the debtor and the Government.

            Subpart D—Suspension or Termination of Collection Action
            15.51
            When collection action may be suspended or terminated.
            15.53
            Reasons for suspending collection action.
            15.55
            Reasons for terminating collection action.
            15.57
            Termination of collection action.
            15.59
            Exception to termination.
            15.60
            Discharge of indebtedness; reporting requirements.

            Subpart E—Referral of a Claim
            15.61
            Prompt referral.
            15.65
            Referral of a compromise offer.
            15.67
            Referral to the Department of Justice.

          Authority:
          Atomic Energy Act of 1954, secs. 161, 186 (42 U.S.C. 2201, 2236); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 5 U.S.C. 5514; 26 U.S.C. 6402; 31 U.S.C. 3701, 3713, 3716, 3719, 3720A; 42 U.S.C. 664; 44 U.S.C. 3504 note; 31 CFR parts 900 through 904; 31 CFR part 285; E.O. 12146, 44 FR 42657, 3 CFR, 1979 Comp., p. 409; E.O. 12988, 61 FR 4729, 3 CFR, 1996 Comp., p. 157.

          Source:
          47 FR 7616, Feb. 22, 1982, unless otherwise noted.

          Subpart A—Application and Coverage

            § 15.1
            Application.

            (a) This part applies to claims for the payment of debts owed to the United States Government in the form of money or property and; unless a different procedure is specified in a statute, regulation, or contract; prescribes procedures by which the NRC—

            (1) Collects, compromises, suspends, offsets, and terminates collection action for claims;
            (2) Determines and collects interest and other charges on these claims; and
            (3) Refers unpaid claims over 180 days delinquent to Treasury for offset and collection and to the DOJ for litigation.
            (b) The following are examples of kinds of debts to which special statutory and administrative procedures apply:
            (1) A claim against an employee for erroneous payment of pay and allowances subject to waiver under 5 U.S.C. 5584 are covered by the provisions of 10 CFR part 16.
            (2) A claim against an applicant for, or a holder or former holder of, an NRC license involving the payment of civil penalties imposed by the NRC under 10 CFR 2.205.
            (3) A claim involved in a case pending before any Federal Contract Appeals Board or Grant Appeals Board. However, nothing in this part prevents negotiation and settlement of a claim pending before a Board.
            (c) The NRC is not limited to collection remedies contained in the revised Federal Claims Collection Standards (FCCS). The FCCS is not intended to impair common law remedies.
            [47 FR 7616, Feb. 22, 1982, as amended at 55 FR 32377, Aug. 9, 1990; 56 FR 51830, Oct. 16, 1991; 67 FR 30318, May 6, 2002]

            § 15.2
            Definitions.

              Administrative offset means withholding money payable by the United States Government to, or held by the Government for, a person to satisfy a debt the person owes the United States Government.

              Administrative wage garnishment is the process of withholding amounts from an employee's disposable pay and the paying of those amounts to a creditor in satisfaction of a withholding order.

              Claim and debt are used synonymously to refer to an amount of money, funds, or property that has been determined by an agency official to be owed to the United States from any person, organization, or entity, except another Federal agency. For the purposes of administrative offset under 31 U.S.C. 3716, the terms claim and debt include an amount of money, funds, or property owed by a person to a State (including past-due support being enforced by a State), the District of Columbia, American Samoa, Guam, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, or the Commonwealth of Puerto Rico.

              Cross-servicing means that the Treasury or another debt collection center is taking appropriate debt collection action on behalf of one or more Federal agencies or a unit or subagency thereof.

              Delinquent. A debt is considered delinquent if it has not been paid by the date specified in the initial written demand for payment or applicable contractual agreement with the NRC unless other satisfactory payment arrangements have been made by that date. If the debtor fails to satisfy obligations under a payment agreement with the NRC after other payment arrangements have been made, the debt becomes a delinquent debt.

              Federal agencies include agencies of the executive, legislative, and judicial branches of the Government, including Government corporations.

              License means any license, permit, or other approval issued by the Commission.

              Payment in full means payment of the total debt due the United States, including any interest, penalty, and administrative costs of collection assessed against the debtor.

              Recoupment is a special method for adjusting debts arising under the same transaction or occurrence. For example, obligations arising under the same contract generally are subject to recoupment.

              Salary offset means an administrative offset to collect a debt under 5 U.S.C. 5514 by deduction(s) at one or more officially established pay intervals from the current pay account of an employee without his/her consent.

              Tax refund offset means withholding or reducing a tax refund payment by an amount necessary to satisfy a debt owed by the payee(s) of a tax refund payment.

              Treasury as used in 10 CFR part 15 means the Department of the Treasury.

              Withholding order means any order for withholding or garnishment of pay issued by an agency, or judicial or administrative body.
            [55 FR 32377, Aug. 9, 1990, as amended at 56 FR 51830, Oct. 16, 1991; 67 FR 30318, May 6, 2002]

            § 15.3
            Communications.

            Unless otherwise specified, communications concerning the regulations in this part may be addressed to the Secretary of the Nuclear Regulatory Commission and sent either by mail to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff; by hand delivery to the NRC's offices at 11555 Rockville Pike, One White Flint North, Rockville, Maryland; or, where practicable, by electronic submission, for example, via Electronic Information Exchange, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information.
            [68 FR 58801, Oct. 10, 2003, as amended at 74 FR 62680, Dec. 1, 2009; 80 FR 74978, Dec. 1, 2015]

            § 15.5
            Claims that are covered.
            (a) These procedures generally apply to any claim for payment of a debt which:
            (1) Results from activities of the NRC, including fees imposed under part 170 and part 171; or
            (2) Is referred to the NRC for collection.
            (b) These procedures do not apply to:
            (1) A claim based on a civil monetary penalty for violation of a licensing requirement unless § 2.205 of this chapter provides otherwise;
            (2) A claim as to which there is an indication of fraud, the presentation of a false claim, or misrepresentation on the part of the debtor or any other party having an interest in the claim;
            (3) A claim based in whole or in part on conduct in violation of the antitrust laws;
            (4) A claim under the Internal Revenue Code of 1986.
            (5) A claim between Federal agencies. Federal agencies should attempt to resolve interagency claims as referenced in Executive Order 12146 (3 CFR, 1980 Comp., pp. 409-412).
            (6) A claim once it becomes subject to salary offset under 5 U.S.C. 5514. These claims are subject to the provisions of 10 CFR part 16.
            (7) A claim involving bankruptcy is covered by Title 11 of the United States Code.
            [47 FR 7616, Feb. 22, 1982, as amended at 55 FR 32377, Aug. 9, 1990; 56 FR 51830, Oct. 16, 1991; 67 FR 30318, May 6, 2002]

            § 15.7
            Monetary limitation on NRC's authority.
            The NRC's authority to compromise a claim, or to terminate or suspend collection action on a claim covered by these procedures, is limited by 31 U.S.C. 3711(a) to claims that—
            (a) Have not been referred to another Federal Agency for further collection actions; and
            (b) Do not exceed $100,000 (exclusive of interest, penalties, and administrative charges) or such higher amount as the Attorney General shall from time to time prescribe for purposes of compromise or suspension or termination of collection activity.
            [47 FR 7616, Feb. 22, 1982, as amended at 55 FR 32378, Aug. 9, 1990; 67 FR 30318, May 6, 2002]

            § 15.8
            Information collection requirements: OMB approval.

            This part contains no information collection requirements, and therefore, is not subject to the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
            [67 FR 30319, May 6, 2002]

            § 15.9
            No private rights created.
            (a) The failure of NRC to include in this part any provision of the FCCS, 31 CFR Chapter IX, parts 900-904, does not prevent the NRC from applying these provisions.
            (b) A debtor may not use the failure of the NRC to comply with any provision of this part or of the Federal Claims Collections Standards as a defense.
            [47 FR 7616, Feb. 22, 1982, as amended at 55 FR 32378, Aug. 9, 1990; 67 FR 30319, May 6, 2002]

            § 15.11
            Form of payment.
            These procedures are directed primarily to the recovery of money on behalf of the Government. The NRC may demand:
            (a) The return of specific property; or
            (b) The performance of specific services.
            [47 FR 7616, Feb. 22, 1982, as amended at 67 FR 30319, May 6, 2002]

            § 15.13
            Subdivision of claims.
            The NRC shall consider a debtor's liability arising from a particular transaction or contract as a single claim in determining whether the claim is less than the monetary limitation for the purpose of compromising or suspending or terminating collection action. A claim may not be subdivided to avoid the monetary limitation established by 31 U.S.C. 3711(a)(2) and § 15.7.
            [55 FR 32378, Aug. 9, 1990]

          Subpart B—Administrative Collection of Claims

            § 15.20
            Aggressive agency collection activity.
            (a) The NRC shall take aggressive action to collect all debts. These collection activities will be undertaken promptly and follow-up action will be taken as appropriate. These regulations do not require the Department of Justice, Department of the Treasury (Treasury), or any other Treasury-designated collection center to duplicate collection activities previously undertaken by NRC.
            (b) Debt referred or transferred to Treasury or to a Treasury-designated debt collection center under the authority of 31 U.S.C. 3711(g) must be serviced, collected, or compromised, or the collection action will be suspended or terminated, in accordance with the statutory requirements and authorities applicable to the collection of the debts.
            (c) The NRC shall cooperate with other agencies in their debt collection activities.
            (d) The NRC will consider referring debts that are less than 120 days delinquent to Treasury or to a Treasury-designated debt collection center to accomplish efficient, cost-effective debt collection. Referrals to debt collection centers are at the discretion of, and for a time period acceptable to, Treasury.
            (e) The NRC shall transfer any debt that has been delinquent for 120 days or more to Treasury so that it may take appropriate action to collect the debt or terminate collection actions. This requirement does not apply to any debt that—
            (1) Is in litigation or foreclosure;
            (2) Will be disposed of under an approved asset sale program;
            (3) Has been referred to a private collection contractor for a period of time acceptable to Treasury;
            (4) Is at a debt collection center for a period of time acceptable to Treasury;
            (5) Will be collected under internal offset procedures within 3 years after the date the debt first became delinquent; or
            (6) Is exempt from this requirement based on a determination by Treasury that exemption for a certain class of debt is in the best interest of the United States.
            (f) Agencies operating Treasury-designated debt collection centers are authorized to charge a fee for services rendered regarding referred or transferred debts. The fee may be paid out of amounts collected and may be added to the debt as an administrative cost.
            [67 FR 30319, May 6, 2002, as amended at 79 FR 66602, Nov. 10, 2014]

            § 15.21
            Written demands for payment.

            (a) The NRC shall make appropriate written demands upon the debtor for payment of money or the return of specific property in terms which specify:

            (1) The basis of the indebtedness and the right of the debtor to seek review within the NRC;
            (2) The amount claimed;
            (3) A description of any property which is to be returned by a date certain;
            (4) The date on which payment is to be made (which is normally the date the initial written demand letter statement was mailed or hand delivered, unless otherwise specified by contractual agreement, established by Federal statute or regulation, or agreed to under a payment agreement);
            (5) The applicable standards for assessing interest, penalties, and administrative costs under 31 CFR 901.9;
            (6) The applicable policy for reporting the delinquent debt to consumer reporting agencies; and
            (7) The name, address, and phone number of a contact person or office within the NRC will be included with each demand letter.
            (b) The NRC shall normally send two demand letters to debtors. The initial demand letter will be followed approximately 30 days later with a second demand letter, unless circumstances indicate that alternative remedies better protect the Government's interest, that the debtor has explicitly refused to pay, or that sending a further demand letter is futile. Depending upon the circumstances, the first and second demand letters may—
            (1) Offer or seek to confer with the debtor;
            (2) State the amount of the interest and penalties that will be added on a daily basis as well as the administrative costs that will be added to the debt until the debt is paid; and
            (3) State that the authorized collection procedures include any procedure authorized in this part including:
            (i) Contacts with the debtor's employer when the debtor is employed by the Federal Government or is a member of the military establishment or the Coast Guard;
            (ii) The NRC may report debts to credit bureaus, refer debts to debt collection centers and collection agencies for cross-servicing (including wage garnishment), tax refund offset, administrative offset, and litigation. Any eligible debt that is delinquent for 180 days or more will be transferred to the Treasury for collection. Credit bureau reporting for transferred debts will be handled by Treasury or a Treasury-designated center.
            (iii) Possible reporting of the delinquent debt to consumer reporting agencies in accordance with the guidance and standards contained in 31 CFR 901.4.
            (iv) The suspension or revocation of a license or other remedy under § 15.29;
            (v) Installment payments possibly requiring security; and
            (vi) The right to refer the claim to DOJ for litigation.
            (c) The NRC shall normally send only one written demand to a debtor who is a current NRC employee. The procedure described in § 15.33 and 10 CFR part 16 will be followed if full payment is not received either 30 days from the date the initial written demand was mailed or hand delivered. If the NRC cannot obtain full payment by following the procedures described in § 15.33 and 10 CFR part 16, the NRC may follow other collection procedures described in this subpart.
            (d) The failure to state in a letter of demand a matter described in § 15.21 is not a defense for a debtor and does not prevent the NRC from proceeding with respect to that matter.
            (e) When the NRC learns that a bankruptcy petition has been filed with respect to a debtor, the NRC will cease collection action immediately unless it has been determined that under 11 U.S.C. 362, the automatic stay has been lifted or is no longer in effect.
            [47 FR 7616, Feb. 22, 1982, as amended at 55 FR 32378, Aug. 9, 1990; 56 FR 51830, Oct. 16, 1991; 67 FR 30319, May 6, 2002]

            § 15.23
            Telephone or internet inquiries and investigations.
            (a) If a debtor has not responded to one or more demands, the NRC shall make reasonable efforts by telephone or internet to determine the debtor's intentions.

            (b) The NRC may undertake an investigation to locate a debtor if the whereabouts of a debtor is a problem, or if a debtor cannot be contacted by telephone.

            (c) The NRC, under 15 U.S.C. 1681(f), may obtain consumer credit information from private firms, including the name, address, former addresses, place of employment, and former places of employment of a debtor.
            [47 FR 7616, Feb. 22, 1982, as amended at 67 FR 30319, May 6, 2002]

            § 15.25
            Personal interviews.
            (a) The NRC may seek an interview with the debtor at the offices of the NRC when—
            (1) A matter involved in the claim needs clarification;
            (2) Information is needed concerning the debtor's circumstances; or
            (3) An agreement for payment might be negotiated.
            (b) The NRC shall grant an interview with a debtor upon the debtor's request. The NRC will not reimburse a debtor's interview expenses.
            [47 FR 7616, Feb. 22, 1982, as amended at 55 FR 32378, Aug. 9, 1990]

            § 15.26
            Reporting claims.
            (a) In addition to assessing interest, penalties, and administrative costs under § 15.37, the NRC may report a debt that has been delinquent for 90 days to a consumer reporting agency if all the conditions of this paragraph are met.
            (1) The debtor has not—
            (i) Paid or agreed to pay the debt under a written payment plan that has been signed by the debtor and agreed to by the NRC; or
            (ii) Filed for review of the debt under § 15.26 (a)(2)(iv).
            (2) The NRC has included a notification in the second written demand (see § 15.21(b)) to the individual debtor stating—
            (i) That the payment of the debt is delinquent;
            (ii) That within not less than 60 days after the date of the notification, the NRC intends to disclose to a consumer reporting agency that the individual debtor is responsible for the debt;
            (iii) The specific information to be disclosed to the consumer reporting agency; and
            (iv) That the debtor has a right to a complete explanation of the debt (if that has not already been given), to dispute information in NRC records about the debt, and to request reconsideration of the debt by administrative appeal or review of the debt.
            (3) The NRC has reconsidered its initial decision on the debt when the debtor has requested a review under paragraph (a)(2)(iv) of this section.
            (4) The NRC has taken reasonable action to locate a debtor for whom the NRC does not have a current address to send the notification provided for in paragraph (a)(2) of this section.
            (b) If there is a substantial change in the condition or amount of the debt, the NRC shall—
            (1) Promptly disclose that fact(s) to each consumer reporting agency to which the original disclosure was made;
            (2) Promptly verify or correct information about a debt on request of a consumer reporting agency for verification of information disclosed by the NRC; and,
            (3) Obtain assurances from the consumer reporting agency that the agency is complying with all applicable Federal, state and local laws relating to its use of consumer credit information.
            (c) The information the NRC discloses to the consumer reporting agency is limited to—
            (1) Information necessary to establish the identity of the individual debtor, including name, address, and taxpayer identification number;
            (2) The amount, status, and history of the debt; and
            (3) The NRC activity under which the debt arose.
            [55 FR 32378, Aug. 9, 1990, as amended at 67 FR 30319, May 6, 2002]

            § 15.27
            Contact with debtor's employing agency.
            If the debtor is employed by the Federal government or is a member of the military establishment or the Coast Guard, collection by offset must be accomplished in accordance with 5 U.S.C. 5514 and the provisions of 10 CFR part 16.
            [56 FR 51830, Oct. 16, 1991]

            § 15.29
            Suspension or revocation of license.
            In non-bankruptcy cases, the NRC may suspend or revoke any license, permit, or approval which the NRC has granted to the debtor for any inexcusable, prolonged, or repeated failure of the debtor to pay a delinquent debt. Before suspending or revoking any license, permit, or approval for failure to pay a debt, the NRC shall issue to the debtor (by certified mail) an order or a demand for information as to why the license, permit, or approval should not be suspended or revoked. The NRC shall allow the debtor no more than 30 days to pay the debt in full, including applicable interest, penalties, and administrative costs of collection of the delinquent debt. The NRC may revoke the license, permit, or approval at the end of this period. If a license is revoked under authority of this part, a new application, with appropriate fees, must be made to the NRC. The NRC may not consider an application unless all previous delinquent debts of the debtor to the NRC have been paid in full. The suspension or revocation of a license, permit, or approval is also applicable to Federal programs or activities that are administered by the states on behalf of the Federal Government to the extent that they affect the Federal Government's ability to collect money or funds owed by debtors. In bankruptcy cases, before advising the debtor of NRC's intention to suspend or revoke licenses, permits, or approvals, the NRC will seek legal advice from its Office of the General Counsel concerning the impact of the Bankruptcy Code which may restrict such action.
            [67 FR 30320, May 6, 2002]

            § 15.31
            Disputed debts.
            (a) A debtor who disputes a debt shall explain why the debt is incorrect in fact or in law within 30 days from the date that the initial demand letter was mailed or hand-delivered. The debtor may support the explanation by affidavits, cancelled checks, or other relevant evidence.
            (b) If the debtor's arguments appear to have merit, the NRC may extend the interest waiver period as described in § 15.37(j) pending a final determination of the existence or amount of the debt.
            (c) The NRC may investigate the facts involved in the dispute and, if it considers it necessary, arrange for a conference at which the debtor may present evidence and any arguments in support of the debtor's position.
            [47 FR 76716, Feb. 22, 1982, as amended at 55 FR 32379, Aug. 9, 1990]

            § 15.32
            Contracting for collection services.
            The NRC may contract for collection services in order to recover delinquent debts only if the debts are not subject to the DCIA requirement to transfer debts to Treasury for debt collection services, e.g. debts that are less than 180 days delinquent. However, the NRC retains the authority to resolve disputes, compromise claims, suspend or terminate collection action, and initiate enforced collection through litigation. When appropriate, the NRC shall contract for collection services in accordance with the guidance and standards contained in 31 CFR chapter IX, parts 900-904.
            [67 FR 30320, May 6, 2002]

            § 15.33
            Collection by administrative offset.
            (a) Application. (1) The NRC may administratively undertake collection by centralized offset on each claim which is liquidated or certain in amount in accordance with the guidance and standards in 31 CFR Chapter IX, parts 900-904 and 5 U.S.C. 5514.
            (2) This section does not apply to:
            (i) Debts arising under the Social Security Act, except as provided in 42 U.S.C. 404;
            (ii) Payments made under the Social Security Act, except as provided for in 31 U.S.C. 3716(c) (see 31 CFR 285.4, Federal Benefit Offset);
            (iii) Debts arising under, or payments made under, the Internal Revenue Code (see 31 CFR 285.2, Tax Refund Offset) or the tariff laws of the United States;

            (iv) Offsets against Federal salaries to the extent these standards are inconsistent with regulations published to implement such offsets under 5 U.S.C. 5514 and 31 U.S.C. 3716 (see 5 CFR part 550, subpart K, and 31 CFR 285.7, Federal Salary Offset);
            (v) Offsets under 31 U.S.C. 3728 against a judgment obtained by a debtor against the United States;
            (vi) Offsets or recoupments under common law, State law, or Federal statutes specifically prohibiting offsets or recoupments of particular types of debts; or
            (vii) Offsets in the course of judicial proceedings, including bankruptcy.
            (3) Unless otherwise provided for by contract or law, debts or payments that are not subject to administrative offset under 31 U.S.C. 3716 may be collected by administrative offset under the common law or their applicable statutory authority.
            (4) Unless otherwise provided by law, the NRC may not initiate administrative offset of payments under the authority of 31 U.S.C. 3716 to collect a debt more than 10 years after the Government's right to collect the debt first accrued, unless facts material to the Government's right to collect the debt were not known and could not reasonably have been known to the NRC, or collection of “approval” fees has been deferred under 10 CFR part 170. If the collection of “approval” fees has been deferred, the ten-year period begins to run at the end of the deferral period.
            (5) In bankruptcy cases, the NRC will seek legal advice from its Office of the General Counsel concerning the impact of the Bankruptcy Code on pending or contemplated collections by offset.
            (b) Mandatory centralized offset. (1) The NRC is required to refer past due, legally enforceable, nontax debts that are over 120 days delinquent to Treasury for collection by centralized administrative offset. A debt is legally enforceable if there has been a final NRC determination that the debt, in the amount stated, is due and there are no legal bars to collection action. Debts that are less than 120 days delinquent also may be referred to Treasury for this purpose.
            (2) The names and taxpayer identifying numbers (TINs) of debtors who owe debts referred to Treasury as described in paragraph (b)(1) of this section must be compared to the names and TINs on payments to be made by Federal disbursing officials. Federal disbursing officials include disbursing officials of Treasury, the Department of Defense, the United States Postal Service, other Government corporations, and disbursing officials of the United States designated by Treasury. When the name and TIN of a debtor match the name and TIN of a payee and all other requirements for offset have been met, the payment will be offset to satisfy the debt.
            (3) Federal disbursing officials will notify the debtor/payee in writing that an offset has occurred to satisfy, in part or in full, a past due, legally enforceable delinquent debt. The notice must include a description of the type and amount of the payment from which the offset was taken, the amount of offset that was taken, the identity of the creditor agency (NRC) requesting the offset, and a contact point within NRC who will respond to questions regarding the offset
            (c) NRC administrative offset. (1) Before referring a delinquent debt to Treasury for administrative offset, the NRC adopts the following administrative offset procedures:
            (i) Offsets may be initiated only after the debtor has been sent written notice of the type and amount of the debt, the intention of the NRC to use administrative offset to collect the debt, and an explanation of the debtor's rights under 31 U.S.C. 3716; and
            (ii) The debtor has been given—
            (A) The opportunity to inspect and copy NRC records related to the debt;
            (B) The opportunity for a review within the NRC of the determination of indebtedness; and
            (C) The opportunity to make a written agreement to repay the debt.
            (iii) The procedures set forth in paragraph (c)(1)(i) of this section may be omitted when—
            (A) The offset is in the nature of a recoupment;

            (B) The debt arises under a contract as set forth in Cecile Industries, Inc. v. Cheney, 995 F.2d 1052 (Fed. Cir. 1993) (notice and other procedural protections set forth in 31 U.S.C. 3716(a) do not supplant or restrict established procedures for contractual offsets accommodated by the Contracts Disputes Act); or

            (C) The NRC first learns of the existence of the amount owed by the debtor when there is insufficient time before payment would be made to the debtor/payee to allow for prior notice and an opportunity for review. This applies to non-centralized offsets conducted under paragraph (d) of this section. When prior notice and an opportunity for review are omitted, the NRC shall give the debtor notice and an opportunity for review as soon as practicable and shall refund any money ultimately found not to have been owed to the NRC.
            (iv) When an agency previously has given a debtor any of the required notice and review opportunities with respect to a particular debt (31 CFR 901.2), the NRC need not duplicate the notice and review opportunities before administrative offset may be initiated.
            (2) When referring delinquent debts to Treasury, the NRC shall certify, in a form acceptable to Treasury, that:
            (i) The debt is past due and legally enforceable; and
            (ii) The NRC has complied with all due process requirements under 31 U.S.C. 3716(a) and the NRC's regulations.
            (3) Payments that are prohibited by law from being offset are exempt from centralized administrative offset. The Treasury shall exempt payments under means-tested programs from centralized administrative offset when requested in writing by the head of the payment-certifying or authorizing agency. Also, the Treasury may exempt other classes of payments from centralized offset upon the written request of the head of the payment-certifying or authorizing agency.

            (4) Benefit payments made under the Social Security Act (42 U.S.C. 301 et seq.), part B of the Black Lung Benefits Act (30 U.S.C. 921 et seq.), and any law administered by the Railroad Retirement Board (other than tier 2 benefits), may be offset only in accordance with Treasury regulations, issued in consultation with the Social Security Administration, the Railroad Retirement Board, and the Office of Management and Budget (31 CFR 285.4).
            (5) In accordance with 31 U.S.C. 3716(f), the Treasury may waive the provisions of the Computer Matching and Privacy Protection Act of 1988 concerning matching agreements and post-match notification and verification (5 U.S.C. 552a(o) and (p)) for centralized administrative offset upon receipt of a certification from the NRC that the due process requirements enumerated in 31 U.S.C. 3716(a) have been met. The certification of a debt in accordance with paragraph (c)(2) of this section will satisfy this requirement. If a waiver is granted, only the Data Integrity Board of the Department of the Treasury is required to oversee any matching activities, in accordance with 31 U.S.C. 3716(g). This waiver authority does not apply to offsets conducted under paragraphs (c) and (d) of this section.
            (d) Non-centralized administrative offset. (1) Generally, non-centralized administrative offsets are ad hoc case-by-case offsets that NRC would conduct, at its discretion, internally or in cooperation with the agency certifying or authorizing payments to the debtor. Unless otherwise prohibited by law, when centralized administrative offset is not available or appropriate, past due, legally enforceable, nontax delinquent debts may be collected through non-centralized administrative offset. In these cases, the NRC may make a request directly to a payment-authorizing agency to offset a payment due a debtor to collect a delinquent debt. For example, the NRC will request the Office of Personnel Management (OPM) to offset a Federal employee's lump sum payment upon leaving Government service to satisfy an unpaid advance.
            (2) Before requesting Treasury to conduct a non-centralized administrative offset, the NRC adopts the following procedures, which provide that such offsets may occur only after:
            (i) The debtor has been provided due process as set forth in paragraph (c)(1) of this section; and
            (ii) The Treasury has received written certification from NRC that the debtor owes the past due, legally enforceable delinquent debt in the amount stated, and that the NRC has fully complied with its regulations concerning administrative offset.

            (3) Treasury shall comply with offset requests by NRC to collect debts owed to the United States, unless the offset would not be in the best interests of the United States with respect to the Treasury's program, or would otherwise be contrary to law. Appropriate use should be made of the cooperative efforts of other agencies in effecting collection by administrative offset.
            (4) When collecting multiple debts by non-centralized administrative offset, the NRC will apply the recovered amounts to those debts in accordance with the best interests of the United States, as determined by the facts and circumstances of the particular case, particularly the applicable statute of limitations.
            (e) Requests to OPM to offset a debtor's anticipated or future benefit payment under the Civil Service Retirement and Disability Fund. Upon providing OPM written certification that a debtor has been afforded the procedures provided in paragraph (c)(1) of this section, the NRC will request OPM to offset a debtor's anticipated or future benefit payments under the Civil Service Retirement and Disability Fund (Fund) in accordance with regulations codified at 5 CFR 831.1801-831.1808. Upon receipt of such a request, OPM will identify and “flag” a debtor's account in anticipation of the time when the debtor requests, or becomes eligible to receive, payments from the Fund. This will satisfy any requirement that offset be initiated prior to the expiration of the time limitations referenced in paragraph (a)(4) of this section.
            (f) Review requirements. (1) For purposes of this section, whenever the NRC is required to afford a debtor a review within the agency, the NRC shall provide the debtor with a reasonable opportunity for an oral hearing in accordance with 10 CFR 16.9, when the debtor requests reconsideration of the debt, and the NRC determines that the question of the indebtedness cannot be resolved by review of the documentary evidence, for example, when the validity of the debt turns on an issue of credibility or veracity.
            (2) Unless otherwise required by law, an oral hearing under this section is not required to be a formal evidentiary hearing, although the NRC should carefully document all significant matters discussed at the hearing.
            (3) This section does not require an oral hearing with respect to debt collection systems in which a determination of indebtedness rarely involves issues of credibility or veracity, and the NRC has determined that review of the written record is ordinarily an adequate means to correct prior mistakes.
            (4) In those cases in which an oral hearing is not required by this section, the NRC shall accord the debtor a “paper hearing,” that is, a determination of the request for reconsideration based upon a review of the written record.
            [67 FR 30320, May 6, 2002, as amended at 79 FR 66602, Nov. 10, 2014]

            § 15.35
            Payments.
            (a) Payment in full. The NRC shall make every effort to collect a claim in full before it becomes delinquent. If a claim is paid in one lump sum after it becomes delinquent, the NRC shall impose charges for interest, penalties, and administrative costs as specified in § 15.37.
            (b) Payment by installment. If a debtor furnishes satisfactory evidence of inability to pay a claim in one lump sum, payment in regular installments may be arranged. Evidence may consist of a financial statement or a signed statement that the debtor's application for a loan to enable the debtor to pay the claim in full was rejected. Except for a claim described in 5 U.S.C. 5514 and codified in 10 CFR part 16, all installment payment arrangements must be in writing and require the payment of interest and administrative charges.
            (1) Installment note forms may be used. The written installment agreement must contain a provision accelerating the debt payment in the event the debtor defaults. If the debtor's financial statement discloses the ownership of assets which are free and clear of liens or security interests, or assets in which the debtor owns an equity, the debtor may be asked to secure the payment of an installment note by executing a Security Agreement and Financing Statement transferring to the United States a security interest in the asset until the debt is discharged.

            (2) If the debtor owes more than one debt, the NRC will apply the payment to the various debts in accordance with the best interests of the United States, as determined by the facts and circumstances of the particular case.
            (c) To whom payment is made. Payment of a debt is made by check, electronic transfer, draft, credit card, or money order and should be payable to the United States Nuclear Regulatory Commission, License Fee and Accounts Receivable Branch, P.O. Box 954514, St. Louis, MO. 63195-4514, unless payment is—
            (1) Made pursuant to arrangements with DOJ;
            (2) Ordered by a Court of the United States; or
            (3) Otherwise directed in any other part of this chapter.
            [47 FR 7616, Feb. 22, 1982, as amended at 52 FR 31610, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 55 FR 32379, Aug. 9, 1990; 56 FR 51830, Oct. 16, 1991; 63 FR 15743, Apr. 1, 1998; 67 FR 30322, May 6, 2002]

            § 15.37
            Interest, penalties, and administrative costs.
            (a) The NRC shall assess interest, penalties, and administrative costs on debts owed to the United States Government in accordance with the guidance provided under the FCCS, 31 CFR 901.9.
            (b) Before assessing any charges on delinquent debt, the NRC shall mail or hand-deliver a written notice to the debtor explaining its requirements concerning these charges under 31 CFR 901.2 and 901.9, except where these charges are included in a contractual or repayment agreement.
            (c) Interest begins to accrue from the date on which the initial written demand, advising the debtor of the interest requirements, is first mailed or hand delivered to the debtor unless a different date is specified in a statute, regulation, or contract.

            (d) The NRC shall assess interest based upon the rate of the current value of funds to the United States Treasury (the Treasury tax and loan account rate) prescribed for the current quarter and published in the Federal Register and the Treasury Financial Manual Bulletins, unless a different rate is prescribed by statute, regulation, or contract.
            (e) Interest is computed only on the principal of the debt and the interest rate remains fixed for the duration of the indebtedness, unless a debtor defaults on a repayment agreement and seeks to enter into a new agreement.
            (f) The NRC shall assess against a debtor charges to cover administrative costs incurred as a result of a delinquent debt. Administrative costs may include costs incurred in obtaining a credit report or in using a private debt collector, to the extent they are attributable to the delinquency.
            (g) The NRC shall assess a penalty charge of 6 percent a year on any portion of a debt that is delinquent for more than 90 days. The charge accrues retroactively to the date that the debt became delinquent.
            (h) Amounts received by the NRC as partial or installment payments are applied first to outstanding penalty and administrative cost charges, second to accrued interest, and third to outstanding principal.
            (i) The NRC shall waive collection of interest on the debt or any portion of the debt which is paid in full within 30 days after the date on which interest began to accrue.
            (j) The NRC may waive interest during the period a debt disputed under § 15.31 is under investigation or review by the NRC. However, this additional waiver is not automatic and must be requested before the expiration of the initial 30-day waiver period. The NRC may grant the additional waiver only when it finds merit in the explanation the debtor has submitted under § 15.31.
            (k) The NRC may waive the collection of interest, penalties, and administrative costs if it finds that one or more of the following conditions exist:
            (1) The debtor is unable to pay any significant sum toward the debt within a reasonable period of time;
            (2) Collection of interest, penalties, and administrative costs will jeopardize collection of the principal of the debt;
            (3) The NRC is unable to enforce collection in full within a reasonable time by enforced collection proceedings; or

            (4) Collection would be against equity and good conscience or not in the best interests of the United States, including the situation in which an administrative offset or installment payment agreement is in effect.

            (l) The NRC is authorized to impose interest and related charges on debts not subject to 31 U.S.C. 3717, in accordance with common law.
            [55 FR 32380, Aug. 9, 1990, as amended at 67 FR 30322, May 6, 2002]

            § 15.38
            Use of credit reports.
            The NRC may institute a credit investigation of the debtor at any time following receipt of knowledge of the debt in order to aid NRC in making appropriate determinations as to:
            (a) The collection and compromise of a debt;
            (b) The collection of interest, penalties, and administrative costs;
            (c) The use of administrative offset;
            (d) The use of other collection methods; and
            (e) The likelihood of collecting the debt.
            [55 FR 32380, Aug. 9, 1990]

            § 15.39
            Bankruptcy claims.
            When the NRC learns that a bankruptcy petition has been filed with respect to a debtor, before proceeding with further collection action, the NRC will immediately seek legal advice from its Office of the General Counsel concerning the impact of the Bankruptcy Code on any pending or contemplated collection activities. Unless the NRC determines that the automatic stay imposed at the time of filing pursuant to 11 U.S.C. 362 has been lifted or is no longer in effect, collection activity against the debtor will in most cases stop immediately.
            (a) After seeking legal advice from its Office of the General Counsel, a proof of claim usually will be filed with the bankruptcy court or the Trustee.
            (b) If the NRC is a secured creditor, it may seek relief from the automatic stay regarding its security, subject to the provisions and requirements of 11 U.S.C. 362.
            (c) Offset is stayed in most cases by the automatic stay. However, the NRC will seek legal advice from its Office of the General Counsel to determine whether its payments to the debtor and payments of other agencies available for offset may be frozen by the agency until relief from the automatic stay can be obtained from the bankruptcy court. The NRC will seek legal advice from its Office of the General Counsel to determine if recoupment is available.
            [67 FR 30322, May 6, 2002]

          Subpart C—Compromise of a Claim

            § 15.41
            When a claim may be compromised.
            (a) The NRC may compromise a claim not in excess of the monetary limitation if it has not been referred to DOJ for litigation.
            (b) Unless otherwise provided by law, when the principal balance of a debt, exclusive of interest, penalties, and administrative costs, exceeds $100,000 or any higher amount authorized by the Attorney General, the authority to accept the compromise rests with the DOJ. The NRC will evaluate the compromise offer, using the factors set forth in this part. If an offer to compromise any debt in excess of $100,000 is acceptable to the NRC, the NRC shall refer the debt to the Civil Division or other appropriate litigating division in the DOJ using a CCLR. The referral must include appropriate financial information and a recommendation for the acceptance of the compromise offer. DOJ approval is not required if the compromise offer is rejected by NRC.
            [67 FR 30322, May 6, 2002]

            § 15.43
            Reasons for compromising a claim.
            A claim may be compromised for one or more of the reasons set forth below:
            (a) The full amount cannot be collected because:
            (1) The debtor is unable to pay the full amount within a reasonable time; or
            (2) The debtor refuses to pay the claim in full and the Government is unable to enforce collection in full within a reasonable time by enforced collection proceedings.

            (b) There is a real doubt concerning the Government's ability to prove its case in Court for the full amount claimed, either because of the legal issues involved or a bona fide dispute as to the facts.

            (c) The cost of collecting the claim does not justify the enforced collection of the full amount. The NRC shall apply this reason for compromise in accordance with the guidance in 31 CFR 902.2.
            (d) The NRC shall determine the debtor's inability to pay, the Government's ability to enforce collection, and the amounts that are acceptable in compromise in accordance with the FCCS, 31 CFR part 902.
            (e) Compromises payable in installments are discouraged, but, if necessary, must be in the form of a legally enforceable agreement for the reinstatement of the prior indebtedness less sums paid thereon. The agreement also must provide that in the event of default—
            (1) The entire balance of the debt becomes immediately due and payable; and
            (2) The Government has the right to enforce any security interest.
            [47 FR 7616, Feb. 22, 1982, as amended at 55 FR 32380, Aug. 9, 1990; 67 FR 30322, May 6, 2002]

            § 15.45
            Consideration of tax consequences to the Government.
            (a) The NRC may accept a percentage of a debtor's profits or stock in a debtor corporation in compromise of a claim. In negotiating a compromise with a business concern, the NRC should consider requiring a waiver of tax-loss-carry-forward and tax-loss-carry-back rights of the debtor. For information on reporting requirements, see § 15.60.
            (b) When two or more debtors are jointly and severally liable, the NRC will pursue collection activity against all debtors, as appropriate. The NRC will not attempt to allocate the burden of payment between the debtors but will proceed to liquidate the indebtedness as quickly as possible. The NRC will ensure that a compromise agreement with one debtor does not release the NRC's claim against the remaining debtors. The amount of a compromise with one debtor shall not be considered a precedent or binding in determining the amount that will be required from other debtors jointly and severally liable on the claim.
            [67 FR 30322, May 6, 2002]

            § 15.47
            Finality of a compromise.
            An offer of compromise must be in writing and signed by the debtor. An offer of compromise which is accepted by the NRC is final and conclusive on the debtor and on all officials, agencies, and courts of the United States, unless obtained by fraud, misrepresentation, the presentation of a false claim, or mutual mistake of fact.

            § 15.49
            Mutual releases of the debtor and the Government.
            (a) In all appropriate instances, a compromise that is accepted by NRC should be implemented by means of a mutual release.
            (1) The debtor is released from further non-tax liability on the compromised debt in consideration of payment in full of the compromised amount.
            (2) The Government and its officials, past and present, are released and discharged from any and all claims and causes of action arising from the same transaction held by the debtor.
            (b) If a mutual release is not executed when a debt is compromised, unless prohibited by law, the debtor is still deemed to have waived any and all claims and causes of action against the Government and its officials related to the transaction giving rise to the compromised debt.
            [67 FR 30322, May 6, 2002]

          Subpart D—Suspension or Termination of Collection Action

            § 15.51
            When collection action may be suspended or terminated.

            The NRC may suspend or terminate collection action on a claim not in excess of the monetary limitation of $100,000 or such other amount as the Attorney General may direct, exclusive of interest, penalties, and administrative costs, after deducting the amount of partial payments or collections, if any of the debt has not been referred to the DOJ for litigation. If, after deducting the amount of any partial payments or collections, the principal amount of a debt exceeds $100,000, or such other amount as the Attorney General may direct, exclusive of interest, penalties, and administrative costs, the authority to suspend or terminate rests solely with the DOJ. If the NRC believes that suspension or termination of any debt in excess of $100,000 may be appropriate, the NRC shall refer the debt to the Civil Division or other appropriate litigating division in the DOJ, using the CCLR. The referral should specify the reasons for the NRC's recommendation. If, prior to referral to the DOJ, the NRC determines that a debt is plainly erroneous or clearly without legal merit, the NRC may terminate collection activity, regardless of the amount involved, without obtaining DOJ concurrence.
            [67 FR 30323, May 6, 2002]

            § 15.53
            Reasons for suspending collection action.
            The NRC may suspend collection activity when:
            (a) The NRC cannot locate the debtor;
            (b) The debtor's financial condition is not expected to improve; or
            (c) The debtor has requested a waiver or review of the debt.
            (d) Based on the current financial condition of the debtor, the NRC may suspend collection activity on a debt when the debtor's future prospects justify retention of the debt for periodic review and collection activity and:
            (1) The applicable statute of limitations has not expired; or
            (2) Future collection can be effected by administrative offset, notwithstanding the expiration of the applicable statute of limitations for litigation of claims, with due regard to the 10-year limitation for administrative offset prescribed by 31 U.S.C. 3716(e)(1); or
            (3) The debtor agrees to pay interest on the amount of the debt on which collection will be suspended, and such suspension is likely to enhance the debtor's ability to pay the full amount of the principal of the debt with interest at a later date.
            (e)(1) The NRC shall suspend collection activity during the time required for consideration of the debtor's request for waiver or administrative review of the debt, if the statute under which the request is sought prohibits the NRC from collecting the debt during that time.
            (2) If the statute under which the request is sought does not prohibit collection activity pending consideration of the request, the NRC may use discretion, on a case-by-case basis, to suspend collection. Further, the NRC ordinarily should suspend collection action upon a request for waiver or review, if the NRC is prohibited by statute or regulation from issuing a refund of amounts collected prior to NRC consideration of the debtor's request. However, the NRC should not suspend collection when the NRC determines that the request for waiver or review is frivolous or was made primarily to delay collection.
            (f) When the NRC learns that a bankruptcy petition has been filed with respect to a debtor, in most cases, the collection activity on a debt must be suspended, pursuant to the provisions of 11 U.S.C. 362, 1201, and 1301, unless the NRC can clearly establish that the automatic stay has been lifted or is no longer in effect. The NRC should seek legal advice immediately from its Office of the General Counsel and, if legally permitted, take the necessary steps to ensure that no funds or money are paid by the NRC to the debtor until relief from the automatic stay is obtained.
            [67 FR 30323, May 6, 2002]

            § 15.55
            Reasons for terminating collection action.
            The NRC may terminate collection activity when:
            (a) The NRC is unable to collect any substantial amount through its own efforts or through the efforts of others;
            (b) The NRC is unable to locate the debtor;
            (c) Costs of collection are anticipated to exceed the amount recoverable,
            (d) The debt is legally without merit or enforcement of the debt is barred by any applicable statute of limitations;
            (e) The debt cannot be substantiated; or
            (f) The debt against the debtor has been discharged in bankruptcy.
            [67 FR 30323, May 6, 2002]

            § 15.57
            Termination of collection action.
            (a) Before terminating collection activity, the NRC should have pursued all appropriate means of collection and determined, based upon the results of the collection activity, that the debt is uncollectible. Termination of collection activity ceases active collection of the debt. The termination of collection activity does not preclude the NRC from retaining a record of the account for purposes of:
            (1) Selling the debt, if the Treasury determines that such sale is in the best interests of the United States;
            (2) Pursuing collection at a subsequent date in the event there is a change in the debtor's status or a new collection tool becomes available;
            (3) Offsetting against future income or assets not available at the time of termination of collection activity; or
            (4) Screening future applicants for prior indebtedness.
            (b) Generally, the NRC will terminate collection activity on a debt that has been discharged in bankruptcy, regardless of the amount. However, the NRC may continue collection activity, subject to the provisions of the Bankruptcy Code, for any payments provided under a plan of reorganization.
            [67 FR 30323, May 6, 2002]

            § 15.59
            Exception to termination.
            When a significant enforcement policy is involved, or recovery of a judgment is a prerequisite to the imposition of administrative sanctions, the NRC may refer debts for litigation, although termination of collection activity may be appropriate.
            [67 FR 30323, May 6, 2002]

            § 15.60
            Discharge of indebtedness; reporting requirements.
            (a) Before discharging a delinquent debt (also referred to as a close out of the debt), the NRC shall take all appropriate steps to collect the debt in accordance with 31 U.S.C. 3711(g), including, as applicable, administrative offset; tax refund offset; Federal salary offset; referral to Treasury, Treasury-designated debt collection centers, or private collection contractors; credit bureau reporting; wage garnishment; litigation; and foreclosure. Discharge of indebtedness is distinct from termination or suspension of collection activity under 10 CFR 15.55 and 15.57 and is governed by the Internal Revenue Code. When collection action on a debt is suspended or terminated, the debt remains delinquent, and further collection action may be pursued at a later date. When the NRC discharges a debt in full or in part, further collection action is prohibited. Therefore, the NRC will make the determination that collection action is no longer warranted before discharging a debt. Before discharging a debt, the NRC must terminate debt collection action.
            (b) Section 3711(i), title 31, United States Code, requires agencies to sell a delinquent nontax debt upon termination of collection action if Treasury determines such a sale is in the best interests of the United States. Since the discharge of a debt precludes any further collection action (including the sale of a delinquent debt), the NRC may not discharge a debt until the requirements of 31 U.S.C. 3711(i) have been met.
            (c) Upon discharge of an indebtedness, the NRC shall report the discharge to the IRS in accordance with the requirements of 26 U.S.C. 6050P and 26 CFR 1.6050P-1. The NRC may request Treasury or a Treasury-designated debt collection center to file a discharge report to the IRS on the NRC's behalf.
            (d) When discharging a debt, the NRC shall request that litigation counsel release any liens of record securing the debt.
            [67 FR 30323, May 6, 2002]

          Subpart E—Referral of a Claim

            § 15.61
            Prompt referral.

            (a) The NRC shall promptly refer debts that are subject to aggressive collection activity (as described in subpart B of this part) and that cannot be compromised, or debts on which collection activity cannot be suspended or terminated, to DOJ for litigation. Debts for which the principal amount exceeds $1,000,000, or such other amount as the Attorney General may direct, exclusive of interest and penalties, must be referred to the Civil Division or other division responsible for litigating such debts at DOJ, Washington, DC. Debts for which the principal amount is $1,000,000 or less, or such other amount as the Attorney General may direct, exclusive of interest or penalties, must be referred to the DOJ's Nationwide Central Intake Facility, as required by the CCLR instructions. Debts will be referred as early as possible, consistent with the NRC's aggressive collection activity and well within the one year of the NRC's final determination of the fact and the amount of the debt.
            (b) DOJ has exclusive jurisdiction over the debts referred to in paragraph (a) of this section. The NRC shall terminate the use of any administrative collection activities to collect a debt when the debt is referred to DOJ. The NRC shall advise the DOJ of the collection activities it used and the results. The NRC shall refrain from having any contact with the debtor and shall direct all inquiries to DOJ. The NRC shall immediately notify DOJ of any payments credited to the debtor's account after the account has been referred to DOJ. DOJ shall notify NRC in a timely manner of any payments it receives from the debtor.
            [67 FR 30324, May 6, 2002]

            § 15.65
            Referral of a compromise offer.
            The NRC may refer a debtor's firm written offer of compromise, which is substantial in amount, to the Civil Division or other appropriate litigating division in DOJ using a CCLR accompanied by supporting data and particulars concerning the debt.
            [67 FR 30324, May 6, 2002]

            § 15.67
            Referral to the Department of Justice.
            (a) Unless excepted by DOJ, the NRC shall complete the CCLR accompanied by a Certificate of Indebtedness, to refer all administratively uncollectible claims to the DOJ for litigation.
            (b) The NRC shall indicate the actions it wishes DOJ to take regarding the referred claim on the CCLR.
            (c) Before referring a debt to DOJ for litigation, the NRC shall notify each person determined to be liable for the debt that, unless the debt can be collected administratively, litigation may be initiated. This notification must comply with Executive Order 12988 (3 CFR, 1996 Comp., pp 157-163) and may be given as part of a demand letter or as a separate document.
            (d) The NRC shall preserve all files and records that DOJ may need to prove the claim in court.
            (e) The NRC may ordinarily not refer for litigation claims of less than $2,500, exclusive of interest, penalties, and administrative charges, or such other amount as the Attorney General shall from time to time prescribe.
            (f) The NRC may not refer claims of less than the minimum amount unless:
            (1) Litigation to collect a smaller claim is important to ensure compliance with NRC's policies and programs;
            (2) The claim is being referred solely to secure a judgment against the debtor, which will be filed as a lien against the debtor's property under 28 U.S.C. 3201 and returned to the NRC for enforcement, or
            (3) The debtor has the clear ability to pay the claim, and the Government effectively can enforce payment, with due regard for the exemptions available to the debtor under state and Federal law and the judicial remedies available to the Government.
            [67 FR 30324, May 6, 2002]

        Pt. 16
        PART 16—SALARY OFFSET PROCEDURES FOR COLLECTING DEBTS OWED BY FEDERAL EMPLOYEES TO THE FEDERAL GOVERNMENT

          Sec.
          16.1
          Purpose and scope.
          16.3
          Definitions.
          16.5
          Application.
          16.7
          Notice requirements.
          16.8
          Information collection requirements: OMB approval.
          16.9
          Hearing.
          16.11
          Written decision.
          16.13
          Procedures for centralized administrative offset.
          16.15
          Procedures for internal salary offset.
          16.17
          Refunds.
          16.19
          Statute of limitations.
          16.21
          Non-waiver of rights.
          16.23
          Interest, penalties, and administrative charges.

          Authority:
          Atomic Energy Act of 1954, sec. 161 (42 U.S.C. 2201), Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 31 U.S.C. 3711, 3716, 3717, 3718; 5 U.S.C. 5514; Pub. L. 97-365, 96 Stat. 1749; 4 CFR parts 101 through 105; 5 CFR 550.1101 through 550.1108.

          Source:
          56 FR 51830, Oct. 16, 1991, unless otherwise noted.

          § 16.1
          Purpose and scope.
          (a) This part provides procedures for the collection by administrative offset of a Federal employee's salary without his/her consent to satisfy certain debts owed to the Federal Government. This part applies to all Federal employees who owe debts to the Nuclear Regulatory Commission (NRC) and to current employees of the NRC who owe debts to other Federal agencies. This part does not apply when the employee consents to recovery from his/her current pay account.
          (b) These procedures do not apply to debts or claims arising under:

          (1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1 et seq.;

          (2) The tariff laws of the United States; or
          (3) Any case where a collection of a debt by salary offset is explicitly provided for or prohibited by another statute.
          (c) These procedures do not apply to any adjustment to pay arising out of an employee's selection of coverage or a change in coverage under a Federal benefits program requiring periodic deductions from pay if the amount to be recovered was accumulated over four pay periods or less.

          (d) These procedures do not preclude the compromise, suspension, or termination of collection action where appropriate under the standards implementing the revised Federal Claims Collection Standards (FCCS), 31 U.S.C. 3711 et seq., 31 CFR chapter IX, parts 900 through 904.
          (e) This part does not preclude an employee from requesting waiver of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 716 or in any way questioning the amount or validity of the debt by submitting a subsequent claim to the NRC. This part does not preclude an employee from requesting a waiver pursuant to other statutory provisions applicable to the particular debt being collected.
          (f) The NRC is not limited to collection remedies contained in the revised FCCS. The FCCS is not intended to impair common law remedies.
          [56 FR 51830, Oct. 16, 1991, as amended at 63 FR 15743, Apr. 1, 1998; 67 FR 57507, Sept. 11, 2002]

          § 16.3
          Definitions.
          For the purposes of this part, the following definitions apply:

            Administrative charges are those amounts assessed by NRC to cover the costs of processing and handling delinquent debts due the Government.

            Administrative offset means withholding money payable by the United States Government to, or held by the Government for, a person to satisfy a debt the person owes the United States Government.

            Agency means any agency of the executive, legislative, and judicial branches of the Federal Government, including Government corporations.

            Centralized salary offset computer matching describes the computerized process used to match delinquent debt records with Federal salary payment records when the purpose of the match is to identify Federal employees who owe debt to the Federal Government.

            Creditor agency means the agency to which the debt is owed, including a debt collection center when acting in behalf of a creditor agency in matters pertaining to the collection of a debt.

            Debt and claim are used synonymously to refer to an amount of money, funds, or property that has been determined by an agency official to be owed to the United States from any person, organization, or entity, except another Federal agency. For the purposes of administrative offset under 31 U.S.C. 3716, the terms debt and claim include an amount of money, funds, or property owed by a person to a State (including past-due support being enforced by a State), the District of Columbia, American Samoa, Guam, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, or the Commonwealth of Puerto Rico.

            Debt collection center means the Department of the Treasury or other Government agency or division designated by the Secretary of the Treasury with authority to collect debts on behalf of creditor agencies.

            Delinquent debt record refers to the information about a debt that an agency submits to Treasury when the agency refers the debt for collection by offset in accordance with the provision of 31 U.S.C. 3716.

            Disbursing official means an official who has authority to disburse Federal salary payments pursuant to 31 U.S.C. 3321 or another law.

            Disposable pay means that part of current basic pay, special pay, incentive pay, retired pay, retainer pay, or in the case of an employee not entitled to basic pay, other authorized pay remaining after the deduction of:
          (1) Any amount required by law to be withheld;
          (2) Amounts properly withheld for Federal, state or local income tax purposes;
          (3) Amounts deducted as health insurance premiums;
          (4) Amounts deducted as normal retirement contributions, not including amounts deducted for supplementary coverage; and
          (5) Amounts deducted as normal life insurance premiums not including amounts deducted for supplementary coverage.

            Employee is any individual employed by any agency of the executive, legislative, and judicial branches of the Federal Government, including Government corporations.

            FCCS means the Federal Claims Collection Standards jointly published by the Department of the Treasury and the Department of Justice at 31 CFR Chapter IX, Parts 900 through 904.

            Hearing official means an individual responsible for conducting any hearing with respect to the existence or amount of a debt claimed or the repayment schedule if not established by written agreement between the employee and the NRC, and who renders a decision on the basis of this hearing.

            Paying agency means the agency that employs the individual who owes the debt and authorizes the payment of his/her current pay.

            Salary offset means an administrative offset to collect a debt under 5 U.S.C. 5514 by deduction(s) at one or more officially established pay intervals from the current pay account of an employee without his or her consent.

            Treasury as used in 10 CFR part 16 means the Department of the Treasury.

            Waiver means the cancellation, remission, forgiveness, or non-recovery of a debt allegedly owed by an employee to an agency as permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774, 32 U.S.C. 716, 5 U.S.C. 8346(b), or any other law.
          [56 FR 51830, Oct. 16, 1991, as amended at 67 FR 57507, Sept. 11, 2002]

          § 16.5
          Application.
          The regulations in this part are to be followed when:
          (a) The NRC is owed a debt by an individual currently employed by another Federal agency;
          (b) The NRC is owed a debt by an individual who is a current employee of the NRC; or
          (c) The NRC employs an individual who owes a debt to another Federal agency.

          § 16.7
          Notice requirements.
          (a) If the NRC is the creditor agency, deductions will not be made unless the NRC provides the employee with a signed written notice of the debt at least 30 days before salary offset commences. The notice will be delivered in person or by certified or registered mail, return receipt requested, with receipt returned as proof of delivery.
          (b) The written notice must contain:
          (1) A statement that the debt is owed and an explanation of its origin, nature, and amount;
          (2) The NRC's intention to collect the debt by deducting from the employee's current disposable pay account;
          (3) The amount and frequency of the intended deduction (stated as a fixed dollar amount or as a percentage of pay, not to exceed 15 percent of disposable pay) and the intention to continue the deduction until the debt is paid in full or otherwise resolved.

          (4) An explanation of interest, penalties, and administrative charges, including a statement that these charges will be assessed unless excused in accordance with the Federal Claims Collection Standards at 4 CFR parts 101-105;

          (5) The employee's right to inspect and copy government records pertaining to the debt or, if the employee or his or her representative cannot personally inspect the records, to request and receive a copy of these records;
          (6) If not previously provided, the opportunity (under terms agreeable to the NRC) to establish a schedule for the voluntary repayment of the debt or to enter into a written agreement to establish a schedule for repayment of the debt in lieu of offset (31 CFR Chapter IX, 901.2). The agreement must be in writing, signed by the employee and the NRC, and documented in the NRC's files.
          (7) The employee's right to a hearing conducted by an official arranged for by the NRC (an administrative law judge, or alternatively, a hearing official not under the control of the head of the agency) if a petition is filed as prescribed in § 16.9;
          (8) The methods and time period for petitioning for hearings;
          (9) A statement that the timely filing of a petition for a hearing will stay the commencement of collection proceedings;
          (10) A statement that a final decision on the hearing will be issued not later than 60 days after the filing of the petition requesting the hearing unless the employee requests and the hearing official grants a delay in the proceedings;
          (11) A statement that knowingly false or frivolous statements, representations, or evidence may subject the employee to appropriate disciplinary procedures under chapter 75 of title 5, United States Code and 5 CFR part 752, penalties under the False Claims Act, sections 3729-3731 of title 31, United States Code or other applicable statutory authority, or criminal penalties under section 286, 287, 1001 and 1002 of title 18, United States Code or any other applicable statutory authority;
          (12) A statement of other rights and remedies available to the employee under statutes or regulations governing the program for which the collection is being made; and
          (13) Unless there are contractual or statutory provisions to the contrary, a statement that amounts paid on or deducted for the debt which are later waived or found not owed to the United States will be promptly refunded to the employee.
          [56 FR 51830, Oct. 16, 1991, as amended at 67 FR 57508, Sept. 11, 2002]

          § 16.8
          Information collection requirements: OMB approval.

          This part contains no information collection requirements, and, therefore, is not subject to the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et. seq.).
          [67 FR 57508, Sept. 11, 2002]

          § 16.9
          Hearing.
          (a) Request for hearing. (1) An employee shall file a petition for a hearing in accordance with the instructions outlined in the creditor agency's notice of offset.
          (2) If the NRC is the creditor agency, a hearing may be requested by filing a written petition stating why the employee disputes the existence or amount of the debt or the repayment schedule if it was not established by written agreement between the employee and the NRC. The employee shall sign the petition and fully identify and explain with reasonable specificity all the facts, evidence, and witnesses, if any, which the employee believes support his or her position. The petition for a hearing must be received no later than fifteen (15) calendar days after receipt of the notice of offset unless the employee can show that the delay in meeting the deadline date was because of circumstances beyond his or her control or because of failure to receive notice of the time limit (unless otherwise aware of it).
          (b) Hearing procedures. (1) The hearing will be presided over by a hearing official arranged by NRC (an administrative law judge or, alternatively, a hearing official not under the supervision or control of the head of the agency.)

          (2) The hearing must conform to procedures contained in the revised FCCS, 31 CFR Chapter IX, 901.3(e). The burden is on the employee to demonstrate either that the existence or the amount of the debt is in error or that the terms of the repayment schedule would result in undue financial hardship or would be against equity and good conscience.

          (3) An employee is entitled to representation of his or her choice at any stage of the proceeding. NRC attorneys may not be provided as representatives for the debtor. The NRC will not compensate the debtor for representation expenses, including hourly fees for attorneys, travel expenses, and costs for reproducing documents.
          [56 FR 51830, Oct. 16, 1991, as amended at 67 FR 57508, Sept. 11, 2002]

          § 16.11
          Written decision.
          (a) The hearing official will issue a written opinion no later than 60 days after the hearing.
          (b) The written opinion must include:
          (1) A statement of the facts presented to demonstrate the nature and origin of the alleged debt;
          (2) The hearing official's analysis, findings, and conclusions;
          (3) The amount and validity of the debt; and
          (4) The repayment schedule, where appropriate.

          § 16.13
          Procedures for centralized administrative offset.
          (a) The NRC must notify Treasury of all debts that are delinquent as defined in the FCCS (over 180 days old) so that recovery may be made by centralized administrative offset. This includes those debts the NRC seeks to recover from the pay account of an employee of another agency via salary offset. The Treasury and other Federal disbursing officials will match payments, including Federal salary payments, against such debts. When a match occurs, and all the requirements for offset have been met, the payments will be offset to collect the debt. Prior to offset of the pay account of an employee, the NRC must comply with the requirements of 5 U.S.C. 5514, 5 CFR part 550, and 10 CFR part 15. Procedures for notifying Treasury of a debt for purposes of collection by centralized administrative offset are contained in 31 CFR part 285 and 10 CFR 15.33. Procedures for internal salary offset are contained in § 16.15 of this chapter.
          (b) When the NRC determines that an employee of another Federal agency owes a delinquent debt to the NRC, the NRC will, as appropriate:
          (1) Arrange for a hearing upon the proper petitioning by the employee;
          (2) Provide the Federal employee with a notice and an opportunity to dispute the debt as contained in 5 U.S.C. 5514 and 10 CFR 15.26.
          (3) Submit the debt to Treasury for centralized administrative offset and certify in writing that the debtor has been afforded the legally required due process notification.
          (4) If collection must be made in installments, the NRC must advise the paying agency of the amount or percentage of disposable pay to be collected in each installment.
          (c) Offset amount. (1) The amount offset from a salary payment under this section shall be the lesser of:
          (i) The amount of the debt, including any interest, penalties, and administrative costs; or
          (ii) An amount up to 15 percent of the debtor's disposable pay.
          (2) Alternatively, the amount offset may be an amount agreed upon, in writing, by the debtor and the NRC.
          (3) Offsets will continue until the debt, including any interest, penalties, and administrative costs, is paid in full or otherwise resolved to the satisfaction of the NRC.
          (d) Priorities. (1) A levy pursuant to the Internal Revenue Code of 1986 shall take precedence over other deductions under this section.
          (2) When a salary payment may be reduced to collect more than one debt, amounts offset under this section will be applied to a debt only after amounts offset have been applied to satisfy past due child support debt assigned to a State pursuant 26 U.S.C. 6402(c) and 31 CFR 285.7(h)(2).
          (e) Notice. (1) Before offsetting a salary payment, the disbursing official, or the paying agency on behalf of the disbursing official, shall notify the Federal employee in writing of the date that deductions from salary will commence and of the amount of such deductions.

          (2)(i) When an offset occurs under this section, the disbursing official, or the paying agency on behalf of the disbursing official, shall notify the Federal employee in writing that an offset has occurred including:

          (A) A description of the payment and the amount of the offset taken;
          (B) Identification of NRC as the agency requesting the offset; and,
          (C) A contact point within the NRC that will handle concerns regarding the offset.
          (ii) The information described in paragraphs (e)(2)(i)(B) and (e)(2)(i)(C) of this section does not need to be provided to the Federal employee when the offset occurs if such information was included in a prior notice from the disbursing official or paying agency.
          (3) The disbursing official will advise the NRC of the names, mailing addresses, and taxpayer identifying numbers of the debtors from whom amounts of past-due, legally enforceable debt were collected and of the amounts collected from each debtor. The disbursing official will not advise the NRC of the source of payment from which such amounts were collected.
          (f) Fees. Agencies that perform centralized salary offset computer matching services may charge a fee sufficient to cover the full cost of such services. In addition, Treasury or a paying agency acting on behalf of Treasury, may charge a fee sufficient to cover the full cost of implementing the administrative offset program. Treasury may deduct the fees from amounts collected by offset or may bill the NRC. Fees charged for offset shall be based on actual administrative offsets completed.
          (g) Disposition of amounts collected. The disbursing official conducting the offset will transmit amounts collected for debts, less fees charged under paragraph (f) of this section, to NRC. If an erroneous offset payment is made to the NRC, the disbursing official will notify the NRC that an erroneous offset payment has been made. The disbursing official may deduct the amount of the erroneous offset payment from future amounts payable to the NRC. Alternatively, upon the disbursing official's request, the NRC shall return promptly to the disbursing official or the affected payee an amount equal to the amount of the erroneous payment (without regard to whether any other amounts payable to the agency have been paid). The disbursing official and the NRC shall adjust the debtor records appropriately.
          [67 FR 57508, Sept. 11, 2002]

          § 16.15
          Procedures for internal salary offset.
          (a) Deductions to liquidate an employee's debt will be by the method and in the amount stated in the NRC's notice of intention to offset as provided in § 16.7. Debts will be collected in one lump sum where possible. If the employee is financially unable to pay in one lump sum, collection must be made in installments.
          (b) Debts will be collected by deduction at officially established pay intervals from an employee's current pay account unless alternative arrangements for repayment are made.
          (c) Installment deductions will be made over a period not greater than the anticipated period of employment. The size of installment deductions must bear a reasonable relationship to the size of the debt and the employee's ability to pay. The deduction for the pay intervals for any period may not exceed 15% of disposable pay unless the employee has agreed in writing to a deduction of a greater amount.
          (d) Offset against any subsequent payment due an employee who retires or resigns or whose employment or period of active duty ends before collection of the debt is completed is provided for in accordance with 31 U.S.C. 3716. These payments include but are not limited to final salary payment or lump-sum leave due the employee from the paying agency as of the date of separation to the extent necessary to liquidate the debt.

          § 16.17
          Refunds.
          (a) The NRC will refund promptly any amounts deducted to satisfy debts owed to the NRC when the debt is waived, found not owed to the NRC, or when directed by an administrative or Judicial order.

          (b) The creditor agency will promptly return any amounts deducted by NRC to satisfy debts owed to the creditor agency when the debt is waived, found not owed, or when directed by an administrative or judicial order.

          (c) Unless required or permitted by law or contract, refunds under this section may not bear interest.

          § 16.19
          Statute of limitations.
          If a debt has been outstanding for more than 10 years after the agency's right to collect the debt first accrued, the agency may not collect by salary offset unless facts material to the Government's right to collect were not known and could not reasonably have been known by the NRC official or officials who were charged with the responsibility for discovery and collection of the debts.

          § 16.21
          Non-waiver of rights.
          An employee's involuntary payment of all or any part of a debt collected under these regulations will not be construed as a waiver of any rights that the employee may have under 5 U.S.C. 5514 or any other provision of contract or law, unless there are statutes or contract(s) to the contrary.

          § 16.23
          Interest, penalties, and administrative charges.
          Charges may be assessed for interest, penalties, and administrative charges in accordance with the FCCS, 31 CFR Chapter IX, 901.9.
          [67 FR 57509, Sept. 11, 2002]

        Pt. 19
        PART 19—NOTICES, INSTRUCTIONS AND REPORTS TO WORKERS: INSPECTION AND INVESTIGATIONS

          Sec.
          19.1
          Purpose.
          19.2
          Scope.
          19.3
          Definitions.
          19.4
          Interpretations.
          19.5
          Communications.
          19.8
          Information collection requirements: OMB approval.
          19.11
          Posting of notices to workers.
          19.12
          Instruction to workers.
          19.13
          Notifications and reports to individuals.
          19.14
          Presence of representatives of licensees and regulated entities, and workers during inspections.
          19.15
          Consultation with workers during inspections.
          19.16
          Requests by workers for inspections.
          19.17
          Inspections not warranted; informal review.
          19.18
          Sequestration of witnesses and exclusion of counsel in interviews conducted under subpoena.
          19.20
          Employee protection.
          19.30
          Violations.
          19.31
          Application for exemptions.
          19.32
          Discrimination prohibited.
          19.40
          Criminal penalties.

          Authority:
          Atomic Energy Act of 1954, secs. 53, 63, 81, 103, 104, 161, 223, 234, 1701 (42 U.S.C. 2073, 2093, 2111, 2133, 2134, 2201, 2273, 2282, 2297f); Energy Reorganization Act of 1974, secs. 201, 211, 401 (42 U.S.C. 5841, 5851, 5891); 44 U.S.C. 3504 note.

          Source:
          38 FR 22217, Aug. 17, 1973, unless otherwise noted.

          § 19.1
          Purpose.
          The regulations in this part establish requirements for notices, instructions, and reports by licensees and regulated entities to individuals participating in NRC-licensed and regulated activities and options available to these individuals in connection with Commission inspections of licensees and regulated entities, and to ascertain compliance with the provisions of the Atomic Energy Act of 1954, as amended, titles II and IV of the Energy Reorganization Act of 1974, and regulations, orders, and licenses thereunder. The regulations in this part also establish the rights and responsibilities of the Commission and individuals during interviews compelled by subpoena as part of agency inspections or investigations under Section 161c of the Atomic Energy Act of 1954, as amended, on any matter within the Commission's jurisdiction.
          [72 FR 49483, Aug. 28, 2007]

          § 19.2
          Scope.
          (a) The regulations in this part apply to:

          (1) All persons who receive, possess, use, or transfer material licensed by the NRC under the regulations in parts 30 through 36, 39, 40, 60, 61, 63, 70, or 72 of this chapter, including persons licensed to operate a production or utilization facility under parts 50 or 52 of this chapter, persons licensed to possess power reactor spent fuel in an independent spent fuel storage installation (ISFSI) under part 72 of this chapter, and in accordance with 10 CFR 76.60 to persons required to obtain a certificate of compliance or an approved compliance plan under part 76 of this chapter;
          (2) All applicants for and holders of licenses (including construction permits and early site permits) under parts 50, 52, and 54 of this chapter;
          (3) All applicants for and holders of a standard design approval under subpart E of part 52 of this chapter; and
          (4) All applicants for a standard design certification under subpart B of part 52 of this chapter, and those (former) applicants whose designs have been certified under that subpart.
          (b) The regulations in this part regarding interviews of individuals under subpoena apply to all investigations and inspections within the jurisdiction of the NRC other than those involving NRC employees or NRC contractors. The regulations in this part do not apply to subpoenas issued under 10 CFR 2.702.
          [72 FR 49484, Aug. 28, 2007]

          § 19.3
          Definitions.
          As used in this part:

            Act means the Atomic Energy Act of 1954, (68 Stat. 919) including any amendments thereto.

            Commission means the United States Nuclear Regulatory Commission.

            Exclusion means the removal of counsel representing multiple interests from an interview whenever the NRC official conducting the interview has concrete evidence that the presence of the counsel would obstruct and impede the particular investigation or inspection.

            License means a license issued under the regulations in parts 30 through 36, 39, 40, 60, 61, 63, 70, or 72 of this chapter, including licenses to manufacture, construct and/or operate a production or utilization facility under parts 50, 52, or 54 of this chapter.

            Licensee means the holder of such a license.

            Regulated activities means any activity carried on which is under the jurisdiction of the NRC under the Atomic Energy Act of 1954, as amended, or any title of the Energy Reorganization Act of 1972, as amended.

            Regulated entities means any individual, person, organization, or corporation that is subject to the regulatory jurisdiction of the NRC, including (but not limited to) an applicant for or holder of a standard design approval under subpart E of part 52 of this chapter or a standard design certification under subpart B of part 52 of this chapter.

            Restricted area means an area, access to which is limited by the licensee for the purpose of protecting individuals against undue risks from exposure to radiation and radioactive materials. Restricted area does not include areas used as residential quarters, but separate rooms in a residential building may be set apart as a restricted area.

            Sequestration means the separation or isolation of witnesses and their attorneys from other witnesses and their attorneys during an interview conducted as part of an investigation, inspection, or other inquiry.

            Worker means an individual engaged in activities licensed or regulated by the Commission and controlled by a licensee or regulated entity, but does not include the licensee or regulated entity.
          [38 FR 22217, Aug. 17, 1973, as amended at 40 FR 8783, Mar. 3, 1975; 53 FR 31680, Aug. 19, 1988; 55 FR 247, Jan. 4, 1990; 56 FR 23470, May 21, 1991; 56 FR 65948, Dec. 19, 1991; 57 FR 61785, Dec. 29, 1992; 58 FR 7736, Feb. 9, 1993; 66 FR 55789, Nov. 2, 2001; 69 FR 76600, Dec. 22, 2004; 72 FR 49484, Aug. 28, 2007]

          § 19.4
          Interpretations.
          Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any officer or employee of the Commission other than a written interpretation by the General Counsel will be recognized to be binding upon the Commission.

          § 19.5
          Communications.

          Except where otherwise specified in this part, all communications and reports concerning the regulations in this part should be addressed to the Regional Administrator of the appropriate U.S. Nuclear Regulatory Commission Regional Office listed in Appendix D of part 20 of this chapter. Communications, reports, and applications may be delivered in person at the Commission's offices at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland.
          [67 FR 67098, Nov. 4, 2002]

          § 19.8
          Information collection requirements: OMB approval.

          (a) The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in this part under control number 3150-0044.
          (b) The approved information collection requirements contained in this part appear in §§ 19.13 and 19.16.
          [62 FR 52185, Oct. 6, 1997]

          § 19.11
          Posting of notices to workers.
          (a) Each licensee (except for a holder of an early site permit under subpart A of part 52 of this chapter, or a holder of a manufacturing license under subpart F of part 52 of this chapter) shall post current copies of the following documents:
          (1) The regulations in this part and in part 20 of this chapter;
          (2) The license, license conditions, or documents incorporated into a license by reference, and amendments thereto;
          (3) The operating procedures applicable to licensed activities;
          (4) Any notice of violation involving radiological working conditions, proposed imposition of civil penalty, or order issued pursuant to subpart B of part 2 of this chapter, and any response from the licensee.
          (b) Each applicant for and holder of a standard design approval under subpart E of part 52 of this chapter, each applicant for an early site permit under subpart A of part 52 of this chapter, each applicant for a standard design certification under subpart B of part 52 of this chapter, and each applicant for and holder of a manufacturing license under subpart F of part 52 of this chapter shall post:
          (1) The regulations in this part;
          (2) The operating procedures applicable to the activities regulated by the NRC which are being conducted by the applicant or holder; and
          (3) Any notice of violation, proposed imposition of civil penalty, or order issued under subpart B of part 2 of this chapter, and any response from the applicant or holder.
          (c) [Reserved]
          (d) If posting of a document specified in paragraphs (a)(1), (2) or (3), or (b)(1) or (2) of this section is not practicable, the licensee or regulated entity may post a notice which describes the document and states where it may be examined.
          (e)(1) Each licensee, each applicant for a specific license, each applicant for or holder of a standard design approval under subpart E of part 52 of this chapter, each applicant for an early site permit under subpart A of part 52 of this chapter, and each applicant for a standard design certification under subpart B of part 52 of this chapter shall prominently post NRC Form 3, “Notice to Employees,” dated August 1997. Later versions of NRC Form 3 that supersede the August 1997 version shall replace the previously posted version within 30 days of receiving the revised NRC Form 3 from the Commission.

          (2) Additional copies of NRC Form 3 may be obtained by writing to the Regional Administrator of the appropriate U.S. Nuclear Regulatory Commission Regional Office listed in appendix D to part 20 of this chapter, via email to FORMS.Resource@nrc.gov, or by visiting the NRC's online library at http://www.nrc.gov/reading-rm/doc-collections/forms/.

          (f) Documents, notices, or forms posted under this section shall appear in a sufficient number of places to permit individuals engaged in NRC-licensed or regulated activities to observe them on the way to or from any particular licensed or regulated activity location to which the document applies, shall be conspicuous, and shall be replaced if defaced or altered.

          (g) Commission documents posted under paragraphs (a)(4) or (b)(3) of this section shall be posted within 2 working days after receipt of the documents from the Commission; the licensee's or regulated entity's response, if any, shall be posted within 2 working days after dispatch by the licensee or regulated entity. These documents shall remain posted for a minimum of 5 working days or until action correcting the violation has been completed, whichever is later.
          [38 FR 22217, Aug. 17, 1973, as amended at 40 FR 8783, Mar. 3, 1975; 47 FR 30454, July 14, 1982; 58 FR 52408, Oct. 8, 1993; 60 FR 24551, May 9, 1995; 61 FR 6764, Feb. 22, 1996; 62 FR 48166, Sept. 15, 1997; 68 FR 58801, Oct. 10, 2003; 72 FR 49484, Aug. 28, 2007; 73 FR 30457, May 28, 2008; 79 FR 66602, Nov. 10, 2014]

          § 19.12
          Instruction to workers.
          (a) All individuals who in the course of employment are likely to receive in a year an occupational dose in excess of 100 mrem (1 mSv) shall be—
          (1) Kept informed of the storage, transfer, or use of radiation and/or radioactive material;
          (2) Instructed in the health protection problems associated with exposure to radiation and/or radioactive material, in precautions or procedures to minimize exposure, and in the purposes and functions of protective devices employed;
          (3) Instructed in, and required to observe, to the extent within the workers control, the applicable provisions of Commission regulations and licenses for the protection of personnel from exposure to radiation and/or radioactive material;
          (4) Instructed of their responsibility to report promptly to the licensee any condition which may lead to or cause a violation of Commission regulations and licenses or unnecessary exposure to radiation and/or radioactive material;
          (5) Instructed in the appropriate response to warnings made in the event of any unusual occurrence or malfunction that may involve exposure to radiation and/or radioactive material; and
          (6) Advised as to the radiation exposure reports which workers may request pursuant to § 19.13.
          (b) In determining those individuals subject to the requirements of paragraph (a) of this section, licensees must take into consideration assigned activities during normal and abnormal situations involving exposure to radiation and/or radioactive material which can reasonably be expected to occur during the life of a licensed facility. The extent of these instructions must be commensurate with potential radiological health protection problems present in the work place.
          [60 FR 36043, July 13, 1995]

          § 19.13
          Notifications and reports to individuals.

          (a) Radiation exposure data for an individual, and the results of any measurements, analyses, and calculations of radioactive material deposited or retained in the body of an individual, shall be reported to the individual as specified in this section. The information reported shall include data and results obtained pursuant to Commission regulations, orders or license conditions, as shown in records maintained by the licensee pursuant to Commission regulations. Each notification and report shall: be in writing; include appropriate identifying data such as the name of the licensee, the name of the individual, the individual's social security number; include the individual's exposure information; and contain the following statement:

            This report is furnished to you under the provisions of the Nuclear Regulatory Commission regulation 10 CFR part 19. You should preserve this report for further reference.

          (b) Each licensee shall make dose information available to workers as shown in records maintained by the licensee under the provisions of 10 CFR 20.2106. The licensee shall provide an annual report to each individual monitored under 10 CFR 20.1502 of the dose received in that monitoring year if:
          (1) The individual's occupational dose exceeds 1 mSv (100 mrem) TEDE or 1 mSv (100 mrem) to any individual organ or tissue; or
          (2) The individual requests his or her annual dose report.

          (c)(1) At the request of a worker formerly engaged in licensed activities controlled by the licensee, each licensee shall furnish to the worker a report of the worker's exposure to radiation and/or to radioactive material:

          (i) As shown in records maintained by the licensee pursuant to § 20.2106 for each year the worker was required to be monitored under the provisions of § 20.1502; and
          (ii) For each year the worker was required to be monitored under the monitoring requirements in effect prior to January 1, 1994.
          (2) This report must be furnished within 30 days from the time the request is made or within 30 days after the exposure of the individual has been determined by the licensee, whichever is later. This report must cover the period of time that the worker's activities involved exposure to radiation from radioactive material licensed by the Commission and must include the dates and locations of licensed activities in which the worker participated during this period.
          (d) When a licensee is required by §§ 20.2202, 20.2203 or 20.2204 of this chapter to report to the Commission any exposure of an individual to radiation or radioactive material, the licensee shall also provide the individual a report on his or her exposure data included in the report to the Commission. This report must be transmitted no later than the transmittal to the Commission.
          (e) At the request of a worker who is terminating employment with the licensee that involved exposure to radiation or radioactive materials, during the current calendar quarter or the current year, each licensee shall provide at termination to each worker, or to the worker's designee, a written report regarding the radiation dose received by that worker from operations of the licensee during the current year or fraction thereof. If the most recent individual monitoring results are not available at that time, a written estimate of the dose must be provided together with a clear indication that this is an estimate.
          [38 FR 22217, Aug. 17, 1973, as amended at 40 FR 8783, Mar. 3, 1975; 44 FR 32352, June 6, 1979; 58 FR 67658, Dec. 22, 1993; 59 FR 41642, Aug. 15, 1994; 72 FR 68058, Dec. 4, 2007]

          § 19.14
          Presence of representatives of licensees and regulated entities, and workers during inspections.
          (a) Each licensee, applicant for a license, applicant for or holder of a standard design approval under subpart E of part 52 of this chapter, applicant for an early site permit under subpart A of part 52 of this chapter, and applicant for a standard design certification under subpart B of part 52 of this chapter shall afford to the Commission at all reasonable times opportunity to inspect materials, activities, facilities, premises, and records under the regulations in this chapter.
          (b) During an inspection, Commission inspectors may consult privately with workers as specified in § 19.15. The licensee, regulated entity, or the licensee's or regulated entity's representative may accompany Commission inspectors during other phases of an inspection.
          (c) If, at the time of inspection, an individual has been authorized by the workers to represent them during Commission inspections, the licensee or regulated entity shall notify the inspectors of such authorization and shall give the workers' representative an opportunity to accompany the inspectors during the inspection of physical working conditions.
          (d) Each workers' representative shall be routinely engaged in NRC-licensed or regulated activities under control of the licensee or regulated entity, and shall have received instructions as specified in § 19.12.
          (e) Different representatives of licensees or regulated entities, and workers may accompany the inspectors during different phases of an inspection if there is no resulting interference with the conduct of the inspection. However, only one workers' representative at a time may accompany the inspectors.

          (f) With the approval of the licensee or regulated entity, and the workers' representative an individual who is not routinely engaged in licensed or regulated activities under control of the license or regulated entity (for example, a consultant to the licensee, the regulated entity, or the workers' representative), shall be afforded the opportunity to accompany Commission inspectors during the inspection of physical working conditions.
          (g) Notwithstanding the other provisions of this section, Commission inspectors are authorized to refuse to permit accompaniment by any individual who deliberately interferes with a fair and orderly inspection. With regard to areas containing information classified by an agency of the U.S. Government in the interest of national security, an individual who accompanies an inspector may have access to such information only if authorized to do so. With regard to any area containing proprietary information, the workers' representative for that area shall be an individual previously authorized by the licensee or regulated entity to enter that area.
          [72 FR 49484, Aug. 28, 2007, as amended at 76 FR 72084, Nov. 22, 2011]

          § 19.15
          Consultation with workers during inspections.
          (a) Commission inspectors may consult privately with workers concerning matters of occupational radiation protection and other matters related to applicable provisions of Commission regulations and licenses to the extent the inspectors deem necessary for the conduct of an effective and thorough inspection.
          (b) During the course of an inspection any worker may bring privately to the attention of the inspectors, either orally or in writing, any past or present condition which he has reason to believe may have contributed to or caused any violation of the act, the regulations in this chapter, or license condition, or any unnecessary exposure of an individual to radiation from licensed radioactive material under the licensee's control. Any such notice in writing shall comply with the requirements of § 19.16(a).
          (c) The provisions of paragraph (b) of this section shall not be interpreted as authorization to disregard instructions pursuant to § 19.12.

          § 19.16
          Requests by workers for inspections.
          (a) Any worker or representative of workers who believes that a violation of the Act, the regulations in this chapter, or license conditions exists or has occurred in license activities with regard to radiological working conditions in which the worker is engaged, may request an inspection by giving notice of the alleged violation to the Administrator of the appropriate Commission Regional Office, or to Commission inspectors. Any such notice shall be in writing, shall set forth the specific grounds for the notice, and shall be signed by the worker or representative of workers. A copy shall be provided the licensee by the Regional Office Administrator, or the inspector no later than at the time of inspection except that, upon the request of the worker giving such notice, his name and the name of individuals referred to therein shall not appear in such copy or on any record published, released or made available by the Commission, except for good cause shown.
          (b) If, upon receipt of such notice, the Regional Office Administrator determines that the complaint meets the requirements set forth in paragraph (a) of this section, and that there are reasonable grounds to believe that the alleged violation exists or has occurred, he shall cause an inspection to be made as soon as practicable, to determine if such alleged violation exists or has occurred. Inspections pursuant to this section need not be limited to matters referred to in the complaint.
          [38 FR 22217, Aug. 17, 1973, as amended at 40 FR 8783, Mar. 3, 1975; 47 FR 30454, July 14, 1982; 52 FR 31610, Aug. 21, 1987]

          § 19.17
          Inspections not warranted; informal review.

          (a) If the Administrator of the appropriate Regional Office determines, with respect to a complaint under § 19.16, that an inspection is not warranted because there are no reasonable grounds to believe that a violation exists or has occurred, he shall notify the complainant in writing of such determination. The complainant may obtain review of this determination by submitting a written statement of position to the Executive Director for Operations, either by mail to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland; or, where practicable, by electronic submission, for example, via Electronic Information Exchange, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information. The Executive Director for Operations will provide the licensee with a copy of such statement by certified mail, excluding, at the request of the complainant, the name of the complainant. The licensee may submit an opposing written statement of position with the Executive Director for Operations who will provide the complainant with a copy of such statement by certified mail. Upon the request of the complainant, the Executive Director for Operations or his designee may hold an informal conference in which the complainant and the licensee may orally present their views. An informal conference may also be held at the request of the licensee, but disclosure of the identity of the complainant will be made only following receipt of written authorization from the complainant. After considering all written and oral views presented, the Executive Director for Operations shall affirm, modify, or reverse the determination of the Administrator of the appropriate Regional Office and furnish the complainant and the licensee a written notification of his decision and the reason therefor.
          (b) If the Administrator of the appropriate Regional Office determines that an inspection is not warranted because the requirements of § 19.16(a) have not been met, he shall notify the complainant in writing of such determination. Such determination shall be without prejudice to the filing of a new complaint meeting the requirements of § 19.16(a).
          [38 FR 22217, Aug. 17, 1973, as amended at 40 FR 8783, Mar. 3, 1975; 52 FR 31610, Aug. 21, 1987; 67 FR 77652, Dec. 19, 2002; 68 FR 58801, Oct. 10, 2003; 74 FR 62680, Dec. 1, 2009; 80 FR 74978, Dec. 1, 2015]

          § 19.18
          Sequestration of witnesses and exclusion of counsel in interviews conducted under subpoena.
          (a) All witnesses compelled by subpoena to submit to agency interviews shall be sequestered unless the official conducting the interviews permits otherwise.
          (b) Any witness compelled by subpoena to appear at an interview during an agency inquiry may be accompanied, represented, and advised by counsel of his or her choice. However, when the agency official conducting the inquiry determines, after consultation with the Office of the General Counsel, that the agency has concrete evidence that the presence of an attorney representing multiple interests would obstruct and impede the investigation or inspection, the agency official may prohibit that counsel from being present during the interview.
          (c) The interviewing official is to provide a witness whose counsel has been excluded under paragraph (b) of this section and the witness's counsel a written statement of the reasons supporting the decision to exclude. This statement, which must be provided no later than five working days after exclusion, must explain the basis for the counsel's exclusion. This statement must also advise the witness of the witness' right to appeal the exclusion decision and obtain an automatic stay of the effectiveness of the subpoena by filing a motion to quash the subpoena with the Commission within five days of receipt of this written statement.

          (d) Within five days after receipt of the written notification required in paragraph (c) of this section, a witness whose counsel has been excluded may appeal the exclusion decision by filing a motion to quash the subpoena with the Commission. The filing of the motion to quash will stay the effectiveness of the subpoena pending the Commission's decision on the motion.
          (e) If a witness' counsel is excluded under paragraph (b) of this section, the interview may, at the witness' request, either proceed without counsel or be delayed for a reasonable period of time to permit the retention of new counsel. The interview may also be rescheduled to a subsequent date established by the NRC, although the interview shall not be rescheduled by the NRC to a date that precedes the expiration of the time provided under § 19.18(d) for appeal of the exclusion of counsel, unless the witness consents to an earlier date.
          [55 FR 247, Jan. 4, 1990, as amended at 56 FR 65948, Dec. 19, 1991; 57 FR 61785, Dec. 29, 1992]

          § 19.20
          Employee protection.
          Employment discrimination by a licensee, a holder of a certificate of compliance issued under part 76 of this chapter or regulated entity subject to the requirements in this part as delineated in § 19.2(a), or a contractor or subcontractor of a licensee, a holder of a certificate of compliance issued under part 76 of this chapter, or regulated entity subject to the requirements in this part as delineated in § 19.2(a), against an employee for engaging in protected activities under this part or parts 30, 40, 50, 52, 54, 60, 61, 63, 70, 72, 76, or 150 of this chapter is prohibited.
          [72 FR 49485, Aug. 28, 2007]

          § 19.30
          Violations.
          (a) The Commission may obtain an injunction or other court order to prevent a violation of the provisions of—
          (1) The Atomic Energy Act of 1954, as amended;
          (2) Title II of the Energy Reorganization Act of 1974, as amended; or
          (3) A regulation or order issued pursuant to those Acts.
          (b) The Commission may obtain a court order for the payment of a civil penalty imposed under section 234 of the Atomic Energy Act:
          (1) For violations of—
          (i) Sections 53, 57, 62, 63, 81, 82, 101, 103, 104, 107, or 109 of the Atomic Energy Act of 1954, as amended;
          (ii) Section 206 of the Energy Reorganization Act;
          (iii) Any rule, regulation, or order issued pursuant to the sections specified in paragraph (b)(1)(i) of this section;
          (iv) Any term, condition, or limitation of any license issued under the sections specified in paragraph (b)(1)(i) of this section.
          (2) For any violation for which a license may be revoked under section 186 of the Atomic Energy Act of 1954, as amended.
          [57 FR 55071, Nov. 24, 1992]

          § 19.31
          Application for exemptions.
          The Commission may, upon application by any interested person or upon its own initiative, grant such exemptions from the requirements of the regulations in this part as it determines are authorized by law, will not result in undue hazard to life and property.
          [72 FR 49485, Aug. 28, 2007]

          § 19.32
          Discrimination prohibited.
          No person shall on the grounds of sex be excluded from participation in, be denied a license, be denied the benefit of, or be subjected to discrimination under any program or activity carried on which is under the jurisdiction of the NRC under the Atomic Energy Act of 1954, as amended, or under any title of the Energy Reorganization Act of 1974, as amended. This provision will be enforced through agency provisions and regulations similar to those already established, with respect to racial and other discrimination, under Title VI of the Civil Rights Act of 1964. This remedy is not exclusive, however, and will not prejudice or cut off any other legal remedies available to a discriminatee.
          [72 FR 49485, Aug. 28, 2007]

          § 19.40
          Criminal penalties.

          (a) Section 223 of the Atomic Energy Act of 1954, as amended, provides for criminal sanctions for willful violation of, attempted violation of, or conspiracy to violate, any regulation issued under sections 161b, 161i, or 161o of the Act. For purposes of section 223, all the regulations in part 19 are issued under one or more of sections 161b, 161i, or 161o, except for the sections listed in paragraph (b) of this section.
          (b) The regulations in part 19 that are not issued under sections 161b, 161i, or 161o for the purposes of section 223 are as follows: §§ 19.1, 19.2, 19.3, 19.4, 19.5, 19.8, 19.16, 19.17, 19.18, 19.30, 19.31, and 19.40.
          [57 FR 55071, Nov. 24, 1992]

        Pt. 20
        PART 20—STANDARDS FOR PROTECTION AGAINST RADIATION

            Subpart A—General Provisions
            Sec.
            20.1001
            Purpose.
            20.1002
            Scope.
            20.1003
            Definitions.
            20.1004
            Units of radiation dose.
            20.1005
            Units of radioactivity.
            20.1006
            Interpretations.
            20.1007
            Communications.
            20.1008
            Implementation.
            20.1009
            Information collection requirements: OMB approval.

            Subpart B—Radiation Protection Programs
            20.1101
            Radiation protection programs.

            Subpart C—Occupational Dose Limits
            20.1201
            Occupational dose limits for adults.
            20.1202
            Compliance with requirements for summation of external and internal doses.
            20.1203
            Determination of external dose from airborne radioactive material.
            20.1204
            Determination of internal exposure.
            20.1205
            [Reserved]
            20.1206
            Planned special exposures.
            20.1207
            Occupational dose limits for minors.
            20.1208
            Dose equivalent to an embryo/fetus.

            Subpart D—Radiation Dose Limits for Individual Members of the Public
            20.1301
            Dose limits for individual members of the public.
            20.1302
            Compliance with dose limits for individual members of the public.

            Subpart E—Radiological Criteria for License Termination.
            20.1401
            General provisions and scope.
            20.1402
            Radiological criteria for unrestricted use.
            20.1403
            Criteria for license termination under restricted conditions.
            20.1404
            Alternate criteria for license termination.
            20.1405
            Public notification and public participation.
            20.1406
            Minimization of contamination.

            Subpart F—Surveys and Monitoring
            20.1501
            General.
            20.1502
            Conditions requiring individual monitoring of external and internal occupational dose.

            Subpart G—Control of Exposure From External Sources in Restricted Areas
            20.1601
            Control of access to high radiation areas.
            20.1602
            Control of access to very high radiation areas.

            Subpart H—Respiratory Protection and Controls To Restrict Internal Exposure in Restricted Areas
            20.1701
            Use of process or other engineering controls.
            20.1702
            Use of other controls.
            20.1703
            Use of individual respiratory protection equipment.
            20.1704
            Further restrictions on the use of respiratory protection equipment.
            20.1705
            Application for use of higher assigned protection factors.

            Subpart I—Storage and Control of Licensed Material
            20.1801
            Security of stored material.
            20.1802
            Control of material not in storage.

            Subpart J—Precautionary Procedures
            20.1901
            Caution signs.
            20.1902
            Posting requirements.
            20.1903
            Exceptions to posting requirements.
            20.1904
            Labeling containers.
            20.1905
            Exemptions to labeling requirements.
            20.1906
            Procedures for receiving and opening packages.

            Subpart K—Waste Disposal
            20.2001
            General requirements.
            20.2002
            Method for obtaining approval of proposed disposal procedures.
            20.2003
            Disposal by release into sanitary sewerage.
            20.2004
            Treatment or disposal by incineration.
            20.2005
            Disposal of specific wastes.
            20.2006
            Transfer for disposal and manifests.
            20.2007
            Compliance with environmental and health protection regulations.
            20.2008
            Disposal of certain byproduct material.

            Subpart L—Records
            20.2101
            General provisions.

            20.2102
            Records of radiation protection programs.
            20.2103
            Records of surveys.
            20.2104
            Determination of prior occupational dose.
            20.2105
            Records of planned special exposures.
            20.2106
            Records of individual monitoring results.
            20.2107
            Records of dose to individual members of the public.
            20.2108
            Records of waste disposal.
            20.2109
            [Reserved]
            20.2110
            Form of records.

            Subpart M—Reports
            20.2201
            Reports of theft or loss of licensed material.
            20.2202
            Notification of incidents.
            20.2203
            Reports of exposures, radiation levels, and concentrations of radioactive material exceeding the constraints or limits.
            20.2204
            Reports of planned special exposures.
            20.2205
            Reports to individuals of exceeding dose limits.
            20.2206
            Reports of individual monitoring.
            20.2207
            Reports of transactions involving nationally tracked sources.

            Subpart N—Exemptions and Additional Requirements
            20.2301
            Applications for exemptions.
            20.2302
            Additional requirements.

            Subpart O—Enforcement
            20.2401
            Violations.
            20.2402
            Criminal penalties.
            Appendix A to Part 20—Assigned Protection Factors for Respirators
            Appendix B to Part 20—Annual Limits on Intake (ALIs) and Derived Air Concentrations (DACs) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sewerage
            Appendix C to Part 20—Quantities of Licensed Material Requiring Labeling
            Appendix D to Part 20—United States Nuclear Regulatory Commission Regional Offices
            Appendix E to Part 20—Nationally Tracked Source Thresholds
            Appendix F to Part 20 [Reserved]
            Appendix G to Part 20—Requirements for Transfers of Low-Level Radioactive Waste Intended for Disposal at Licensed Land Disposal Facilities and Manifests

          Authority:
          Atomic Energy Act of 1954, secs. 11, 53, 63, 65, 81, 103, 104, 161, 170H, 182, 186, 223, 234, 274, 1701 (42 U.S.C. 2014, 2073, 2093, 2095, 2111, 2133, 2134, 2201, 2210h, 2232, 2236, 2273, 2282, 2021, 2297f); Energy Reorganization Act of 1974, secs. 201, 202 (42 U.S.C. 5841, 5842); Low-Level Radioactive Waste Policy Amendments Act of 1985, sec. 2 (42 U.S.C. 2021b); 44 U.S.C. 3504 note.

          Subpart A—General Provisions

            Source:
            56 FR 23391, May 21, 1991, unless otherwise noted.

            § 20.1001
            Purpose.
            (a) The regulations in this part establish standards for protection against ionizing radiation resulting from activities conducted under licenses issued by the Nuclear Regulatory Commission. These regulations are issued under the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, as amended.
            (b) It is the purpose of the regulations in this part to control the receipt, possession, use, transfer, and disposal of licensed material by any licensee in such a manner that the total dose to an individual (including doses resulting from licensed and unlicensed radioactive material and from radiation sources other than background radiation) does not exceed the standards for protection against radiation prescribed in the regulations in this part. However, nothing in this part shall be construed as limiting actions that may be necessary to protect health and safety.

            § 20.1002
            Scope.

            The regulations in this part apply to persons licensed by the Commission to receive, possess, use, transfer, or dispose of byproduct, source, or special nuclear material or to operate a production or utilization facility under parts 30 through 36, 39, 40, 50, 52, 60, 61, 63, 70, or 72 of this chapter, and in accordance with 10 CFR 76.60 to persons required to obtain a certificate of compliance or an approved compliance plan under part 76 of this chapter. The limits in this part do not apply to doses due to background radiation, to exposure of patients to radiation for the purpose of medical diagnosis or therapy, to exposure from individuals administered radioactive material and released under § 35.75, or to exposure from voluntary participation in medical research programs.
            [72 FR 49485, Aug. 28, 2007]

            § 20.1003
            Definitions.
            As used in this part:

              Absorbed dose means the energy imparted by ionizing radiation per unit mass of irradiated material. The units of absorbed dose are the rad and the gray (Gy).

              Accelerator-produced radioactive material means any material made radioactive by a particle accelerator.

              Act means the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.), as amended.

              Activity is the rate of disintegration (transformation) or decay of radioactive material. The units of activity are the curie (Ci) and the becquerel (Bq).

              Adult means an individual 18 or more years of age.

              Airborne radioactive material means radioactive material dispersed in the air in the form of dusts, fumes, particulates, mists, vapors, or gases.

              Airborne radioactivity area means a room, enclosure, or area in which airborne radioactive materials, composed wholly or partly of licensed material, exist in concentrations—
            (1) In excess of the derived air concentrations (DACs) specified in appendix B, to §§ 20.1001-20.2401, or
            (2) To such a degree that an individual present in the area without respiratory protective equipment could exceed, during the hours an individual is present in a week, an intake of 0.6 percent of the annual limit on intake (ALI) or 12 DAC-hours.

              Air-purifying respirator means a respirator with an air-purifying filter, cartridge, or canister that removes specific air contaminants by passing ambient air through the air-purifying element.

              ALARA (acronym for “as low as is reasonably achievable”) means making every reasonable effort to maintain exposures to radiation as far below the dose limits in this part as is practical consistent with the purpose for which the licensed activity is undertaken, taking into account the state of technology, the economics of improvements in relation to state of technology, the economics of improvements in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in relation to utilization of nuclear energy and licensed materials in the public interest.

              Annual limit on intake (ALI) means the derived limit for the amount of radioactive material taken into the body of an adult worker by inhalation or ingestion in a year. ALI is the smaller value of intake of a given radionuclide in a year by the reference man that would result in a committed effective dose equivalent of 5 rems (0.05 Sv) or a committed dose equivalent of 50 rems (0.5 Sv) to any individual organ or tissue. (ALI values for intake by ingestion and by inhalation of selected radionuclides are given in table 1, columns 1 and 2, of appendix B to §§ 20.1001-20.2401).

              Assigned protection factor (APF) means the expected workplace level of respiratory protection that would be provided by a properly functioning respirator or a class of respirators to properly fitted and trained users. Operationally, the inhaled concentration can be estimated by dividing the ambient airborne concentration by the APF.

              Atmosphere-supplying respirator means a respirator that supplies the respirator user with breathing air from a source independent of the ambient atmosphere, and includes supplied-air respirators (SARs) and self-contained breathing apparatus (SCBA) units.

              Background radiation means radiation from cosmic sources; naturally occurring radioactive material, including radon (except as a decay product of source or special nuclear material); and global fallout as it exists in the environment from the testing of nuclear explosive devices or from past nuclear accidents such as Chernobyl that contribute to background radiation and are not under the control of the licensee. “Background radiation” does not include radiation from source, byproduct, or special nuclear materials regulated by the Commission.

              Bioassay (radiobioassay) means the determination of kinds, quantities or concentrations, and, in some cases, the locations of radioactive material in the human body, whether by direct measurement (in vivo counting) or by analysis and evaluation of materials excreted or removed from the human body.

              Byproduct material means—
            (1) Any radioactive material (except special nuclear material) yielded in, or made radioactive by, exposure to the radiation incident to the process of producing or using special nuclear material;
            (2) The tailings or wastes produced by the extraction or concentration of uranium or thorium from ore processed primarily for its source material content, including discrete surface wastes resulting from uranium solution extraction processes. Underground ore bodies depleted by these solution extraction operations do not constitute “byproduct material” within this definition;
            (3)(i) Any discrete source of radium-226 that is produced, extracted, or converted after extraction, before, on, or after August 8, 2005, for use for a commercial, medical, or research activity; or
            (ii) Any material that—
            (A) Has been made radioactive by use of a particle accelerator; and
            (B) Is produced, extracted, or converted after extraction, before, on, or after August 8, 2005, for use for a commercial, medical, or research activity; and
            (4) Any discrete source of naturally occurring radioactive material, other than source material, that—
            (i) The Commission, in consultation with the Administrator of the Environmental Protection Agency, the Secretary of Energy, the Secretary of Homeland Security, and the head of any other appropriate Federal agency, determines would pose a threat similar to the threat posed by a discrete source of radium-226 to the public health and safety or the common defense and security; and
            (ii) Before, on, or after August 8, 2005, is extracted or converted after extraction for use in a commercial, medical, or research activity.

              Class (or lung class or inhalation class) means a classification scheme for inhaled material according to its rate of clearance from the pulmonary region of the lung. Materials are classified as D, W, or Y, which applies to a range of clearance half-times: for Class D (Days) of less than 10 days, for Class W (Weeks) from 10 to 100 days, and for Class Y (Years) of greater than 100 days.

              Collective dose is the sum of the individual doses received in a given period of time by a specified population from exposure to a specified source of radiation.

              Commission means the Nuclear Regulatory Commission or its duly authorized representatives.

              Committed dose equivalent (HT,50) means the dose equivalent to organs or tissues of reference (T) that will be received from an intake of radioactive material by an individual during the 50-year period following the intake.

              Committed effective dose equivalent (HE,50) is the sum of the products of the weighting factors applicable to each of the body organs or tissues that are irradiated and the committed dose equivalent to these organs or tissues (HE,50 = Σ wT HT,50).

              Constraint (dose constraint) means a value above which specified licensee actions are required.

              Controlled area means an area, outside of a restricted area but inside the site boundary, access to which can be limited by the licensee for any reason.

              Critical Group means the group of individuals reasonably expected to receive the greatest exposure to residual radioactivity for any applicable set of circumstances.

              Declared pregnant woman means a woman who has voluntarily informed the licensee, in writing, of her pregnancy and the estimated date of conception. The declaration remains in effect until the declared pregnant woman withdraws the declaration in writing or is no longer pregnant.

              Decommission means to remove a facility or site safely from service and reduce residual radioactivity to a level that permits—
            (1) Release of the property for unrestricted use and termination of the license; or

            (2) Release of the property under restricted conditions and the termination of the license.

              Deep-dose equivalent (Hd), which applies to external whole-body exposure, is the dose equivalent at a tissue depth of 1 cm (1000 mg/cm2).

              Demand respirator means an atmosphere-supplying respirator that admits breathing air to the facepiece only when a negative pressure is created inside the facepiece by inhalation.

              Department means the Department of Energy established by the Department of Energy Organization Act (Pub. L. 95-91, 91 Stat. 565, 42 U.S.C. 7101 et seq.) to the extent that the Department, or its duly authorized representatives, exercises functions formerly vested in the U.S. Atomic Energy Commission, its Chairman, members, officers, and components and transferred to the U.S. Energy Research and Development Administration and to the Administrator thereof pursuant to sections 104 (b), (c), and (d) of the Energy Reorganization Act of 1974 (Pub. L. 93-438, 88 Stat. 1233 at 1237, 42 U.S.C. 5814) and retransferred to the Secretary of Energy pursuant to section 301(a) of the Department of Energy Organization Act (Pub. L. 95-91, 91 Stat 565 at 577-578, 42 U.S.C. 7151).

              Derived air concentration (DAC) means the concentration of a given radionuclide in air which, if breathed by the reference man for a working year of 2,000 hours under conditions of light work (inhalation rate 1.2 cubic meters of air per hour), results in an intake of one ALI. DAC values are given in table 1, column 3, of appendix B to §§ 20.1001-20.2401.

              Derived air concentration-hour (DAC-hour) is the product of the concentration of radioactive material in air (expressed as a fraction or multiple of the derived air concentration for each radionuclide) and the time of exposure to that radionuclide, in hours. A licensee may take 2,000 DAC-hours to represent one ALI, equivalent to a committed effective dose equivalent of 5 rems (0.05 Sv).

              Discrete source means a radionuclide that has been processed so that its concentration within a material has been purposely increased for use for commercial, medical, or research activities.

              Disposable respirator means a respirator for which maintenance is not intended and that is designed to be discarded after excessive breathing resistance, sorbent exhaustion, physical damage, or end-of-service-life renders it unsuitable for use. Examples of this type of respirator are a disposable half-mask respirator or a disposable escape-only self-contained breathing apparatus (SCBA).

              Distinguishable from background means that the detectable concentration of a radionuclide is statistically different from the background concentration of that radionuclide in the vicinity of the site or, in the case of structures, in similar materials using adequate measurement technology, survey, and statistical techniques.

              Dose or radiation dose is a generic term that means absorbed dose, dose equivalent, effective dose equivalent, committed dose equivalent, committed effective dose equivalent, or total effective dose equivalent, as defined in other paragraphs of this section.

              Dose equivalent (HT) means the product of the absorbed dose in tissue, quality factor, and all other necessary modifying factors at the location of interest. The units of dose equivalent are the rem and sievert (Sv).

              Dosimetry processor means an individual or organization that processes and evaluates individual monitoring equipment in order to determine the radiation dose delivered to the equipment.

              Effective dose equivalent (HE) is the sum of the products of the dose equivalent to the organ or tissue (HT) and the weighting factors (wT) applicable to each of the body organs or tissues that are irradiated (HE = Σ wT HT).

              Embryo/fetus means the developing human organism from conception until the time of birth.

              Entrance or access point means any location through which an individual could gain access to radiation areas or to radioactive materials. This includes entry or exit portals of sufficient size to permit human entry, irrespective of their intended use.

              Exposure means being exposed to ionizing radiation or to radioactive material.

              External dose means that portion of the dose equivalent received from radiation sources outside the body.

              Extremity means hand, elbow, arm below the elbow, foot, knee, or leg below the knee.

              Filtering facepiece (dust mask) means a negative pressure particulate respirator with a filter as an integral part of the facepiece or with the entire facepiece composed of the filtering medium, not equipped with elastomeric sealing surfaces and adjustable straps.

              Fit factor means a quantitative estimate of the fit of a particular respirator to a specific individual, and typically estimates the ratio of the concentration of a substance in ambient air to its concentration inside the respirator when worn.

              Fit test means the use of a protocol to qualitatively or quantitatively evaluate the fit of a respirator on an individual.

              Generally applicable environmental radiation standards means standards issued by the Environmental Protection Agency (EPA) under the authority of the Atomic Energy Act of 1954, as amended, that impose limits on radiation exposures or levels, or concentrations or quantities of radioactive material, in the general environment outside the boundaries of locations under the control of persons possessing or using radioactive material.

              Government agency means any executive department, commission, independent establishment, corporation wholly or partly owned by the United States of America, which is an instrumentality of the United States, or any board, bureau, division, service, office, officer, authority, administration, or other establishment in the executive branch of the Government.

              Gray [See § 20.1004].

              Helmet means a rigid respiratory inlet covering that also provides head protection against impact and penetration.

              High radiation area means an area, accessible to individuals, in which radiation levels from radiation sources external to the body could result in an individual receiving a dose equivalent in excess of 0.1 rem (1 mSv) in 1 hour at 30 centimeters from the radiation source or 30 centimeters from any surface that the radiation penetrates.

              Hood means a respiratory inlet covering that completely covers the head and neck and may also cover portions of the shoulders and torso.

              Individual means any human being.

              Individual monitoring means—
            (1) The assessment of dose equivalent by the use of devices designed to be worn by an individual;

            (2) The assessment of committed effective dose equivalent by bioassay (see Bioassay) or by determination of the time-weighted air concentrations to which an individual has been exposed, i.e., DAC-hours; or
            (3) The assessment of dose equivalent by the use of survey data.

              Individual monitoring devices (individual monitoring equipment) means devices designed to be worn by a single individual for the assessment of dose equivalent such as film badges, thermoluminescence dosimeters (TLDs), pocket ionization chambers, and personal (“lapel”) air sampling devices.

              Internal dose means that portion of the dose equivalent received from radioactive material taken into the body.

              Lens dose equivalent (LDE) applies to the external exposure of the lens of the eye and is taken as the dose equivalent at a tissue depth of 0.3 centimeter (300 mg/cm2).

              License means a license issued under the regulations in parts 30 through 36, 39, 40, 50, 60, 61, 63, 70, or 72 of this chapter.

              Licensed material means source material, special nuclear material, or byproduct material received, possessed, used, transferred or disposed of under a general or specific license issued by the Commission.

              Licensee means the holder of a license.

              Limits (dose limits) means the permissible upper bounds of radiation doses.

              Loose-fitting facepiece means a respiratory inlet covering that is designed to form a partial seal with the face.

              Lost or missing licensed material means licensed material whose location is unknown. It includes material that has been shipped but has not reached its destination and whose location cannot be readily traced in the transportation system.

              Member of the public means any individual except when that individual is receiving an occupational dose.

              Minor means an individual less than 18 years of age.

              Monitoring (radiation monitoring, radiation protection monitoring) means the measurement of radiation levels, concentrations, surface area concentrations or quantities of radioactive material and the use of the results of these measurements to evaluate potential exposures and doses.

              Nationally tracked source is a sealed source containing a quantity equal to or greater than Category 1 or Category 2 levels of any radioactive material listed in Appendix E of this part. In this context a sealed source is defined as radioactive material that is sealed in a capsule or closely bonded, in a solid form and which is not exempt from regulatory control. It does not mean material encapsulated solely for disposal, or nuclear material contained in any fuel assembly, subassembly, fuel rod, or fuel pellet. Category 1 nationally tracked sources are those containing radioactive material at a quantity equal to or greater than the Category 1 threshold. Category 2 nationally tracked sources are those containing radioactive material at a quantity equal to or greater than the Category 2 threshold but less than the Category 1 threshold.

              Negative pressure respirator (tight fitting) means a respirator in which the air pressure inside the facepiece is negative during inhalation with respect to the ambient air pressure outside the respirator.

              Nonstochastic effect means health effects, the severity of which varies with the dose and for which a threshold is believed to exist. Radiation-induced cataract formation is an example of a nonstochastic effect (also called a deterministic effect).

              NRC means the Nuclear Regulatory Commission or its duly authorized representatives.

              Occupational dose means the dose received by an individual in the course of employment in which the individual's assigned duties involve exposure to radiation or to radioactive material from licensed and unlicensed sources of radiation, whether in the possession of the licensee or other person. Occupational dose does not include doses received from background radiation, from any medical administration the individual has received, from exposure to individuals administered radioactive material and released under § 35.75, from voluntary participation in medical research programs, or as a member of the public.

              Particle accelerator means any machine capable of accelerating electrons, protons, deuterons, or other charged particles in a vacuum and of discharging the resultant particulate or other radiation into a medium at energies usually in excess of 1 megaelectron volt. For purposes of this definition, “accelerator” is an equivalent term.

              Person means—
            (1) Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, Government agency other than the Commission or the Department of Energy (except that the Department shall be considered a person within the meaning of the regulations in 10 CFR chapter I to the extent that its facilities and activities are subject to the licensing and related regulatory authority of the Commission under section 202 of the Energy Reorganization Act of 1974 (88 Stat. 1244), the Uranium Mill Tailings Radiation Control Act of 1978 (92 Stat. 3021), the Nuclear Waste Policy Act of 1982 (96 Stat. 2201), and section 3(b)(2) of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (99 Stat. 1842)), any State or any political subdivision of or any political entity within a State, any foreign government or nation or any political subdivision of any such government or nation, or other entity; and
            (2) Any legal successor, representative, agent, or agency of the foregoing.

              Planned special exposure means an infrequent exposure to radiation, separate from and in addition to the annual dose limits.

              Positive pressure respirator means a respirator in which the pressure inside the respiratory inlet covering exceeds the ambient air pressure outside the respirator.

              Powered air-purifying respirator (PAPR) means an air-purifying respirator that uses a blower to force the ambient air through air-purifying elements to the inlet covering.

              Pressure demand respirator means a positive pressure atmosphere-supplying respirator that admits breathing air to the facepiece when the positive pressure is reduced inside the facepiece by inhalation.

              Public dose means the dose received by a member of the public from exposure to radiation or to radioactive material released by a licensee, or to any other source of radiation under the control of a licensee. Public dose does not include occupational dose or doses received from background radiation, from any medical administration the individual has received, from exposure to individuals administered radioactive material and released under § 35.75, or from voluntary participation in medical research programs.

              Qualitative fit test (QLFT) means a pass/fail fit test to assess the adequacy of respirator fit that relies on the individual's response to the test agent.

              Quality Factor (Q) means the modifying factor (listed in tables 1004(b).1 and 1004(b).2 of § 20.1004) that is used to derive dose equivalent from absorbed dose.

              Quantitative fit test (QNFT) means an assessment of the adequacy of respirator fit by numerically measuring the amount of leakage into the respirator.

              Quarter means a period of time equal to one-fourth of the year observed by the licensee (approximately 13 consective weeks), providing that the beginning of the first quarter in a year coincides with the starting date of the year and that no day is omitted or duplicated in consecutive quarters.

              Rad (See § 20.1004).

              Radiation (ionizing radiation) means alpha particles, beta particles, gamma rays, x-rays, neutrons, high-speed electrons, high-speed protons, and other particles capable of producing ions. Radiation, as used in this part, does not include non-ionizing radiation, such as radio- or microwaves, or visible, infrared, or ultraviolet light.

              Radiation area means an area, accessible to individuals, in which radiation levels could result in an individual receiving a dose equivalent in excess of 0.005 rem (0.05 mSv) in 1 hour at 30 centimeters from the radiation source or from any surface that the radiation penetrates.

              Reference man means a hypothetical aggregation of human physical and physiological characteristics arrived at by international consensus. These characteristics may be used by researchers and public health workers to standardize results of experiments and to relate biological insult to a common base.

              Rem (See § 20.1004).

              Residual radioactivity means radioactivity in structures, materials, soils, groundwater, and other media at a site resulting from activities under the licensee's control. This includes radioactivity from all licensed and unlicensed sources used by the licensee, but excludes background radiation. It also includes radioactive materials remaining at the site as a result of routine or accidental releases of radioactive material at the site and previous burials at the site, even if those burials were made in accordance with the provisions of 10 CFR part 20.

              Respiratory protective device means an apparatus, such as a respirator, used to reduce the individual's intake of airborne radioactive materials.

              Restricted area means an area, access to which is limited by the licensee for the purpose of protecting individuals against undue risks from exposure to radiation and radioactive materials. Restricted area does not include areas used as residential quarters, but separate rooms in a residential building may be set apart as a restricted area.

              Sanitary sewerage means a system of public sewers for carrying off waste water and refuse, but excluding sewage treatment facilities, septic tanks, and leach fields owned or operated by the licensee.

              Self-contained breathing apparatus (SCBA) means an atmosphere-supplying respirator for which the breathing air source is designed to be carried by the user.

              Shallow-dose equivalent (H
              s
              ), which applies to the external exposure of the skin of the whole body or the skin of an extremity, is taken as the dose equivalent at a tissue depth of 0.007 centimeter (7 mg/cm2).

              Site boundary means that line beyond which the land or property is not owned, leased, or otherwise controlled by the licensee.

              Source material means—
            (1) Uranium or thorium or any combination of uranium and thorium in any physical or chemical form; or
            (2) Ores that contain, by weight, one-twentieth of 1 percent (0.05 percent), or more, of uranium, thorium, or any combination of uranium and thorium. Source material does not include special nuclear material.

              Special nuclear material means—
            (1) Plutonium, uranium-233, uranium enriched in the isotope 233 or in the isotope 235, and any other material that the Commission, pursuant to the provisions of section 51 of the Act, determines to be special nuclear material, but does not include source material; or
            (2) Any material artificially enriched by any of the foregoing but does not include source material.

              Stochastic effects means health effects that occur randomly and for which the probability of the effect occurring, rather than its severity, is assumed to be a linear function of dose without threshold. Hereditary effects and cancer incidence are examples of stochastic effects.

              Supplied-air respirator (SAR) or airline respirator means an atmosphere-supplying respirator for which the source of breathing air is not designed to be carried by the user.

              Survey means an evaluation of the radiological conditions and potential hazards incident to the production, use, transfer, release, disposal, or presence of radioactive material or other sources of radiation. When appropriate, such an evaluation includes a physical survey of the location of radioactive material and measurements or calculations of levels of radiation, or concentrations or quantities of radioactive material present.

              Tight-fitting facepiece means a respiratory inlet covering that forms a complete seal with the face.

              Total Effective Dose Equivalent (TEDE) means the sum of the effective dose equivalent (for external exposures) and the committed effective dose equivalent (for internal exposures).

              Unrestricted area means an area, access to which is neither limited nor controlled by the licensee.

              Uranium fuel cycle means the operations of milling of uranium ore, chemical conversion of uranium, isotopic enrichment of uranium, fabrication of uranium fuel, generation of electricity by a light-water-cooled nuclear power plant using uranium fuel, and reprocessing of spent uranium fuel to the extent that these activities directly support the production of electrical power for public use. Uranium fuel cycle does not include mining operations, operations at waste disposal sites, transportation of radioactive material in support of these operations, and the reuse of recovered non-uranium special nuclear and byproduct materials from the cycle.

              User seal check (fit check) means an action conducted by the respirator user to determine if the respirator is properly seated to the face. Examples include negative pressure check, positive pressure check, irritant smoke check, or isoamyl acetate check.

              Very high radiation area means an area, accessible to individuals, in which radiation levels from radiation sources external to the body could result in an individual receiving an absorbed dose in excess of 500 rads (5 grays) in 1 hour at 1 meter from a radiation source or 1 meter from any surface that the radiation penetrates.

              Note:
              At very high doses received at high dose rates, units of absorbed dose (e.g., rads and grays) are appropriate, rather than units of dose equivalent (e.g., rems and sieverts)).

              Waste means those low-level radioactive wastes containing source, special nuclear, or byproduct material that are acceptable for disposal in a land disposal facility. For the purposes of this definition, low-level radioactive waste means radioactive waste not classified as high-level radioactive waste, transuranic waste, spent nuclear fuel, or byproduct material as defined in paragraphs (2), (3), and (4) of the definition of Byproduct material set forth in this section.

              Week means 7 consecutive days starting on Sunday.

              Weighting factor wT, for an organ or tissue (T) is the proportion of the risk of stochastic effects resulting from irradiation of that organ or tissue to the total risk of stochastic effects when the whole body is irradiated uniformly. For calculating the effective dose equivalent, the values of wT are:

              Organ Dose Weighting Factors

                Organ or tissue
                wT

                Gonads
                0.25

                Breast
                0.15

                Red bone marrow
                0.12

                Lung
                0.12

                Thyroid
                0.03

                Bone surfaces
                0.03

                Remainder

                  1 0.30

                Whole Body

                  2 1.00

                1 0.30 results from 0.06 for each of 5 “remainder” organs (excluding the skin and the lens of the eye) that receive the highest doses.

                2 For the purpose of weighting the external whole body dose (for adding it to the internal dose), a single weighting factor, wT = 1.0, has been specified. The use of other weighting factors for external exposure will be approved on a case-by-case basis until such time as specific guidance is issued.

              Whole body means, for purposes of external exposure, head, trunk (including male gonads), arms above the elbow, or legs above the knee.

              Working level (WL) is any combination of short-lived radon daughters (for radon-222: polonium-218, lead-214, bismuth-214, and polonium-214; and for radon-220: polonium-216, lead-212, bismuth-212, and polonium-212) in 1 liter of air that will result in the ultimate emission of 1.3 × 105 MeV of potential alpha particle energy.

              Working level month (WLM) means an exposure to 1 working level for 170 hours (2,000 working hours per year/12 months per year = approximately 170 hours per month).

              Year means the period of time beginning in January used to determine compliance with the provisions of this part. The licensee may change the starting date of the year used to determine compliance by the licensee provided that the change is made at the beginning of the year and that no day is omitted or duplicated in consecutive years.
            [56 FR 23391, May 21, 1991, as amended at 57 FR 57878, Dec. 8, 1992; 58 FR 7736, Feb. 9, 1993; 60 FR 36043, July 13, 1995; 60 FR 48625, Sept. 20, 1995; 61 FR 65127, Dec. 10, 1996; 62 FR 4133, Jan. 29, 1997; 62 FR 39087, July 21, 1997; 63 FR 39481, July 23, 1998; 64 FR 54556, Oct. 7, 1999; 66 FR 55789, Nov. 2, 2001; 67 FR 16304, Apr. 5, 2002; 67 FR 20370, Apr. 24, 2002; 67 FR 62872, Oct. 9, 2002; 71 FR 65707, Nov. 8, 2006; 72 FR 55921, Oct. 1, 2007; 72 FR 68058, Dec. 4, 2007; 74 FR 62680, Dec. 1, 2009]

            § 20.1004
            Units of radiation dose.
            (a) Definitions. As used in this part, the units of radiation dose are:

              Gray (Gy) is the SI unit of absorbed dose. One gray is equal to an absorbed dose of 1 Joule/kilogram (100 rads).

              Rad is the special unit of absorbed dose. One rad is equal to an absorbed dose of 100 ergs/gram or 0.01 joule/kilogram (0.01 gray).

              Rem is the special unit of any of the quantities expressed as dose equivalent. The dose equivalent in rems is equal to the absorbed dose in rads multiplied by the quality factor (1 rem = 0.01 sievert).

              Sievert is the SI unit of any of the quantities expressed as dose equivalent. The dose equivalent in sieverts is equal to the absorbed dose in grays multiplied by the quality factor (1 Sv = 100 rems).
            (b) As used in this part, the quality factors for converting absorbed dose to dose equivalent are shown in table 1004(b).1.

              Table 1004(b).1—Quality Factors and Absorbed Dose Equivalencies

                Type of radiation
                Quality factor
                (Q)
                Absorbed dose equal to a unit dose equivalent a

                X-, gamma, or beta radiation
                1
                1

                Alpha particles, multiple-charged particles, fission fragments and heavy particles of unknown charge
                20
                0.05

                Neutrons of unknown energy
                10
                0.1

                High-energy protons
                10
                0.1

                a Absorbed dose in rad equal to 1 rem or the absorbed dose in gray equal to 1 sievert.

            (c) If it is more convenient to measure the neutron fluence rate than to determine the neutron dose equivalent rate in rems per hour or sieverts per hour, as provided in paragraph (b) of this section, 1 rem (0.01 Sv) of neutron radiation of unknown energies may, for purposes of the regulations in this part, be assumed to result from a total fluence of 25 million neutrons per square centimeter incident upon the body. If sufficient information exists to estimate the approximate energy distribution of the neutrons, the licensee may use the fluence rate per unit dose equivalent or the appropriate Q value from table 1004(b).2 to convert a measured tissue dose in rads to dose equivalent in rems.

              Table 1004(b).2—Mean Quality Factors, Q, and Fluence per Unit Dose Equivalent for Monoenergetic Neutrons

                Neutron energy (MeV)
                Quality factor a (Q)
                Fluence per unit dose equivalent b (neutrons cm−2 rem −1)

                (thermal)
                2.5 × 10 −8

                2
                 980 × 10 6

                1 × 10 −7

                2
                 980 × 10 6

                1 × 10 −6

                2
                 810 × 10 6

                1 × 10 −5

                2
                 810 × 10 6

                1 × 10 −4

                2
                 840 × 10 6

                1 × 10 −3

                2
                 980 × 10 6

                1 × 10 −2

                2.5
                1010 × 10 6

                1 × 10 −1

                7.5
                 170 × 10 6

                5 × 10 −1

                11
                 39 × 10 6

                1
                11
                 27 × 10 6

                2.5
                9
                 29 × 10 6

                5
                8
                 23 × 10 6

                7
                7
                 24 × 10 6

                10
                6.5
                 24 × 10 6

                14
                7.5
                 17 × 10 6

                20
                8
                 16 × 10 6

                40
                7
                 14 × 10 6

                60
                5.5
                 16 × 10 6

                1 × 10 2

                4
                 20 × 10 6

                2 × 10 2

                3.5
                 19 × 10 6

                3 × 10 2

                3.5
                 16 × 10 6

                4 × 10 2

                3.5
                 14 × 10 6

                a Value of quality factor (Q) at the point where the dose equivalent is maximum in a 30-cm diameter cylinder tissue-equivalent phantom.

                b Monoenergetic neutrons incident normally on a 30-cm diameter cylinder tissue-equivalent phantom.

            § 20.1005
            Units of radioactivity.
            For the purposes of this part, activity is expressed in the special unit of curies (Ci) or in the SI unit of becquerels (Bq), or their multiples, or disintegrations (transformations) per unit of time.
            (a) One becquerel = 1 disintegration per second (s−1).
            (b) One curie = 3.7 × 10 10 disintegrations per second = 3.7 × 10 10 becquerels = 2.22 × 10 12 disintegrations per minute.
            [56 FR 23391, May 21, 1991; 56 FR 61352, Dec. 3, 1991]

            § 20.1006
            Interpretations.
            Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by an officer or employee of the Commission other than a written interpretation by the General Counsel will be recognized to be binding upon the Commission.

            § 20.1007
            Communications.

            Unless otherwise specified, communications or reports concerning the regulations in this part should be addressed to the Executive Director for Operations (EDO), and sent either by mail to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland; or, where practicable, by electronic submission, for example, via Electronic Information Exchange, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information.
            [68 FR 58801, Oct. 10, 2003, as amended at 74 FR 62680, Dec. 1, 2009; 80 FR 74979, Dec. 1, 2015]

            § 20.1008
            Implementation.
            (a) [Reserved]
            (b) The applicable section of §§ 20.1001-20.2402 must be used in lieu of requirements in the standards for protection against radiation in effect prior to January 1, 1994 1

               that are cited in license conditions or technical specifications, except as specified in paragraphs (c), (d), and (e) of this section. If the requirements of this part are more restrictive than the existing license condition, then the licensee shall comply with this part unless exempted by paragraph (d) of this section.

                1 See §§ 20.1-20.602 codified as of January 1, 1993.

            (c) Any existing license condition or technical specification that is more restrictive than a requirement in §§ 20.1001-20.2402 remains in force until there is a technical specification change, license amendment, or license renewal.
            (d) If a license condition or technical specification exempted a licensee from a requirement in the standards for protection against radiation in effect prior to January 1, 1994, 1 it continues to exempt a licensee from the corresponding provision of §§ 20.1001-20.2402.
            (e) If a license condition cites provisions in requirements in the standards for protection against radiation in effect prior to January 1, 1994 1 and there are no corresponding provisions in §§ 20.1001-20.2402, then the license condition remains in force until there is a technical specification change, license amendment, or license renewal that modifies or removes this condition.
            [59 FR 41643, Aug. 15, 1994]

            § 20.1009
            Information collection requirements: OMB approval.

            (a) The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in this part under control number 3150-0014.
            (b) The approved information collection requirements contained in this part appear in §§ 20.1003, 20.1101, 20.1202, 20.1203, 20.1204, 20.1206, 20.1208, 20.1301, 20.1302, 20.1403, 20.1404, 20.1406, 20.1501, 20.1601, 20.1703, 20.1901, 20.1904, 20.1905, 20.1906, 20.2002, 20.2004, 20.2005, 20.2006, 20.2102, 20.2103, 20.2104, 20.2105, 20.2106, 20.2107, 20.2108, 20.2110, 20.2201, 20.2202, 20.2203, 20.2204, 20.2205, 20.2206, 20.2207, 20.2301, and appendix G to this part.
            (c) This part contains information collection requirements in addition to those approved under the control number specified in paragraph (a) of this section. These information collection requirements and the control numbers under which they are approved are as follows:
            (1) In § 20.2104, NRC Form 4 is approved under control number 3150-0005.
            (2) In §§ 20.2106 and 20.2206, NRC Form 5 is approved under control number 3150-0006.
            (3) In § 20.2006 and appendix G to 10 CFR part 20, NRC Form 540 and 540A is approved under control number 3150-0164.
            (4) In § 20.2006 and appendix G to 10 CFR part 20, NRC Form 541 and 541A is approved under control number 3150-0166.
            (5) In § 20.2006 and appendix G to 10 CFR part 20, NRC Form 542 and 542A is approved under control number 3150-0165.
            (6) In § 20.2207, NRC Form 748 is approved under control number 3150-0202.
            [63 FR 50128, Sept. 21, 1998, as amended at 67 FR 67099, Nov. 4, 2002; 71 FR 65707, Nov. 8, 2006; 72 FR 55922, Oct. 1, 2007; 77 FR 39905, July 6, 2012]

          Subpart B—Radiation Protection Programs

            Source:
            56 FR 23396, May 21, 1991, unless otherwise noted.

            § 20.1101
            Radiation protection programs.
            (a) Each licensee shall develop, document, and implement a radiation protection program commensurate with the scope and extent of licensed activities and sufficient to ensure compliance with the provisions of this part. (See § 20.2102 for recordkeeping requirements relating to these programs.)
            (b) The licensee shall use, to the extent practical, procedures and engineering controls based upon sound radiation protection principles to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA).

            (c) The licensee shall periodically (at least annually) review the radiation protection program content and implementation.
            (d) To implement the ALARA requirements of § 20.1101 (b), and notwithstanding the requirements in § 20.1301 of this part, a constraint on air emissions of radioactive material to the environment, excluding Radon-222 and its daughters, shall be established by licensees other than those subject to § 50.34a, such that the individual member of the public likely to receive the highest dose will not be expected to receive a total effective dose equivalent in excess of 10 mrem (0.1 mSv) per year from these emissions. If a licensee subject to this requirement exceeds this dose constraint, the licensee shall report the exceedance as provided in § 20.2203 and promptly take appropriate corrective action to ensure against recurrence.
            [56 FR 23396, May 21, 1991, as amended at 61 FR 65127, Dec. 10, 1996; 63 FR 39482, July 23, 1998]

          Subpart C—Occupational Dose Limits

            Source:
            56 FR 23396, May 21, 1991, unless otherwise noted.

            § 20.1201
            Occupational dose limits for adults.
            (a) The licensee shall control the occupational dose to individual adults, except for planned special exposures under § 20.1206, to the following dose limits.
            (1) An annual limit, which is the more limiting of—
            (i) The total effective dose equivalent being equal to 5 rems (0.05 Sv); or
            (ii) The sum of the deep-dose equivalent and the committed dose equivalent to any individual organ or tissue other than the lens of the eye being equal to 50 rems (0.5 Sv).
            (2) The annual limits to the lens of the eye, to the skin of the whole body, and to the skin of the extremities, which are:
            (i) A lens dose equivalent of 15 rems (0.15 Sv), and
            (ii) A shallow-dose equivalent of 50 rem (0.5 Sv) to the skin of the whole body or to the skin of any extremity.
            (b) Doses received in excess of the annual limits, including doses received during accidents, emergencies, and planned special exposures, must be subtracted from the limits for planned special exposures that the individual may receive during the current year (see § 20.1206(e)(1)) and during the individual's lifetime (see § 20.1206(e)(2)).
            (c) When the external exposure is determined by measurement with an external personal monitoring device, the deep-dose equivalent must be used in place of the effective dose equivalent, unless the effective dose equivalent is determined by a dosimetry method approved by the NRC. The assigned deep-dose equivalent must be for the part of the body receiving the highest exposure. The assigned shallow-dose equivalent must be the dose averaged over the contiguous 10 square centimeters of skin receiving the highest exposure. The deep-dose equivalent, lens-dose equivalent, and shallow-dose equivalent may be assessed from surveys or other radiation measurements for the purpose of demonstrating compliance with the occupational dose limits, if the individual monitoring device was not in the region of highest potential exposure, or the results of individual monitoring are unavailable.
            (d) Derived air concentration (DAC) and annual limit on intake (ALI) values are presented in table 1 of appendix B to part 20 and may be used to determine the individual's dose (see § 20.2106) and to demonstrate compliance with the occupational dose limits.
            (e) In addition to the annual dose limits, the licensee shall limit the soluble uranium intake by an individual to 10 milligrams in a week in consideration of chemical toxicity (see footnote 3 of appendix B to part 20).
            (f) The licensee shall reduce the dose that an individual may be allowed to receive in the current year by the amount of occupational dose received while employed by any other person (see § 20.2104(e)).
            [56 FR 23396, May 21, 1991, as amended at 60 FR 20185, Apr. 25, 1995; 63 FR 39482, July 23, 1998; 67 FR 16304, Apr. 5, 2002; 72 FR 68059, Dec. 4, 2007]

            § 20.1202
            Compliance with requirements for summation of external and internal doses.
            (a) If the licensee is required to monitor under both §§ 20.1502 (a) and (b), the licensee shall demonstrate compliance with the dose limits by summing external and internal doses. If the licensee is required to monitor only under § 20.1502(a) or only under § 20.1502(b), then summation is not required to demonstrate compliance with the dose limits. The licensee may demonstrate compliance with the requirements for summation of external and internal doses by meeting one of the conditions specified in paragraph (b) of this section and the conditions in paragraphs (c) and (d) of this section.

              (Note:
              The dose equivalents for the lens of the eye, the skin, and the extremities are not included in the summation, but are subject to separate limits.)

            (b) Intake by inhalation. If the only intake of radionuclides is by inhalation, the total effective dose equivalent limit is not exceeded if the sum of the deep-dose equivalent divided by the total effective dose equivalent limit, and one of the following, does not exceed unity:
            (1) The sum of the fractions of the inhalation ALI for each radionuclide, or
            (2) The total number of derived air concentration-hours (DAC-hours) for all radionuclides divided by 2,000, or
            (3) The sum of the calculated committed effective dose equivalents to all significantly irradiated 1
               organs or tissues (T) calculated from bioassay data using appropriate biological models and expressed as a fraction of the annual limit.

                1 An organ or tissue is deemed to be significantly irradiated if, for that organ or tissue, the product of the weighting factor, wT, and the committed dose equivalent, HT,50, per unit intake is greater than 10 percent of the maximum weighted value of HT,50, (i.e., WT HT,50) per unit intake for any organ or tissue.

            (c) Intake by oral ingestion. If the occupationally exposed individual also receives an intake of radionuclides by oral ingestion greater than 10 percent of the applicable oral ALI, the licensee shall account for this intake and include it in demonstrating compliance with the limits.
            (d) Intake through wounds or absorption through skin. The licensee shall evaluate and, to the extent practical, account for intakes through wounds or skin absorption.

              Note:
              The intake through intact skin has been included in the calculation of DAC for hydrogen-3 and does not need to be further evaluated.

            [56 FR 23396, May 21, 1991, as amended at 57 FR 57878, Dec. 8, 1992]

            § 20.1203
            Determination of external dose from airborne radioactive material.
            Licensees shall, when determining the dose from airborne radioactive material, include the contribution to the deep-dose equivalent, lens dose equivalent, and shallow-dose equivalent from external exposure to the radioactive cloud (see appendix B to part 20, footnotes 1 and 2).

              Note:
              Airborne radioactivity measurements and DAC values should not be used as the primary means to assess the deep-dose equivalent when the airborne radioactive material includes radionuclides other than noble gases or if the cloud of airborne radioactive material is not relatively uniform. The determination of the deep-dose equivalent to an individual should be based upon measurements using instruments or individual monitoring devices.

            [56 FR 23396, May 21, 1991, as amended at 60 FR 20185, Apr. 25, 1995; 63 FR 39482, July 23, 1998]

            § 20.1204
            Determination of internal exposure.
            (a) For purposes of assessing dose used to determine compliance with occupational dose equivalent limits, the licensee shall, when required under § 20.1502, take suitable and timely measurements of—
            (1) Concentrations of radioactive materials in air in work areas; or
            (2) Quantities of radionuclides in the body; or
            (3) Quantities of radionuclides excreted from the body; or
            (4) Combinations of these measurements.

            (b) Unless respiratory protective equipment is used, as provided in § 20.1703, or the assessment of intake is based on bioassays, the licensee shall assume that an individual inhales radioactive material at the airborne concentration in which the individual is present.
            (c) When specific information on the physical and biochemical properties of the radionuclides taken into the body or the behavior or the material in an individual is known, the licensee may—
            (1) Use that information to calculate the committed effective dose equivalent, and, if used, the licensee shall document that information in the individual's record; and
            (2) Upon prior approval of the Commission, adjust the DAC or ALI values to reflect the actual physical and chemical characteristics of airborne radioactive material (e.g., aerosol size distribution or density); and
            (3) Separately assess the contribution of fractional intakes of Class D, W, or Y compounds of a given radionuclide (see appendix B to part 20) to the committed effective dose equivalent.
            (d) If the licensee chooses to assess intakes of Class Y material using the measurements given in § 20.1204(a)(2) or (3), the licensee may delay the recording and reporting of the assessments for periods up to 7 months, unless otherwise required by §§ 20.2202 or 20.2203, in order to permit the licensee to make additional measurements basic to the assessments.
            (e) If the identity and concentration of each radionuclide in a mixture are known, the fraction of the DAC applicable to the mixture for use in calculating DAC-hours must be either—
            (1) The sum of the ratios of the concentration to the appropriate DAC value (e.g., D, W, Y) from appendix B to part 20 for each radio-nuclide in the mixture; or
            (2) The ratio of the total concentration for all radionuclides in the mixture to the most restrictive DAC value for any radionuclide in the mixture.
            (f) If the identity of each radionuclide in a mixture is known, but the concentration of one or more of the radionuclides in the mixture is not known, the DAC for the mixture must be the most restrictive DAC of any radionuclide in the mixture.
            (g) When a mixture of radionuclides in air exists, licensees may disregard certain radionuclides in the mixture if—
            (1) The licensee uses the total activity of the mixture in demonstrating compliance with the dose limits in § 20.1201 and in complying with the monitoring requirements in § 20.1502(b), and
            (2) The concentration of any radionuclide disregarded is less than 10 percent of its DAC, and
            (3) The sum of these percentages for all of the radionuclides disregarded in the mixture does not exceed 30 percent.
            (h)(1) In order to calculate the committed effective dose equivalent, the licensee may assume that the inhalation of one ALI, or an exposure of 2,000 DAC-hours, results in a committed effective dose equivalent of 5 rems (0.05 Sv) for radionuclides that have their ALIs or DACs based on the committed effective dose equivalent.
            (2) When the ALI (and the associated DAC) is determined by the nonstochastic organ dose limit of 50 rems (0.5 Sv), the intake of radionuclides that would result in a committed effective dose equivalent of 5 rems (0.05 Sv) (the stochastic ALI) is listed in parentheses in table 1 of appendix B to part 20. In this case, the licensee may, as a simplifying assumption, use the stochastic ALIs to determine committed effective dose equivalent. However, if the licensee uses the stochastic ALIs, the licensee must also demonstrate that the limit in § 20.1201(a)(1)(ii) is met.
            [56 FR 23396, May 21, 1991, as amended at 60 FR 20185, Apr. 25, 1995]

            § 20.1205
            [Reserved]

            § 20.1206
            Planned special exposures.
            A licensee may authorize an adult worker to receive doses in addition to and accounted for separately from the doses received under the limits specified in § 20.1201 provided that each of the following conditions is satisfied—

            (a) The licensee authorizes a planned special exposure only in an exceptional situation when alternatives that might avoid the dose estimated to result from the planned special exposure are unavailable or impractical.

            (b) The licensee (and employer if the employer is not the licensee) specifically authorizes the planned special exposure, in writing, before the exposure occurs.
            (c) Before a planned special exposure, the licensee ensures that the individuals involved are—
            (1) Informed of the purpose of the planned operation;
            (2) Informed of the estimated doses and associated potential risks and specific radiation levels or other conditions that might be involved in performing the task; and
            (3) Instructed in the measures to be taken to keep the dose ALARA considering other risks that may be present.
            (d) Prior to permitting an individual to participate in a planned special exposure, the licensee ascertains prior doses as required by § 20.2104(b) during the lifetime of the individual for each individual involved.
            (e) Subject to § 20.1201(b), the licensee does not authorize a planned special exposure that would cause an individual to receive a dose from all planned special exposures and all doses in excess of the limits to exceed—
            (1) The numerical values of any of the dose limits in § 20.1201(a) in any year; and
            (2) Five times the annual dose limits in § 20.1201(a) during the individual's lifetime.
            (f) The licensee maintains records of the conduct of a planned special exposure in accordance with § 20.2105 and submits a written report in accordance with § 20.2204.
            (g) The licensee records the best estimate of the dose resulting from the planned special exposure in the individual's record and informs the individual, in writing, of the dose within 30 days from the date of the planned special exposure. The dose from planned special exposures is not to be considered in controlling future occupational dose of the individual under § 20.1201(a) but is to be included in evaluations required by § 20.1206 (d) and (e).
            [56 FR 23396, May 21, 1991, as amended at 63 FR 39482, July 23, 1998]

            § 20.1207
            Occupational dose limits for minors.
            The annual occupational dose limits for minors are 10 percent of the annual dose limits specified for adult workers in § 20.1201.

            § 20.1208
            Dose equivalent to an embryo/fetus.
            (a) The licensee shall ensure that the dose equivalent to the embryo/fetus during the entire pregnancy, due to the occupational exposure of a declared pregnant woman, does not exceed 0.5 rem (5 mSv). (For recordkeeping requirements, see § 20.2106.)
            (b) The licensee shall make efforts to avoid substantial variation above a uniform monthly exposure rate to a declared pregnant woman so as to satisfy the limit in paragraph (a) of this section.
            (c) The dose equivalent to the embryo/fetus is the sum of—
            (1) The deep-dose equivalent to the declared pregnant woman; and
            (2) The dose equivalent to the embryo/fetus resulting from radionuclides in the embryo/fetus and radionuclides in the declared pregnant woman.
            (d) If the dose equivalent to the embryo/fetus is found to have exceeded 0.5 rem (5 mSv), or is within 0.05 rem (0.5 mSv) of this dose, by the time the woman declares the pregnancy to the licensee, the licensee shall be deemed to be in compliance with paragraph (a) of this section if the additional dose equivalent to the embryo/fetus does not exceed 0.05 rem (0.5 mSv) during the remainder of the pregnancy.
            [56 FR 23396, May 21, 1991, as amended at 63 FR 39482, July 23, 1998]

          Subpart D—Radiation Dose Limits for Individual Members of the Public

            Source:
            56 FR 23398, May 21, 1991, unless otherwise noted.

            § 20.1301
            Dose limits for individual members of the public.
            (a) Each licensee shall conduct operations so that—

            (1) The total effective dose equivalent to individual members of the public from the licensed operation does not exceed 0.1 rem (1 mSv) in a year, exclusive of the dose contributions from background radiation, from any medical administration the individual has received, from exposure to individuals administered radioactive material and released under § 35.75, from voluntary participation in medical research programs, and from the licensee's disposal of radioactive material into sanitary sewerage in accordance with § 20.2003, and
            (2) The dose in any unrestricted area from external sources, exclusive of the dose contributions from patients administered radioactive material and released in accordance with § 35.75, does not exceed 0.002 rem (0.02 millisievert) in any one hour.
            (b) If the licensee permits members of the public to have access to controlled areas, the limits for members of the public continue to apply to those individuals.
            (c) Notwithstanding paragraph (a)(1) of this section, a licensee may permit visitors to an individual who cannot be released, under § 35.75, to receive a radiation dose greater than 0.1 rem (1 mSv) if—
            (1) The radiation dose received does not exceed 0.5 rem (5 mSv); and
            (2) The authorized user, as defined in 10 CFR Part 35, has determined before the visit that it is appropriate.
            (d) A licensee or license applicant may apply for prior NRC authorization to operate up to an annual dose limit for an individual member of the public of 0.5 rem (5 mSv). The licensee or license applicant shall include the following information in this application:
            (1) Demonstration of the need for and the expected duration of operations in excess of the limit in paragraph (a) of this section;
            (2) The licensee's program to assess and control dose within the 0.5 rem (5 mSv) annual limit; and
            (3) The procedures to be followed to maintain the dose as low as is reasonably achievable.
            (e) In addition to the requirements of this part, a licensee subject to the provisions of EPA's generally applicable environmental radiation standards in 40 CFR part 190 shall comply with those standards.
            (f) The Commission may impose additional restrictions on radiation levels in unrestricted areas and on the total quantity of radionuclides that a licensee may release in effluents in order to restrict the collective dose.
            [56 FR 23398, May 21, 1991, as amended at 60 FR 48625, Sept. 20, 1995; 62 FR 4133, Jan. 29, 1997; 67 FR 20370, Apr. 24, 2002; 67 FR 62872, Oct. 9, 2002]

            § 20.1302
            Compliance with dose limits for individual members of the public.
            (a) The licensee shall make or cause to be made, as appropriate, surveys of radiation levels in unrestricted and controlled areas and radioactive materials in effluents released to unrestricted and controlled areas to demonstrate compliance with the dose limits for individual members of the public in § 20.1301.
            (b) A licensee shall show compliance with the annual dose limit in § 20.1301 by—
            (1) Demonstrating by measurement or calculation that the total effective dose equivalent to the individual likely to receive the highest dose from the licensed operation does not exceed the annual dose limit; or
            (2) Demonstrating that—
            (i) The annual average concentrations of radioactive material released in gaseous and liquid effluents at the boundary of the unrestricted area do not exceed the values specified in table 2 of appendix B to part 20; and
            (ii) If an individual were continuously present in an unrestricted area, the dose from external sources would not exceed 0.002 rem (0.02 mSv) in an hour and 0.05 rem (0.5 mSv) in a year.
            (c) Upon approval from the Commission, the licensee may adjust the effluent concentration values in appendix B to part 20, table 2, for members of the public, to take into account the actual physical and chemical characteristics of the effluents (e.g., aerosol size distribution, solubility, density, radioactive decay equilibrium, chemical form).
            [56 FR 23398, May 21, 1991; 56 FR 61352, Dec. 3, 1991, as amended at 57 FR 57878, Dec. 8, 1992; 60 FR 20185, Apr. 25, 1995]

          Subpart E—Radiological Criteria for License Termination

            Source:
            62 FR 39088, July 21, 1997, unless otherwise noted.

            § 20.1401
            General provisions and scope.
            (a) The criteria in this subpart apply to the decommissioning of facilities licensed under parts 30, 40, 50, 52, 60, 61, 63, 70, and 72 of this chapter, and release of part of a facility or site for unrestricted use in accordance with § 50.83 of this chapter, as well as other facilities subject to the Commission's jurisdiction under the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, as amended. For high-level and low-level waste disposal facilities (10 CFR parts 60, 61, and 63), the criteria apply only to ancillary surface facilities that support radioactive waste disposal activities. The criteria do not apply to uranium and thorium recovery facilities already subject to appendix A to 10 CFR part 40 or the uranium solution extraction facilities.
            (b) The criteria in this subpart do not apply to sites which:
            (1) Have been decommissioned prior to the effective date of the rule in accordance with criteria identified in the Site Decommissioning Management Plan (SDMP) Action Plan of April 16, 1992 (57 FR 13389);
            (2) Have previously submitted and received Commission approval on a license termination plan (LTP) or decommissioning plan that is compatible with the SDMP Action Plan criteria; or
            (3) Submit a sufficient LTP or decommissioning plan before August 20, 1998 and such LTP or decommissioning plan is approved by the Commission before August 20, 1999 and in accordance with the criteria identified in the SDMP Action Plan, except that if an EIS is required in the submittal, there will be a provision for day-for-day extension.
            (c) After a site has been decommissioned and the license terminated in accordance with the criteria in this subpart, or after part of a facility or site has been released for unrestricted use in accordance with § 50.83 of this chapter and in accordance with the criteria in this subpart, the Commission will require additional cleanup only, if based on new information, it determines that the criteria of this subpart were not met and residual radioactivity remaining at the site could result in significant threat to public health and safety.
            (d) When calculating TEDE to the average member of the critical group the licensee shall determine the peak annual TEDE dose expected within the first 1000 years after decommissioning.
            [62 FR 39088, July 21, 1997, as amended at 66 FR 55789, Nov. 2, 2001; 68 FR 19726, Apr. 22, 2003; 72 FR 49485, Aug. 28, 2007]

            § 20.1402
            Radiological criteria for unrestricted use.
            A site will be considered acceptable for unrestricted use if the residual radioactivity that is distinguishable from background radiation results in a TEDE to an average member of the critical group that does not exceed 25 mrem (0.25 mSv) per year, including that from groundwater sources of drinking water, and that the residual radioactivity has been reduced to levels that are as low as reasonably achievable (ALARA). Determination of the levels which are ALARA must take into account consideration of any detriments, such as deaths from transportation accidents, expected to potentially result from decontamination and waste disposal.

            § 20.1403
            Criteria for license termination under restricted conditions.
            A site will be considered acceptable for license termination under restricted conditions if:
            (a) The licensee can demonstrate that further reductions in residual radioactivity necessary to comply with the provisions of § 20.1402 would result in net public or environmental harm or were not being made because the residual levels associated with restricted conditions are ALARA. Determination of the levels which are ALARA must take into account consideration of any detriments, such as traffic accidents, expected to potentially result from decontamination and waste disposal;

            (b) The licensee has made provisions for legally enforceable institutional controls that provide reasonable assurance that the TEDE from residual radioactivity distinguishable from background to the average member of the critical group will not exceed 25 mrem (0.25 mSv) per year;
            (c) The licensee has provided sufficient financial assurance to enable an independent third party, including a governmental custodian of a site, to assume and carry out responsibilities for any necessary control and maintenance of the site. Acceptable financial assurance mechanisms are—
            (1) Funds placed into a trust segregated from the licensee's assets and outside the licensee's administrative control, and in which the adequacy of the trust funds is to be assessed based on an assumed annual 1 percent real rate of return on investment;
            (2) A statement of intent in the case of Federal, State, or local Government licensees, as described in § 30.35(f)(4) of this chapter; or
            (3) When a government entity is assuming custody and ownership of a site, an arrangement that is deemed acceptable by such governmental entity.
            (d) The licensee has submitted a decommissioning plan or License Termination Plan (LTP) to the Commission indicating the licensee's intent to decommission in accordance with §§ 30.36(d), 40.42(d), 50.82 (a) and (b), 70.38(d), or 72.54 of this chapter, and specifying that the licensee intends to decommission by restricting use of the site. The licensee shall document in the LTP or decommissioning plan how the advice of individuals and institutions in the community who may be affected by the decommissioning has been sought and incorporated, as appropriate, following analysis of that advice.
            (1) Licensees proposing to decommission by restricting use of the site shall seek advice from such affected parties regarding the following matters concerning the proposed decommissioning—
            (i) Whether provisions for institutional controls proposed by the licensee:
            (A) Will provide reasonable assurance that the TEDE from residual radioactivity distinguishable from background to the average member of the critical group will not exceed 25 mrem (0.25 mSv) TEDE per year;
            (B) Will be enforceable; and
            (C) Will not impose undue burdens on the local community or other affected parties.
            (ii) Whether the licensee has provided sufficient financial assurance to enable an independent third party, including a governmental custodian of a site, to assume and carry out responsibilities for any necessary control and maintenance of the site;
            (2) In seeking advice on the issues identified in § 20.1403(d)(1), the licensee shall provide for:
            (i) Participation by representatives of a broad cross section of community interests who may be affected by the decommissioning;
            (ii) An opportunity for a comprehensive, collective discussion on the issues by the participants represented; and
            (iii) A publicly available summary of the results of all such discussions, including a description of the individual viewpoints of the participants on the issues and the extent of agreement or disagreement among the participants on the issues; and
            (e) Residual radioactivity at the site has been reduced so that if the institutional controls were no longer in effect, there is reasonable assurance that the TEDE from residual radioactivity distinguishable from background to the average member of the critical group is as low as reasonably achievable and would not exceed either—
            (1) 100 mrem (1 mSv) per year; or
            (2) 500 mrem (5 mSv) per year provided that the licensee—
            (i) Demonstrates that further reductions in residual radioactivity necessary to comply with the 100 mrem/y (1 mSv/y) value of paragraph (e)(1) of this section are not technically achievable, would be prohibitively expensive, or would result in net public or environmental harm;
            (ii) Makes provisions for durable institutional controls;

            (iii) Provides sufficient financial assurance to enable a responsible government entity or independent third party, including a governmental custodian of a site, both to carry out periodic rechecks of the site no less frequently than every 5 years to assure that the institutional controls remain in place as necessary to meet the criteria of § 20.1403(b) and to assume and carry out responsibilities for any necessary control and maintenance of those controls. Acceptable financial assurance mechanisms are those in paragraph (c) of this section.
            [62 FR 39088, July 21, 1997, as amended at 76 FR 35564, July 17, 2011]

            § 20.1404
            Alternate criteria for license termination.
            (a) The Commission may terminate a license using alternate criteria greater than the dose criterion of §§ 20.1402, 20.1403(b), and 20.1403(d)(1)(i)(A), if the licensee—
            (1) Provides assurance that public health and safety would continue to be protected, and that it is unlikely that the dose from all man-made sources combined, other than medical, would be more than the 1 mSv/y (100 mrem/y) limit of subpart D, by submitting an analysis of possible sources of exposure;
            (2) Has employed to the extent practical restrictions on site use according to the provisions of § 20.1403 in minimizing exposures at the site; and
            (3) Reduces doses to ALARA levels, taking into consideration any detriments such as traffic accidents expected to potentially result from decontamination and waste disposal.
            (4) Has submitted a decommissioning plan or License Termination Plan (LTP) to the Commission indicating the licensee's intent to decommission in accordance with §§ 30.36(d), 40.42(d), 50.82 (a) and (b), 70.38(d), or 72.54 of this chapter, and specifying that the licensee proposes to decommission by use of alternate criteria. The licensee shall document in the decommissioning plan or LTP how the advice of individuals and institutions in the community who may be affected by the decommissioning has been sought and addressed, as appropriate, following analysis of that advice. In seeking such advice, the licensee shall provide for:
            (i) Participation by representatives of a broad cross section of community interests who may be affected by the decommissioning;
            (ii) An opportunity for a comprehensive, collective discussion on the issues by the participants represented; and
            (iii) A publicly available summary of the results of all such discussions, including a description of the individual viewpoints of the participants on the issues and the extent of agreement and disagreement on the issues.
            (5) Has provided sufficient financial assurance in the form of a trust fund to enable an independent third party, including a governmental custodian of a site, to assume and carry out responsibilities for any necessary control and maintenance of the site.
            (b) The use of alternate criteria to terminate a license requires the approval of the Commission after consideration of the NRC staff's recommendations that will address any comments provided by the Environmental Protection Agency and any public comments submitted pursuant to § 20.1405.
            [62 FR 39088, July 21, 1997, as amended at 76 FR 35564, July 17, 2011]

            § 20.1405
            Public notification and public participation.
            Upon the receipt of an LTP or decommissioning plan from the licensee, or a proposal by the licensee for release of a site pursuant to §§ 20.1403 or 20.1404, or whenever the Commission deems such notice to be in the public interest, the Commission shall:
            (a) Notify and solicit comments from:
            (1) Local and State governments in the vicinity of the site and any Indian Nation or other indigenous people that have treaty or statutory rights that could be affected by the decommissioning; and
            (2) The Environmental Protection Agency for cases where the licensee proposes to release a site pursuant to § 20.1404.
            (b) Publish a notice in the Federal Register and in a forum. such as local newspapers, letters to State of local organizations, or other appropriate forum, that is readily accessible to individuals in the vicinity of the site, and solicit comments from affected parties.

            § 20.1406
            Minimization of contamination.
            (a) Applicants for licenses, other than early site permits and manufacturing licenses under part 52 of this chapter and renewals, whose applications are submitted after August 20, 1997, shall describe in the application how facility design and procedures for operation will minimize, to the extent practicable, contamination of the facility and the environment, facilitate eventual decommissioning, and minimize, to the extent practicable, the generation of radioactive waste.
            (b) Applicants for standard design certifications, standard design approvals, and manufacturing licenses under part 52 of this chapter, whose applications are submitted after August 20, 1997, shall describe in the application how facility design will minimize, to the extent practicable, contamination of the facility and the environment, facilitate eventual decommissioning, and minimize, to the extent practicable, the generation of radioactive waste.
            (c) Licensees shall, to the extent practical, conduct operations to minimize the introduction of residual radioactivity into the site, including the subsurface, in accordance with the existing radiation protection requirements in subpart B and radiological criteria for license termination in subpart E of this part.
            [72 FR 49485, Aug. 28, 2007, as amended at 76 FR 35564, June 17, 2011]

          Subpart F—Surveys and Monitoring

            Source:
            56 FR 23398, May 21, 1991, unless otherwise noted.

            § 20.1501
            General.
            (a) Each licensee shall make or cause to be made, surveys of areas, including the subsurface, that—
            (1) May be necessary for the licensee to comply with the regulations in this part; and
            (2) Are reasonable under the circumstances to evaluate—
            (i) The magnitude and extent of radiation levels; and
            (ii) Concentrations or quantities of residual radioactivity; and
            (iii) The potential radiological hazards of the radiation levels and residual radioactivity detected.
            (b) Notwithstanding § 20.2103(a) of this part, records from surveys describing the location and amount of subsurface residual radioactivity identified at the site must be kept with records important for decommissioning, and such records must be retained in accordance with §§ 30.35(g), 40.36(f), 50.75(g), 70.25(g), or 72.30(d), as applicable.
            (c) The licensee shall ensure that instruments and equipment used for quantitative radiation measurements (e.g., dose rate and effluent monitoring) are calibrated periodically for the radiation measured.
            (d) All personnel dosimeters (except for direct and indirect reading pocket ionization chambers and those dosimeters used to measure the dose to the extremities) that require processing to determine the radiation dose and that are used by licensees to comply with § 20.1201, with other applicable provisions of this chapter, or with conditions specified in a license must be processed and evaluated by a dosimetry processor—
            (1) Holding current personnel dosimetry accreditation from the National Voluntary Laboratory Accreditation Program (NVLAP) of the National Institute of Standards and Technology; and
            (2) Approved in this accreditation process for the type of radiation or radiations included in the NVLAP program that most closely approximates the type of radiation or radiations for which the individual wearing the dosimeter is monitored.
            [56 FR 23398, May 21, 1991, as amended at 63 FR 39482, July 23, 1998; 76 FR 35564, June 17, 2011]

            § 20.1502
            Conditions requiring individual monitoring of external and internal occupational dose.

            Each licensee shall monitor exposures to radiation and radioactive material at levels sufficient to demonstrate compliance with the occupational dose limits of this part. As a minimum—

            (a) Each licensee shall monitor occupational exposure to radiation from licensed and unlicensed radiation sources under the control of the licensee and shall supply and require the use of individual monitoring devices by—
            (1) Adults likely to receive, in 1 year from sources external to the body, a dose in excess of 10 percent of the limits in § 20.1201(a),
            (2) Minors likely to receive, in 1 year, from radiation sources external to the body, a deep dose equivalent in excess of 0.1 rem (1 mSv), a lens dose equivalent in excess of 0.15 rem (1.5 mSv), or a shallow dose equivalent to the skin or to the extremities in excess of 0.5 rem (5 mSv);
            (3) Declared pregnant women likely to receive during the entire pregnancy, from radiation sources external to the body, a deep dose equivalent in excess of 0.1 rem (1 mSv); 2
               and

                2 All of the occupational doses in § 20.1201 continue to be applicable to the declared pregnant worker as long as the embryo/fetus dose limit is not exceeded.

            (4) Individuals entering a high or very high radiation area.
            (b) Each licensee shall monitor (see § 20.1204) the occupational intake of radioactive material by and assess the committed effective dose equivalent to—
            (1) Adults likely to receive, in 1 year, an intake in excess of 10 percent of the applicable ALI(s) in table 1, columns 1 and 2, of appendix B to §§ 20.1001-20.2402;
            (2) Minors likely to receive, in 1 year, a committed effective dose equivalent in excess of 0.1 rem (1 mSv); and
            (3) Declared pregnant women likely to receive, during the entire pregnancy, a committed effective dose equivalent in excess of 0.1 rem (1 mSv).
            [56 FR 23398, May 21, 1991, as amended at 60 FR 20185, Apr. 25, 1995; 63 FR 39482, July 23, 1998]

          Subpart G—Control of Exposure From External Sources in Restricted Areas

            Source:
            56 FR 23398, May 21, 1991, unless otherwise noted.

            § 20.1601
            Control of access to high radiation areas.
            (a) The licensee shall ensure that each entrance or access point to a high radiation area has one or more of the following features—
            (1) A control device that, upon entry into the area, causes the level of radiation to be reduced below that level at which an individual might receive a deep-dose equivalent of 0.1 rem (1 mSv) in 1 hour at 30 centimeters from the radiation source or from any surface that the radiation penetrates;
            (2) A control device that energizes a conspicuous visible or audible alarm signal so that the individual entering the high radiation area and the supervisor of the activity are made aware of the entry; or
            (3) Entryways that are locked, except during periods when access to the areas is required, with positive control over each individual entry.
            (b) In place of the controls required by paragraph (a) of this section for a high radiation area, the licensee may substitute continuous direct or electronic surveillance that is capable of preventing unauthorized entry.
            (c) A licensee may apply to the Commission for approval of alternative methods for controlling access to high radiation areas.
            (d) The licensee shall establish the controls required by paragraphs (a) and (c) of this section in a way that does not prevent individuals from leaving a high radiation area.
            (e) Control is not required for each entrance or access point to a room or other area that is a high radiation area solely because of the presence of radioactive materials prepared for transport and packaged and labeled in accordance with the regulations of the Department of Transportation provided that—
            (1) The packages do not remain in the area longer than 3 days; and
            (2) The dose rate at 1 meter from the external surface of any package does not exceed 0.01 rem (0.1 mSv) per hour.

            (f) Control of entrance or access to rooms or other areas in hospitals is not required solely because of the presence of patients containing radioactive material, provided that there are personnel in attendance who will take the necessary precautions to prevent the exposure of individuals to radiation or radioactive material in excess of the limits established in this part and to operate within the ALARA provisions of the licensee's radiation protection program.

            § 20.1602
            Control of access to very high radiation areas.
            In addition to the requirements in § 20.1601, the licensee shall institute additional measures to ensure that an individual is not able to gain unauthorized or inadvertent access to areas in which radiation levels could be encountered at 500 rads (5 grays) or more in 1 hour at 1 meter from a radiation source or any surface through which the radiation penetrates.

          Subpart H—Respiratory Protection and Controls To Restrict Internal Exposure in Restricted Areas

            Source:
            56 FR 23400, May 21, 1991, unless otherwise noted.

            § 20.1701
            Use of process or other engineering controls.
            The licensee shall use, to the extent practical, process or other engineering controls (e.g., containment, decontamination, or ventilation) to control the concentration of radioactive material in air.
            [64 FR 54556, Oct. 7, 1999]

            § 20.1702
            Use of other controls.
            (a) When it is not practical to apply process or other engineering controls to control the concentrations of radioactive material in the air to values below those that define an airborne radioactivity area, the licensee shall, consistent with maintaining the total effective dose equivalent ALARA, increase monitoring and limit intakes by one or more of the following means—
            (1) Control of access;
            (2) Limitation of exposure times;
            (3) Use of respiratory protection equipment; or
            (4) Other controls.
            (b) If the licensee performs an ALARA analysis to determine whether or not respirators should be used, the licensee may consider safety factors other than radiological factors. The licensee should also consider the impact of respirator use on workers' industrial health and safety.
            [64 FR 54556, Oct. 7, 1999]

            § 20.1703
            Use of individual respiratory protection equipment.
            If the licensee assigns or permits the use of respiratory protection equipment to limit the intake of radioactive material,
            (a) The licensee shall use only respiratory protection equipment that is tested and certified by the National Institute for Occupational Safety and Health (NIOSH) except as otherwise noted in this part.
            (b) If the licensee wishes to use equipment that has not been tested or certified by NIOSH, or for which there is no schedule for testing or certification, the licensee shall submit an application to the NRC for authorized use of this equipment except as provided in this part. The application must include evidence that the material and performance characteristics of the equipment are capable of providing the proposed degree of protection under anticipated conditions of use. This must be demonstrated either by licensee testing or on the basis of reliable test information.
            (c) The licensee shall implement and maintain a respiratory protection program that includes:
            (1) Air sampling sufficient to identify the potential hazard, permit proper equipment selection, and estimate doses;
            (2) Surveys and bioassays, as necessary, to evaluate actual intakes;
            (3) Testing of respirators for operability (user seal check for face sealing devices and functional check for others) immediately prior to each use;
            (4) Written procedures regarding—
            (i) Monitoring, including air sampling and bioassays;
            (ii) Supervision and training of respirator users;
            (iii) Fit testing;
            (iv) Respirator selection;
            (v) Breathing air quality;
            (vi) Inventory and control;

            (vii) Storage, issuance, maintenance, repair, testing, and quality assurance of respiratory protection equipment;
            (viii) Recordkeeping; and
            (ix) Limitations on periods of respirator use and relief from respirator use;
            (5) Determination by a physician that the individual user is medically fit to use respiratory protection equipment:
            (i) Before the initial fitting of a face sealing respirator;
            (ii) Before the first field use of non-face sealing respirators, and
            (iii) Either every 12 months thereafter, or periodically at a frequency determined by a physician.
            (6) Fit testing, with fit factor ≥10 times the APF for negative pressure devices, and a fit factor ≥500 for any positive pressure, continuous flow, and pressure-demand devices, before the first field use of tight fitting, face-sealing respirators and periodically thereafter at a frequency not to exceed 1 year. Fit testing must be performed with the facepiece operating in the negative pressure mode.
            (d) The licensee shall advise each respirator user that the user may leave the area at any time for relief from respirator use in the event of equipment malfunction, physical or psychological distress, procedural or communication failure, significant deterioration of operating conditions, or any other conditions that might require such relief.
            (e) The licensee shall also consider limitations appropriate to the type and mode of use. When selecting respiratory devices the licensee shall provide for vision correction, adequate communication, low temperature work environments, and the concurrent use of other safety or radiological protection equipment. The licensee shall use equipment in such a way as not to interfere with the proper operation of the respirator.
            (f) Standby rescue persons are required whenever one-piece atmosphere-supplying suits, or any combination of supplied air respiratory protection device and personnel protective equipment are used from which an unaided individual would have difficulty extricating himself or herself. The standby persons must be equipped with respiratory protection devices or other apparatus appropriate for the potential hazards. The standby rescue persons shall observe or otherwise maintain continuous communication with the workers (visual, voice, signal line, telephone, radio, or other suitable means), and be immediately available to assist them in case of a failure of the air supply or for any other reason that requires relief from distress. A sufficient number of standby rescue persons must be immediately available to assist all users of this type of equipment and to provide effective emergency rescue if needed.
            (g) Atmosphere-supplying respirators must be supplied with respirable air of grade D quality or better as defined by the Compressed Gas Association in publication G-7.1, “Commodity Specification for Air,” 1997 and included in the regulations of the Occupational Safety and Health Administration (29 CFR 1910.134(i)(1)(ii)(A) through (E)). Grade D quality air criteria include—
            (1) Oxygen content (v/v) of 19.5-23.5%;
            (2) Hydrocarbon (condensed) content of 5 milligrams per cubic meter of air or less;
            (3) Carbon monoxide (CO) content of 10 ppm or less;
            (4) Carbon dioxide content of 1,000 ppm or less; and
            (5) Lack of noticeable odor.
            (h) The licensee shall ensure that no objects, materials or substances, such as facial hair, or any conditions that interfere with the face—facepiece seal or valve function, and that are under the control of the respirator wearer, are present between the skin of the wearer's face and the sealing surface of a tight-fitting respirator facepiece.

            (i) In estimating the dose to individuals from intake of airborne radioactive materials, the concentration of radioactive material in the air that is inhaled when respirators are worn is initially assumed to be the ambient concentration in air without respiratory protection, divided by the assigned protection factor. If the dose is later found to be greater than the estimated dose, the corrected value must be used. If the dose is later found to be less than the estimated dose, the corrected value may be used.
            [64 FR 54557, Oct. 7, 1999, as amended at 67 FR 77652, Dec. 19, 2002]

            § 20.1704
            Further restrictions on the use of respiratory protection equipment.
            The Commission may impose restrictions in addition to the provisions of §§ 20.1702, 20.1703, and Appendix A to Part 20, in order to:
            (a) Ensure that the respiratory protection program of the licensee is adequate to limit doses to individuals from intakes of airborne radioactive materials consistent with maintaining total effective dose equivalent ALARA; and
            (b) Limit the extent to which a licensee may use respiratory protection equipment instead of process or other engineering controls.
            [64 FR 54557, Oct. 7, 1999]

            § 20.1705
            Application for use of higher assigned protection factors.
            The licensee shall obtain authorization from the Commission before using assigned protection factors in excess of those specified in Appendix A to part 20. The Commission may authorize a licensee to use higher assigned protection factors on receipt of an application that—
            (a) Describes the situation for which a need exists for higher protection factors; and
            (b) Demonstrates that the respiratory protection equipment provides these higher protection factors under the proposed conditions of use.
            [64 FR 54557, Oct. 7, 1999]

          Subpart I—Storage and Control of Licensed Material

            Source:
            56 FR 23401, May 21, 1991, unless otherwise noted.

            § 20.1801
            Security of stored material.
            The licensee shall secure from unauthorized removal or access licensed materials that are stored in controlled or unrestricted areas.

            § 20.1802
            Control of material not in storage.
            The licensee shall control and maintain constant surveillance of licensed material that is in a controlled or unrestricted area and that is not in storage.

          Subpart J—Precautionary Procedures

            Source:
            56 FR 23401, May 21, 1991, unless otherwise noted.

            § 20.1901
            Caution signs.
            (a) Standard radiation symbol. Unless otherwise authorized by the Commission, the symbol prescribed by this part shall use the colors magenta, or purple, or black on yellow background. The symbol prescribed by this part is the three-bladed design:

              EC02OC91.000

            (1) Cross-hatched area is to be magenta, or purple, or black, and
            (2) The background is to be yellow.
            (b) Exception to color requirements for standard radiation symbol. Notwithstanding the requirements of paragraph (a) of this section, licensees are authorized to label sources, source holders, or device components containing sources of licensed materials that are subjected to high temperatures, with conspicuously etched or stamped radiation caution symbols and without a color requirement.
            (c) Additional information on signs and labels. In addition to the contents of signs and labels prescribed in this part, the licensee may provide, on or near the required signs and labels, additional information, as appropriate, to make individuals aware of potential radiation exposures and to minimize the exposures.

            § 20.1902
            Posting requirements.
            (a) Posting of radiation areas. The licensee shall post each radiation area with a conspicuous sign or signs bearing the radiation symbol and the words “CAUTION, RADIATION AREA.”
            (b) Posting of high radiation areas. The licensee shall post each high radiation area with a conspicuous sign or signs bearing the radiation symbol and the words “CAUTION, HIGH RADIATION AREA” or “DANGER, HIGH RADIATION AREA.”
            (c) Posting of very high radiation areas. The licensee shall post each very high radiation area with a conspicuous sign or signs bearing the radiation symbol and words “GRAVE DANGER, VERY HIGH RADIATION AREA.”

            (d) Posting of airborne radioactivity areas. The licensee shall post each airborne radioactivity area with a conspicuous sign or signs bearing the radiation symbol and the words “CAUTION, AIRBORNE RADIOACTIVITY AREA” or “DANGER, AIRBORNE RADIOACTIVITY AREA.”
            (e) Posting of areas or rooms in which licensed material is used or stored. The licensee shall post each area or room in which there is used or stored an amount of licensed material exceeding 10 times the quantity of such material specified in appendix C to part 20 with a conspicuous sign or signs bearing the radiation symbol and the words “CAUTION, RADIOACTIVE MATERIAL(S)” or “DANGER, RADIOACTIVE MATERIAL(S).”
            [56 FR 23401, May 21, 1991, as amended at 60 FR 20185, Apr. 25, 1995]

            § 20.1903
            Exceptions to posting requirements.
            (a) A licensee is not required to post caution signs in areas or rooms containing radioactive materials for periods of less than 8 hours, if each of the following conditions is met:
            (1) The materials are constantly attended during these periods by an individual who takes the precautions necessary to prevent the exposure of individuals to radiation or radioactive materials in excess of the limits established in this part; and
            (2) The area or room is subject to the licensee's control.
            (b) Rooms or other areas in hospitals that are occupied by patients are not required to be posted with caution signs pursuant to § 20.1902 provided that the patient could be released from licensee control pursuant to § 35.75 of this chapter.
            (c) A room or area is not required to be posted with a caution sign because of the presence of a sealed source provided the radiation level at 30 centimeters from the surface of the source container or housing does not exceed 0.005 rem (0.05 mSv) per hour.
            (d) Rooms in hospitals or clinics that are used for teletherapy are exempt from the requirement to post caution signs under § 20.1902 if—
            (1) Access to the room is controlled pursuant to 10 CFR 35.615; and
            (2) Personnel in attendance take necessary precautions to prevent the inadvertent exposure of workers, other patients, and members of the public to radiation in excess of the limits established in this part.
            [56 FR 23401, May 21, 1991, as amended at 57 FR 39357, Aug. 31, 1992; 62 FR 4133, Jan. 29, 1997; 63 FR 39482, July 23, 1998]

            § 20.1904
            Labeling containers.
            (a) The licensee shall ensure that each container of licensed material bears a durable, clearly visible label bearing the radiation symbol and the words “CAUTION, RADIOACTIVE MATERIAL” or “DANGER, RADIOACTIVE MATERIAL.” The label must also provide sufficient information (such as the radionuclide(s) present, an estimate of the quantity of radioactivity, the date for which the activity is estimated, radiation levels, kinds of materials, and mass enrichment) to permit individuals handling or using the containers, or working in the vicinity of the containers, to take precautions to avoid or minimize exposures.
            (b) Each licensee shall, prior to removal or disposal of empty uncontaminated containers to unrestricted areas, remove or deface the radioactive material label or otherwise clearly indicate that the container no longer contains radioactive materials.

            § 20.1905
            Exemptions to labeling requirements.
            A licensee is not required to label—
            (a) Containers holding licensed material in quantities less than the quantities listed in appendix C to part 20; or
            (b) Containers holding licensed material in concentrations less than those specified in table 3 of appendix B to part 20; or
            (c) Containers attended by an individual who takes the precautions necessary to prevent the exposure of individuals in excess of the limits established by this part; or

            (d) Containers when they are in transport and packaged and labeled in accordance with the regulations of the Department of Transportation, 3
               or

                3 Labeling of packages containing radioactive materials is required by the Department of Transportation (DOT) if the amount and type of radioactive material exceeds the limits for an excepted quantity or article as defined and limited by DOT regulations 49 CFR 173.403 (m) and (w) and 173.421-424.

            (e) Containers that are accessible only to individuals authorized to handle or use them, or to work in the vicinity of the containers, if the contents are identified to these individuals by a readily available written record (examples of containers of this type are containers in locations such as water-filled canals, storage vaults, or hot cells). The record must be retained as long as the containers are in use for the purpose indicated on the record; or
            (f) Installed manufacturing or process equipment, such as reactor components, piping, and tanks; or
            (g) Containers holding licensed material (other than sealed sources that are either specifically or generally licensed) at a facility licensed under Parts 50 or 52 of this chapter, not including non-power reactors, that are within an area posted under the requirements in § 20.1902 if the containers are:
            (1) Conspicuously marked (such as by providing a system of color coding of containers) commensurate with the radiological hazard;
            (2) Accessible only to individuals who have sufficient instruction to minimize radiation exposure while handling or working in the vicinity of the containers; and
            (3) Subject to plant procedures to ensure they are appropriately labeled, as specified at § 20.1904 before being removed from the posted area.
            [56 FR 23401, May 21, 1991, as amended at 60 FR 20185, Apr. 25, 1995; 72 FR 68059, Dec. 4, 2007]

            § 20.1906
            Procedures for receiving and opening packages.
            (a) Each licensee who expects to receive a package containing quantities of radioactive material in excess of a Type A quantity, as defined in § 71.4 and appendix A to part 71 of this chapter, shall make arrangements to receive—
            (1) The package when the carrier offers it for delivery; or
            (2) Notification of the arrival of the package at the carrier's terminal and to take possession of the package expeditiously.
            (b) Each licensee shall—
            (1) Monitor the external surfaces of a labeled 3a
               package for radioactive contamination unless the package contains only radioactive material in the form of a gas or in special form as defined in 10 CFR 71.4;

                3a Labeled with a Radioactive White I, Yellow II, or Yellow III label as specified in U.S. Department of Transportation regulations, 49 CFR 172.403 and 172.436-440.

            (2) Monitor the external surfaces of a labeled 3a package for radiation levels unless the package contains quantities of radioactive material that are less than or equal to the Type A quantity, as defined in § 71.4 and appendix A to part 71 of this chapter; and
            (3) Monitor all packages known to contain radioactive material for radioactive contamination and radiation levels if there is evidence of degradation of package integrity, such as packages that are crushed, wet, or damaged.
            (c) The licensee shall perform the monitoring required by paragraph (b) of this section as soon as practical after receipt of the package, but not later than 3 hours after the package is received at the licensee's facility if it is received during the licensee's normal working hours, or not later than 3 hours from the beginning of the next working day if it is received after working hours.
            (d) The licensee shall immediately notify the final delivery carrier and the NRC Operations Center (301-816-5100), by telephone, when—
            (1) Removable radioactive surface contamination exceeds the limits of § 71.87(i) of this chapter; or
            (2) External radiation levels exceed the limits of § 71.47 of this chapter.
            (e) Each licensee shall—
            (1) Establish, maintain, and retain written procedures for safely opening packages in which radioactive material is received; and

            (2) Ensure that the procedures are followed and that due consideration is given to special instructions for the type of package being opened.
            (f) Licensees transferring special form sources in licensee-owned or licensee-operated vehicles to and from a work site are exempt from the contamination monitoring requirements of paragraph (b) of this section, but are not exempt from the survey requirement in paragraph (b) of this section for measuring radiation levels that is required to ensure that the source is still properly lodged in its shield.
            [56 FR 23401, May 21, 1991, as amended at 57 FR 39357, Aug. 31, 1992; 60 FR 20185, Apr. 25, 1995; 63 FR 39482, July 23, 1998]

          Subpart K—Waste Disposal

            Source:
            56 FR 23403, May 21, 1991, unless otherwise noted.

            § 20.2001
            General requirements.
            (a) A licensee shall dispose of licensed material only—
            (1) By transfer to an authorized recipient as provided in § 20.2006 or in the regulations in parts 30, 40, 60, 61, 63, 70, and 72 of this chapter;
            (2) By decay in storage; or
            (3) By release in effluents within the limits in § 20.1301; or
            (4) As authorized under §§ 20.2002, 20.2003, 20.2004, 20.2005, or 20.2008.
            (b) A person must be specifically licensed to receive waste containing licensed material from other persons for:
            (1) Treatment prior to disposal; or
            (2) Treatment or disposal by incineration; or
            (3) Decay in storage; or
            (4) Disposal at a land disposal facility licensed under part 61 of this chapter; or
            (5) Disposal at a geologic repository under part 60 or part 63 of this chapter.
            [56 FR 23403, May 21, 1991, as amended at 66 FR 55789, Nov. 2, 2001; 72 FR 55922, Oct. 1, 2007]

            § 20.2002
            Method for obtaining approval of proposed disposal procedures.
            A licensee or applicant for a license may apply to the Commission for approval of proposed procedures, not otherwise authorized in the regulations in this chapter, to dispose of licensed material generated in the licensee's activities. Each application shall include:
            (a) A description of the waste containing licensed material to be disposed of, including the physical and chemical properties important to risk evaluation, and the proposed manner and conditions of waste disposal; and
            (b) An analysis and evaluation of pertinent information on the nature of the environment; and
            (c) The nature and location of other potentially affected licensed and unlicensed facilities; and
            (d) Analyses and procedures to ensure that doses are maintained ALARA and within the dose limits in this part.

            § 20.2003
            Disposal by release into sanitary sewerage.
            (a) A licensee may discharge licensed material into sanitary sewerage if each of the following conditions is satisfied:
            (1) The material is readily soluble (or is readily dispersible biological material) in water; and
            (2) The quantity of licensed or other radioactive material that the licensee releases into the sewer in 1 month divided by the average monthly volume of water released into the sewer by the licensee does not exceed the concentration listed in table 3 of appendix B to part 20; and
            (3) If more than one radionuclide is released, the following conditions must also be satisfied:
            (i) The licensee shall determine the fraction of the limit in table 3 of appendix B to part 20 represented by discharges into sanitary sewerage by dividing the actual monthly average concentration of each radionuclide released by the licensee into the sewer by the concentration of that radionuclide listed in table 3 of appendix B to part 20; and
            (ii) The sum of the fractions for each radionuclide required by paragraph (a)(3)(i) of this section does not exceed unity; and

            (4) The total quantity of licensed and other radioactive material that the licensee releases into the sanitary sewerage system in a year does not exceed 5 curies (185 GBq) of hydrogen-3, 1 curie (37 GBq) of carbon-14, and 1 curie (37 GBq) of all other radioactive materials combined.

            (b) Excreta from individuals undergoing medical diagnosis or therapy with radioactive material are not subject to the limitations contained in paragraph (a) of this section.
            [56 FR 23403, May 21, 1991, as amended at 60 FR 20185, Apr. 25, 1995]

            § 20.2004
            Treatment or disposal by incineration.
            (a) A licensee may treat or dispose of licensed material by incineration only:
            (1) As authorized by paragraph (b) of this section; or
            (2) If the material is in a form and concentration specified in § 20.2005; or
            (3) As specifically approved by the Commission pursuant to § 20.2002.
            (b)(1) Waste oils (petroleum derived or synthetic oils used principally as lubricants, coolants, hydraulic or insulating fluids, or metalworking oils) that have been radioactively contaminated in the course of the operation or maintenance of a nuclear power reactor licensed under part 50 of this chapter may be incinerated on the site where generated provided that the total radioactive effluents from the facility, including the effluents from such incineration, conform to the requirements of appendix I to part 50 of this chapter and the effluent release limits contained in applicable license conditions other than effluent limits specifically related to incineration of waste oil. The licensee shall report any changes or additions to the information supplied under §§ 50.34 and 50.34a of this chapter associated with this incineration pursuant to § 50.71 of this chapter, as appropriate. The licensee shall also follow the procedures of § 50.59 of this chapter with respect to such changes to the facility or procedures.
            (2) Solid residues produced in the process of incinerating waste oils must be disposed of as provided by § 20.2001.
            (3) The provisions of this section authorize onsite waste oil incineration under the terms of this section and supersede any provision in an individual plant license or technical specification that may be inconsistent.
            [57 FR 57656, Dec. 7, 1992]

            § 20.2005
            Disposal of specific wastes.
            (a) A licensee may dispose of the following licensed material as if it were not radioactive:
            (1) 0.05 microcurie (1.85 kBq), or less, of hydrogen-3 or carbon-14 per gram of medium used for liquid scintillation counting; and
            (2) 0.05 microcurie (1.85 kBq), or less, of hydrogen-3 or carbon-14 per gram of animal tissue, averaged over the weight of the entire animal.
            (b) A licensee may not dispose of tissue under paragraph (a)(2) of this section in a manner that would permit its use either as food for humans or as animal feed.
            (c) The licensee shall maintain records in accordance with § 20.2108.

            § 20.2006
            Transfer for disposal and manifests.
            (a) The requirements of this section and appendix G to 10 CFR part 20 are designed to—
            (1) Control transfers of low-level radioactive waste by any waste generator, waste collector, or waste processor licensee, as defined in this part, who ships low-level waste either directly, or indirectly through a waste collector or waste processor, to a licensed low-level waste land disposal facility (as defined in part 61 of this chapter);
            (2) Establish a manifest tracking system; and
            (3) Supplement existing requirements concerning transfers and recordkeeping for those wastes.
            (b) Any licensee shipping radioactive waste intended for ultimate disposal at a licensed land disposal facility must document the information required on NRC's Uniform Low-Level Radioactive Waste Manifest and transfer this recorded manifest information to the intended consignee in accordance with appendix G to 10 CFR part 20.
            (c) Each shipment manifest must include a certification by the waste generator as specified in section II of appendix G to 10 CFR part 20.

            (d) Each person involved in the transfer for disposal and disposal of waste, including the waste generator, waste collector, waste processor, and disposal facility operator, shall comply with the requirements specified in section III of appendix G to 10 CFR part 20.

            (e) Any licensee shipping byproduct material as defined in paragraphs (3) and (4) of the definition of Byproduct material set forth in § 20.1003 intended for ultimate disposal at a land disposal facility licensed under part 61 of this chapter must document the information required on the NRC's Uniform Low-Level Radioactive Waste Manifest and transfer this recorded manifest information to the intended consignee in accordance with appendix G to this part.
            [63 FR 50128, Sept. 21, 1998, as amended at 72 FR 55922, Oct. 1, 2007]

            § 20.2007
            Compliance with environmental and health protection regulations.
            Nothing in this subpart relieves the licensee from complying with other applicable Federal, State, and local regulations governing any other toxic or hazardous properties of materials that may be disposed of under this subpart.

            § 20.2008
            Disposal of certain byproduct material.

            (a) Licensed material as defined in paragraphs (3) and (4) of the definition of Byproduct material set forth in § 20.1003 may be disposed of in accordance with part 61 of this chapter, even though it is not defined as low-level radioactive waste. Therefore, any licensed byproduct material being disposed of at a facility, or transferred for ultimate disposal at a facility licensed under part 61 of this chapter, must meet the requirements of § 20.2006.

            (b) A licensee may dispose of byproduct material, as defined in paragraphs (3) and (4) of the definition of Byproduct material set forth in § 20.1003, at a disposal facility authorized to dispose of such material in accordance with any Federal or State solid or hazardous waste law, including the Solid Waste Disposal Act, as authorized under the Energy Policy Act of 2005.
            [72 FR 55922, Oct. 1, 2007]

          Subpart L—Records

            Source:
            56 FR 23404, May 21, 1991, unless otherwise noted.

            § 20.2101
            General provisions.
            (a) Each licensee shall use the units: curie, rad, rem, including multiples and subdivisions, and shall clearly indicate the units of all quantities on records required by this part.
            (b) In the records required by this part, the licensee may record quantities in SI units in parentheses following each of the units specified in paragraph (a) of this section. However, all quantities must be recorded as stated in paragraph (a) of this section.
            (c) Not withstanding the requirements of paragraph (a) of this section, when recording information on shipment manifests, as required in § 20.2006(b), information must be recorded in the International System of Units (SI) or in SI and units as specified in paragraph (a) of this section.
            (d) The licensee shall make a clear distinction among the quantities entered on the records required by this part (e.g., total effective dose equivalent, shallow-dose equivalent, lens dose equivalent, deep-dose equivalent, committed effective dose equivalent).
            [56 FR 23404, May 21, 1991, as amended at 60 FR 15663, Mar. 27, 1995; 63 FR 39483, July 23, 1998]

            § 20.2102
            Records of radiation protection programs.
            (a) Each licensee shall maintain records of the radiation protection program, including:
            (1) The provisions of the program; and
            (2) Audits and other reviews of program content and implementation.
            (b) The licensee shall retain the records required by paragraph (a)(1) of this section until the Commission terminates each pertinent license requiring the record. The licensee shall retain the records required by paragraph (a)(2) of this section for 3 years after the record is made.

            § 20.2103
            Records of surveys.

            (a) Each licensee shall maintain records showing the results of surveys and calibrations required by §§ 20.1501 and 20.1906(b). The licensee shall retain these records for 3 years after the record is made.

            (b) The licensee shall retain each of the following records until the Commission terminates each pertinent license requiring the record:
            (1) Records of the results of surveys to determine the dose from external sources and used, in the absence of or in combination with individual monitoring data, in the assessment of individual dose equivalents. This includes those records of results of surveys to determine the dose from external sources and used, in the absence of or in combination with individual monitoring data, in the assessment of individual dose equivalents required under the standards for protection against radiation in effect prior to January 1, 1994; and
            (2) Records of the results of measurements and calculations used to determine individual intakes of radioactive material and used in the assessment of internal dose. This includes those records of the results of measurements and calculations used to determine individual intakes of radioactive material and used in the assessment of internal dose required under the standards for protection against radiation in effect prior to January 1, 1994; and
            (3) Records showing the results of air sampling, surveys, and bioassays required pursuant to § 20.1703(c)(1) and (2). This includes those records showing the results of air sampling, surveys, and bioassays required under the standards for protection against radiation in effect prior to January 1, 1994; and
            (4) Records of the results of measurements and calculations used to evaluate the release of radioactive effluents to the environment. This includes those records of the results of measurements and calculations used to evaluate the release of radioactive effluents to the environment required under the standards for protection against radiation in effect prior to January 1, 1994.
            [56 FR 23404, May 21, 1991, as amended at 60 FR 20185, Apr. 25, 1995; 66 FR 64737, Dec. 14, 2001]

            § 20.2104
            Determination of prior occupational dose.
            (a) For each individual who is likely to receive an annual occupational dose requiring monitoring under § 20.1502, the licensee shall determine the occupational radiation dose received during the current year.
            (b) Prior to permitting an individual to participate in a planned special exposure, the licensee shall determine—
            (1) The internal and external doses from all previous planned special exposures; and
            (2) All doses in excess of the limits (including doses received during accidents and emergencies) received during the lifetime of the individual.
            (c) In complying with the requirements of paragraphs (a) or (b) of this section, a licensee may—
            (1) Accept, as a record of the occupational dose that the individual received during the current year, a written signed statement from the individual, or from the individual's most recent employer for work involving radiation exposure, that discloses the nature and the amount of any occupational dose that the individual may have received during the current year;
            (2) Accept, as the record of cumulative radiation dose, an up-to-date NRC Form 4, or equivalent, signed by the individual and countersigned by an appropriate official of the most recent employer for work involving radiation exposure, or the individual's current employer (if the individual is not employed by the licensee); and
            (3) Obtain reports of the individual's dose equivalent(s) from the most recent employer for work involving radiation exposure, or the individual's current employer (if the individual is not employed by the licensee) by telephone, telegram, electronic media, or letter. The licensee shall request a written verification of the dose data if the authenticity of the transmitted report cannot be established.
            (d) The licensee shall record the exposure history of each individual, as required by paragraphs (a) or (b) of this section, on NRC Form 4, or other clear and legible record, including all of the information required by NRC Form 4. 4

              The form or record must show each period in which the individual received occupational exposure to radiation or radioactive material and must be signed by the individual who received the exposure. For each period for which the licensee obtains reports, the licensee shall use the dose shown in the report in preparing the NRC Form 4. For any period in which the licensee does not obtain a report, the licensee shall place a notation on the NRC Form 4 indicating the periods of time for which data are not available.

                4 Licensees are not required to partition historical dose between external dose equivalent(s) and internal committed dose equivalent(s). Further, occupational exposure histories obtained and recorded on NRC Form 4 before January 1, 1994, might not have included effective dose equivalent, but may be used in the absence of specific information on the intake of radionuclides by the individual.

            (e) If the licensee is unable to obtain a complete record of an individual's current and previously accumulated occupational dose, the licensee shall assume—
            (1) In establishing administrative controls under § 20.1201(f) for the current year, that the allowable dose limit for the individual is reduced by 1.25 rems (12.5 mSv) for each quarter for which records were unavailable and the individual was engaged in activities that could have resulted in occupational radiation exposure; and
            (2) That the individual is not available for planned special exposures.
            (f) The licensee shall retain the records on NRC Form 4 or equivalent until the Commission terminates each pertinent license requiring this record. The licensee shall retain records used in preparing NRC Form 4 for 3 years after the record is made. This includes records required under the standards for protection against radiation in effect prior to January 1, 1994.
            [56 FR 23404, May 21, 1991, as amended at 57 FR 57878, Dec. 8, 1992; 60 FR 20186, Apr. 25, 1995; 60 FR 36043, July 13, 1995; 72 FR 68059, Dec. 4, 2007]

            § 20.2105
            Records of planned special exposures.
            (a) For each use of the provisions of § 20.1206 for planned special exposures, the licensee shall maintain records that describe—
            (1) The exceptional circumstances requiring the use of a planned special exposure; and
            (2) The name of the management official who authorized the planned special exposure and a copy of the signed authorization; and
            (3) What actions were necessary; and
            (4) Why the actions were necessary; and
            (5) How doses were maintained ALARA; and
            (6) What individual and collective doses were expected to result, and the doses actually received in the planned special exposure.
            (b) The licensee shall retain the records until the Commission terminates each pertinent license requiring these records.

            § 20.2106
            Records of individual monitoring results.
            (a) Recordkeeping requirement. Each licensee shall maintain records of doses received by all individuals for whom monitoring was required pursuant to § 20.1502, and records of doses received during planned special exposures, accidents, and emergency conditions. These records 5
               must include, when applicable—

                5 Assessments of dose equivalent and records made using units in effect before the licensee's adoption of this part need not be changed.

            (1) The deep-dose equivalent to the whole body, lens dose equivalent, shallow-dose equivalent to the skin, and shallow-dose equivalent to the extremities;
            (2) The estimated intake of radionuclides (see § 20.1202);
            (3) The committed effective dose equivalent assigned to the intake of radionuclides;
            (4) The specific information used to assess the committed effective dose equivalent pursuant to § 20.1204 (a) and (c), and when required by § 20.1502;
            (5) The total effective dose equivalent when required by § 20.1202; and
            (6) The total of the deep-dose equivalent and the committed dose to the organ receiving the highest total dose.
            (b) Recordkeeping frequency. The licensee shall make entries of the records specified in paragraph (a) of this section at least annually.

            (c) Recordkeeping format. The licensee shall maintain the records specified in paragraph (a) of this section on NRC Form 5, in accordance with the instructions for NRC Form 5, or in clear and legible records containing all the information required by NRC Form 5.
            (d) Privacy protection. The records required under this section should be protected from public disclosure because of their personal privacy nature. These records are protected by most State privacy laws and, when transferred to the NRC, are protected by the Privacy Act of 1974, Public Law 93-579, 5 U.S.C. 552a, and the Commission's regulations in 10 CFR part 9.
            (e) The licensee shall maintain the records of dose to an embryo/fetus with the records of dose to the declared pregnant woman. The declaration of pregnancy shall also be kept on file, but may be maintained separately from the dose records.
            (f) The licensee shall retain the required form or record until the Commission terminates each pertinent license requiring this record. This includes records required under the standards for protection against radiation in effect prior to January 1, 1994.
            [56 FR 23404, May 21, 1991, as amended at 60 FR 20186, Apr. 25, 1995; 63 FR 39483, July 23, 1998]

            § 20.2107
            Records of dose to individual members of the public.
            (a) Each licensee shall maintain records sufficient to demonstrate compliance with the dose limit for individual members of the public (see § 20.1301).
            (b) The licensee shall retain the records required by paragraph (a) of this section until the Commission terminates each pertinent license requiring the record.

            § 20.2108
            Records of waste disposal.
            (a) Each licensee shall maintain records of the disposal of licensed materials made under §§ 20.2002, 20.2003, 20.2004, 20.2005, 10 CFR part 61 and disposal by burial in soil, including burials authorized before January 28, 1981. 6

                6 A previous § 20.304 permitted burial of small quantities of licensed materials in soil before January 28, 1981, without specific Commission authorization.

            (b) The licensee shall retain the records required by paragraph (a) of this section until the Commission terminates each pertinent license requiring the record. Requirements for disposition of these records, prior to license termination, are located in §§ 30.51, 40.61, 70.51, and 72.80 for activities licensed under these parts.
            [56 FR 23404, May 21, 1991, as amended at 60 FR 20186, Apr. 25, 1995; 61 FR 24673, May 16, 1996]

            § 20.2109
            [Reserved]

            § 20.2110
            Form of records.
            Each record required by this part must be legible throughout the specified retention period. The record may be the original or a reproduced copy or a microform provided that the copy or microform is authenticated by authorized personnel and that the microform is capable of producing a clear copy throughout the required retention period. The record may also be stored in electronic media with the capability for producing legible, accurate, and complete records during the required retention period. Records, such as letters, drawings, and specifications, must include all pertinent information, such as stamps, initials, and signatures. The licensee shall maintain adequate safeguards against tampering with and loss of records.

          Subpart M—Reports

            Source:
            56 FR 23406, May 21, 1991, unless otherwise noted.

            § 20.2201
            Reports of theft or loss of licensed material.
            (a) Telephone reports. (1) Each licensee shall report by telephone as follows:

            (i) Immediately after its occurrence becomes known to the licensee, any lost, stolen, or missing licensed material in an aggregate quantity equal to or greater than 1,000 times the quantity specified in appendix C to part 20 under such circumstances that it appears to the licensee that an exposure could result to persons in unrestricted areas; or
            (ii) Within 30 days after the occurrence of any lost, stolen, or missing licensed material becomes known to the licensee, all licensed material in a quantity greater than 10 times the quantity specified in appendix C to part 20 that is still missing at this time.
            (2) Reports must be made as follows:
            (i) Licensees having an installed Emergency Notification System shall make the reports to the NRC Operations Center in accordance with § 50.72 of this chapter, and
            (ii) All other licensees shall make reports by telephone to the NRC Operations Center (301-816-5100).
            (b) Written reports. (1) Each licensee required to make a report under paragraph (a) of this section shall, within 30 days after making the telephone report, make a written report setting forth the following information:
            (i) A description of the licensed material involved, including kind, quantity, and chemical and physical form; and
            (ii) A description of the circumstances under which the loss or theft occurred; and
            (iii) A statement of disposition, or probable disposition, of the licensed material involved; and
            (iv) Exposures of individuals to radiation, circumstances under which the exposures occurred, and the possible total effective dose equivalent to persons in unrestricted areas; and
            (v) Actions that have been taken, or will be taken, to recover the material; and
            (vi) Procedures or measures that have been, or will be, adopted to ensure against a recurrence of the loss or theft of licensed material.
            (2) Reports must be made as follows:
            (i) For holders of an operating license for a nuclear power plant, the events included in paragraph (b) of this section must be reported in accordance with the procedures described in § 50.73(b), (c), (d), (e), and (g) of this chapter and must include the information required in paragraph (b)(1) of this section, and
            (ii) All other licensees shall make reports to the Administrator of the appropriate NRC Regional Office listed in appendix D to part 20.
            (c) A duplicate report is not required under paragraph (b) of this section if the licensee is also required to submit a report pursuant to §§ 30.55(c), 37.57, 37.81, 40.64(c), 50.72, 50.73, 70.52, 73.27(b), 73.67(e)(3)(vii), 73.67(g)(3)(iii), 73.71, or 150.19(c) of this chapter.
            (d) Subsequent to filing the written report, the licensee shall also report any additional substantive information on the loss or theft within 30 days after the licensee learns of such information.
            (e) The licensee shall prepare any report filed with the Commission pursuant to this section so that names of individuals who may have received exposure to radiation are stated in a separate and detachable part of the report.
            [56 FR 23406, May 21, 1991, as amended at 58 FR 69220, Dec. 30, 1993; 60 FR 20186, Apr. 25, 1995; 66 FR 64738, Dec. 14, 2001; 67 FR 3585, Jan. 25, 2002; 78 FR 17006, Mar. 19, 2013]

            § 20.2202
            Notification of incidents.
            (a) Immediate notification. Notwithstanding any other requirements for notification, each licensee shall immediately report any event involving byproduct, source, or special nuclear material possessed by the licensee that may have caused or threatens to cause any of the following conditions—
            (1) An individual to receive—
            (i) A total effective dose equivalent of 25 rems (0.25 Sv) or more; or
            (ii) A lens dose equivalent of 75 rems (0.75 Sv) or more; or
            (iii) A shallow-dose equivalent to the skin or extremities of 250 rads (2.5 Gy) or more; or
            (2) The release of radioactive material, inside or outside of a restricted area, so that, had an individual been present for 24 hours, the individual could have received an intake five times the annual limit on intake (the provisions of this paragraph do not apply to locations where personnel are not normally stationed during routine operations, such as hot-cells or process enclosures).

            (b) Twenty-four hour notification. Each licensee shall, within 24 hours of discovery of the event, report any event involving loss of control of licensed material possessed by the licensee that may have caused, or threatens to cause, any of the following conditions:
            (1) An individual to receive, in a period of 24 hours—
            (i) A total effective dose equivalent exceeding 5 rems (0.05 Sv); or
            (ii) A lens dose equivalent exceeding 15 rems (0.15 Sv); or
            (iii) A shallow-dose equivalent to the skin or extremities exceeding 50 rems (0.5 Sv); or
            (2) The release of radioactive material, inside or outside of a restricted area, so that, had an individual been present for 24 hours, the individual could have received an intake in excess of one occupational annual limit on intake (the provisions of this paragraph do not apply to locations where personnel are not normally stationed during routine operations, such as hot-cells or process enclosures).
            (c) The licensee shall prepare any report filed with the Commission pursuant to this section so that names of individuals who have received exposure to radiation or radioactive material are stated in a separate and detachable part of the report.
            (d) Reports made by licensees in response to the requirements of this section must be made as follows:
            (1) Licensees having an installed Emergency Notification System shall make the reports required by paragraphs (a) and (b) of this section to the NRC Operations Center in accordance with 10 CFR 50.72; and
            (2) All other licensees shall make the reports required by paragraphs (a) and (b) of this section by telephone to the NRC Operations Center (301) 816-5100.
            (e) The provisions of this section do not include doses that result from planned special exposures, that are within the limits for planned special exposures, and that are reported under § 20.2204.
            [56 FR 23406, May 21, 1991, as amended at 56 FR 40766, Aug. 16, 1991; 57 FR 57879, Dec. 8, 1992; 59 FR 14086, Mar. 25, 1994; 63 FR 39483, July 23, 1998]

            § 20.2203
            Reports of exposures, radiation levels, and concentrations of radioactive material exceeding the constraints or limits.
            (a) Reportable events. In addition to the notification required by § 20.2202, each licensee shall submit a written report within 30 days after learning of any of the following occurrences:
            (1) Any incident for which notification is required by § 20.2202; or
            (2) Doses in excess of any of the following:
            (i) The occupational dose limits for adults in § 20.1201; or
            (ii) The occupational dose limits for a minor in § 20.1207; or
            (iii) The limits for an embryo/fetus of a declared pregnant woman in § 20.1208; or
            (iv) The limits for an individual member of the public in § 20.1301; or
            (v) Any applicable limit in the license; or
            (vi) The ALARA constraints for air emissions established under § 20.1101(d); or
            (3) Levels of radiation or concentrations of radioactive material in—
            (i) A restricted area in excess of any applicable limit in the license; or
            (ii) An unrestricted area in excess of 10 times any applicable limit set forth in this part or in the license (whether or not involving exposure of any individual in excess of the limits in § 20.1301); or
            (4) For licensees subject to the provisions of EPA's generally applicable environmental radiation standards in 40 CFR part 190, levels of radiation or releases of radioactive material in excess of those standards, or of license conditions related to those standards.
            (b) Contents of reports. (1) Each report required by paragraph (a) of this section must describe the extent of exposure of individuals to radiation and radioactive material, including, as appropriate:
            (i) Estimates of each individual's dose; and
            (ii) The levels of radiation and concentrations of radioactive material involved; and
            (iii) The cause of the elevated exposures, dose rates, or concentrations; and

            (iv) Corrective steps taken or planned to ensure against a recurrence, including the schedule for achieving conformance with applicable limits, ALARA constraints, generally applicable environmental standards, and associated license conditions.

            (2) Each report filed pursuant to paragraph (a) of this section must include for each occupationally overexposed 1
               individual: the name, Social Security account number, and date of birth. The report must be prepared so that this information is stated in a separate and detachable part of the report and must be clearly labeled “Privacy Act Information: Not for Public Disclosure.”

                1 With respect to the limit for the embryo/fetus (§ 20.1208), the identifiers should be those of the declared pregnant woman.

            (c) For holders of an operating license or a combined license for a nuclear power plant, the occurrences included in paragraph (a) of this section must be reported in accordance with the procedures described in §§ 50.73(b), (c), (d), (e), and (g) of this chapter, and must include the information required by paragraph (b) of this section. Occurrences reported in accordance with § 50.73 of this chapter need not be reported by a duplicate report under paragraph (a) of this section.

            (d) All licensees, other than those holding an operating license or a combined license for a nuclear power plant, who make reports under paragraph (a) of this section shall submit the report in writing either by mail addressed to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, DC 20555-0001; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland; or, where practicable, by electronic submission, for example, Electronic Information Exchange, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. A copy should be sent to the appropriate NRC Regional Office listed in appendix D to this part.
            [56 FR 23406, May 21, 1991, as amended at 60 FR 20186, Apr. 25, 1995; 61 FR 65127, Dec. 10, 1996; 68 FR 14308, Mar. 25, 2003; 68 FR 58801, Oct. 10, 2003; 72 FR 49486, Aug. 28, 2007; 74 FR 62680, Dec. 1, 2009; 80 FR 74979, Dec. 1, 2015]

            § 20.2204
            Reports of planned special exposures.
            The licensee shall submit a written report to the Administrator of the appropriate NRC Regional Office listed in appendix D to part 20 within 30 days following any planned special exposure conducted in accordance with § 20.1206, informing the Commission that a planned special exposure was conducted and indicating the date the planned special exposure occurred and the information required by § 20.2105.
            [56 FR 23406, May 21, 1991, as amended at 60 FR 20186, Apr. 25, 1995]

            § 20.2205
            Reports to individuals of exceeding dose limits.
            When a licensee is required by §§ 20.2203 or 20.2204 to report to the Commission any exposure of an identified occupationally exposed individual, or an identified member of the public, to radiation or radioactive material, the licensee shall also provide the individual a report on his or her exposure data included in the report to Commission. This report must be transmitted no later than the transmittal to the Commission.
            [72 FR 68059, Dec. 4, 2007]

            § 20.2206
            Reports of individual monitoring.
            (a) This section applies to each person licensed by the Commission to—
            (1) Operate a nuclear reactor designed to produce electrical or heat energy pursuant to § 50.21(b) or § 50.22 of this chapter or a testing facility as defined in § 50.2 of this chapter; or
            (2) Possess or use byproduct material for purposes of radiography pursuant to parts 30 and 34 of this chapter; or

            (3) Possess or use at any one time, for purposes of fuel processing, fabricating, or reprocessing, special nuclear material in a quantity exceeding 5,000 grams of contained uranium-235, uranium-233, or plutonium, or any combination thereof pursuant to part 70 of this chapter; or
            (4) Possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 or 63 of this chapter; or
            (5) Possess spent fuel in an independent spent fuel storage installation (ISFSI) pursuant to part 72 of this chapter; or
            (6) Receive radioactive waste from other persons for disposal under part 61 of this chapter; or
            (7) Possess or use at any time, for processing or manufacturing for distribution pursuant to parts 30, 32, 33 or 35 of this chapter, byproduct material in quantities exceeding any one of the following quantitites:

                Radionuclide
                Quantity of radionuclide 1 in curies

                Cesium-137
                1

                Cobalt-60
                1

                Gold-198
                100

                Iodine-131
                1

                Iridium-192
                10

                Krypton-85
                1,000

                Promethium-147
                10

                Techetium-99m
                1,000

                1 The Commission may require as a license condition, or by rule, regulation, or order pursuant to § 20.2302, reports from licensees who are licensed to use radionuclides not on this list, in quantities sufficient to cause comparable radiation levels.

            (b) Each licensee in a category listed in paragraph (a) of this section shall submit an annual report of the results of individual monitoring carried out by the licensee for each individual for whom monitoring was required by § 20.1502 during that year. The licensee may include additional data for individuals for whom monitoring was provided but not required. The licensee shall use Form NRC 5 or electronic media containing all the information required by Form NRC 5.

            (c) The licensee shall file the report required by § 20.2206(b), covering the preceding year, on or before April 30 of each year. The licensee shall submit the report to the REIRS Project Manager by an appropriate method listed in § 20.1007 or via the REIRS Web site at http://www.reirs.com.

            [56 FR 23406, May 21, 1991, as amended at 56 FR 32072, July 15, 1991; 66 FR 55789, Nov. 2, 2001; 68 FR 58802, Oct. 10, 2003]

            § 20.2207
            Reports of transactions involving nationally tracked sources.
            Each licensee who manufactures, transfers, receives, disassembles, or disposes of a nationally tracked source shall complete and submit a National Source Tracking Transaction Report as specified in paragraphs (a) through (e) of this section for each type of transaction.
            (a) Each licensee who manufactures a nationally tracked source shall complete and submit a National Source Tracking Transaction Report. The report must include the following information:
            (1) The name, address, and license number of the reporting licensee;
            (2) The name of the individual preparing the report;
            (3) The manufacturer, model, and serial number of the source;
            (4) The radioactive material in the source;
            (5) The initial source strength in becquerels (curies) at the time of manufacture; and
            (6) The manufacture date of the source.
            (b) Each licensee that transfers a nationally tracked source to another person shall complete and submit a National Source Tracking Transaction Report. The report must include the following information:
            (1) The name, address, and license number of the reporting licensee;
            (2) The name of the individual preparing the report;
            (3) The name and license number of the recipient facility and the shipping address;
            (4) The manufacturer, model, and serial number of the source or, if not available, other information to uniquely identify the source;
            (5) The radioactive material in the source;
            (6) The initial or current source strength in becquerels (curies);
            (7) The date for which the source strength is reported;
            (8) The shipping date;
            (9) The estimated arrival date; and

            (10) For nationally tracked sources transferred as waste under a Uniform Low-Level Radioactive Waste Manifest, the waste manifest number and the container identification of the container with the nationally tracked source.
            (c) Each licensee that receives a nationally tracked source shall complete and submit a National Source Tracking Transaction Report. The report must include the following information:
            (1) The name, address, and license number of the reporting licensee;
            (2) The name of the individual preparing the report;
            (3) The name, address, and license number of the person that provided the source;
            (4) The manufacturer, model, and serial number of the source or, if not available, other information to uniquely identify the source;
            (5) The radioactive material in the source;
            (6) The initial or current source strength in becquerels (curies);
            (7) The date for which the source strength is reported;
            (8) The date of receipt; and
            (9) For material received under a Uniform Low-Level Radioactive Waste Manifest, the waste manifest number and the container identification with the nationally tracked source.
            (d) Each licensee that disassembles a nationally tracked source shall complete and submit a National Source Tracking Transaction Report. The report must include the following information:
            (1) The name, address, and license number of the reporting licensee;
            (2) The name of the individual preparing the report;
            (3) The manufacturer, model, and serial number of the source or, if not available, other information to uniquely identify the source;
            (4) The radioactive material in the source;
            (5) The initial or current source strength in becquerels (curies);
            (6) The date for which the source strength is reported;
            (7) The disassemble date of the source.
            (e) Each licensee who disposes of a nationally tracked source shall complete and submit a National Source Tracking Transaction Report. The report must include the following information:
            (1) The name, address, and license number of the reporting licensee;
            (2) The name of the individual preparing the report;
            (3) The waste manifest number;
            (4) The container identification with the nationally tracked source.
            (5) The date of disposal; and
            (6) The method of disposal.
            (f) The reports discussed in paragraphs (a) through (e) of this section must be submitted by the close of the next business day after the transaction. A single report may be submitted for multiple sources and transactions. The reports must be submitted to the National Source Tracking System by using:
            (1) The on-line National Source Tracking System;
            (2) Electronically using a computer-readable format;
            (3) By facsimile;
            (4) By mail to the address on the National Source Tracking Transaction Report Form (NRC Form 748); or
            (5) By telephone with followup by facsimile or mail.
            (g) Each licensee shall correct any error in previously filed reports or file a new report for any missed transaction within 5 business days of the discovery of the error or missed transaction. Such errors may be detected by a variety of methods such as administrative reviews or by physical inventories required by regulation. In addition, each licensee shall reconcile the inventory of nationally tracked sources possessed by the licensee against that licensee's data in the National Source Tracking System. The reconciliation must be conducted during the month of January in each year. The reconciliation process must include resolving any discrepancies between the National Source Tracking System and the actual inventory by filing the reports identified by paragraphs (a) through (e) of this section. By January 31 of each year, each licensee must submit to the National Source Tracking System confirmation that the data in the National Source Tracking System is correct.

            (h) Each licensee that possesses Category 1 nationally tracked sources shall report its initial inventory of Category 1 nationally tracked sources to the National Source Tracking System by January 31, 2009. Each licensee that possesses Category 2 nationally tracked sources shall report its initial inventory of Category 2 nationally tracked sources to the National Source Tracking System by January 31, 2009. The information may be submitted by using any of the methods identified by paragraph (f)(1) through (f)(4) of this section. The initial inventory report must include the following information:
            (1) The name, address, and license number of the reporting licensee;
            (2) The name of the individual preparing the report;
            (3) The manufacturer, model, and serial number of each nationally tracked source or, if not available, other information to uniquely identify the source;
            (4) The radioactive material in the sealed source;
            (5) The initial or current source strength in becquerels (curies); and
            (6) The date for which the source strength is reported.
            [71 FR 65707, Nov. 8, 2006, as amended at 72 FR 59163, Oct. 19, 2007]

          Subpart N—Exemptions and Additional Requirements

            Source:
            56 FR 23408, May 21, 1991, unless otherwise noted.

            § 20.2301
            Applications for exemptions.
            The Commission may, upon application by a licensee or upon its own initiative, grant an exemption from the requirements of the regulations in this part if it determines the exemption is authorized by law and would not result in undue hazard to life or property.

            § 20.2302
            Additional requirements.
            The Commission may, by rule, regulation, or order, impose requirements on a licensee, in addition to those established in the regulations in this part, as it deems appropriate or necessary to protect health or to minimize danger to life or property.

          Subpart O—Enforcement

            § 20.2401
            Violations.
            (a) The Commission may obtain an injunction or other court order to prevent a violation of the provisions of—
            (1) The Atomic Energy Act of 1954, as amended;
            (2) Title II of the Energy Reorganization Act of 1974, as amended; or
            (3) A regulation or order issued pursuant to those Acts.
            (b) The Commission may obtain a court order for the payment of a civil penalty imposed under section 234 of the Atomic Energy Act:
            (1) For violations of—
            (i) Sections 53, 57, 62, 63, 81, 82, 101, 103, 104, 107 or 109 of the Atomic Energy Act of 1954, as amended;
            (ii) Section 206 of the Energy Reorganization Act;
            (iii) Any rule, regulation, or order issued pursuant to the sections specified in paragraph (b)(1)(i) of this section; and
            (iv) Any term, condition, or limitation of any license issued under the sections specified in paragraph (b)(1)(i) of this section.
            (2) For any violation for which a license may be revoked under Section 186 of the Atomic Energy Act of 1954, as amended.
            [56 FR 23408, May 21, 1991; 56 FR 61352, Dec. 3, 1991, as amended at 57 FR 55071, Nov. 24, 1992]

            § 20.2402
            Criminal penalties.
            (a) Section 223 of the Atomic Energy Act of 1954, as amended, provides for criminal sanctions for willful violation of, attempted violation of, or conspiracy to violate, any regulation issued under sections 161b, 161i, or 161o of the Act. For purposes of section 223, all the regulations in §§ 20.1001 through 20.2402 are issued under one or more of sections 161b, 161i, or 161o, except for the sections listed in paragraph (b) this section.

            (b) The regulations in §§ 20.1001 through 20.2402 that are not issued under Sections 161b, 161i, or 161o for the purposes of Section 223 are as follows: §§ 20.1001, 20.1002, 20.1003, 20.1004, 20.1005, 20.1006, 20.1007, 20.1008, 20.1009, 20.1405, 20.1704, 20.1903, 20.1905, 20.2002, 20.2007, 20.2301, 20.2302, 20.2401, and 20.2402.
            [57 FR 55071, Nov. 24, 1992, as amended at 62 FR 39089, July 21, 1997]

            Pt. 20, App. A
            Appendix A to Part 20—Assigned Protection Factors for Respirators a

                Operating mode
                AssignedProtection
                  Factors

                I. Air Purifying Respirators [Particulate b only] c:

                Filtering facepiece disposable d

                Negative Pressure
                (d)

                Facepiece, half e

                Negative Pressure
                10

                Facepiece, full
                Negative Pressure
                100

                Facepiece, half
                Powered air-purifying respirators
                50

                Facepiece, full
                Powered air-purifying respirators
                1000

                Helmet/hood
                Powered air-purifying respirators
                1000

                Facepiece, loose-fitting
                Powered air-purifying respirators
                25

                II. Atmosphere supplying respirators [particulate, gases and vapors f]:

                1. Air-line respirator:

                Facepiece, half
                Demand
                10

                Facepiece, half
                Continuous Flow
                50

                Facepiece, half
                Pressure Demand
                50

                Facepiece, full
                Demand
                100

                Facepiece, full
                Continuous Flow
                1000

                Facepiece, full
                Pressure Demand
                1000

                Helmet/hood
                Continuous Flow
                1000

                Facepiece, loose-fitting
                Continuous Flow
                25

                Suit
                Continuous Flow
                (g)

                2. Self-contained breathing Apparatus (SCBA):

                Facepiece, full
                Demand

                  h 100

                Facepiece, full
                Pressure Demand

                  i 10,000

                Facepiece, full
                Demand, Recirculating

                  h 100

                Facepiece, full
                Positive Pressure Recirculating

                  i 10,000

                III. Combination Respirators:

                Any combination of air-purifying and atmosphere-supplying respirators
                Assigned protection factor for type and mode of operation as listed above.

                a These assigned protection factors apply only in a respiratory protection program that meets the requirements of this Part. They are applicable only to airborne radiological hazards and may not be appropriate to circumstances when chemical or other respiratory hazards exist instead of, or in addition to, radioactive hazards. Selection and use of respirators for such circumstances must also comply with Department of Labor regulations.
               Radioactive contaminants for which the concentration values in Table 1, Column 3 of Appendix B to Part 20 are based on internal dose due to inhalation may, in addition, present external exposure hazards at higher concentrations. Under these circumstances, limitations on occupancy may have to be governed by external dose limits.

                b Air purifying respirators with APF <100 must be equipped with particulate filters that are at least 95 percent efficient. Air purifying respirators with APF = 100 must be equipped with particulate filters that are at least 99 percent efficient. Air purifying respirators with APFs >100 must be equipped with particulate filters that are at least 99.97 percent efficient.

                c The licensee may apply to the Commission for the use of an APF greater than 1 for sorbent cartridges as protection against airborne radioactive gases and vapors (e.g., radioiodine).

                d Licensees may permit individuals to use this type of respirator who have not been medically screened or fit tested on the device provided that no credit be taken for their use in estimating intake or dose. It is also recognized that it is difficult to perform an effective positive or negative pressure pre-use user seal check on this type of device. All other respiratory protection program requirements listed in § 20.1703 apply. An assigned protection factor has not been assigned for these devices. However, an APF equal to 10 may be used if the licensee can demonstrate a fit factor of at least 100 by use of a validated or evaluated, qualitative or quantitative fit test.

                e Under-chin type only. No distinction is made in this Appendix between elastomeric half-masks with replaceable cartridges and those designed with the filter medium as an integral part of the facepiece (e.g., disposable or reusable disposable). Both types are acceptable so long as the seal area of the latter contains some substantial type of seal-enhancing material such as rubber or plastic, the two or more suspension straps are adjustable, the filter medium is at least 95 percent efficient and all other requirements of this Part are met.

                f The assigned protection factors for gases and vapors are not applicable to radioactive contaminants that present an absorption or submersion hazard. For tritium oxide vapor, approximately one-third of the intake occurs by absorption through the skin so that an overall protection factor of 3 is appropriate when atmosphere-supplying respirators are used to protect against tritium oxide. Exposure to radioactive noble gases is not considered a significant respiratory hazard, and protective actions for these contaminants should be based on external (submersion) dose considerations.

                g No NIOSH approval schedule is currently available for atmosphere supplying suits. This equipment may be used in an acceptable respiratory protection program as long as all the other minimum program requirements, with the exception of fit testing, are met (i.e., § 20.1703).

                h The licensee should implement institutional controls to assure that these devices are not used in areas immediately dangerous to life or health (IDLH).

                i This type of respirator may be used as an emergency device in unknown concentrations for protection against inhalation hazards. External radiation hazards and other limitations to permitted exposure such as skin absorption shall be taken into account in these circumstances. This device may not be used by any individual who experiences perceptible outward leakage of breathing gas while wearing the device.

            [64 FR 54558, Oct. 7, 1999; 64 FR 55524, Oct. 13, 1999]

            Pt. 20, App. B
            Appendix B to Part 20—Annual Limits on Intake (ALIs) and Derived Air Concentrations (DACs) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sewerage
            Introduction

            For each radionuclide table 1 indicates the chemical form which is to be used for selecting the appropriate ALI or DAC value. The ALIs and DACs for inhalation are given for an aerosol with an activity median aerodynamic diameter (AMAD) of 1 µm and for three classes (D,W,Y) of radioactive material, which refer to their retention (approximately days, weeks or years) in the pulmonary region of the lung. This classification applies to a range of clearance half-times of less than 10 days for D, for W from 10 to 100 days, and for Y greater than 100 days. The class (D, W, or Y) given in the column headed “Class” applies only to the inhalation ALIs and DACs given in table 1, columns 2 and 3. Table 2 provides concentration limits for airborne and liquid effluents released to the general environment. Table 3 provides concentration limits for discharges to sanitary sewer systems.
            Notation

            The values in tables 1, 2, and 3 are presented in the computer “E” notation. In this notation a value of 6E−02 represents a value of 6 × 10−2 or 0.06, 6E + 2 represents 6 × 102 or 600, and 6E + 0 represents 6 × 100 or 6.
            Table 1 “Occupational”
            Note that the columns in table 1, of this appendix captioned “Oral Ingestion ALI,” “Inhalation ALI,” and “DAC,” are applicable to occupational exposure to radioactive material.

            The ALIs in this appendix are the annual intakes of a given radionuclide by “Reference Man” which would result in either (1) a committed effective dose equivalent of 5 rems (stochastic ALI) or (2) a committed dose equivalent of 50 rems to an organ or tissue (non-stochastic ALI). The stochastic ALIs were derived to result in a risk, due to irradiation of organs and tissues, comparable to the risk associated with deep dose equivalent to the whole body of 5 rems. The derivation includes multiplying the committed dose equivalent to an organ or tissue by a weighting factor, wT. This weighting factor is the proportion of the risk of stochastic effects resulting from irradiation of the organ or tissue, T, to the total risk of stochastic effects when the whole body is irradiated uniformly. The values of wT are listed under the definition of weighting factor in § 20.1003. The non-stochastic ALIs were derived to avoid non-stochastic effects, such as prompt damage to tissue or reduction in organ function.
            A value of wT = 0.06 is applicable to each of the five organs or tissues in the “remainder” category receiving the highest dose equivalents, and the dose equivalents of all other remaining tissues may be disregarded. The following parts of the GI tract—stomach, small intestine, upper large intestine, and lower large intestine—are to be treated as four separate organs.
            Note that the dose equivalents for extremities (hands and forearms, feet and lower legs), skin, and lens of the eye are not considered in computing the committed effective dose equivalent, but are subject to limits that must be met separately.
            When an ALI is defined by the stochastic dose limit, this value alone, is given. When an ALI is determined by the non-stochastic dose limit to an organ, the organ or tissue to which the limit applies is shown, and the ALI for the stochastic limit is shown in parentheses. (Abbreviated organ or tissue designations are used: LLI wall = lower large intestine wall; St. wall = stomach wall; Blad wall = bladder wall; and Bone surf = bone surface.)

            The use of the ALIs listed first, the more limiting of the stochastic and non-stochastic ALIs, will ensure that non-stochastic effects are avoided and that the risk of stochastic effects is limited to an acceptably low value. If, in a particular situation involving a radionuclide for which the non-stochastic ALI is limiting, use of that non-stochastic ALI is considered unduly conservative, the licensee may use the stochastic ALI to determine the committed effective dose equivalent. However, the licensee shall also ensure that the 50-rem dose equivalent limit for any organ or tissue is not exceeded by the sum of the external deep dose equivalent plus the internal committed dose to that organ (not the effective dose). For the case where there is no external dose contribution, this would be demonstrated if the sum of the fractions of the nonstochastic ALIs (ALIns) that contribute to the committed dose equivalent to the organ receiving the highest dose does not exceed unity (i.e., Σ (intake (in µCi) of each radionuclide/ALIns) <1.0). If there is an external deep dose equivalent contribution of Hd then this sum must be less than l−(Hd/50) instead of being <1.0.
            The derived air concentration (DAC) values are derived limits intended to control chronic occupational exposures. The relationship between the DAC and the ALI is given by: DAC = ALI(in µCi)/(2000 hours per working year × 60 minutes/hour × 2 × 104 ml per minute) = [ALI/2.4 × 109] µCi/ml, where 2 × 104 ml is the volume of air breathed per minute at work by “Reference Man” under working conditions of “light work.”
            The DAC values relate to one of two modes of exposure: either external submersion or the internal committed dose equivalents resulting from inhalation of radioactive materials. Derived air concentrations based upon submersion are for immersion in a semi-infinite cloud of uniform concentration and apply to each radionuclide separately.
            The ALI and DAC values relate to exposure to the single radionuclide named, but also include contributions from the in-growth of any daughter radionuclide produced in the body by the decay of the parent. However, intakes that include both the parent and daughter radionuclides should be treated by the general method appropriate for mixtures.

            The value of ALI and DAC do not apply directly when the individual both ingests and inhales a radionuclide, when the individual is exposed to a mixture of radionuclides by either inhalation or ingestion or both, or when the individual is exposed to both internal and external radiation (see § 20.1202). When an individual is exposed to radioactive materials which fall under several of the translocation classifications (i.e., Class D, Class W, or Class Y) of the same radionuclide, the exposure may be evaluated as if it were a mixture of different radionuclides.
            It should be noted that the classification of a compound as Class D, W, or Y is based on the chemical form of the compound and does not take into account the radiological half-life of different radioisotopes. For this reason, values are given for Class D, W, and Y compounds, even for very short-lived radionuclides.
            Table 2
            The columns in table 2 of this appendix captioned “Effluents,” “Air,” and “Water,” are applicable to the assessment and control of dose to the public, particularly in the implementation of the provisions of § 20.1302. The concentration values given in columns 1 and 2 of table 2 are equivalent to the radionuclide concentrations which, if inhaled or ingested continuously over the course of a year, would produce a total effective dose equivalent of 0.05 rem (50 millirem or 0.5 millisieverts).
            Consideration of non-stochastic limits has not been included in deriving the air and water effluent concentration limits because non-stochastic effects are presumed not to occur at the dose levels established for individual members of the public. For radionuclides, where the non-stochastic limit was governing in deriving the occupational DAC, the stochastic ALI was used in deriving the corresponding airborne effluent limit in table 2. For this reason, the DAC and airborne effluent limits are not always proportional as was the case in appendix B to §§ 20.1-20.601.
            The air concentration values listed in table 2, column 1, were derived by one of two methods. For those radionuclides for which the stochastic limit is governing, the occupational stochastic inhalation ALI was divided by 2.4 × 10 9 ml, relating the inhalation ALI to the DAC, as explained above, and then divided by a factor of 300. The factor of 300 includes the following components: a factor of 50 to relate the 5-rem annual occupational dose limit to the 0.1-rem limit for members of the public, a factor of 3 to adjust for the difference in exposure time and the inhalation rate for a worker and that for members of the public; and a factor of 2 to adjust the occupational values (derived for adults) so that they are applicable to other age groups.
            For those radionuclides for which submersion (external dose) is limiting, the occupational DAC in table 1, column 3, was divided by 219. The factor of 219 is composed of a factor of 50, as described above, and a factor of 4.38 relating occupational exposure for 2,000 hours per year to full-time exposure (8,760 hours per year). Note that an additional factor of 2 for age considerations is not warranted in the submersion case.
            The water concentrations were derived by taking the most restrictive occupational stochastic oral ingestion ALI and dividing by 7.3 × 107. The factor of 7.3 × 107 (ml) includes the following components: the factors of 50 and 2 described above and a factor of 7.3 × 105 (ml) which is the annual water intake of “Reference Man.”
            Note 2 of this appendix provides groupings of radionuclides which are applicable to unknown mixtures of radionuclides. These groupings (including occupational inhalation ALIs and DACs, air and water effluent concentrations and sewerage) require demonstrating that the most limiting radionuclides in successive classes are absent. The limit for the unknown mixture is defined when the presence of one of the listed radionuclides cannot be definitely excluded either from knowledge of the radionuclide composition of the source or from actual measurements.
            Table 3 “Sewer Disposal”
            The monthly average concentrations for release to sanitary sewers are applicable to the provisions in § 20.2003. The concentration values were derived by taking the most restrictive occupational stochastic oral ingestion ALI and dividing by 7.3 × 106 (ml). The factor of 7.3 × 106 (ml) is composed of a factor of 7.3 × 105 (ml), the annual water intake by “Reference Man,” and a factor of 10, such that the concentrations, if the sewage released by the licensee were the only source of water ingested by a reference man during a year, would result in a committed effective dose equivalent of 0.5 rem.

              List of Elements

                Name
                Atomic
                Symbol
                No.

                Actinium
                Ac
                89

                Aluminum
                Al
                13

                Americium
                Am
                95

                Antimony
                Sb
                51

                Argon
                Ar
                18

                Arsenic
                As
                33

                Astatine
                At
                85

                Barium
                Ba
                56

                Berkelium
                Bk
                97

                Beryllium
                Be
                4

                Bismuth
                Bi
                83

                Bromine
                Br
                35

                Cadmium
                Cd
                48

                Calcium
                Ca
                20

                Californium
                Cf
                98

                Carbon
                C
                6

                Cerium
                Ce
                58

                Cesium
                Cs
                55

                Chlorine
                Cl
                17

                Chromium
                Cr
                24

                Cobalt
                Co
                27

                Copper
                Cu
                29

                Curium
                Cm
                96

                Dysprosium
                Dy
                66

                Einsteinium
                Es
                99

                Erbium
                Er
                68

                Europium
                Eu
                63

                Fermium
                Fm
                100

                Fluorine
                F
                9

                Francium
                Fr
                87

                Gadolinium
                Gd
                64

                Gallium
                Ga
                31

                Germanium
                Ge
                32

                Gold
                Au
                79

                Hafnium
                Hf
                72

                Holmium
                Ho
                67

                Hydrogen
                H
                1

                Indium
                In
                49

                Iodine
                I
                53

                Iridium
                Ir
                77

                Iron
                Fe
                26

                Krypton
                Kr
                36

                Lanthanum
                La
                57

                Lead
                Pb
                82

                Lutetium
                Lu
                71

                Magnesium
                Mg
                12

                Manganese
                Mn
                25

                Mendelevium
                Md
                101

                Mercury
                Hg
                80

                Molybdenum
                Mo
                42

                Neodymium
                Nd
                60

                Neptunium
                Np
                93

                Nickel
                Ni
                28

                Niobium
                Nb
                41

                Nitrogen
                N
                7

                Osmium
                Os
                76

                Oxygen
                O
                8

                Palladium
                Pd
                46

                Phosphorus
                P
                15

                Platinum
                Pt
                78

                Plutonium
                Pu
                94

                Polonium
                Po
                84

                Potassium
                K
                19

                Praseodymium
                Pr
                59

                Promethium
                Pm
                61

                Protactinium
                Pa
                91

                Radium
                Ra
                88

                Radon
                Rn
                86

                Rhenium
                Re
                75

                Rhodium
                Rh
                45

                Rubidium
                Rb
                37

                Ruthenium
                Ru
                44

                Samarium
                Sm
                62

                Scandium
                Sc
                21

                Selenium
                Se
                34

                Silicon
                Si
                14

                Silver
                Ag
                47

                Sodium
                Na
                11

                Strontium
                Sr
                38

                Sulfur
                S
                16

                Tantalum
                Ta
                73

                Technetium
                Tc
                43

                Tellurium
                Te
                52

                Terbium
                Tb
                65

                Thallium
                Tl
                81

                Thorium
                Th
                90

                Thulium
                Tm
                69

                Tin
                Sn
                50

                Titanium
                Ti
                22

                Tungsten
                W
                74

                Uranium
                U
                92

                Vanadium
                V
                23

                Xenon
                Xe
                54

                Ytterbium
                Yb
                70

                Yttrium
                Y
                39

                Zinc
                Zn
                30

                Zirconium
                Zr
                40

              ER30NO10.229

              ER30NO10.230

              EC02OC91.003

              EC02OC91.004

              EC02OC91.005

              EC02OC91.006

              EC02OC91.007

              EC02OC91.008

              EC02OC91.009

              EC02OC91.010

              EC02OC91.011

              EC02OC91.012

              EC02OC91.013

              EC02OC91.014

              EC02OC91.015

              EC02OC91.016

              EC02OC91.017

              EC02OC91.018

              EC02OC91.019

              EC02OC91.020

              EC02OC91.021

              EC02OC91.022

              EC02OC91.023

              EC02OC91.024

              EC02OC91.025

              EC02OC91.026

              EC02OC91.027

              EC02OC91.028

              EC02OC91.029

              EC02OC91.030

              EC02OC91.031

              EC02OC91.032

              EC02OC91.033

              EC02OC91.034

              EC02OC91.035

              EC02OC91.036

              EC02OC91.037

              EC02OC91.038

              EC02OC91.039

              EC02OC91.040

              EC02OC91.041

              EC02OC91.042

              EC02OC91.043

              EC02OC91.044

              EC02OC91.045

              EC02OC91.046

              EC02OC91.047

              EC02OC91.048

              EC02OC91.049

              EC02OC91.050

              EC02OC91.051

              EC02OC91.052

              EC02OC91.053

              EC02OC91.054

            [56 FR 23409, May 21, 1991; 56 FR 61352, Dec. 3, 1991, as amended at 57 FR 57879, Dec. 8, 1992. Redesignated at 58 FR 67659, Dec. 22, 1993, as amended at 71 FR 15007, Mar. 27, 2006; 72 FR 55922, Oct. 1, 2007; 75 FR 73938, Nov. 30, 2010]

            Pt. 20, App. C
            Appendix C to Part 20—Quantities 1 of Licensed Material Requiring Labeling

                Radionuclide
                Quantity (µCi)

                Hydrogen-3
                1,000

                Beryllium-7
                1,000

                Beryllium-10
                1

                Carbon-11
                1,000

                Carbon-14
                100

                Fluorine-18
                1,000

                Sodium-22
                10

                Sodium-24
                100

                Magnesium-28
                100

                Aluminum-26
                10

                Silicon-31
                1,000

                Silicon-32
                1

                Phosphorus-32
                10

                Phosphorus-33
                100

                Sulfur-35
                100

                Chlorine-36
                10

                Chlorine-38
                1,000

                Chlorine-39
                1,000

                Argon-39
                1,000

                Argon-41
                1,000

                Potassium-40
                100

                Potassium-42
                1,000

                Potassium-43
                1,000

                Potassium-44
                1,000

                Potassium-45
                1,000

                Calcium-41
                100

                Calcium-45
                100

                Calcium-47
                100

                Scandium-43
                1,000

                Scandium-44m
                100

                Scandium-44
                100

                Scandium-46
                10

                Scandium-47
                100

                Scandium-48
                100

                Scandium-49
                1,000

                Titanium-44
                1

                Titanium-45
                1,000

                Vanadium-47
                1,000

                Vanadium-48
                100

                Vanadium-49
                1,000

                Chromium-48
                1,000

                Chromium-49
                1,000

                Chromium-51
                1,000

                Manganese-51
                1,000

                Manganese-52m
                1,000

                Manganese-52
                100

                Manganese-53
                1,000

                Manganese-54
                100

                Manganese-56
                1,000

                Iron-52
                100

                Iron-55
                100

                Iron-59
                10

                Iron-60
                1

                Cobalt-55
                100

                Cobalt-56
                10

                Cobalt-57
                100

                Cobalt-58m
                1,000

                Cobalt-58
                100

                Cobalt-60m
                1,000

                Cobalt-60
                1

                Cobalt-61
                1,000

                Cobalt-62m
                1,000

                Nickel-56
                100

                Nickel-57
                100

                Nickel-59
                100

                Nickel-63
                100

                Nickel-65
                1,000

                Nickel-66
                10

                Copper-60
                1,000

                Copper-61
                1,000

                Copper-64
                1,000

                Copper-67
                1,000

                Zinc-62
                100

                Zinc-63
                1,000

                Zinc-65
                10

                Zinc-69m
                100

                Zinc-69
                1,000

                Zinc-71m
                1,000

                Zinc-72
                100

                Gallium-65
                1,000

                Gallium-66
                100

                Gallium-67
                1,000

                Gallium-68
                1,000

                Gallium-70
                1,000

                Gallium-72
                100

                Gallium-73
                1,000

                Germanium-66
                1,000

                Germanium-67
                1,000

                Germanium-68
                10

                Germanium-69
                1,000

                Germanium-71
                1,000

                Germanium-75
                1,000

                Germanium-77
                1,000

                Germanium-78
                1,000

                Arsenic-69
                1,000

                Arsenic-70
                1,000

                Arsenic-71
                100

                Arsenic-72
                100

                Arsenic-73
                100

                Arsenic-74
                100

                Arsenic-76
                100

                Arsenic-77
                100

                Arsenic-78
                1,000

                Selenium-70
                1,000

                Selenium-73m
                1,000

                Selenium-73
                100

                Selenium-75
                100

                Selenium-79
                100

                Selenium-81m
                1,000

                Selenium-81
                1,000

                Selenium-83
                1,000

                Bromine-74m
                1,000

                Bromine-74
                1,000

                Bromine-75
                1,000

                Bromine-76
                100

                Bromine-77
                1,000

                Bromine-80m
                1,000

                Bromine-80
                1,000

                Bromine-82
                100

                Bromine-83
                1,000

                Bromine-84
                1,000

                Krypton-74
                1,000

                Krypton-76
                1,000

                Krypton-77
                1,000

                Krypton-79
                1,000

                Krypton-81
                1,000

                Krypton-83m
                1,000

                Krypton-85m
                1,000

                Krypton-85
                1,000

                Krypton-87
                1,000

                Krypton-88
                1,000

                Rubidium-79
                1,000

                Rubidium-81m
                1,000

                Rubidium-81
                1,000

                Rubidium-82m
                1,000

                Rubidium-83
                100

                Rubidium-84
                100

                Rubidium-86
                100

                Rubidium-87
                100

                Rubidium-88
                1,000

                Rubidium-89
                1,000

                Strontium-80
                100

                Strontium-81
                1,000

                Strontium-83
                100

                Strontium-85m
                1,000

                Strontium-85
                100

                Strontium-87m
                1,000

                Strontium-89
                10

                Strontium-90
                0.1

                Strontium-91
                100

                Strontium-92
                100

                Yttrium-86m
                1,000

                Yttrium-86
                100

                Yttrium-87
                100

                Yttrium-88
                10

                Yttrium-90m
                1,000

                Yttrium-90
                10

                Yttrium-91m
                1,000

                Yttrium-91
                10

                Yttrium-92
                100

                Yttrium-93
                100

                Yttrium-94
                1,000

                Yttrium-95
                1,000

                Zirconium-86
                100

                Zirconium-88
                10

                Zirconium-89
                100

                Zirconium-93
                1

                Zirconium-95
                10

                Zirconium-97
                100

                Niobium-88
                1,000

                Niobium-89m (66 min)
                1,000

                Niobium-89 (122 min)
                1,000

                Niobium-90
                100

                Niobium-93m
                10

                Niobium-94
                1

                Niobium-95m
                100

                Niobium-95
                100

                Niobium-96
                100

                Niobium-97
                1,000

                Niobium-98
                1,000

                Molybdenum-90
                100

                Molybdenum-93m
                100

                Molybdenum-93
                10

                Molybdenum-99
                100

                Molybdenum-101
                1,000

                Technetium-93m
                1,000

                Technetium-93
                1,000

                Technetium-94m
                1,000

                Technetium-94
                1,000

                Technetium-96m
                1,000

                Technetium-96
                100

                Technetium-97m
                100

                Technetium-97
                1,000

                Technetium-98
                10

                Technetium-99m
                1,000

                Technetium-99
                100

                Technetium-101
                1,000

                Technetium-104
                1,000

                Ruthenium-94
                1,000

                Ruthenium-97
                1,000

                Ruthenium-103
                100

                Ruthenium-105
                1,000

                Ruthenium-106
                1

                Rhodium-99m
                1,000

                Rhodium-99
                100

                Rhodium-100
                100

                Rhodium-101m
                1,000

                Rhodium-101
                10

                Rhodium-102m
                10

                Rhodium-102
                10

                Rhodium-103m
                1,000

                Rhodium-105
                100

                Rhodium-106m
                1,000

                Rhodium-107
                1,000

                Palladium-100
                100

                Palladium-101
                1,000

                Palladium-103
                100

                Palladium-107
                10

                Palladium-109
                100

                Silver-102
                1,000

                Silver-103
                1,000

                Silver-104m
                1,000

                Silver-104
                1,000

                Silver-105
                100

                Silver-106m
                100

                Silver-106
                1,000

                Silver-108m
                1

                Silver-110m
                10

                Silver-111
                100

                Silver-112
                100

                Silver-115
                1,000

                Cadmium-104
                1,000

                Cadmium-107
                1,000

                Cadmium-109
                1

                Cadmium-113m
                0.1

                Cadmium-113
                100

                Cadmium-115m
                10

                Cadmium-115
                100

                Cadmium-117m
                1,000

                Cadmium-117
                1,000

                Indium-109
                1,000

                Indium-110 (69.1min.)
                1,000

                Indium-110

                (4.9h)
                1,000

                Indium-111
                100

                Indium-112
                1,000

                Indium-113m
                1,000

                Indium-114m
                10

                Indium-115m
                1,000

                Indium-115
                100

                Indium-116m
                1,000

                Indium-117m
                1,000

                Indium-117
                1,000

                Indium-119m
                1,000

                Tin-110
                100

                Tin-111
                1,000

                Tin-113
                100

                Tin-117m
                100

                Tin-119m
                100

                Tin-121m
                100

                Tin-121
                1,000

                Tin-123m
                1,000

                Tin-123
                10

                Tin-125
                10

                Tin-126
                10

                Tin-127
                1,000

                Tin-128
                1,000

                Antimony-115
                1,000

                Antimony-116m
                1,000

                Antimony-116
                1,000

                Antimony-117
                1,000

                Antimony-118m
                1,000

                Antimony-119
                1,000

                Antimony-120 (16min.)
                1,000

                Antimony-120 (5.76d)
                100

                Antimony-122
                100

                Antimony-124m
                1,000

                Antimony-124
                10

                Antimony-125
                100

                Antimony-126m
                1,000

                Antimony-126
                100

                Antimony-127
                100

                Antimony-128 (10.4min.)
                1,000

                Antimony-128 (9.01h)
                100

                Antimony-129
                100

                Antimony-130
                1,000

                Antimony-131
                1,000

                Tellurium-116
                1,000

                Tellurium-121m
                10

                Tellurium-121
                100

                Tellurium-123m
                10

                Tellurium-123
                100

                Tellurium-125m
                10

                Tellurium-127m
                10

                Tellurium-127
                1,000

                Tellurium-129m
                10

                Tellurium-129
                1,000

                Tellurium-131m
                10

                Tellurium-131
                100

                Tellurium-132
                10

                Tellurium-133m
                100

                Tellurium-133
                1,000

                Tellurium-134
                1,000

                Iodine-120m
                1,000

                Iodine-120
                100

                Iodine-121
                1,000

                Iodine-123
                100

                Iodine-124
                10

                Iodine-125
                1

                Iodine-126
                1

                Iodine-128
                1,000

                Iodine-129
                1

                Iodine-130
                10

                Iodine-131
                1

                Iodine-132m
                100

                Iodine-132
                100

                Iodine-133
                10

                Iodine-134
                1,000

                Iodine-135
                100

                Xenon-120
                1,000

                Xenon-121
                1,000

                Xenon-122
                1,000

                Xenon-123
                1,000

                Xenon-125
                1,000

                Xenon-127
                1,000

                Xenon-129m
                1,000

                Xenon-131m
                1,000

                Xenon-133m
                1,000

                Xenon-133
                1,000

                Xenon-135m
                1,000

                Xenon-135
                1,000

                Xenon-138
                1,000

                Cesium-125
                1,000

                Cesium-127
                1,000

                Cesium-129
                1,000

                Cesium-130
                1,000

                Cesium-131
                1,000

                Cesium-132
                100

                Cesium-134m
                1,000

                Cesium-134
                10

                Cesium-135m
                1,000

                Cesium-135
                100

                Cesium-136
                10

                Cesium-137
                10

                Cesium-138
                1,000

                Barium-126
                1,000

                Barium-128
                100

                Barium-131m
                1,000

                Barium-131
                100

                Barium-133m
                100

                Barium-133
                100

                Barium-135m
                100

                Barium-139
                1,000

                Barium-140
                100

                Barium-141
                1,000

                Barium-142
                1,000

                Lanthanum-131
                1,000

                Lanthanum-132
                100

                Lanthanum-135
                1,000

                Lanthanum-137
                10

                Lanthanum-138
                100

                Lanthanum-140
                100

                Lanthanum-141
                100

                Lanthanum-142
                1,000

                Lanthanum-143
                1,000

                Cerium-134
                100

                Cerium-135
                100

                Cerium-137m
                100

                Cerium-137
                1,000

                Cerium-139
                100

                Cerium-141
                100

                Cerium-143
                100

                Cerium-144
                1

                Praseodymium-136
                1,000

                Praseodymium-137
                1,000

                Praseodymium-138m
                1,000

                Praseodymium-139
                1,000

                Praseodymium-142m
                1,000

                Praseodymium-142
                100

                Praseodymium-143
                100

                Praseodymium-144
                1,000

                Praseodymium-145
                100

                Praseodymium-147
                1,000

                Neodymium-136
                1,000

                Neodymium-138
                100

                Neodymium-139m
                1,000

                Neodymium-139
                1,000

                Neodymium-141
                1,000

                Neodymium-147
                100

                Neodymium-149
                1,000

                Neodymium-151
                1,000

                Promethium-141
                1,000

                Promethium-143
                100

                Promethium-144
                10

                Promethium-145
                10

                Promethium-146
                1

                Promethium-147
                10

                Promethium-148m
                10

                Promethium-148
                10

                Promethium-149
                100

                Promethium-150
                1,000

                Promethium-151
                100

                Samarium-141m
                1,000

                Samarium-141
                1,000

                Samarium-142
                1,000

                Samarium-145
                100

                Samarium-146
                1

                Samarium-147
                100

                Samarium-151
                10

                Samarium-153
                100

                Samarium-155
                1,000

                Samarium-156
                1,000

                Europium-145
                100

                Europium-146
                100

                Europium-147
                100

                Europium-148
                10

                Europium-149
                100

                Europium-150 (12.62h)
                100

                Europium-150 (34.2y)
                1

                Europium-152m
                100

                Europium-152
                1

                Europium-154
                1

                Europium-155
                10

                Europium-156
                100

                Europium-157
                100

                Europium-158
                1,000

                Gadolinium-145
                1,000

                Gadolinium-146
                10

                Gadolinium-147
                100

                Gadolinium-148
                0.001

                Gadolinium-149
                100

                Gadolinium-151
                10

                Gadolinium-152
                100

                Gadolinium-153
                10

                Gadolinium-159
                100

                Terbium-147
                1,000

                Terbium-149
                100

                Terbium-150
                1,000

                Terbium-151
                100

                Terbium-153
                1,000

                Terbium-154
                100

                Terbium-155
                1,000

                Terbium-156m (5.0h)
                1,000

                Terbium-156m (24.4h)
                1,000

                Terbium-156
                100

                Terbium-157
                10

                Terbium-158
                1

                Terbium-160
                10

                Terbium-161
                100

                Dysprosium-155
                1,000

                Dysprosium-157
                1,000

                Dysprosium-159
                100

                Dysprosium-165
                1,000

                Dysprosium-166
                100

                Holmium-155
                1,000

                Holmium-157
                1,000

                Holmium-159
                1,000

                Holmium-161
                1,000

                Holmium-162m
                1,000

                Holmium-162
                1,000

                Holmium-164m
                1,000

                Holmium-164
                1,000

                Holmium-166m
                1

                Holmium-166
                100

                Holmium-167
                1,000

                Erbium-161
                1,000

                Erbium-165
                1,000

                Erbium-169
                100

                Erbium-171
                100

                Erbium-172
                100

                Thulium-162
                1,000

                Thulium-166
                100

                Thulium-167
                100

                Thulium-170
                10

                Thulium-171
                10

                Thulium-172
                100

                Thulium-173
                100

                Thulium-175
                1,000

                Ytterbium-162
                1,000

                Ytterbium-166
                100

                Ytterbium-167
                1,000

                Ytterbium-169
                100

                Ytterbium-175
                100

                Ytterbium-177
                1,000

                Ytterbium-178
                1,000

                Lutetium-169
                100

                Lutetium-170
                100

                Lutetium-171
                100

                Lutetium-172
                100

                Lutetium-173
                10

                Lutetium-174m
                10

                Lutetium-174
                10

                Lutetium-176m
                1,000

                Lutetium-176
                100

                Lutetium-177m
                10

                Lutetium-177
                100

                Lutetium-178m
                1,000

                Lutetium-178
                1,000

                Lutetium-179
                1,000

                Hafnium-170
                100

                Hafnium-172
                1

                Hafnium-173
                1,000

                Hafnium-175
                100

                Hafnium-177m
                1,000

                Hafnium-178m
                0.1

                Hafnium-179m
                10

                Hafnium-180m
                1,000

                Hafnium-181
                10

                Hafnium-182m
                1,000

                Hafnium-182
                0.1

                Hafnium-183
                1,000

                Hafnium-184
                100

                Tantalum-172
                1,000

                Tantalum-173
                1,000

                Tantalum-174
                1,000

                Tantalum-175
                1,000

                Tantalum-176
                100

                Tantalum-177
                1,000

                Tantalum-178
                1,000

                Tantalum-179
                100

                Tantalum-180m
                1,000

                Tantalum-180
                100

                Tantalum-182m
                1,000

                Tantalum-182
                10

                Tantalum-183
                100

                Tantalum-184
                100

                Tantalum-185
                1,000

                Tantalum-186
                1,000

                Tungsten-176
                1,000

                Tungsten-177
                1,000

                Tungsten-178
                1,000

                Tungsten-179
                1,000

                Tungsten-181
                1,000

                Tungsten-185
                100

                Tungsten-187
                100

                Tungsten-188
                10

                Rhenium-177
                1,000

                Rhenium-178
                1,000

                Rhenium-181
                1,000

                Rhenium-182 (12.7h)
                1,000

                Rhenium-182 (64.0h)
                100

                Rhenium-184m
                10

                Rhenium-184
                100

                Rhenium-186m
                10

                Rhenium-186
                100

                Rhenium-187
                1,000

                Rhenium-188m
                1,000

                Rhenium-188
                100

                Rhenium-189
                100

                Osmium-180
                1,000

                Osmium-181
                1,000

                Osmium-182
                100

                Osmium-185
                100

                Osmium-189m
                1,000

                Osmium-191m
                1,000

                Osmium-191
                100

                Osmium-193
                100

                Osmium-194
                1

                Iridium-182
                1,000

                Iridium-184
                1,000

                Iridium-185
                1,000

                Iridium-186
                100

                Iridium-187
                1,000

                Iridium-188
                100

                Iridium-189
                100

                Iridium-190m
                1,000

                Iridium-190
                100

                Iridium-192 (73.8d)
                1

                Iridium-192m (1.4min.)
                10

                Iridium-194m
                10

                Iridium-194
                100

                Iridium-195m
                1,000

                Iridium-195
                1,000

                Platinum-186
                1,000

                Platinum-188
                100

                Platinum-189
                1,000

                Platinum-191
                100

                Platinum-193m
                100

                Platinum-193
                1,000

                Platinum-195m
                100

                Platinum-197m
                1,000

                Platinum-197
                100

                Platinum-199
                1,000

                Platinum-200
                100

                Gold-193
                1,000

                Gold-194
                100

                Gold-195
                10

                Gold-198m
                100

                Gold-198
                100

                Gold-199
                100

                Gold-200m
                100

                Gold-200
                1,000

                Gold-201
                1,000

                Mercury-193m
                100

                Mercury-193
                1,000

                Mercury-194
                1

                Mercury-195m
                100

                Mercury-195
                1,000

                Mercury-197m
                100

                Mercury-197
                1,000

                Mercury-199m
                1,000

                Mercury-203
                100

                Thallium-194m
                1,000

                Thallium-194
                1,000

                Thallium-195
                1,000

                Thallium-197
                1,000

                Thallium-198m
                1,000

                Thallium-198
                1,000

                Thallium-199
                1,000

                Thallium-200
                1,000

                Thallium-201
                1,000

                Thallium-202
                100

                Thallium-204
                100

                Lead-195m
                1,000

                Lead-198
                1,000

                Lead-199
                1,000

                Lead-200
                100

                Lead-201
                1,000

                Lead-202m
                1,000

                Lead-202
                10

                Lead-203
                1,000

                Lead-205
                100

                Lead-209
                1,000

                Lead-210
                0.01

                Lead-211
                100

                Lead-212
                1

                Lead-214
                100

                Bismuth-200
                1,000

                Bismuth-201
                1,000

                Bismuth-202
                1,000

                Bismuth-203
                100

                Bismuth-205
                100

                Bismuth-206
                100

                Bismuth-207
                10

                Bismuth-210m
                0.1

                Bismuth-210
                1

                Bismuth-212
                10

                Bismuth-213
                10

                Bismuth-214
                100

                Polonium-203
                1,000

                Polonium-205
                1,000

                Polonium-207
                1,000

                Polonium-210
                0.1

                Astatine-207
                100

                Astatine-211
                10

                Radon-220
                1

                Radon-222
                1

                Francium-222
                100

                Francium-223
                100

                Radium-223
                0.1

                Radium-224
                0.1

                Radium-225
                0.1

                Radium-226
                0.1

                Radium-227
                1,000

                Radium-228
                0.1

                Actinium-224
                1

                Actinium-225
                0.01

                Actinium-226
                0.1

                Actinium-227
                0.001

                Actinium-228
                1

                Thorium-226
                10

                Thorium-227
                0.01

                Thorium-228
                0.001

                Thorium-229
                0.001

                Thorium-230
                0.001

                Thorium-231
                100

                Thorium-232
                100

                Thorium-234
                10

                Thorium-natural
                100

                Protactinium-227
                10

                Protactinium-228
                1

                Protactinium-230
                0.1

                Protactinium-231
                0.001

                Protactinium-232
                1

                Protactinium-233
                100

                Protactinium-234
                100

                Uranium-230
                0.01

                Uranium-231
                100

                Uranium-232
                0.001

                Uranium-233
                0.001

                Uranium-234
                0.001

                Uranium-235
                0.001

                Uranium-236
                0.001

                Uranium-237
                100

                Uranium-238
                100

                Uranium-239
                1,000

                Uranium-240
                100

                Uranium-natural
                100

                Neptunium-232
                100

                Neptunium-233
                1,000

                Neptunium-234
                100

                Neptunium-235
                100

                Neptunium-236 (1.15 × 105 y)
                0.001

                Neptunium-236 (22.5h)
                1

                Neptunium-237
                0.001

                Neptunium-238
                10

                Neptunium-239
                100

                Neptunium-240
                1,000

                Plutonium-234
                10

                Plutonium-235
                1,000

                Plutonium-236
                0.001

                Plutonium-237
                100

                Plutonium-238
                0.001

                Plutonium-239
                0.001

                Plutonium-240
                0.001

                Plutonium-241
                0.01

                Plutonium-242
                0.001

                Plutonium-243
                1,000

                Plutonium-244
                0.001

                Plutonium-245
                100

                Americium-237
                1,000

                Americium-238
                100

                Americium-239
                1,000

                Americium-240
                100

                Americium-241
                0.001

                Americium-242m
                0.001

                Americium-242
                10

                Americium-243
                0.001

                Americium-244m
                100

                Americium-244
                10

                Americium-245
                1,000

                Americium-246m
                1,000

                Americium-246
                1,000

                Curium-238
                100

                Curium-240
                0.1

                Curium-241
                1

                Curium-242
                0.01

                Curium-243
                0.001

                Curium-244
                0.001

                Curium-245
                0.001

                Curium-246
                0.001

                Curium-247
                0.001

                Curium-248
                0.001

                Curium-249
                1,000

                Berkelium-245
                100

                Berkelium-246
                100

                Berkelium-247
                0.001

                Berkelium-249
                0.1

                Berkelium-250
                10

                Californium-244
                100

                Californium-246
                1

                Californium-248
                0.01

                Californium-249
                0.001

                Californium-250
                0.001

                Californium-251
                0.001

                Californium-252
                0.001

                Californium-253
                0.1

                Californium-254
                0.001

                Any alpha emitting radionuclide not listed above or mixtures of alpha emitters of unknown composition
                0.001

                Einsteinium-250
                100

                Einsteinium-251
                100

                Einsteinium-253
                0.1

                Einsteinium-254m
                1

                Einsteinium-254
                0.01

                Fermium-252
                1

                Fermium-253
                1

                Fermium-254
                10

                Fermium-255
                1

                Fermium-257
                0.01

                Mendelevium-257
                10

                Mendelevium-258
                0.01

                Any radionuclide other than alpha emitting radionuclides not listed above, or mixtures of beta emitters of unknown composition
                0.01

                1 The quantities listed above were derived by taking 1/10th of the most restrictive ALI listed in table 1, columns 1 and 2, of appendix B to §§ 20.1001-20.2401 of this part, rounding to the nearest factor of 10, and arbitrarily constraining the values listed between 0.001 and 1,000 µCi. Values of 100 µCi have been assigned for radionuclides having a radioactive half-life in excess of 109 years (except rhenium, 1000 µCi) to take into account their low specific activity.

                Note: For purposes of §§ 20.1902(e), 20.1905(a), and 20.2201(a) where there is involved a combination of radionuclides in known amounts, the limit for the combination should be derived as follows: determine, for each radionuclide in the combination, the ratio between the quantity present in the combination and the limit otherwise established for the specific radionuclide when not in combination. The sum of such ratios for all radionuclides in the combination may not exceed “1” (i.e., “unity”).

            [56 FR 23465, May 21, 1991; 56 FR 61352, Dec. 3, 1991. Redesignated and amended at 58 FR 67659, Dec. 22, 1993; 60 FR 20186, Apr. 25, 1995]

            Pt. 20, App. D
            Appendix D to Part 20—United States Nuclear Regulatory Commission Regional Offices

                Address
                Telephone (24 hour)
                E-Mail

                NRC Headquarters Operations Center
                USNRC, Division of Incident Response Operations, Washington, DC 20555-0001
                (301) 816-5100(301) 951-0550
                  (301) 816-5151 (fax)

                  H001@nrc.gov

                Region I: Connecticut, Delaware, District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont
                USNRC, Region I, 2100 Renaissance Boulevard, Suite 100, King of Prussia, PA 19406-2713
                (610) 337-5000, (800) 432-1156 TDD: (301) 415-5575

                  RidsRgn1MailCenter@nrc.gov

                Region II: Alabama, Florida, Georgia, Kentucky, North Carolina, Puerto Rico, South Carolina, Tennessee, Virginia, Virgin Islands, and West Virginia
                USNRC, Region II, 245 Peachtree Center Avenue, NE., Suite 1200, Atlanta, GA 30303-1257.
                (404) 997-4000(800) 877-8510
                  TDD: (301) 415-5575

                  RidsRgn2MailCenter@nrc.gov

                Region III: Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio and Wisconsin
                USNRC, Region III, 2443 Warrenville Road, Suite 210, Lisle, IL 60532-4352
                (630) 829-9500(800) 522-3025
                  TDD: (301) 415-5575

                  RidsRgn3MailCenter@nrc.gov

                Region IV: Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Kansas, Louisiana, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wyoming, and the U.S. territories and possessions in the Pacific
                US NRC, Region IV, 1600 E. Lamar Blvd., Arlington, TX 76011-4511.
                (817) 860-8100(800) 952-9677
                  TDD: (301) 415-5575

                  RidsRgn4MailCenter@nrc.gov

            [68 FR 58802, Oct. 10, 2003, as amended at 71 FR 15007, Mar. 27, 2006; 73 FR 30457, May 28, 2008; 75 FR 21980, Apr. 27, 2010; 76 FR 72084, Nov. 22, 2011; 77 FR 39905, July 6, 2012; 79 FR 66602, Nov. 10, 2014]

            Pt. 20, App. E
            Appendix E to Part 20— Nationally Tracked Source Thresholds
            The Terabecquerel (TBq) values are the regulatory standard. The curie (Ci) values specified are obtained by converting from the TBq value. The curie values are provided for practical usefulness only and are rounded after conversion.

                Radioactive material
                Category 1(TBq)

                Category 1(Ci)

                Category 2(TBq)

                Category 2(Ci)

                Actinium-227
                20
                540
                0.2
                5.4

                Americium-241
                60
                1,600
                0.6
                16

                Americium-241/Be
                60
                1,600
                0.6
                16

                Californium-252
                20
                540
                0.2
                5.4

                Cobalt-60
                30
                810
                0.3
                8.1

                Curium-244
                50
                1,400
                0.5
                14

                Cesium-137
                100
                2,700
                1
                27

                Gadolinium-153
                1,000
                27,000
                10
                270

                Iridium-192
                80
                2,200
                0.8
                22

                Plutonium-238
                60
                1,600
                0.6
                16

                Plutonium-239/Be
                60
                1,600
                0.6
                16

                Polonium-210
                60
                1,600
                0.6
                16

                Promethium-147
                40,000
                1,100,000
                400
                11,000

                Radium-226
                40
                1,100
                0.4
                11

                Selenium-75
                200
                5,400
                2
                54

                Strontium-90
                1,000
                27,000
                10
                270

                Thorium-228
                20
                540
                0.2
                5.4

                Thorium-229
                20
                540
                0.2
                5.4

                Thulium-170
                20,000
                540,000
                200
                5,400

                Ytterbium-169
                300
                8,100
                3
                81

            [71 FR 65708, Nov. 8, 2006]

            Appendix F to Part 20 [Reserved]

            Pt. 20, App. G
            Appendix G to Part 20—Requirements for Transfers of Low-Level Radioactive Waste Intended for Disposal at Licensed Land Disposal Facilities and Manifests
            I. Manifest
            A waste generator, collector, or processor who transports, or offers for transportation, low-level radioactive waste intended for ultimate disposal at a licensed low-level radioactive waste land disposal facility must prepare a Manifest (OMB Control Numbers 3150-0164, -0165, and -0166) reflecting information requested on applicable NRC Forms 540 (Uniform Low-Level Radioactive Waste Manifest (Shipping Paper)) and 541 (Uniform Low-Level Radioactive Waste Manifest (Container and Waste Description)) and, if necessary, on an applicable NRC Form 542 (Uniform Low-Level Radioactive Waste Manifest (Manifest Index and Regional Compact Tabulation)). NRC Forms 540 and 540A must be completed and must physically accompany the pertinent low-level waste shipment. Upon agreement between shipper and consignee, NRC Forms 541 and 541A and 542 and 542A may be completed, transmitted, and stored in electronic media with the capability for producing legible, accurate, and complete records on the respective forms. Licensees are not required by NRC to comply with the manifesting requirements of this part when they ship:
            (a) LLW for processing and expect its return (i.e., for storage under their license) prior to disposal at a licensed land disposal facility;
            (b) LLW that is being returned to the licensee who is the “waste generator” or “generator,” as defined in this part; or
            (c) Radioactively contaminated material to a “waste processor” that becomes the processor's “residual waste.”
            For guidance in completing these forms, refer to the instructions that accompany the forms. Copies of manifests required by this appendix may be legible carbon copies, photocopies, or computer printouts that reproduce the data in the format of the uniform manifest.

            NRC Forms 540, 540A, 541, 541A, 542 and 542A, and the accompanying instructions, in hard copy, may be obtained by writing or calling the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-7232, or by visiting the NRC's Web site at http://www.nrc.gov and selecting forms from the index found on the home page.

            This appendix includes information requirements of the Department of Transportation, as codified in 49 CFR part 172. Information on hazardous, medical, or other waste, required to meet Environmental Protection Agency regulations, as codified in 40 CFR parts 259, 261 or elsewhere, is not addressed in this section, and must be provided on the required EPA forms. However, the required EPA forms must accompany the Uniform Low-Level Radioactive Waste Manifest required by this chapter.
            As used in this appendix, the following definitions apply:

              Chelating agent has the same meaning as that given in § 61.2 of this chapter.

              Chemical description means a description of the principal chemical characteristics of a low-level radioactive waste.

              Computer-readable medium means that the regulatory agency's computer can transfer the information from the medium into its memory.

              Consignee means the designated receiver of the shipment of low-level radioactive waste.

              Decontamination facility means a facility operating under a Commission or Agreement State license whose principal purpose is decontamination of equipment or materials to accomplish recycle, reuse, or other waste management objectives, and, for purposes of this part, is not considered to be a consignee for LLW shipments.

              Disposal container means a container principally used to confine low-level radioactive waste during disposal operations at a land disposal facility (also see “high integrity container”). Note that for some shipments, the disposal container may be the transport package.

              EPA identification number means the number received by a transporter following application to the Administrator of EPA as required by 40 CFR part 263.

              Generator means a licensee operating under a Commission or Agreement State license who (1) is a waste generator as defined in this part, or (2) is the licensee to whom waste can be attributed within the context of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (e.g., waste generated as a result of decontamination or recycle activities).

              High integrity container (HIC) means a container commonly designed to meet the structural stability requirements of § 61.56 of this chapter, and to meet Department of Transportation requirements for a Type A package.

              Land disposal facility has the same meaning as that given in § 61.2 of this chapter.

              NRC Forms 540, 540A, 541, 541A, 542, and 542A are official NRC Forms referenced in this appendix. Licensees need not use originals of these NRC Forms as long as any substitute forms are equivalent to the original documentation in respect to content, clarity, size, and location of information. Upon agreement between the shipper and consignee, NRC Forms 541 (and 541A) and NRC Forms 542 (and 542A) may be completed, transmitted, and stored in electronic media. The electronic media must have the capability for producing legible, accurate, and complete records in the format of the uniform manifest.

              Package means the assembly of components necessary to ensure compliance with the packaging requirements of DOT regulations, together with its radioactive contents, as presented for transport.

              Physical description means the items called for on NRC Form 541 to describe a low-level radioactive waste.

              Residual waste means low-level radioactive waste resulting from processing or decontamination activities that cannot be easily separated into distinct batches attributable to specific waste generators. This waste is attributable to the processor or decontamination facility, as applicable.

              Shipper means the licensed entity (i.e., the waste generator, waste collector, or waste processor) who offers low-level radioactive waste for transportation, typically consigning this type of waste to a licensed waste collector, waste processor, or land disposal facility operator.

              Shipping paper means NRC Form 540 and, if required, NRC Form 540A which includes the information required by DOT in 49 CFR part 172.

              Source material has the same meaning as that given in § 40.4 of this chapter.

              Special nuclear material has the same meaning as that given in § 70.4 of this chapter.

              Uniform Low-Level Radioactive Waste Manifest or uniform manifest means the combination of NRC Forms 540, 541, and, if necessary, 542, and their respective continuation sheets as needed, or equivalent.

              Waste collector means an entity, operating under a Commission or Agreement State license, whose principal purpose is to collect and consolidate waste generated by others, and to transfer this waste, without processing or repackaging the collected waste, to another licensed waste collector, licensed waste processor, or licensed land disposal facility.

              Waste description means the physical, chemical and radiological description of a low-level radioactive waste as called for on NRC Form 541.

              Waste generator means an entity, operating under a Commission or Agreement State license, who (1) possesses any material or component that contains radioactivity or is radioactively contaminated for which the licensee foresees no further use, and (2) transfers this material or component to a licensed land disposal facility or to a licensed waste collector or processor for handling or treatment prior to disposal. A licensee performing processing or decontamination services may be a “waste generator” if the transfer of low-level radioactive waste from its facility is defined as “residual waste.”

              Waste processor means an entity, operating under a Commission or Agreement State license, whose principal purpose is to process, repackage, or otherwise treat low-level radioactive material or waste generated by others prior to eventual transfer of waste to a licensed low-level radioactive waste land disposal facility.

              Waste type means a waste within a disposal container having a unique physical description (i.e., a specific waste descriptor code or description; or a waste sorbed on or solidified in a specifically defined media).
            Information Requirements
            A. General Information
            The shipper of the radioactive waste, shall provide the following information on the uniform manifest:
            1. The name, facility address, and telephone number of the licensee shipping the waste;
            2. An explicit declaration indicating whether the shipper is acting as a waste generator, collector, processor, or a combination of these identifiers for purposes of the manifested shipment; and
            3. The name, address, and telephone number, or the name and EPA identification number for the carrier transporting the waste.
            B. Shipment Information
            The shipper of the radioactive waste shall provide the following information regarding the waste shipment on the uniform manifest:
            1. The date of the waste shipment;
            2. The total number of packages/disposal containers;
            3. The total disposal volume and disposal weight in the shipment;
            4. The total radionuclide activity in the shipment;
            5. The activity of each of the radionuclides H-3, C-14, Tc-99, and I-129 contained in the shipment; and
            6. The total masses of U-233, U-235, and plutonium in special nuclear material, and the total mass of uranium and thorium in source material.
            C. Disposal Container and Waste Information
            The shipper of the radioactive waste shall provide the following information on the uniform manifest regarding the waste and each disposal container of waste in the shipment:
            1. An alphabetic or numeric identification that uniquely identifies each disposal container in the shipment;
            2. A physical description of the disposal container, including the manufacturer and model of any high integrity container;
            3. The volume displaced by the disposal container;
            4. The gross weight of the disposal container, including the waste;
            5. For waste consigned to a disposal facility, the maximum radiation level at the surface of each disposal container;
            6. A physical and chemical description of the waste;
            7. The total weight percentage of chelating agent for any waste containing more than 0.1% chelating agent by weight, plus the identity of the principal chelating agent;
            8. The approximate volume of waste within a container;
            9. The sorbing or solidification media, if any, and the identity of the solidification media vendor and brand name;

            10. The identities and activities of individual radionuclides contained in each container, the masses of U-233, U-235, and plutonium in special nuclear material, and the masses of uranium and thorium in source material. For discrete waste types (i.e., activated materials, contaminated equipment, mechanical filters, sealed source/devices, and wastes in solidification/stabilization media), the identities and activities of individual radionuclides associated with or contained on these waste types within a disposal container shall be reported;
            11. The total radioactivity within each container; and
            12. For wastes consigned to a disposal facility, the classification of the waste pursuant to § 61.55 of this chapter. Waste not meeting the structural stability requirements of § 61.56(b) of this chapter must be identified.
            D. Uncontainerized Waste Information
            The shipper of the radioactive waste shall provide the following information on the uniform manifest regarding a waste shipment delivered without a disposal container:
            1. The approximate volume and weight of the waste;
            2. A physical and chemical description of the waste;
            3. The total weight percentage of chelating agent if the chelating agent exceeds 0.1% by weight, plus the identity of the principal chelating agent;
            4. For waste consigned to a disposal facility, the classification of the waste pursuant to § 61.55 of this chapter. Waste not meeting the structural stability requirements of § 61.56(b) of this chapter must be identified;
            5. The identities and activities of individual radionuclides contained in the waste, the masses of U-233, U-235, and plutonium in special nuclear material, and the masses of uranium and thorium in source material; and

            6. For wastes consigned to a disposal facility, the maximum radiation levels at the surface of the waste.

            E. Multi-Generator Disposal Container Information
            This section applies to disposal containers enclosing mixtures of waste originating from different generators. (Note: The origin of the LLW resulting from a processor's activities may be attributable to one or more “generators” (including “waste generators”) as defined in this part). It also applies to mixtures of wastes shipped in an uncontainerized form, for which portions of the mixture within the shipment originate from different generators.
            1. For homogeneous mixtures of waste, such as incinerator ash, provide the waste description applicable to the mixture and the volume of the waste attributed to each generator.

            2. For heterogeneous mixtures of waste, such as the combined products from a large compactor, identify each generator contributing waste to the disposal container, and, for discrete waste types (i.e., activated materials, contaminated equipment, mechanical filters, sealed source/devices, and wastes in solidification/stabilization media), the identities and activities of individual radionuclides contained on these waste types within the disposal container. For each generator, provide the following:
            (a) The volume of waste within the disposal container;
            (b) A physical and chemical description of the waste, including the solidification agent, if any;
            (c) The total weight percentage of chelating agents for any disposal container containing more than 0.1% chelating agent by weight, plus the identity of the principal chelating agent;
            (d) The sorbing or solidification media, if any, and the identity of the solidification media vendor and brand name if the media is claimed to meet stability requirements in 10 CFR 61.56(b); and
            (e) Radionuclide identities and activities contained in the waste, the masses of U-233, U-235, and plutonium in special nuclear material, and the masses of uranium and thorium in source material if contained in the waste.
            II. Certification
            An authorized representative of the waste generator, processor, or collector shall certify by signing and dating the shipment manifest that the transported materials are properly classified, described, packaged, marked, and labeled and are in proper condition for transportation according to the applicable regulations of the Department of Transportation and the Commission. A collector in signing the certification is certifying that nothing has been done to the collected waste which would invalidate the waste generator's certification.
            III. Control and Tracking
            A. Any licensee who transfers radioactive waste to a land disposal facility or a licensed waste collector shall comply with the requirements in paragraphs A.1 through 9 of this section. Any licensee who transfers waste to a licensed waste processor for waste treatment or repackaging shall comply with the requirements of paragraphs A.4 through 9 of this section. A licensee shall:
            1. Prepare all wastes so that the waste is classified according to § 61.55 and meets the waste characteristics requirements in § 61.56 of this chapter;
            2. Label each disposal container (or transport package if potential radiation hazards preclude labeling of the individual disposal container) of waste to identify whether it is Class A waste, Class B waste, Class C waste, or greater then Class C waste, in accordance with § 61.55 of this chapter;
            3. Conduct a quality assurance program to assure compliance with §§ 61.55 and 61.56 of this chapter (the program must include management evaluation of audits);
            4. Prepare the NRC Uniform Low-Level Radioactive Waste Manifest as required by this appendix;
            5. Forward a copy or electronically transfer the Uniform Low-Level Radioactive Waste Manifest to the intended consignee so that either (i) receipt of the manifest precedes the LLW shipment or (ii) the manifest is delivered to the consignee with the waste at the time the waste is transferred to the consignee. Using both (i) and (ii) is also acceptable;
            6. Include NRC Form 540 (and NRC Form 540A, if required) with the shipment regardless of the option chosen in paragraph A.5 of this section;
            7. Receive acknowledgement of the receipt of the shipment in the form of a signed copy of NRC Form 540;
            8. Retain a copy of or electronically store the Uniform Low-Level Radioactive Waste Manifest and documentation of acknowledgement of receipt as the record of transfer of licensed material as required by 10 CFR parts 30, 40, and 70 of this chapter; and
            9. For any shipments or any part of a shipment for which acknowledgement of receipt has not been received within the times set forth in this appendix, conduct an investigation in accordance with paragraph E of this appendix.
            B. Any waste collector licensee who handles only prepackaged waste shall:
            1. Acknowledge receipt of the waste from the shipper within one week of receipt by returning a signed copy of NRC Form 540;

            2. Prepare a new manifest to reflect consolidated shipments that meet the requirements of this appendix. The waste collector shall ensure that, for each container of waste in the shipment, the manifest identifies the generator of that container of waste;
            3. Forward a copy or electronically transfer the Uniform Low-Level Radioactive Waste Manifest to the intended consignee so that either: (i) Receipt of the manifest precedes the LLW shipment or (ii) the manifest is delivered to the consignee with the waste at the time the waste is transferred to the consignee. Using both (i) and (ii) is also acceptable;
            4. Include NRC Form 540 (and NRC Form 540A, if required) with the shipment regardless of the option chosen in paragraph B.3 of this section;
            5. Receive acknowledgement of the receipt of the shipment in the form of a signed copy of NRC Form 540;
            6. Retain a copy of or electronically store the Uniform Low-Level Radioactive Waste Manifest and documentation of acknowledgement of receipt as the record of transfer of licensed material as required by 10 CFR parts 30, 40, and 70 of this chapter;
            7. For any shipments or any part of a shipment for which acknowledgement of receipt has not been received within the times set forth in this appendix, conduct an investigation in accordance with paragraph E of this appendix; and
            8. Notify the shipper and the Administrator of the nearest Commission Regional Office listed in appendix D of this part when any shipment, or part of a shipment, has not arrived within 60 days after receipt of an advance manifest, unless notified by the shipper that the shipment has been cancelled.
            C. Any licensed waste processor who treats or repackages waste shall:
            1. Acknowledge receipt of the waste from the shipper within one week of receipt by returning a signed copy of NRC Form 540;
            2. Prepare a new manifest that meets the requirements of this appendix. Preparation of the new manifest reflects that the processor is responsible for meeting these requirements. For each container of waste in the shipment, the manifest shall identify the waste generators, the preprocessed waste volume, and the other information as required in paragraph I.E. of this appendix;
            3. Prepare all wastes so that the waste is classified according to § 61.55 of this chapter and meets the waste characteristics requirements in § 61.56 of this chapter;
            4. Label each package of waste to identify whether it is Class A waste, Class B waste, or Class C waste, in accordance with §§ 61.55 and 61.57 of this chapter;
            5. Conduct a quality assurance program to assure compliance with §§ 61.55 and 61.56 of this chapter (the program shall include management evaluation of audits);
            6. Forward a copy or electronically transfer the Uniform Low-Level Radioactive Waste Manifest to the intended consignee so that either: (i) Receipt of the manifest precedes the LLW shipment or (ii) the manifest is delivered to the consignee with the waste at the time the waste is transferred to the consignee. Using both (i) and (ii) is also acceptable;
            7. Include NRC Form 540 (and NRC Form 540A, if required) with the shipment regardless of the option chosen in paragraph C.6 of this section;
            8. Receive acknowledgement of the receipt of the shipment in the form of a signed copy of NRC Form 540;
            9. Retain a copy of or electronically store the Uniform Low-Level Radioactive Waste Manifest and documentation of acknowledgement of receipt as the record of transfer of licensed material as required by 10 CFR parts 30, 40, and 70 of this chapter;
            10. For any shipment or any part of a shipment for which acknowledgement of receipt has not been received within the times set forth in this appendix, conduct an investigation in accordance with paragraph E of this appendix; and
            11. Notify the shipper and the Administrator of the nearest Commission Regional Office listed in appendix D of this part when any shipment, or part of a shipment, has not arrived within 60 days after receipt of an advance manifest, unless notified by the shipper that the shipment has been cancelled.
            D. The land disposal facility operator shall:
            1. Acknowledge receipt of the waste within one week of receipt by returning, as a minimum, a signed copy of NRC Form 540 to the shipper. The shipper to be notified is the licensee who last possessed the waste and transferred the waste to the operator. If any discrepancy exists between materials listed on the Uniform Low-Level Radioactive Waste Manifest and materials received, copies or electronic transfer of the affected forms must be returned indicating the discrepancy;
            2. Maintain copies of all completed manifests and electronically store the information required by 10 CFR 61.80(l) until the Commission terminates the license; and
            3. Notify the shipper and the Administrator of the nearest Commission Regional Office listed in appendix D of this part when any shipment, or part of a shipment, has not arrived within 60 days after receipt of an advance manifest, unless notified by the shipper that the shipment has been cancelled.
            E. Any shipment or part of a shipment for which acknowledgement is not received within the times set forth in this section must:
            1. Be investigated by the shipper if the shipper has not received notification or receipt within 20 days after transfer; and

            2. Be traced and reported. The investigation shall include tracing the shipment and filing a report with the nearest Commission Regional Office listed in appendix D to this part. Each licensee who conducts a trace investigation shall file a written report with the appropriate NRC Regional Office within 2 weeks of completion of the investigation.
            [60 FR 15664, Mar. 27, 1995, as amended at 60 FR 25983, May 16, 1995; 68 FR 58802, Oct. 10, 2003; 73 FR 30457, May 28, 2008; 80 FR 74979, Dec. 1, 2015]

        Pt. 21
        PART 21—REPORTING OF DEFECTS AND NONCOMPLIANCE

            General Provisions
            Sec.
            21.1
            Purpose.
            21.2
            Scope.
            21.3
            Definitions.
            21.4
            Interpretations.
            21.5
            Communications.
            21.6
            Posting requirements.
            21.7
            Exemptions.
            21.8
            Information collection requirements: OMB approval.

            Notification
            21.21
            Notification of failure to comply or existence of a defect and its evaluation.

            Procurement Documents
            21.31
            Procurement documents.

            Inspections, Records
            21.41
            Inspections.
            21.51
            Maintenance and inspection of records.

            Enforcement
            21.61
            Failure to notify.
            21.62
            Criminal penalties.

          Authority:
          Atomic Energy Act of 1954, secs. 53, 63, 81, 103, 104, 161, 223, 234, 1701 (42 U.S.C. 2073, 2093, 2111, 2133, 2134, 2201, 2273, 2282, 2297f); Energy Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846); Nuclear Waste Policy Act of 1982, secs. 135, 141 (42 U.S.C. 10155, 10161); 44 U.S.C. 3504 note.

          Source:
          42 FR 28893, June 6, 1977, unless otherwise noted.

          General Provisions

            § 21.1
            Purpose.
            The regulations in this part establish procedures and requirements for implementation of section 206 of the Energy Reorganization Act of 1974. That section requires any individual director or responsible officer of a firm constructing, owning, operating or supplying the components of any facility or activity which is licensed or otherwise regulated pursuant to the Atomic Energy Act of 1954, as amended, or the Energy Reorganization Act of 1974, who obtains information reasonably indicating: (a) That the facility, activity or basic component supplied to such facility or activity fails to comply with the Atomic Energy Act of 1954, as amended, or any applicable rule, regulation, order, or license of the Commission relating to substantial safety hazards or (b) that the facility, activity, or basic component supplied to such facility or activity contains defects, which could create a substantial safety hazard, to immediately notify the Commission of such failure to comply or such defect, unless he has actual knowledge that the Commission has been adequately informed of such defect or failure to comply.

            § 21.2
            Scope.
            (a) The regulations in this part apply, except as specifically provided otherwise in parts 31, 34, 35, 39, 40, 60, 61, 63, 70, or part 72 of this chapter, to:
            (1) Each individual, partnership, corporation, or other entity applying for or holding a license or permit under the regulations in this chapter to possess, use, or transfer within the United States source material, byproduct material, special nuclear material, and/or spent fuel and high-level radioactive waste, or to construct, manufacture, possess, own, operate, or transfer within the United States, any production or utilization facility or independent spent fuel storage installation (ISFSI) or monitored retrievable storage installation (MRS); and each director and responsible officer of such a licensee;

            (2) Each individual, corporation, partnership, or other entity doing business within the United States, and each director and responsible officer of such an organization, that constructs a production or utilization facility licensed for manufacture, construction, or operation under parts 50 or 52 of this chapter, an ISFSI for the storage of spent fuel licensed under part 72 of this chapter, an MRS for the storage of spent fuel or high-level radioactive waste under part 72 of this chapter, or a geologic repository for the disposal of high-level radioactive waste under part 60 or 63 of this chapter; or supplies basic components for a facility or activity licensed, other than for export, under parts 30, 40, 50, 52, 60, 61, 63, 70, 71, or part 72 of this chapter;
            (3) Each individual, corporation, partnership, or other entity doing business within the United States, and each director and responsible officer of such an organization, applying for a design certification rule under part 52 of this chapter; or supplying basic components with respect to that design certification, and each individual, corporation, partnership, or other entity doing business within the United States, and each director and responsible officer of such an organization, whose application for design certification has been granted under part 52 of this chapter, or who has supplied or is supplying basic components with respect to that design certification;
            (4) Each individual, corporation, partnership, or other entity doing business within the United States, and each director and responsible officer of such an organization, applying for or holding a standard design approval under part 52 of this chapter; or supplying basic components with respect to a standard design approval under part 52 of this chapter;
            (b) For persons licensed to construct a facility under either a construction permit issued under § 50.23 of this chapter or a combined license under part 52 of this chapter (for the period of construction until the date that the Commission makes the finding under § 52.103(g) of this chapter), or to manufacture a facility under part 52 of this chapter, evaluation of potential defects and failures to comply and reporting of defects and failures to comply under § 50.55(e) of this chapter satisfies each person's evaluation, notification, and reporting obligation to report defects and failures to comply under this part and the responsibility of individual directors and responsible officers of these licensees to report defects under Section 206 of the Energy Reorganization Act of 1974.
            (c) For persons licensed to operate a nuclear power plant under part 50 or part 52 of this chapter, evaluation of potential defects and appropriate reporting of defects under §§ 50.72, 50.73, or § 73.71 of this chapter, satisfies each person's evaluation, notification, and reporting obligation to report defects under this part, and the responsibility of individual directors and responsible officers of these licensees to report defects under Section 206 of the Energy Reorganization Act of 1974.
            (d) Nothing in these regulations should be deemed to preclude either an individual, a manufacturer, or a supplier of a commercial grade item (as defined in § 21.3) not subject to the regulations in this part from reporting to the Commission, a known or suspected defect or failure to comply and, as authorized by law, the identity of anyone so reporting will be withheld from disclosure. NRC regional offices and headquarters will accept collect telephone calls from individuals who wish to speak to NRC representatives concerning nuclear safety-related problems. The location and telephone numbers of the four regions (answered during regular working hours), are listed in appendix D to part 20 of this chapter. The telephone number of the NRC Operations Center (answered 24 hours a day—including holidays) is (301) 816-5100.
            (e) The regulations in this part apply in accordance with 10 CFR 76.60 to each individual, partnership, corporation, or other entity required to obtain a certificate of compliance or an approved compliance plan under part 76 of this chapter.
            [56 FR 36089, July 31, 1991, as amended at 59 FR 14086, Mar. 25, 1994; 59 FR 48959, Sept. 23, 1994; 60 FR 48373, Sept. 19, 1995; 66 FR 55790, Nov. 2, 2001; 72 FR 49486, Aug. 28, 2007]

            § 21.3
            Definitions.
            As used in this part:

              Basic component. (1)(i) When applied to nuclear power plants licensed under 10 CFR part 50 or part 52 of this chapter, basic component means a structure, system, or component, or part thereof that affects its safety function necessary to assure:
            (A) The integrity of the reactor coolant pressure boundary;
            (B) The capability to shut down the reactor and maintain it in a safe-shutdown condition; or

            (C) The capability to prevent or mitigate the consequences of accidents which could result in potential offsite exposures comparable to those referred to in §§ 50.34(a)(1), 50.67(b)(2), or 100.11 of this chapter, as applicable.
            (ii) Basic components are items designed and manufactured under a quality assurance program complying with appendix B to part 50 of this chapter, or commercial grade items which have successfully completed the dedication process.
            (2) When applied to standard design certifications under subpart B of part 52 of this chapter and standard design approvals under part 52 of this chapter, basic component means the design or procurement information approved or to be approved within the scope of the design certification or approval for a structure, system, or component, or part thereof, that affects its safety function necessary to assure:
            (i) The integrity of the reactor coolant pressure boundary;
            (ii) The capability to shut down the reactor and maintain it in a safe-shutdown condition; or
            (iii) The capability to prevent or mitigate the consequences of accidents which could result in potential offsite exposures comparable to those referred to in §§ 50.34(a)(1), 50.67(b)(2), or 100.11 of this chapter, as applicable.
            (3) When applied to other facilities and other activities licensed under 10 CFR parts 30, 40, 50 (other than nuclear power plants), 60, 61, 63, 70, 71, or 72 of this chapter, basic component means a structure, system, or component, or part thereof, that affects their safety function, that is directly procured by the licensee of a facility or activity subject to the regulations in this part and in which a defect or failure to comply with any applicable regulation in this chapter, order, or license issued by the Commission could create a substantial safety hazard.
            (4) In all cases, basic component includes safety-related design, analysis, inspection, testing, fabrication, replacement of parts, or consulting services that are associated with the component hardware, design certification, design approval, or information in support of an early site permit application under part 52 of this chapter, whether these services are performed by the component supplier or others.

              Commercial grade item. (1) When applied to nuclear power plants licensed pursuant to 10 CFR part 50, commercial grade item means a structure, system, or component, or part thereof that affects its safety function, that was not designed and manufactured as a basic component. Commercial grade items do not include items where the design and manufacturing process require in-process inspections and verifications to ensure that defects or failures to comply are identified and corrected (i.e., one or more critical characteristics of the item cannot be verified).
            (2) When applied to facilities and activities licensed pursuant to 10 CFR parts 30, 40, 50 (other than nuclear power plants), 60, 61, 63, 70, 71, or 72, commercial grade item means an item that is:
            (i) Not subject to design or specification requirements that are unique to those facilities or activities;
            (ii) Used in applications other than those facilities or activities; and
            (iii) To be ordered from the manufacturer/supplier on the basis of specifications set forth in the manufacturer's published product description (for example, a catalog).

              Commission means the Nuclear Regulatory Commission or its duly authorized representatives.

              Constructing or construction means the analysis, design, manufacture, fabrication, placement, erection, installation, modification, inspection, or testing of a facility or activity which is subject to the regulations in this part and consulting services related to the facility or activity that are safety related.

              Critical characteristics. When applied to nuclear power plants licensed pursuant to 10 CFR part 50, critical characteristics are those important design, material, and performance characteristics of a commercial grade item that, once verified, will provide reasonable assurance that the item will perform its intended safety function.

              Dedicating entity. When applied to nuclear power plants licensed pursuant to 10 CFR part 50, dedicating entity means the organization that performs the dedication process. Dedication may be performed by the manufacturer of the item, a third-party dedicating entity, or the licensee itself. The dedicating entity, pursuant to § 21.21(c) of this part, is responsible for identifying and evaluating deviations, reporting defects and failures to comply for the dedicated item, and maintaining auditable records of the dedication process.

              Dedication. (1) When applied to nuclear power plants licensed pursuant to 10 CFR part 50, dedication is an acceptance process undertaken to provide reasonable assurance that a commercial grade item to be used as a basic component will perform its intended safety function and, in this respect, is deemed equivalent to an item designed and manufactured under a 10 CFR part 50, appendix B, quality assurance program. This assurance is achieved by identifying the critical characteristics of the item and verifying their acceptability by inspections, tests, or analyses performed by the purchaser or third-party dedicating entity after delivery, supplemented as necessary by one or more of the following: commercial grade surveys; product inspections or witness at holdpoints at the manufacturer's facility, and analysis of historical records for acceptable performance. In all cases, the dedication process must be conducted in accordance with the applicable provisions of 10 CFR part 50, appendix B. The process is considered complete when the item is designated for use as a basic component.
            (2) When applied to facilities and activities licensed pursuant to 10 CFR parts 30, 40, 50 (other than nuclear power plants), 60, 61, 63, 70, 71, or 72, dedication occurs after receipt when that item is designated for use as a basic component.

              Defect means:
            (1) A deviation in a basic component delivered to a purchaser for use in a facility or an activity subject to the regulations in this part if, on the basis of an evaluation, the deviation could create a substantial safety hazard;
            (2) The installation, use, or operation of a basic component containing a defect as defined in this section;
            (3) A deviation in a portion of a facility subject to the early site permit, standard design certification, standard design approval, construction permit, combined license or manufacturing licensing requirements of part 50 or part 52 of this chapter, provided the deviation could, on the basis of an evaluation, create a substantial safety hazard and the portion of the facility containing the deviation has been offered to the purchaser for acceptance;
            (4) A condition or circumstance involving a basic component that could contribute to the exceeding of a safety limit, as defined in the technical specifications of a license for operation issued under part 50 or part 52 of this chapter; or
            (5) An error, omission or other circumstance in a design certification, or standard design approval that, on the basis of an evaluation, could create a substantial safety hazard.

              Deviation means a departure from the technical requirements included in a procurement document, or specified in early site permit information, a standard design certification or standard design approval.

              Director means an individual, appointed or elected according to law, who is authorized to manage and direct the affairs of a corporation, partnership or other entity. In the case of an individual proprietorship, director means the individual.

              Discovery means the completion of the documentation first identifying the existence of a deviation or failure to comply potentially associated with a substantial safety hazard within the evaluation procedures discussed in § 21.21(a).

              Evaluation means the process of determining whether a particular deviation could create a substantial hazard or determining whether a failure to comply is associated with a substantial safety hazard.

              Notification means the telephonic communication to the NRC Operations Center or written transmittal of information to the NRC Document Control Desk.

              Operating or operation means the operation of a facility or the conduct of a licensed activity which is subject to the regulations in this part and consulting services related to operations that are safety related.

              Procurement document means a contract that defines the requirements which facilities or basic components must meet in order to be considered acceptable by the purchaser.

              Responsible officer means the president, vice-president or other individual in the organization of a corporation, partnership, or other entity who is vested with executive authority over activities subject to this part.

              Substantial safety hazard means a loss of safety function to the extent that there is a major reduction in the degree of protection provided to public health and safety for any facility or activity licensed or otherwise approved or regulated by the NRC, other than for export, under parts 30, 40, 50, 52, 60, 61, 63, 70, 71, or 72 of this chapter.

              Supplying or supplies means contractually responsible for a basic component used or to be used in a facility or activity which is subject to the regulations in this part.
            [42 FR 28893, June 6, 1977; 42 FR 36803, July 18, 1977, as amended at 43 FR 48622, Oct. 19, 1978; 46 FR 58283, Dec. 1, 1981; 47 FR 57480, Dec. 27, 1982; 56 FR 36089, July 31, 1991; 59 FR 5519, Feb. 7, 1994; 60 FR 48373, Sept. 19, 1995; 61 FR 65171, Dec. 11, 1996; 64 FR 72000, Dec. 23, 1999; 66 FR 55790, Nov. 2, 2001; 72 FR 49486, Aug. 28, 2007; 84 FR 63567, Nov. 18, 2019]

            § 21.4
            Interpretations.
            Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any officer or employee of the Commission other than a written interpretation by the General Counsel will be recognized to be binding upon the Commission.

            § 21.5
            Communications.

            Except where otherwise specified in this part, written communications and reports concerning the regulations in this part must be addressed to the NRC's Document Control Desk, and sent by mail to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland; or, where practicable, by electronic submission, for example, Electronic Information Exchange, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information. In the case of a licensee or permit holder, a copy of the communication must also be sent to the appropriate Regional Administrator at the address specified in appendix D to part 20 of this chapter.
            [72 FR 49487, Aug. 28, 2007, as amended at 74 FR 62680, Dec. 1, 2009; 80 FR 74979, Dec. 1, 2015]

            § 21.6
            Posting requirements.
            (a)(1) Each individual, partnership, corporation, dedicating entity, or other entity subject to the regulations in this part shall post current copies of—
            (i) The regulations in this part;
            (ii) Section 206 of the Energy Reorganization Act of 1974; and
            (iii) Procedures adopted pursuant to the regulations in this part.
            (2) These documents must be posted in a conspicuous position on any premises within the United States where the activities subject to this part are conducted.
            (b) If posting of the regulations in this part or the procedures adopted pursuant to the regulations in this part is not practicable, the licensee or firm subject to the regulations in this part may, in addition to posting section 206, post a notice which describes the regulations/procedures, including the name of the individual to whom reports may be made, and states where they may be examined.
            (c) The effective date of this section has been deferred until January 6, 1978.
            [42 FR 28893, June 6, 1977, as amended at 60 FR 48374, Sept. 19, 1995]

            § 21.7
            Exemptions.
            The Commission may, upon application of any interested person or upon its own initiative, grant such exemptions from the requirements of the regulations in this part as it determines are authorized by law and will not endanger life or property or the common defense and security and are otherwise in the public interest. Suppliers of commercial grade items are exempt from the provisions of this part to the extent that they supply commercial grade items.
            [42 FR 28893, June 6, 1977, as amended at 43 FR 48622, Oct. 19, 1978]

            § 21.8
            Information collection requirements: OMB approval.

            (a) The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in this part under control number 3150-0035.
            (b) The approved information collection requirements contained in this part appear in §§ 21.7, 21.21 and 21.51.
            [62 FR 52185, Oct. 6, 1997]

          Notification

            § 21.21
            Notification of failure to comply or existence of a defect and its evaluation.
            (a) Each individual, corporation, partnership, dedicating entity, or other entity subject to the regulations in this part shall adopt appropriate procedures to—
            (1) Evaluate deviations and failures to comply to identify defects and failures to comply associated with substantial safety hazards as soon as practicable, and, except as provided in paragraph (a)(2) of this section, in all cases within 60 days of discovery, in order to identify a reportable defect or failure to comply that could create a substantial safety hazard, were it to remain uncorrected, and
            (2) Ensure that if an evaluation of an identified deviation or failure to comply potentially associated with a substantial safety hazard cannot be completed within 60 days from discovery of the deviation or failure to comply, an interim report is prepared and submitted to the Commission through a director or responsible officer or designated person as discussed in § 21.21(d)(5). The interim report should describe the deviation or failure to comply that is being evaluated and should also state when the evaluation will be completed. This interim report must be submitted in writing within 60 days of discovery of the deviation or failure to comply.
            (3) Ensure that a director or responsible officer subject to the regulations of this part is informed as soon as practicable, and, in all cases, within the 5 working days after completion of the evaluation described in paragraphs (a)(1) or (a)(2) of this section if the manufacture, construction, or operation of a facility or activity, a basic component supplied for such facility or activity, or the design certification or design approval under part 52 of this chapter—
            (i) Fails to comply with the Atomic Energy Act of 1954, as amended, or any applicable rule, regulation, order, or license of the Commission or standard design approval under part 52 of this chapter, relating to a substantial safety hazard, or
            (ii) Contains a defect.
            (b) If the deviation or failure to comply is discovered by a supplier of basic components, or services associated with basic components, and the supplier determines that it does not have the capability to perform the evaluation to determine if a defect exists, then the supplier must inform the purchasers or affected licensees within five working days of this determination so that the purchasers or affected licensees may evaluate the deviation or failure to comply, pursuant to § 21.21(a).
            (c) A dedicating entity is responsible for—

            (1) Identifying and evaluating deviations and reporting defects and failures to comply associated with substantial safety hazards for dedicated items; and
            (2) Maintaining auditable records for the dedication process.
            (d)(1) A director or responsible officer subject to the regulations of this part or a person designated under § 21.21(d)(5) must notify the Commission when he or she obtains information reasonably indicating a failure to comply or a defect affecting—
            (i) The manufacture, construction or operation of a facility or an activity within the United States that is subject to the licensing requirements under parts 30, 40, 50, 52, 60, 61, 63, 70, 71, or 72 of this chapter and that is within his or her organization's responsibility; or
            (ii) A basic component that is within his or her organization's responsibility and is supplied for a facility or an activity within the United States that is subject to the licensing, design certification, or approval requirements under parts 30, 40, 50, 52, 60, 61, 63, 70, 71, or 72 of this chapter.
            (2) The notification to NRC of a failure to comply or of a defect under paragraph (d)(1) of this section and the evaluation of a failure to comply or a defect under paragraphs (a)(1) and (a)(2) of this section, are not required if the director or responsible officer has actual knowledge that the Commission has been notified in writing of the defect or the failure to comply.
            (3) Notification required by paragraph (d)(1) of this section must be made as follows—
            (i) Initial notification by facsimile, which is the preferred method of notification, to the NRC Operations Center at (301) 816-5151 or by telephone at (301) 816-5100 within two days following receipt of information by the director or responsible corporate officer under paragraph (a)(1) of this section, on the identification of a defect or a failure to comply. Verification that the facsimile has been received should be made by calling the NRC Operations Center. This paragraph does not apply to interim reports described in § 21.21(a)(2).
            (ii) Written notification to the NRC at the address specified in § 21.5 within 30 days following receipt of information by the director or responsible corporate officer under paragraph (a)(3) of this section, on the identification of a defect or a failure to comply.
            (4) The written report required by this paragraph shall include, but need not be limited to, the following information, to the extent known:
            (i) Name and address of the individual or individuals informing the Commission.
            (ii) Identification of the facility, the activity, or the basic component supplied for such facility or such activity within the United States which fails to comply or contains a defect.
            (iii) Identification of the firm constructing the facility or supplying the basic component which fails to comply or contains a defect.
            (iv) Nature of the defect or failure to comply and the safety hazard which is created or could be created by such defect or failure to comply.
            (v) The date on which the information of such defect or failure to comply was obtained.
            (vi) In the case of a basic component which contains a defect or fails to comply, the number and location of these components in use at, supplied for, being supplied for, or may be supplied for, manufactured, or being manufactured for one or more facilities or activities subject to the regulations in this part.
            (vii) The corrective action which has been, is being, or will be taken; the name of the individual or organization responsible for the action; and the length of time that has been or will be taken to complete the action.
            (viii) Any advice related to the defect or failure to comply about the facility, activity, or basic component that has been, is being, or will be given to purchasers or licensees.
            (ix) In the case of an early site permit, the entities to whom an early site permit was transferred.

            (5) The director or responsible officer may authorize an individual to provide the notification required by this paragraph, provided that, this shall not relieve the director or responsible officer of his or her responsibility under this paragraph.

            (e) Individuals subject to this part may be required by the Commission to supply additional information related to a defect or failure to comply. Commission action to obtain additional information may be based on reports of defects from other reporting entities.
            [42 FR 28893, June 6, 1977, as amended at 46 FR 58283, Dec. 1, 1981; 47 FR 57480, Dec. 27, 1982; 52 FR 31611, Aug. 21, 1987; 56 FR 36089, July 31, 1991; 59 FR 14086, Mar. 25, 1994; 60 FR 48374, Sept. 19, 1995; 66 FR 55790, Nov. 2, 2001; 67 FR 77652, Dec. 19, 2002; 72 FR 49487, Aug. 28, 2007]

          Procurement Documents

            § 21.31
            Procurement documents.
            Each individual, corporation, partnership, dedicating entity, or other entity subject to the regulations in this part shall ensure that each procurement document for a facility, or a basic component issued by him, her or it on or after January 6, 1978, specifies, when applicable, that the provisions of 10 CFR part 21 apply.
            [60 FR 48374, Sept. 19, 1995]

          Inspections, Records

            § 21.41
            Inspections.
            Each individual, corporation, partnership, dedicating entity, or other entity subject to the regulations in this part shall permit the Commission to inspect records, premises, activities, and basic components as necessary to accomplish the purposes of this part.
            [60 FR 48374, Sept. 19, 1995]

            § 21.51
            Maintenance and inspection of records.
            (a) Each individual, corporation, partnership, dedicating entity, or other entity subject to the regulations in this part shall prepare and maintain records necessary to accomplish the purposes of this part, specifically—
            (1) Retain evaluations of all deviations and failures to comply for a minimum of five years after the date of the evaluation;
            (2) Suppliers of basic components must retain any notifications sent to purchasers and affected licensees for a minimum of five years after the date of the notification.
            (3) Suppliers of basic components must retain a record of the purchasers of basic components for 10 years after delivery of the basic component or service associated with a basic component.
            (4) Applicants for standard design certification under subpart B of part 52 of this chapter and others providing a design which is the subject of a design certification, during and following Commission adoption of a final design certification rule for that design, shall retain any notifications sent to purchasers and affected licensees for a minimum of 5 years after the date of the notification, and retain a record of the purchasers for 15 years after delivery of design which is the subject of the design certification rule or service associated with the design.
            (5) Applicants for or holders of a standard design approval under subpart E of part 52 of this chapter and others providing a design which is the subject of a design approval shall retain any notifications sent to purchasers and affected licensees for a minimum of 5 years after the date of the notification, and retain a record of the purchasers for 15 years after delivery of the design which is the subject of the design approval or service associated with the design.
            (b) Each individual, corporation, partnership, dedicating entity, or other entity subject to the regulations in this part shall permit the Commission the opportunity to inspect records pertaining to basic components that relate to the identification and evaluation of deviations, and the reporting of defects and failures to comply, including (but not limited to) any advice given to purchasers or licensees on the placement, erection, installation, operation, maintenance, modification, or inspection of a basic component.
            [56 FR 36090, July 31, 1991, as amended at 60 FR 48374, Sept. 19, 1995; 72 FR 49488, Aug. 28, 2007]

          Enforcement

            § 21.61
            Failure to notify.

            (a) Any director or responsible officer of an entity (including dedicating entity) that is not otherwise subject to the deliberate misconduct provisions of this chapter but is subject to the regulations in this part who knowingly and consciously fails to provide the notice required as by § 21.21 shall be subject to a civil penalty equal to the amount provided by section 234 of the Atomic Energy Act of 1954, as amended.
            (b) Any NRC licensee or applicant for a license (including an applicant for, or holder of, a permit), applicant for a design certification under part 52 of this chapter during the pendency of its application, applicant for a design certification after Commission adoption of a final design certification rule for that design, or applicant for or holder of a standard design approval under part 52 of this chapter subject to the regulations in this part who fails to provide the notice required by § 21.21, or otherwise fails to comply with the applicable requirements of this part shall be subject to a civil penalty as provided by Section 234 of the Atomic Energy Act of 1954, as amended.
            (c) The dedicating entity, pursuant to § 21.21(c) of this part, is responsible for identifying and evaluating deviations, reporting defects and failures to comply for the dedicated item, and maintaining auditable records of the dedication process. NRC enforcement action can be taken for failure to identify and evaluate deviations, failure to report defects and failures to comply, or failure to maintain auditable records.
            [60 FR 48374, Sept. 19, 1995, as amended at 72 FR 49488, Aug. 28, 2007]

            § 21.62
            Criminal penalties.
            (a) Section 223 of the Atomic Energy Act of 1954, as amended, provides for criminal sanctions for willful violation of, attempted violation of, or conspiracy to violate, any regulation issued under sections 161b, 161i, or 161o of the Act. For purposes of section 223, all the regulations in part 21 are issued under one or more of sections 161b, 161i, or 161o, except for the sections listed in paragraph (b) of this section.
            (b) The regulations in part 21 that are not issued under sections 161b, 161i, or 161o for the purposes of section 223 are as follows: §§ 21.1, 21.2, 21.3, 21.4 21.5, 21.7, 21.8, 21.61, and 21.62.
            [57 FR 55071, Nov. 24, 1992]

        Pt. 25
        PART 25—ACCESS AUTHORIZATION

            General Provisions
            Sec.
            25.1
            Purpose.
            25.3
            Scope.
            25.5
            Definitions.
            25.7
            Interpretations.
            25.8
            Information collection requirements: OMB approval.
            25.9
            Communications.
            25.11
            Specific exemptions.
            25.13
            Maintenance of records.

            Access Authorizations
            25.15
            Access permitted under “Q” or “L” access authorization.
            25.17
            Approval for processing applicants for access authorization.
            25.19
            Processing applications.
            25.21
            Determination of initial and continued eligibility for access authorization.
            25.23
            Notification of grant of access authorization.
            25.25
            Cancellation of requests for access authorization.
            25.27
            Reopening of cases in which requests for access authorizations are canceled.
            25.29
            Reinstatement of access authorization.
            25.31
            Extensions and transfers of access authorizations.
            25.33
            Termination of access authorizations.

            Classified Visits
            25.35
            Classified visits.

            Violations
            25.37
            Violations.
            25.39
            Criminal penalties.
            Appendix A to Part 25—Fees for NRC Access Authorization

          Authority:
          Atomic Energy Act of 1954, secs. 145, 161, 223, 234 (42 U.S.C. 2165, 2201, 2273, 2282); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note; E.O. 10865, 25 FR 1583, as amended, 3 CFR, 1959-1963 Comp., p. 398; E.O. 12829, 58 FR 3479, 3 CFR, 1993 Comp., p. 570; E.O. 13526, 75 FR 707, 3 CFR, 2009 Comp., p. 298; E.O. 12968, 60 FR 40245, 3 CFR, 1995 Comp., p. 391.
          Section 25.17(f) and Appendix A also issued under 31 U.S.C. 9701; 42 U.S.C. 2214.

          Source:
          45 FR 14481, Mar. 5, 1980, unless otherwise noted.

          General Provisions

            § 25.1
            Purpose.

            The regulations in this part establish procedures for granting, reinstating, extending, transferring, and terminating access authorizations of licensee personnel, licensee contractors or agents, and other persons (e.g., individuals involved in adjudicatory procedures as set forth in 10 CFR part 2, subpart I) who may require access to classified information.
            [62 FR 17687, Apr. 11, 1997]

            § 25.3
            Scope.
            The regulations in this part apply to licensees, certificate holders, and others who may require access to classified information related to a license, certificate, an application for a license or certificate, or other activities as the Commission may determine.
            [70 FR 32227, June 2, 2005]

            § 25.5
            Definitions.

              Access authorization means an administrative determination that an individual (including a consultant) who is employed by or an applicant for employment with the NRC, NRC contractors, agents, licensees and certificate holders, or other person designated by the Executive Director for Operations, is eligible for a security clearance for access to classified information.

              Act means the Atomic Energy Act of 1954 (68 Stat. 919), as amended.

              Certificate holder means a facility operating under the provisions of parts 71 or 76 of this chapter.

              Classified information means either classified National Security Information, Restricted Data, or Formerly Restricted Data or any one of them. It is the generic term for information requiring protection in the interest of National Security whether classified under an Executive Order or the Atomic Energy Act.

              Classified National Security Information means information that has been determined under E.O. 13526, as amended, or any predecessor or successor order to require protection against unauthorized disclosure and that is so designated.

              Cognizant Security Agency (CSA) means agencies of the Executive Branch that have been authorized by E.O. 12829 to establish an industrial security program for the purpose of safeguarding classified information under the jurisdiction of those agencies when disclosed or released to U.S. industry. These agencies are the Department of Defense, the Department of Energy, the Central Intelligence Agency, and the Nuclear Regulatory Commission. A facility has a single CSA which exercises primary authority for the protection of classified information at the facility. The CSA for the facility provides security representation for other government agencies with security interests at the facility. The Secretary of Defense has been designated as Executive Agent for the National Industrial Security Program.

              Commission means the Nuclear Regulatory Commission or its duly authorized representatives.

              “L” access authorization means an access authorization granted by the Commission that is normally based on a national agency check with a law and credit investigation (NACLC) or an access national agency check and inquiries investigation (ANACI) conducted by the Office of Personnel Management.

              License means a license issued pursuant to 10 CFR parts 50, 52, 60, 63, 70, or 72.

              Matter means documents or material.

              National Security Information means information that has been determined pursuant to Executive Order 12958, as amended, or any predecessor order to require protection against unauthorized disclosure and that is so designated.

              Need-to-know means a determination made by an authorized holder of classified information that a prospective recipient requires access to a specific classified information to perform or assist in a lawful and authorized governmental function under the cognizance of the Commission.

              Person means (1) any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, government agency other than the Commission or the Department of Energy (DOE), except that the DOE shall be considered a person to the extent that its facilities are subject to the licensing and related regulatory authority of the Commission pursuant to section 202 of the Energy Reorganization Act of 1974 and sections 104, 105 and 202 of the Uranium Mill Tailings Radiation Control Act of 1978, any State or any political subdivision of, or any political entity within a State, any foreign government or nation or any political subdivision of any such government or nation, or other entity; and (2) any legal successor, representative, agent, or agency of the foregoing.

              “Q” access authorization means an access authorization granted by the Commission normally based on a single scope background investigation conducted by the Office of Personnel Management, the Federal Bureau of Investigation, or other U.S. Government agency which conducts personnel security investigations.

              Restricted Data means all data concerning design, manufacture or utilization of atomic weapons, the production of special nuclear material, or the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 142 of the Act.

              Visit authorization letters (VAL) means a letter, generated by a licensee, certificate holder or other organization under the requirements of 10 CFR parts 25 and/or 95, verifying the need-to-know and access authorization of an individual from that organization who needs to visit another authorized facility for the purpose of exchanging or acquiring classified information related to the license.
            [45 FR 14481, Mar. 5, 1980, as amended at 46 FR 58283, Dec. 1, 1981; 47 FR 38683, Sept. 2, 1982; 48 FR 24320, June 1, 1983; 50 FR 36984, Sept. 11, 1985; 55 FR 11574, Mar. 29, 1990; 62 FR 17687, Apr. 11, 1997; 64 FR 15647, Apr. 1, 1999; 70 FR 32227, June 2, 2005; 75 FR 73941, Nov. 30, 2010]

            § 25.7
            Interpretations.
            Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any officer or employee of the Commission other than a written interpretation by the General Counsel will be recognized to be binding upon the Commission.

            § 25.8
            Information collection requirements: OMB approval.

            (a) The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The NRC may not conduct or sponsor and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in this part under control number 3150-0046.
            (b) The approved information collection requirements contained in this part appear in §§ 25.11, 25.17, 25.21, 25.23, 25.25, 25.27, 25.29, 25.31, 25.33, and 25.35.
            (c) This part contains information collection requirements in addition to those approved under the control number specified in paragraph (a) of this section. These information collection requirements and the control numbers under which they are approved are as follows:
            (1) In §§ 25.17(b), 25.21(c), 25.27(a), 25.29, and 25.31, NRC Form 237 is approved under control number 3150-0050.
            (2) In §§ 25.17(c), 25.21(c), 25.27(b), 25.29, and 25.31, SF-86 is approved under control number 3206-0007.
            (3) In § 25.21(b), NRC Form 354 is approved under control number 3150-0026.
            (4) In § 25.33, NRC Form 136 is approved under control number 3150-0049.
            (5) In § 25.35, NRC Form 277 is approved under control number 3150-0051.
            [49 FR 19624, May 9, 1984, as amended at 57 FR 3720, Jan. 31, 1992; 62 FR 17687, Apr. 11, 1997; 62 FR 52185, Oct. 6, 1997]

            § 25.9
            Communications.

            Except where otherwise specified, communications and reports concerning the regulations in this part should be addressed to the Director, Division of Facilities and Security, Mail Stop T7-D57, and sent either by mail to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland; or, where practicable, by electronic submission, for example, Electronic Information Exchange, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information.
            [68 FR 58803, Oct. 10, 2003, as amended at 74 FR 62681, Dec. 1, 2009; 80 FR 74979, Dec. 1, 2015]

            § 25.11
            Specific exemptions.
            The NRC may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of the regulations of this part, that are—
            (a) Authorized by law, will not present an undue risk to the public health and safety, and are consistent with the common defense and security; or
            (b) Coincidental with one or more of the following:
            (1) An application of the regulation in the particular circumstances conflicts with other NRC rules or requirements;
            (2) An application of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule;
            (3) When compliance would result in undue hardship or other costs that significantly exceed those contemplated when the regulation was adopted, or that significantly exceed those incurred by others similarly situated;
            (4) When the exemption would result in benefit to the common defense and security that compensates for any decrease in the security that may result from the grant of the exemption;
            (5) When the exemption would provide only temporary relief from the applicable regulation and the licensee or applicant has made good faith efforts to comply with the regulation;
            (6) When there is any other material circumstance present that was not considered when the regulation was adopted that would be in the public interest to grant an exemption. If this condition is relied on exclusively for satisfying paragraph (b) of this section, the exemption may not be granted until the Executive Director for Operations has consulted with the Commission.
            [64 FR 15647, Apr. 1, 1999]

            § 25.13
            Maintenance of records.
            (a) Each licensee or organization employing individuals approved for personnel security access authorization under this part, shall maintain records as prescribed within the part. These records are subject to review and inspection by CSA representatives during security reviews.
            (b) Each record required by this part must be legible throughout the retention period specified by each Commission regulation. The record may be the original or a reproduced copy or a microform provided that the copy or microform is authenticated by authorized personnel and that the microform is capable of producing a clear copy throughout the required retention period. The record may also be stored in electronic media with the capability for producing legible, accurate, and complete records during the required retention period. Records such as letters, drawings, specifications, must include all pertinent information such as stamps, initials, and signatures. The licensee shall maintain adequate safeguards against tampering with and loss of records.
            [45 FR 14481, Mar. 5, 1980, as amended at 53 FR 19245, May 27, 1988; 62 FR 17687, Apr. 11, 1997]

          Access Authorizations

            § 25.15
            Access permitted under “Q” or “L” access authorization.

            (a) A “Q” access authorization permits an individual access on a need-to-know basis to (1) Secret and Confidential Restricted Data and (2) Secret and Confidential National Security Information including intelligence information, CRYPTO (i.e., cryptographic information) or other classified communications security (COMSEC) information.
            (b) An “L” access authorization permits an individual access on a need-to-know basis to Confidential Restricted Data and Secret and Confidential National Security Information other than the categories specifically included in paragraph (a) of this section. In addition, access to certain Confidential COMSEC information is permitted as authorized by a National Communications Security Committee waiver dated February 14, 1985.
            (c) Each employee of the Commission is processed for one of the two levels of access authorization. Licensees and other persons will furnish National Security Information and/or Restricted Data to a Commission employee on official business when the employee has the appropriate level of NRC access authorization and need-to-know. Some individuals are permitted to begin NRC employment without an access authorization. However, no NRC employee shall be permitted access to any classified information until the appropriate level of access authorization has been granted to that employee by NRC.
            [45 FR 14481, Mar. 5, 1980, as amended at 47 FR 9195, Mar. 4, 1982; 50 FR 36984, Sept. 11, 1985]

            § 25.17
            Approval for processing applicants for access authorization.
            (a) Access authorizations must be requested for licensee employees or other persons (e.g., 10 CFR part 2, subpart I) who need access to classified information in connection with activities under 10 CFR parts 50, 52, 54, 60, 63, 70, 72, or 76.
            (b) The request must be submitted to the facility CSA. If the NRC is the CSA, the procedures in § 25.17 (c) and (d) will be followed. If the NRC is not the CSA, the request will be submitted to the CSA in accordance with procedures established by the CSA. The NRC will be notified of the request by a letter that includes the name, Social Security number and level of access authorization.
            (c) The request must include a completed personnel security packet (see § 25.17(d)) and request form (NRC Form 237) signed by a licensee, licensee contractor official, or other authorized person.
            (d)(1) Each personnel security packet submitted must include the following completed forms:
            (i) Questionnaire for National Security Positions (SF-86, Parts 1 and 2) (Part 2 is to be completed by the applicant and placed in a sealed envelope which is to be forwarded to NRC unopened. No licensee, licensee contractor official, or other person at a facility is permitted to review Part 2 information);
            (ii) Two standard fingerprint cards (FD-258);
            (iii) Security Acknowledgment (NRC Form 176); and
            (iv) Other related forms where specified in accompanying instructions (NRC Form 254).
            (2) Only a Security Acknowledgment (NRC Form 176) need be completed by any person possessing an active access authorization, or who is being processed for an access authorization, by another Federal agency. The active or pending access authorization must be at an equivalent level to that required by the NRC and be based on an adequate investigation of not more than five years old.
            (e) To avoid delays in processing requests for access authorizations, each security packet should be reviewed for completeness and correctness (including legibility of response on the forms) before submittal.
            (f) The Office of Personnel Management (OPM) bills the NRC for the cost of each background investigation conducted in support of an application for access authorization (application). The combined cost of the OPM investigation and the NRC's application processing overhead (NRC processing fee) are recovered through an access authorization fee imposed on applicants for access authorization.

            (1) Each application for access authorization, renewal, or change in level must be accompanied by a remittance, payable to the U.S. Nuclear Regulatory Commission, which is equal to the NRC access authorization fee. This fee must be determined using the following formula: the OPM investigation billing rates on the day of NRC receipt of the application + the NRC processing fee = the NRC access authorization fee. The NRC processing fee is determined by multiplying the OPM investigation billing rate on the day of NRC receipt of the application by 55.8 percent (i.e., OPM rate × 55.8 percent).

            (2) Updated OPM investigation billing rates are published periodically in a Federal Investigations Notice (FIN) issued by the OPM's Federal Investigative Services. Copies of the current OPM investigation billing rates schedule can be obtained by contacting the NRC's Personnel Security Branch, Division of Facilities Security, Office of Administration by email to Licensee_

              Access_Authorization_Fee.Resource@

              nrc.gov

            (3) The NRC's Information Access Authority Program (IAAP) is considered reimbursable work representing services provided to an organization for which the NRC is entitled payment. The NRC is authorized to receive and retain fees from licensees for services performed. The NRC's Office of the Chief Financial Officer periodically reviews the fees charged for IAAP and makes recommendations on revising those charges to reflect costs incurred by the NRC in providing those services. The reviews are performed using cost analysis techniques to determine the direct and indirect costs. Based on this review the IAAP fees are adjusted to reflect the current cost for the program. Copies of the current NRC access authorization fee may be obtained by contacting the NRC's Personnel Security Branch, Division of Facilities Security, Office of Administration by email to: Licensee_Access_

              Authorization_Fee.Resource@nrc.gov. Any change in the NRC's access authorization fee will be applicable to each access authorization request received on or after the effective date of the OPM's most recently published investigation billing rates schedule.
            (4) Certain applications from individuals having current Federal access authorizations may be processed more expeditiously and at less cost, because the Commission, at its discretion, may decide to accept the certification of access authorization and investigative data from other Federal Government agencies that grant personnel access authorizations.
            [62 FR 17687, Apr. 11, 1997, as amended at 68 FR 62512, Nov. 5, 2003; 70 FR 32227, June 2, 2005; 72 FR 27411, May 16, 2007; 77 FR 26153, May 3, 2012; 77 FR 46258, Aug. 3, 2012]

            § 25.19
            Processing applications.
            Each application for an access authorization or access authorization renewal must be submitted to the CSA. If the NRC is the CSA, the application and its accompanying fee must be submitted to the NRC Division of Facilities and Security. If necessary, the NRC Division of Facilities and Security may obtain approval from the appropriate Commission office exercising licensing or regulatory authority before processing the access authorization or access authorization renewal request. If the applicant is disapproved for processing, the NRC Division of Facilities and Security shall notify the submitter in writing and return the original application (security packet) and its accompanying fee.
            [64 FR 15648, Apr. 1, 1999]

            § 25.21
            Determination of initial and continued eligibility for access authorization.

            (a) Following receipt by the CSA of the reports of the personnel security investigations, the record will be reviewed to determine that granting an access authorization or renewal of access authorization will not endanger the common defense and security and is clearly consistent with the national interest. If this determination is made, access authorization will be granted or renewed. If the NRC is the CSA, questions as to initial or continued eligibility will be determined in accordance with part 10 of chapter I. If another agency is the CSA, that agency will, under the requirements of the NISPOM, have established procedures at the facility to resolve questions as to initial or continued eligibility for access authorization. These questions will be determined in accordance with established CSA procedures already in effect for the facility.

            (b) The CSA must be promptly notified of developments that bear on continued eligibility for access authorization throughout the period for which the authorization is active (e.g., persons who marry subsequent to the completion of a personnel security packet must report this change by submitting a completed NRC Form 354, “Data Report on Spouse” or equivalent CSA form).
            (c)(1) Except as provided in paragraph (c)(2) of this section, an NRC “Q” access authorization must be renewed every five years from the date of issuance. Except as provided in paragraph (c)(2) of this section, an NRC “L” access authorization must be renewed every ten years from the date of issuance. An application for renewal must be submitted at least 120 days before the expiration of the five-year period for a “Q” access authorization and the ten-year period for an “L” access authorization, and must include:
            (i) A statement by the licensee or other person that the individual continues to require access to classified National Security Information or Restricted Data; and
            (ii) A personnel security packet as described in § 25.17(d).
            (2) Renewal applications and the required paperwork are not required for individuals who have a current and active access authorization from another Federal agency and who are subject to a reinvestigation program by that agency that is determined by the NRC to meet the NRC's requirements. (The DOE Reinvestigation Program has been determined to meet the NRC's requirements.) For these individuals, the submission of the SF-86 by the licensee or other person to the other Government agency pursuant to their reinvestigation requirements will satisfy the NRC's renewal submission and paperwork requirements, even if less than five years have passed since the date of issuance or renewal of the NRC “Q” access authorization, or if less than 10 years have passed since the date of issuance or renewal of the NRC “L” access authorization. Any NRC access authorization continued in response to the provisions of this paragraph will, thereafter, not be due for renewal until the date set by the other Government agency for the next reinvestigation of the individual pursuant to the other agency's reinvestigation program. However, the period of time for the initial and each subsequent NRC “Q” renewal application to the NRC may not exceed seven years or, in the case of an NRC “L” renewal application, twelve years. Any individual who is subject to the reinvestigation program requirements of another Federal agency but, for administrative or other reasons, does not submit reinvestigation forms to that agency within seven years for a “Q” renewal or twelve years for an “L” renewal of the previous submission, shall submit a renewal application to the NRC using the forms prescribed in § 25.17(d) before the expiration of the seven-year period for a “Q” renewal or twelve-year period for an “L” renewal.
            (3) If the NRC is not the CSA, reinvestigation program procedures and requirements will be set by the CSA.
            [62 FR 17688, Apr. 11, 1997, as amended at 64 FR 15648, Apr. 1, 1999]

            § 25.23
            Notification of grant of access authorization.

            The determination to grant or renew access authorization will be furnished in writing to the licensee or organization that initiated the request. Upon receipt of the notification of original grant of access authorization, the licensee or organization shall obtain, as a condition for grant of access authorization and access to classified information, an executed “Classified Information Nondisclosure Agreement” (SF-312) from the affected individual. The SF-312 is an agreement between the United States and an individual who is cleared for access to classified information. An employee issued an initial access authorization shall execute a SF-312 before being granted access to classified information. The licensee or other organization shall forward the executed SF-312 to the CSA for retention. If the employee refuses to execute the SF-312, the licensee or other organization shall deny the employee access to classified information and submit a report to the CSA. The SF-312 must be signed and dated by the employee and witnessed. The employee's and witness' signatures must bear the same date. The individual shall also be given a security orientation briefing in accordance with § 95.33 of this chapter. Records of access authorization grant and renewal notification must be maintained by the licensee or other organization for three years after the access authorization has been terminated by the CSA. This information may also be furnished to other representatives of the Commission, to licensees, contractors, or other Federal agencies. Notifications of access authorization will not be given in writing to the affected individual except:
            (a) In those cases when the determination was made as a result of a Personnel Security Hearing or by a Personnel Security Review Panel ; or
            (b) When the individual also is the official designated by the licensee or other organization to whom written NRC notifications are forwarded.
            [62 FR 17688, Apr. 11, 1997, as amended at 64 FR 15648, Apr. 1, 1999]

            § 25.25
            Cancellation of requests for access authorization.
            When a request for an individual's access authorization or renewal of an access authorization is withdrawn or canceled, the requestor shall notify the CSA immediately by telephone so that the single scope background investigation, national agency check with law and credit investigation, or other personnel security action may be discontinued. The requestor shall identify the full name and date of birth of the individual, the date of request, and the type of access authorization or access authorization renewal requested. The requestor shall confirm each telephone notification promptly in writing.
            [64 FR 15648, Apr. 1, 1999]

            § 25.27
            Reopening of cases in which requests for access authorizations are canceled.
            (a) In conjunction with a new request for access authorization (NRC Form 237 or CSA equivalent) for individuals whose cases were previously canceled, new fingerprint cards (FD-257) in duplicate and a new Security Acknowledgment (NRC Form 176), or CSA equivalent, must be furnished to the CSA along with the request.
            (b) Additionally, if 90 days or more have elapsed since the date of the last Questionnaire for National Security Positions (SF-86), or CSA equivalent, the individual must complete a personnel security packet (see § 25.17(d)). The CSA, based on investigative or other needs, may require a complete personnel security packet in other cases as well. A fee, equal to the amount paid for an initial request, will be charged only if a new or updating investigation by the NRC is required.
            [62 FR 17689, Apr. 11, 1997, as amended at 64 FR 15648, Apr. 1, 1999]

            § 25.29
            Reinstatement of access authorization.
            (a) An access authorization can be reinstated provided that:
            (1) No more than 24 months has lapsed since the date of termination of the clearance;
            (2) There has been no break in employment with the employer since the date of termination of the clearance;
            (3) There is no known adverse information;
            (4) The most recent investigation must not exceed 5 years (Top Secret, Q) or 10 years (Secret, L); and
            (5) The most recent investigation must meet or exceed the scope of the investigation required for the level of access authorization that is to be reinstated or granted.
            (b) An access authorization can be reinstated at the same, or lower, level by submission of a CSA-designated form to the CSA. The employee may not have access to classified information until receipt of written confirmation of reinstatement and an up-to-date personnel security packet will be furnished with the request for reinstatement of an access authorization. A new Security Acknowledgement will be obtained in all cases. Where personnel security packets are not required, a request for reinstatement must state the level of access authorization to be reinstated and the full name and date of birth of the individual to establish positive identification. A fee, equal to the amount paid for an initial request, will be charged only if a new or updating investigation by the NRC is required.
            [62 FR 17689, Apr. 11, 1997]

            § 25.31
            Extensions and transfers of access authorizations.
            (a) The NRC Division of Facilities and Security may, on request, extend the authorization of an individual who possesses an access authorization in connection with a particular employer or activity to permit access to classified information in connection with an assignment with another employer or activity.
            (b) The NRC Division of Facilities and Security may, on request, transfer an access authorization when an individual's access authorization under one employer or activity is terminated, simultaneously with the individual being granted an access authorization for another employer or activity.
            (c) Requests for an extension or transfer of an access authorization must state the full name of the person, date of birth, and level of access authorization. The Director, Division of Facilities and Security, may require a new personnel security packet (see § 25.17(c)) to be completed by the applicant. A fee, equal to the amount paid for an initial request, will be charged only if a new or updating investigation by the NRC is required.
            (d) The date of an extension or transfer of access authorization may not be used to determine when a request for renewal of access authorization is required. Access authorization renewal requests must be timely submitted, in accordance with § 25.21(c).
            [45 FR 14481, Mar. 5, 1980, as amended at 48 FR 24320, June 1, 1983; 57 FR 3721, Jan. 31, 1992; 62 FR 17689, Apr. 11, 1997; 64 FR 15648, Apr. 1, 1999]

            § 25.33
            Termination of access authorizations.
            (a) Access authorizations will be terminated when:
            (1) An access authorization is no longer required;
            (2) An individual is separated from the employment or the activity for which he or she obtained an access authorization for a period of 90 days or more; or
            (3) An individual, pursuant to 10 CFR part 10 or other CSA-approved adjudicatory standards, is no longer eligible for an access authorization.
            (b) A representative of the licensee or other organization that employs the individual whose access authorization will be terminated shall immediately notify the CSA when the circumstances noted in paragraph (a)(1) or (a)(2) of this section exist; inform the individual that his or her access authorization is being terminated, and the reason; and that he or she will be considered for reinstatement of an access authorization if he or she resumes work requiring the authorization.
            (c) When an access authorization is to be terminated, a representative of the licensee or other organization shall conduct a security termination briefing of the individual involved, explain the Security Termination Statement (NRC Form 136 or CSA approved form) and have the individual complete the form. The representative shall promptly forward the original copy of the completed Security Termination Statement to CSA.
            [62 FR 17689, Apr. 11, 1997, as amended at 64 FR 15649, Apr. 1, 1999]

          Classified Visits

            § 25.35
            Classified visits.
            (a) The number of classified visits must be held to a minimum. The licensee, certificate holder, applicant for a standard design certification under part 52 of this chapter (including an applicant after the Commission has adopted a final standard design certification rule under part 52 of this chapter), or other facility, or an applicant for or holder of a standard design approval under part 52 of this chapter shall determine that the visit is necessary and that the purpose of the visit cannot be achieved without access to, or disclosure of, classified information. All classified visits require advance notification to, and approval of, the organization to be visited. In urgent cases, visit information may be furnished by telephone and confirmed in writing.

            (b) Representatives of the Federal Government, when acting in their official capacities as inspectors, investigators, or auditors, may visit a licensee, certificate holder, or other facility without furnishing advanced notification, provided these representatives present appropriate Government credentials upon arrival. Normally, however, Federal representatives will provide advance notification in the form of an NRC Form 277, “Request for Visit or Access Approval,” with the “need-to-know” certified by the appropriate NRC office exercising licensing or regulatory authority and verification of an NRC access authorization by the Division of Facilities and Security.
            (c) The licensee, certificate holder, or others shall include the following information on all Visit Authorization Letters (VAL) which they prepare.
            (1) Visitor's name, address, and telephone number and certification of the level of the facility security clearance;
            (2) Name, date and place of birth, and citizenship of the individual intending to visit;
            (3) Certification of the proposed visitor's personnel clearance and any special access authorizations required for the visit;
            (4) Name of person(s) to be visited;
            (5) Purpose and sufficient justification for the visit to allow for a determination of the necessity of the visit; and
            (6) Date or period during which the VAL is to be valid.
            (d) Classified visits may be arranged for a 12 month period. The requesting facility shall notify all places honoring these visit arrangements of any change in the individual's status that will cause the visit request to be canceled before its normal termination date.
            (e) The responsibility for determining need-to-know in connection with a classified visit rests with the individual who will disclose classified information during the visit. The licensee, certificate holder or other facility shall establish procedures to ensure positive identification of visitors before the disclosure of any classified information.
            [62 FR 17689, Apr. 11, 1997, as amended at 64 FR 15649, Apr. 1, 1999; 72 FR 49488, Aug. 28, 2007]

          Violations

            § 25.37
            Violations.
            (a) An injunction or other court order may be obtained to prohibit a violation of any provision of:
            (1) The Atomic Energy Act of 1954, as amended;
            (2) Title II of the Energy Reorganization Act of 1974, as amended; or
            (3) Any regulation or order issued under these Acts.
            (b) National Security Information is protected under the requirements and sanctions of Executive Order 13526, as amended, or any predecessor or successor orders.
            [48 FR 24320, June 1, 1983, as amended at 57 FR 55072, Nov. 24, 1992; 64 FR 15649, Apr. 1, 1999; 70 FR 32227, June 2, 2005; 75 FR 73941, Nov. 30, 2010]

            § 25.39
            Criminal penalties.
            (a) Section 223 of the Atomic Energy Act of 1954, as amended, provides for criminal sanctions for willful violation of, attempted violation of, or conspiracy to violate, any regulation issued under sections 161b, 161i, or 161o of the Act. For purposes of section 223, all the regulations in part 25 are issued under one or more of sections 161b, 161i, or 161o, except for the sections listed in paragraph (b) of this section.
            (b) The regulations in part 25 that are not issued under sections 161b, 161i, or 161o for the purposes of section 223 are as follows: §§ 25.1, 25.3, 25.5, 25.7, 25.8, 25.9, 25.11, 25.19, 25.25, 25.27, 25.29, 25.31, 25.37, and 25.39.
            [57 FR 55072, Nov. 24, 1992]

            Pt. 25, App. A
            Appendix A to Part 25—Fees for NRC Access Authorization

                The NRC application fee for an access authorization of type . . .
                Is the sum of the current OPM investigation billing rate charged for an investigation of type . . .
                Plus the NRC's processing fee (rounded to the nearest dollar), which is equal to the OPM investigation billing rate for the type of investigation referenced multiplied by . . .

                Initial “L” access authorization 1

                ANACI—Access National Agency Check with Inquiries (Standard Service, Code C)
                55.8%

                Reinstatement of “L” access authorization 2

                No fee assessed for most applications

                Renewal of “L” access authorization 1

                NACLC—National Agency Check with Law and Credit (Standard Service, Code C)
                55.8%.

                Initial “Q” access authorization
                SSBI—Single Scope Background Investigation (Standard Service, Code C)
                55.8%

                Initial “Q” access authorization (expedited processing)
                SSBI—Single Scope Background Investigation (Priority Handling, Code A)
                55.8%

                Reinstatement of “Q” access authorization 2

                No fee assessed for most applications

                Renewal of “Q” access authorization 1

                SSBI-PR—Periodic Reinvestigation for SSBI (Standard Service, Code C)
                55.8%

                1 If the NRC determines, based on its review of available data, that a single scope investigation is necessary, the appropriate fee for an Initial “Q” access authorization will be assessed before the conduct of investigation.

                2 Full fee will only be charged if an investigation is required.

            [77 FR 26153, May 3, 2012, as amended at 77 FR 46258, Aug. 3, 2012]

        Pt. 26
        PART 26—FITNESS FOR DUTY PROGRAMS

            Subpart A—Administrative Provisions
            Sec.
            26.1
            Purpose.
            26.3
            Scope.
            26.4
            FFD program applicability to categories of individuals.
            26.5
            Definitions.
            26.7
            Interpretations.
            26.8
            Information collection requirements: OMB approval.
            26.9
            Specific exemptions.
            26.11
            Communications.

            Subpart B—Program Elements
            26.21
            Fitness-for-duty program.
            26.23
            Performance objectives.
            26.25
            [Reserved]
            26.27
            Written policy and procedures.
            26.29
            Training.
            26.31
            Drug and alcohol testing.
            26.33
            Behavioral observation.
            26.35
            Employee assistance programs.
            26.37
            Protection of information.
            26.39
            Review process for fitness-for-duty policy violations.
            26.41
            Audits and corrective action.

            Subpart C—Granting and Maintaining Authorization
            26.51
            Applicability.
            26.53
            General provisions.
            26.55
            Initial authorization.
            26.57
            Authorization update.
            26.59
            Authorization reinstatement.
            26.61
            Self-disclosure and employment history.
            26.63
            Suitable inquiry.
            26.65
            Pre-access drug and alcohol testing.
            26.67
            Random drug and alcohol testing of individuals who have applied for authorization.
            26.69
            Authorization with potentially disqualifying fitness-for-duty information.
            26.71
            Maintaining authorization.

            Subpart D—Management Actions and Sanctions To Be Imposed
            26.73
            Applicability.
            26.75
            Sanctions.
            26.77
            Management actions regarding possible impairment.

            Subpart E—Collecting Specimens for Testing
            26.81
            Purpose and applicability.
            26.83
            Specimens to be collected.
            26.85
            Collector qualifications and responsibilities.
            26.87
            Collection sites.
            26.89
            Preparing to collect specimens for testing.
            26.91
            Acceptable devices for conducting initial and confirmatory tests for alcohol and methods of use.
            26.93
            Preparing for alcohol testing.
            26.95
            Conducting an initial test for alcohol using a breath specimen.
            26.97

            Conducting an initial test for alcohol using a specimen of oral fluids.

            26.99
            Determining the need for a confirmatory test for alcohol.
            26.101
            Conducting a confirmatory test for alcohol.
            26.103
            Determining a confirmed positive test result for alcohol.
            26.105
            Preparing for urine collection.
            26.107
            Collecting a urine specimen.
            26.109
            Urine specimen quantity.
            26.111
            Checking the acceptability of the urine specimen.
            26.113
            Splitting the urine specimen.
            26.115
            Collecting a urine specimen under direct observation.
            26.117
            Preparing urine specimens for storage and shipping.
            26.119
            Determining “shy” bladder.

            Subpart F—Licensee Testing Facilities
            26.121
            Purpose.
            26.123
            Testing facility capabilities.
            26.125
            Licensee testing facility personnel.
            26.127
            Procedures.
            26.129
            Assuring specimen security, chain of custody, and preservation.
            26.131
            Cutoff levels for validity screening and initial validity tests.
            26.133
            Cutoff levels for drugs and drug metabolites.
            26.135
            Split specimens.
            26.137
            Quality assurance and quality control.
            26.139
            Reporting initial validity and drug test results.

            Subpart G—Laboratories Certified by the Department of Health and Human Services
            26.151
            Purpose.
            26.153
            Using certified laboratories for testing urine specimens.
            26.155
            Laboratory personnel.
            26.157
            Procedures.
            26.159
            Assuring specimen security, chain of custody, and preservation.
            26.161
            Cutoff levels for validity testing.
            26.163
            Cutoff levels for drugs and drug metabolites.
            26.165
            Testing split specimens and retesting single specimens.
            26.167
            Quality assurance and quality control.
            26.168
            Blind performance testing.
            26.169
            Reporting results.

            Subpart H—Determining Fitness-for-Duty Policy Violations and Determining Fitness
            26.181
            Purpose.
            26.183
            Medical review officer.
            26.185
            Determining a fitness-for-duty policy violation.
            26.187
            Substance abuse expert.
            26.189
            Determination of fitness.

            Subpart I—Managing Fatigue.
            26.201
            Applicability.
            26.203
            General provisions.
            26.205
            Work hours.
            26.207
            Waivers and exceptions.
            26.209
            Self-declarations.
            26.211
            Fatigue assessments.

            Subpart J [Reserved]

            Subpart K—FFD Programs for Construction
            26.401
            General.
            26.403
            Written policy and procedures.
            26.405
            Drug and alcohol testing.
            26.406
            Fitness monitoring.
            26.407
            Behavioral observation.
            26.409
            Sanctions.
            26.411
            Protection of information.
            26.413
            Review process.
            26.415
            Audits.
            26.417
            Recordkeeping and reporting.
            26.419
            Suitability and fitness evaluations.

            Subparts L-M [Reserved]

            Subpart N—Recordkeeping and Reporting Requirements
            26.709
            Applicability.
            26.711
            General provisions.
            26.713
            Recordkeeping requirements for licensees and other entities.
            26.715
            Recordkeeping requirements for collection sites, licensee testing facilities, and laboratories certified by the Department of Health and Human Services.
            26.717
            Fitness-for-duty program performance data.
            26.719
            Reporting requirements.

            Subpart O—Inspections, Violations, and Penalties
            26.821
            Inspections.
            26.823
            Violations.
            26.825
            Criminal penalties.

          Authority:
          Atomic Energy Act of 1954, secs. 53, 103, 104, 107, 161, 223, 234, 1701 (42 U.S.C. 2073, 2133, 2134, 2137, 2201, 2273, 2282, 2297f); Energy Reorganization Act of 1974, secs. 201, 202 (42 U.S.C. 5841, 5842); 44 U.S.C. 3504 note.

          Source:
          73 FR 17176, Mar. 31, 2008, unless otherwise noted.

          Subpart A—Administrative Provisions

            § 26.1
            Purpose.
            This part prescribes requirements and standards for the establishment, implementation, and maintenance of fitness-for-duty (FFD) programs.

            § 26.3
            Scope.

            (a) Licensees who are authorized to operate a nuclear power reactor under 10 CFR 50.57, and holders of a combined license under 10 CFR Part 52 after the Commission has made the finding under 10 CFR 52.103(g) shall comply with the requirements of this part, except for subpart K of this part. Licensees who receive their authorization to operate a nuclear power reactor under 10 CFR 50.57 after the date of publication of this final rule in the Federal Register and holders of a combined license under 10 CFR Part 52 after the Commission has made the finding under 10 CFR 52.103(g) shall implement the FFD program before the receipt of special nuclear material in the form of fuel assemblies.
            (b) Licensees who are authorized to possess, use, or transport formula quantities of strategic special nuclear material (SSNM) under Part 70 of this chapter, and any corporation, firm, partnership, limited liability company, association, or other organization who obtains a certificate of compliance or an approved compliance plan under Part 76 of this chapter, only if the entity elects to engage in activities involving formula quantities of SSNM shall comply with the requirements of this part, except for subparts I and K of this part.
            (c) Before the receipt of special nuclear material in the form of fuel assemblies, the following licensees and other entities shall comply with the requirements of this part, except for subpart I of this part; and, no later than the receipt of special nuclear material in the form of fuel assemblies, the following licensees and other entities shall comply with the requirements of this part:
            (1) Combined license applicants (under Part 52 of this chapter) who have been issued a limited work authorization under § 50.10(e), if the limited work authorization authorizes the applicant to install the foundations, including the placement of concrete, for safety- and security-related structures, systems, and components (SSCs) under the limited work authorization;
            (2) Combined license holders (under Part 52 of this chapter) before the Commission has made the finding under § 52.103(g);
            (3) Construction permit applicants (under Part 50 of this chapter) who have been issued a limited work authorization under § 50.10(e), if the limited work authorization authorizes the applicant to install the foundations, including the placement of concrete, for safety- and security-related SSCs under the limited work authorization;
            (4) Construction permit holders (under Part 50 of this chapter); and
            (5) Early site permit holders who have been issued a limited work authorization under § 50.10(e), if the limited work authorization authorizes the early site permit holder to install the foundations, including the placement of concrete, for safety- and security-related SSCs under the limited work authorization.
            (d) Contractor/vendors (C/Vs) who implement FFD programs or program elements, to the extent that the licensees and other entities specified in paragraphs (a) through (c) of this section rely on those C/V FFD programs or program elements to meet the requirements of this part, shall comply with the requirements of this part.
            (e) This part does not apply to either spent fuel storage facility licensees or non-power reactor licensees who possess, use, or transport formula quantities of irradiated SSNM.

            § 26.4
            FFD program applicability to categories of individuals.
            (a) All persons who are granted unescorted access to nuclear power reactor protected areas by the licensees in § 26.3(a) and, as applicable, (c) and perform the following duties shall be subject to an FFD program that meets all of the requirements of this part, except subpart K of this part:
            (1) Operating or onsite directing of the operation of systems and components that a risk-informed evaluation process has shown to be significant to public health and safety;
            (2) Performing health physics or chemistry duties required as a member of the onsite emergency response organization minimum shift complement;

            (3) Performing the duties of a fire brigade member who is responsible for understanding the effects of fire and fire suppressants on safe shutdown capability;
            (4) Performing maintenance or onsite directing of the maintenance of SSCs that a risk-informed evaluation process has shown to be significant to public health and safety; and
            (5) Performing security duties as an armed security force officer, alarm station operator, response team leader, or watchman, hereinafter referred to as security personnel.
            (b) All persons who are granted unescorted access to nuclear power reactor protected areas by the licensees in § 26.3(a) and, as applicable, (c) and who do not perform the duties described in paragraph (a) of this section shall be subject to an FFD program that meets all of the requirements of this part, except §§ 26.205 through 26.209 and subpart K of this part.
            (c) All persons who are required by a licensee in § 26.3(a) and, as applicable, (c) to physically report to the licensee's Technical Support Center or Emergency Operations Facility by licensee emergency plans and procedures shall be subject to an FFD program that meets all of the requirement of this part, except §§ 26.205 through 26.209 and subpart K of this part.
            (d) Any individual whose duties for the licensees and other entities in § 26.3(b) require him or her to have the following types of access or perform the following activities shall be subject to an FFD program that meets all of the requirements of this part, except subparts I and K of this part:
            (1) All persons who are granted unescorted access to Category IA material;
            (2) All persons who create or have access to procedures or records for safeguarding SSNM;
            (3) All persons who measure Category IA material;
            (4) All persons who transport or escort Category IA material; and
            (5) All persons who guard Category IA material.
            (e) When construction activities begin, any individual whose duties for the licensees and other entities in § 26.3(c) require him or her to have the following types of access or perform the following activities at the location where the nuclear power plant will be constructed and operated shall be subject to an FFD program that meets all of the requirements of this part, except subparts I and K of this part:
            (1) Serves as security personnel required by the NRC, until the licensees or other entities receive special nuclear material in the form of fuel assemblies, at which time individuals who serve as security personnel required by the NRC must meet the requirements applicable to security personnel in paragraph (a)(5) of this section;
            (2) Performs quality assurance, quality control, or quality verification activities related to safety- or security-related construction activities;
            (3) Based on a designation under § 26.406 by a licensee or other entity, monitors the fitness of the individuals specified in paragraph (f) of this section;
            (4) Witnesses or determines inspections, tests, and analyses certification required under Part 52 of this chapter;
            (5) Supervises or manages the construction of safety- or security-related SSCs; or
            (6) Directs, as defined in § 26.5, or implements the access authorization program, including—
            (i) Having access to the information used by the licensee or other entity to make access authorization determinations, including information stored in electronic format;
            (ii) Making access authorization determinations;
            (iii) Issuing entry-control picture badges in accordance with access authorization determinations;

            (iv) Conducting background investigations or psychological assessments used by the licensee or other entity to make access authorization determinations, except that he or she shall be subject to behavioral observation only when he or she is present at the location where the nuclear power plant will be constructed and operated, and licensees and other entities may rely on a local hospital or other organization that meets the requirements of 49 CFR Part 40, “Procedures for Department of Transportation Workplace Drug and Alcohol Testing Programs” (65 FR 41944; August 9, 2001) to collect his or her specimens for drug and alcohol testing;
            (v) Adjudicating reviews or appeals of access authorization determinations;
            (vi) Auditing the access authorization program; or
            (vii) Performing any of the activities or having any of the duties listed in paragraph (e)(6) of this section for any C/V upon whom the licensee's or other entity's access authorization program will rely.
            (f) Any individual who is constructing or directing the construction of safety- or security-related SSCs shall be subject to an FFD program that meets the requirements of subpart K of this part, unless the licensee or other entity subjects these individuals to an FFD program that meets all of the requirements of this part, except for subparts I and K of this part.
            (g) All FFD program personnel who are involved in the day-to-day operations of the program, as defined by the procedures of the licensees and other entities in § 26.3(a) through (c), and, as applicable, (d), and whose duties require them to have the following types of access or perform the following activities shall be subject to an FFD program that meets all of the requirements of this part, except subparts I and K of this part, and, at the licensee's or other entity's discretion, subpart C of this part:
            (1) All persons who can link test results with the individual who was tested before an FFD policy violation determination is made, including, but not limited to the MRO;
            (2) All persons who make determinations of fitness;
            (3) All persons who make authorization decisions;
            (4) All persons involved in selecting or notifying individuals for testing; and
            (5) All persons involved in the collection or onsite testing of specimens.
            (h) Individuals who have applied for authorization to have the types of access or perform the activities described in paragraphs (a) through (d) of this section shall be subject to §§ 26.31(c)(1), 26.35(b), 26.37, 26.39, and the applicable requirements of subparts C, and E through H of this part.
            (i) The following individuals are not subject to an FFD program under this part:
            (1) Individuals who are not employed by a licensee or other entity in this part, who do not routinely provide FFD program services to a licensee or other entity in this part, and whose normal workplace is not at the licensee's or other entity's facility, but who may be called on to provide an FFD program service, including, but not limited to, collecting specimens for drug and alcohol testing, performing behavioral observation, or providing input to a determination of fitness. Such individuals may include, but are not limited to, hospital, employee assistance program (EAP) or substance abuse treatment facility personnel, or other medical professionals;
            (2) NRC employees, law enforcement personnel, or offsite emergency fire and medical response personnel while responding on site;
            (3) SSNM transporter personnel who are subject to U.S. Department of Transportation drug and alcohol FFD programs that require random testing for drugs and alcohol; and
            (4) The FFD program personnel of a program that is regulated by another Federal agency or State on which a licensee or other entity relies to meet the requirements of this part, as permitted under §§ 26.4(j), 26.31(b)(2), and 26.405(e), if the FFD program personnel are not employed by the licensee or other entity and their normal workplace is not at the licensee's or other entity's facility.
            (j) Individuals who are subject to this part and who are also subject to a program regulated by another Federal agency or State need be covered by only those elements of an FFD program that are not included in the Federal agency or State program, as long as all of the following conditions are met:

            (1) The individuals are subject to pre-access (or pre-employment), random, for-cause, and post-event testing for the drugs and drug metabolites specified in § 26.31(d)(1) at or below the cutoff levels specified in § 26.163(a)(1) for initial drug testing and in § 26.163(b)(1) for confirmatory drug testing;

            (2) The individuals are subject to pre-access (or pre-employment), random, for-cause, and post-event testing for alcohol at or below the cutoff levels specified in § 26.103(a) and breath specimens are subject to confirmatory testing, if required, with an EBT that meets the requirements specified in § 26.91;
            (3) Urine specimens are tested for validity and the presence of drugs and drug metabolites at a laboratory certified by the Department of Health and Human Services (HHS);
            (4) Training is provided to address the knowledge and abilities (KAs) listed in § 26.29(a)(1) through (a)(10); and
            (5) Provisions are made to ensure that the testing agency or organization notifies the licensee or other entity granting authorization of any FFD policy violation.
            [73 FR 17176, Mar. 31, 2008, as amended at 75 FR 73941, Nov. 30, 2010]

            § 26.5
            Definitions.

              Acute fatigue means fatigue from causes (e.g., restricted sleep, sustained wakefulness, task demands) occurring within the past 24 hours.

              Adulterated specimen means a urine specimen that has been altered, as evidenced by test results showing either a substance that is not a normal constituent of urine or showing an abnormal concentration of an endogenous substance.

              Alertness means the ability to remain awake and sustain attention.

              Aliquot means a portion of a specimen that is used for testing. It is taken as a sample representing the whole specimen.

              Analytical run means the process of testing a group of urine specimens for validity or for the presence of drugs and/or drug metabolites. For the purposes of defining the periods within which performance testing must be conducted by any licensee testing facility or HHS-certified laboratory that continuously processes specimens, an analytical run is defined as no more than an 8-hour period. For a facility that analyzes specimens in batches, an analytical run is defined as a group of specimens that are handled and tested together.

              Authorization means that a licensee or other entity in § 26.3 has determined that an individual has met the requirements of this part to be granted or maintain the types of access or perform the duties specified in § 26.4(a) through (e), and, at the licensee's or other entity's discretion, § 26.4(f) or (g).

              Best effort means documented actions that a licensee or other entity who is subject to subpart C of this part takes to obtain suitable inquiry and employment information in order to determine whether an individual may be granted authorization, when the primary source of information refuses or indicates an inability or unwillingness to provide the information within 3 business days of the request and the licensee or other entity relies on a secondary source to meet the requirement.

              Blood alcohol concentration (BAC) means the mass of alcohol in a volume of blood.

              Calibrator means a solution of known concentration which is used to define expected outcomes of a measurement procedure or to compare the response obtained with the response of a test specimen/sample. The concentration of the analyte of interest in the calibrator is known within limits ascertained during its preparation. Calibrators may be used to establish a cutoff concentration and/or a calibration curve over a range of interest.

              Category IA material means SSNM that is directly usable in the manufacture of a nuclear explosive device, except if the material meets any of the following criteria:
            (1) The dimensions are large enough (at least 2 meters in one dimension, greater than 1 meter in each of two dimensions, or greater than 25 centimeters in each of three dimensions) to preclude hiding the item on an individual;

            (2) The total weight of an encapsulated item of SSNM is such that it cannot be carried inconspicuously by one person (i.e., at least 50 kilograms gross weight); or

            (3) The quantity of SSNM (less than 0.05 formula kilograms) in each container requires protracted diversions to accumulate 5 formula kilograms.

              Chain of custody means procedures to account for the integrity of each specimen or aliquot by tracking its handling and storage from the point of specimen collection to final disposition of the specimen and its aliquots. “Chain of custody” and “custody and control” are synonymous and may be used interchangeably.

              Circadian variation in alertness and performance means the increases and decreases in alertness and cognitive/motor functioning caused by human physiological processes (e.g., body temperature, release of hormones) that vary on an approximately 24-hour cycle.

              Collection site means a designated place where individuals present themselves for the purpose of providing a specimen of their urine, oral fluids, and/or breath to be analyzed for the presence of drugs or alcohol.

              Collector means a person who is trained in the collection procedures of subpart E, instructs and assists a specimen donor at a collection site, and receives and makes an initial examination of the specimen(s) provided by the donor.

              Commission means the U.S. Nuclear Regulatory Commission (NRC) or its duly authorized representatives.

              Confirmatory drug or alcohol test means a second analytical procedure to identify the presence of alcohol or a specific drug or drug metabolite in a specimen. The purpose of a confirmatory test is to ensure the reliability and accuracy of an initial test result.

              Confirmatory validity test means a second test performed on a different aliquot of the original urine specimen to further support a validity test result.

              Confirmed test result means a test result that demonstrates that an individual has used drugs and/or alcohol in violation of the requirements of this part or has attempted to subvert the testing process by submitting an adulterated or substituted urine specimen. For drugs, adulterants, and substituted specimens, a confirmed test result is determined by the Medical Review Officer (MRO), after discussion with the donor subsequent to the MRO's receipt of a positive confirmatory drug test result from the HHS-certified laboratory and/or a confirmatory substituted or adulterated validity test result from the HHS-certified laboratory for that donor. For alcohol, a confirmed test result is based on a positive confirmatory alcohol test result from an evidential breath testing device (EBT) without MRO review of the test result.

              Constructing or construction activities mean, for the purposes of this part, the tasks involved in building a nuclear power plant that are performed at the location where the nuclear power plant will be constructed and operated. These tasks include fabricating, erecting, integrating, and testing safety- and security-related SSCs, and the installation of their foundations, including the placement of concrete.

              Contractor/vendor (C/V) means any company, or any individual not employed by a licensee or other entity specified in § 26.3(a) through (c), who is providing work or services to a licensee or other entity covered in § 26.3(a) through (c), either by contract, purchase order, oral agreement, or other arrangement.

              Control means a sample used to monitor the status of an analysis to maintain its performance within predefined limits.

              Cumulative fatigue means the increase in fatigue over consecutive sleep-wake periods resulting from inadequate rest.

              Cutoff level means the concentration or decision criteria established for designating and reporting a test result as positive, of questionable validity (referring to validity screening or initial validity test results from a licensee testing facility), or adulterated, substituted, dilute, or invalid (referring to initial or confirmatory test results from an HHS-certified laboratory).

              Dilute specimen means a urine specimen with creatinine and specific gravity concentrations that are lower than expected for human urine.

              Directing means the exercise of control over a work activity by an individual who is directly involved in the execution of the work activity, and either makes technical decisions for that activity without subsequent technical review, or is ultimately responsible for the correct performance of that work activity.

              Donor means the individual from whom a specimen is collected.

              Eight (8)-hour shift schedule means a schedule that averages not more than 9 hours per workday over the entire shift cycle.

              Employment action means a change in job responsibilities or removal from a job, or the employer-mandated implementation of a plan for substance abuse treatment in order to avoid a change in or removal from a job, because of the individual's use of drugs or alcohol.

              Fatigue means the degradation in an individual's cognitive and motor functioning resulting from inadequate rest.

              Formula quantity means SSNM in any combination in a quantity of 5000 grams or more computed by the formula, grams = (grams contained U-235) + 2.5 (grams U-233 + grams plutonium). This class of material is sometimes referred to as a Category I quantity of material.

              HHS-certified laboratory means a laboratory that is certified to perform urine drug testing under the Department of Health and Human Services Mandatory Guidelines for Federal Workplace Drug Testing Programs (the HHS Guidelines), which were published in the Federal Register on April 11, 1988 (53 FR 11970), and as amended, June 9, 1994 (59 FR 29908), November 13, 1998 (63 FR 63483), and April 13, 2004 (69 FR 19643).

              Illegal drug means, for the purposes of this regulation, any drug that is included in Schedules I to V of section 202 of the Controlled Substances Act [21 U.S.C. 812], but not when used pursuant to a valid prescription or when used as otherwise authorized by law.

              Increased threat condition means an increase in the protective measure level, relative to the lowest protective measure level applicable to the site during the previous 60 days, as promulgated by an NRC Advisory.

              Initial drug test means a test to differentiate “negative” specimens from those that require confirmatory drug testing.

              Initial validity test means a first test used to determine whether a specimen is adulterated, dilute, substituted, or invalid, and may require confirmatory validity testing.

              Invalid result means the result reported by an HHS-certified laboratory for a specimen that contains an unidentified adulterant, contains an unidentified interfering substance, has an abnormal physical characteristic, contains inconsistent physiological constituents, or has an endogenous substance at an abnormal concentration that prevents the laboratory from completing testing or obtaining a valid drug test result.

              Legal action means a formal action taken by a law enforcement authority or court of law, including an arrest, an indictment, the filing of charges, a conviction, or the mandated implementation of a plan for substance abuse treatment in order to avoid a permanent record of an arrest or conviction, in response to any of the following activities:
            (1) The use, sale, or possession of illegal drugs;
            (2) The abuse of legal drugs or alcohol; or
            (3) The refusal to take a drug or alcohol test.

              Licensee testing facility means a drug and specimen validity testing facility that is operated by a licensee or other entity who is subject to this part to perform tests of urine specimens.

              Limit of detection (LOD) means the lowest concentration of an analyte that an analytical procedure can reliably detect, which could be significantly lower than the established cutoff levels.

              Limit of quantitation (LOQ) means the lowest concentration of an analyte at which the concentration of the analyte can be accurately determined under defined conditions.

              Maintenance means, for the purposes of § 26.4(a)(4), the following onsite maintenance activities: Modification, surveillance, post-maintenance testing, and corrective and preventive maintenance.

              Medical Review Officer (MRO) means a licensed physician who is responsible for receiving laboratory results generated by a Part 26 drug testing program and who has the appropriate medical training to properly interpret and evaluate an individual's drug and validity test results together with his or her medical history and any other relevant biomedical information.

              Nominal means the limited flexibility that is permitted in meeting a scheduled due date for completing a recurrent activity that is required under this part, such as the nominal 12-month frequency required for FFD refresher training in § 26.29(c)(2) and the nominal 12-month frequency required for certain audits in § 26.41(c)(1). Completing a recurrent activity at a nominal frequency means that the activity may be completed within a period that is 25 percent longer or shorter than the period required in this part. The next scheduled due date would be no later than the current scheduled due date plus the required frequency for completing the activity.

              Other entity means any corporation, firm, partnership, limited liability company, association, C/V, or other organization who is subject to this part under § 26.3(a) through (c), but is not licensed by the NRC.

              Oxidizing adulterant means a substance that acts alone or in combination with other substances to oxidize drugs or drug metabolites to prevent the detection of the drugs or drug metabolites, or a substance that affects the reagents in either the initial or confirmatory drug test. Examples of these agents include, but are not limited to, nitrites, pyridinium chlorochromate, chromium (VI), bleach, iodine/iodide, halogens, peroxidase, and peroxide.

              Positive result means, for drug testing, the result reported by a licensee testing facility or HHS-certified laboratory when a specimen contains a drug or drug metabolite equal to or greater than the cutoff concentration. A result reported by an HHS-certified laboratory that a specimen contains a drug or drug metabolite below the cutoff concentration is also a positive result when the laboratory has conducted the special analysis permitted in § 26.163(a)(2). For alcohol testing, a positive result means the result reported by a collection site when the BAC indicated by testing a specimen is equal to or greater than the cutoff concentrations established in this part.

              Potentially disqualifying FFD information means information demonstrating that an individual has—
            (1) Violated a licensee's or other entity's FFD policy;
            (2) Had authorization denied or terminated unfavorably under §§ 26.35(c)(2), 26.53(i), 26.63(d), 26.65(g), 26.67(c), 26.69(f), or 26.75(b) through (e);
            (3) Used, sold, or possessed illegal drugs;
            (4) Abused legal drugs or alcohol;
            (5) Subverted or attempted to subvert a drug or alcohol testing program;
            (6) Refused to take a drug or alcohol test;
            (7) Been subjected to a plan for substance abuse treatment (except for self-referral); or
            (8) Had legal action or employment action, as defined in this section, taken for alcohol or drug use.

              Protected area has the same meaning as in § 73.2(g) of this chapter: An area encompassed by physical barriers and to which access is controlled.

              Quality control sample means a sample used to evaluate whether an analytical procedure is operating within predefined tolerance limits. Calibrators, controls, negative samples, and blind performance test samples are collectively referred to as “quality control samples” and each is individually referred to as a “sample.”

              Questionable validity means the results of validity screening or initial validity tests at a licensee testing facility indicating that a urine specimen may be adulterated, substituted, dilute, or invalid.

              Reviewing official means an employee of a licensee or other entity specified in § 26.3(a) through (c), who is designated by the licensee or other entity to be responsible for reviewing and evaluating any potentially disqualifying FFD information about an individual, including, but not limited to, the results of a determination of fitness, as defined in § 26.189, in order to determine whether the individual may be granted or maintain authorization.

              Safety-related structures, systems, and components (SSCs) mean, for the purposes of this part, those structures, systems, and components that are relied on to remain functional during and following design basis events to ensure the integrity of the reactor coolant pressure boundary, the capability to shut down the reactor and maintain it in a safe shutdown condition, or the capability to prevent or mitigate the consequences of accidents that could result in potential offsite exposure comparable to the guidelines in 10 CFR 50.34(a)(1).

              Security-related SSCs mean, for the purposes of this part, those structures, systems, and components that the licensee will rely on to implement the licensee's physical security and safeguards contingency plans that either are required under Part 73 of this chapter if the licensee is a construction permit applicant or holder or an early site permit holder, as described in § 26.3(c)(3) through (c)(5), respectively, or are included in the licensee's application if the licensee is a combined license applicant or holder, as described in § 26.3(c)(1) and (c)(2), respectively.

              Shift cycle means a series of consecutive work shifts and days off that is planned by the licensee or other entity to repeat regularly, thereby constituting a continuous shift schedule.

              Standard means a reference material of known purity or a solution containing a reference material at a known concentration.

              Strategic special nuclear material (SSNM) means uranium-235 (contained in uranium enriched to 20 percent or more in the uranium-235 isotope), uranium-233, or plutonium.

              Substance abuse means the use, sale, or possession of illegal drugs, or the abuse of prescription and over-the-counter drugs, or the abuse of alcohol.

              Substituted specimen means a specimen with creatinine and specific gravity values that are so diminished or so divergent that they are not consistent with normal human physiology.

              Subversion and subvert the testing process mean a willful act to avoid being tested or to bring about an inaccurate drug or alcohol test result for oneself or others at any stage of the testing process (including selection and notification of individuals for testing, specimen collection, specimen analysis, and test result reporting), and adulterating, substituting, or otherwise causing a specimen to provide an inaccurate test result.

              Supervises or manages means the exercise of control over a work activity by an individual who is not directly involved in the execution of the work activity, but who either makes technical decisions for that activity without subsequent technical review, or is ultimately responsible for the correct performance of that work activity.

              Ten (10)-hour shift schedule means a schedule that averages more than 9 hours, but not more than 11 hours, per workday over the entire shift cycle.

              Transporter means a general licensee, under 10 CFR 70.20(a), who is authorized to possess formula quantities of SSNM, in the regular course of carriage for another or storage incident thereto, and includes the driver or operator of any conveyance, and the accompanying guards or escorts.

              Twelve (12)-hour shift schedule means a schedule that averages more than 11 hours, but not more than 12 hours, per workday over the entire shift cycle.

              Unit outage means, for the purposes of this part, that the reactor unit is disconnected from the electrical grid.

              Validity screening test means a test to determine the need for initial validity testing of a urine specimen, using a non-instrumented test in which the endpoint result is obtained by visual evaluation (read by the human eye), or a test that is instrumented to the extent that results are machine-read.

              Validity screening test lot means a group of validity screening tests that were made from the same starting material.
            [73 FR 17176, Mar. 31, 2008, as amended at 81 FR 86909, Dec. 2, 2016; 83 FR 58464, Nov. 20, 2018]

            § 26.7
            Interpretations.
            Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any officer or employee of the Commission other than a written interpretation by the General Counsel will be recognized to be binding on the Commission.

            § 26.8
            Information collection requirements: OMB approval.

            (a) The NRC has submitted the information collection requirements contained in this part for approval by the Office of Management and Budget (OMB), as required by the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in this part under control number 3150-0146.
            (b) The approved information collection requirements contained in this part appear in §§ 26.9, 26.27, 26.29, 26.31, 26.33, 26.35, 26.37, 26.39, 26.41, 26.53, 26.55, 26.57, 26.59, 26.61, 26.63, 26.65, 26.67, 26.69, 26.75, 26.77, 26.85, 26.87, 26.89, 26.91, 26.93, 26.95, 26.97, 26.99, 26.101, 26.103, 26.107, 26.109, 26.111, 26.113, 26.115, 26.117, 26.119, 26.125, 26.127, 26.129, 26.135, 26.137, 26.139, 26.153, 26.155, 26.157, 26.159, 26.163, 26.165, 26.167, 26.168, 26.169, 26.183, 26.185, 26.187, 26.189, 26.203, 26.205, 26.207, 26.211, 26.401, 26.403, 26.405, 26.406, 26.407, 26.411, 26.413, 26.415, 26.417, 26.711, 26.713, 26.715, 26.717, 26.719, and 26.821.

            § 26.9
            Specific exemptions.
            Upon application of any interested person or on its own initiative, the Commission may grant such exemptions from the requirements of the regulations in this part as it determines are authorized by law and will not endanger life or property or the common defense and security, and are otherwise in the public interest.

            § 26.11
            Communications.

            Except where otherwise specified in this part, all communications, applications, and reports concerning the regulations in this part must be sent either by mail addressed to ATTN: NRC Document Control Desk, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland, between the hours of 8:15 a.m. and 4 p.m. eastern time; or, where practicable, by electronic submission, for example, via Electronic Information Exchange, e-mail, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information. Copies of all communications must be sent to the appropriate regional office and resident inspector (addresses for the NRC Regional Offices are listed in Appendix D to Part 20 of this chapter).
            [73 FR 17176, Mar. 31, 2008, as amended at 74 FR 62681, Dec. 1, 2009; 80 FR 74979, Dec. 1, 2015]

          Subpart B—Program Elements

            § 26.21
            Fitness-for-duty program.
            The licensees and other entities specified in § 26.3(a) through (c) shall establish, implement, and maintain FFD programs that, at a minimum, comprise the program elements contained in this subpart. The individuals specified in § 26.4(a) through (e) and (g), and, at the licensee's or other entity's discretion, § 26.4(f), and, if necessary, § 26.4(j) shall be subject to these FFD programs. Licensees and other entities may rely on the FFD program or program elements of a C/V, as defined in § 26.5, if the C/V's FFD program or program elements meet the applicable requirements of this part.

            § 26.23
            Performance objectives.
            Fitness-for-duty programs must—
            (a) Provide reasonable assurance that individuals are trustworthy and reliable as demonstrated by the avoidance of substance abuse;
            (b) Provide reasonable assurance that individuals are not under the influence of any substance, legal or illegal, or mentally or physically impaired from any cause, which in any way adversely affects their ability to safely and competently perform their duties;
            (c) Provide reasonable measures for the early detection of individuals who are not fit to perform the duties that require them to be subject to the FFD program;

            (d) Provide reasonable assurance that the workplaces subject to this part are free from the presence and effects of illegal drugs and alcohol; and
            (e) Provide reasonable assurance that the effects of fatigue and degraded alertness on individuals' abilities to safely and competently perform their duties are managed commensurate with maintaining public health and safety.

            § 26.25
            [Reserved]

            § 26.27
            Written policy and procedures.
            (a) General. Each licensee and other entity shall establish, implement, and maintain written policies and procedures to meet the general performance objectives and applicable requirements of this part.
            (b) Policy. The FFD policy statement must be clear, concise, and readily available, in its most current form, to all individuals who are subject to the policy. Methods of making the statement readily available include, but are not limited to, posting the policy in multiple work areas, providing individuals with brochures, or allowing individuals to print the policy from a computer. The policy statement must be written in sufficient detail to provide affected individuals with information on what is expected of them and what consequences may result from a lack of adherence to the policy. At a minimum, the written policy statement must—
            (1) Describe the consequences of the following actions:
            (i) The use, sale, or possession of illegal drugs on or off site;
            (ii) The abuse of legal drugs and alcohol; and
            (iii) The misuse of prescription and over-the-counter drugs;
            (2) Describe the requirement that individuals who are notified that they have been selected for random testing must report to the collection site within the time period specified by the licensee or other entity;
            (3) Describe the actions that constitute a refusal to provide a specimen for testing, the consequences of a refusal to test, as well as the consequences of subverting or attempting to subvert the testing process;
            (4) Prohibit the consumption of alcohol, at a minimum—
            (i) Within an abstinence period of 5 hours preceding the individual's arrival at the licensee's or other entity's facility, except as permitted in § 26.27(c)(3); and
            (ii) During the period of any tour of duty;
            (5) Convey that abstinence from alcohol for the 5 hours preceding any scheduled tour of duty is considered to be a minimum that is necessary, but may not be sufficient, to ensure that the individual is fit for duty;
            (6) Address other factors that could affect FFD, such as mental stress, fatigue, or illness, and the use of prescription and over-the-counter medications that could cause impairment;
            (7) Provide a description of any program that is available to individuals who are seeking assistance in dealing with drug, alcohol, fatigue, or other problems that could adversely affect an individual's ability to safely and competently perform the duties that require an individual to be subject to this subpart;
            (8) Describe the consequences of violating the policy;
            (9) Describe the individual's responsibility to report legal actions, as defined in § 26.5;
            (10) Describe the responsibilities of managers, supervisors, and escorts to report FFD concerns; and
            (11) Describe the individual's responsibility to report FFD concerns.
            (c) Procedures. Each licensee and other entity shall prepare, implement, and maintain written procedures that describe the methods to be used in implementing the FFD policy and the requirements of this part. The procedures must—
            (1) Describe the methods and techniques to be used in testing for drugs and alcohol, including procedures for protecting the privacy and other rights (including due process) of an individual who provides a specimen, procedures for protecting the integrity of the specimen, and procedures used to ensure that the test results are valid and attributable to the correct individual;

            (2) Describe immediate and followup actions that will be taken, and the procedures to be used, in those cases in which individuals are determined to have—

            (i) Been involved in the use, sale, or possession of illegal drugs;
            (ii) Consumed alcohol to excess before the mandatory pre-work abstinence period, or consumed any alcohol during the mandatory pre-work abstinence period or while on duty, as determined by a test that measures BAC;
            (iii) Attempted to subvert the testing process by adulterating or diluting specimens (in vivo or in vitro), substituting specimens, or by any other means;
            (iv) Refused to provide a specimen for analysis; or
            (v) Had legal action taken relating to drug or alcohol use, as defined in § 26.5;
            (3) Describe the process that the licensee or other entity will use to ensure that individuals who are called in to perform an unscheduled working tour are fit for duty. At a minimum—
            (i) The procedure must require the individual who is called in to state whether the individual considers himself or herself fit for duty and whether he or she has consumed alcohol within the pre-duty abstinence period stated in the policy;
            (ii) If the individual has consumed alcohol within this period and the individual is called in for an unscheduled working tour, including an unscheduled working tour to respond to an emergency, the procedure must—
            (A) Require a determination of fitness by breath alcohol analysis or other means;
            (B) Permit the licensee or other entity to assign the individual to duties that require him or her to be subject to this subpart, if the results of the determination of fitness indicate that the individual is fit to safely and competently perform his or her duties;
            (C) Prohibit the licensee or other entity from assigning the individual to duties that require him or her to be subject to this subpart, if the individual is not required to respond to an emergency and the results of the determination of fitness indicate that the individual may be impaired;
            (D) State that consumption of alcohol during the 5-hour abstinence period required in paragraph (b)(4)(i) of this section may not by itself preclude a licensee or other entity from using individuals who are needed to respond to an emergency. However, if the determination of fitness indicates that an individual who has been called in for an unscheduled working tour to respond to an emergency may be impaired, the procedure must require the establishment of controls and conditions under which the individual who has been called in can perform work, if necessary; and
            (E) State that no sanctions may be imposed on an individual who is called in to perform any unscheduled working tour for having consumed alcohol within the pre-duty abstinence period stated in the policy.
            (iii) If the individual reports that he or she considers himself or herself to be unfit for duty for other reasons, including illness, fatigue, or other potentially impairing conditions, and the individual is called in, the procedure must require the establishment of controls and conditions under which the individual can perform work, if necessary;
            (4) Describe the process to be followed if an individual's behavior raises a concern regarding the possible use, sale, or possession of illegal drugs on or off site; the possible possession or consumption of alcohol on site; or impairment from any cause which in any way could adversely affect the individual's ability to safely and competently perform his or her duties. The procedure must require that individuals who have an FFD concern about another individual's behavior shall contact the personnel designated in the procedures to report the concern.
            (d) Review. The NRC may, at any time, review the written policy and procedures to assure that they meet the performance objectives and requirements of this part.

            § 26.29
            Training.
            (a) Training content. Licensees and other entities shall ensure that the individuals who are subject to this subpart have the following KAs:

            (1) Knowledge of the policy and procedures that apply to the individual, the methods that will be used to implement them, and the consequences of violating the policy and procedures;

            (2) Knowledge of the individual's role and responsibilities under the FFD program;
            (3) Knowledge of the roles and responsibilities of others, such as the MRO and the human resources, FFD, and EAP staffs;
            (4) Knowledge of the EAP services available to the individual;
            (5) Knowledge of the personal and public health and safety hazards associated with abuse of illegal and legal drugs and alcohol;
            (6) Knowledge of the potential adverse effects on job performance of prescription and over-the-counter drugs, alcohol, dietary factors, illness, mental stress, and fatigue;
            (7) Knowledge of the prescription and over-the-counter drugs and dietary factors that have the potential to affect drug and alcohol test results;
            (8) Ability to recognize illegal drugs and indications of the illegal use, sale, or possession of drugs;
            (9) Ability to observe and detect performance degradation, indications of impairment, or behavioral changes; and
            (10) Knowledge of the individual's responsibility to report an FFD concern and the ability to initiate appropriate actions, including referrals to the EAP and person(s) designated by the licensee or other entity to receive FFD concerns.
            (b) Comprehensive examination. Individuals who are subject to this subpart shall demonstrate the successful completion of training by passing a comprehensive examination that addresses the KAs in paragraph (a) of this section. The examination must include a comprehensive random sampling of all KAs with questions that test each KA, including at least one question for each KA. The minimum passing score required must be 80 percent. Remedial training and testing are required for individuals who fail to answer correctly at least 80 percent of the test questions. The examination may be administered using a variety of media, including, but not limited to, hard-copy test booklets with separate answer sheets or computer-based questions.
            (c) Training administration. Licensees and other entities shall ensure that individuals who are subject to this subpart are trained, as follows:
            (1) Training must be completed before the licensee or other entity grants initial authorization, as defined in § 26.55, and must be current before the licensee or other entity grants an authorization update, as defined in § 26.57, or authorization reinstatement, as defined in § 26.59;
            (2) Individuals shall complete refresher training on a nominal 12-month frequency, or more frequently where the need is indicated. Indications of the need for more frequent training include, but are not limited to, an individual's failure to properly implement FFD program procedures and the frequency, nature, or severity of problems discovered through audits or the administration of the program. Individuals who pass a comprehensive annual examination that meets the requirements in paragraph (b) of this section may forgo the refresher training; and
            (3) Initial and refresher training may be delivered using a variety of media (including, but not limited to, classroom lectures, required reading, video, or computer-based training systems). The licensee or other entity shall monitor the completion of training and provide a qualified instructor or designated subject matter expert to answer questions during the course of training.
            (d) Acceptance of training. Licensees and other entities may accept training of individuals who have been subject to another training program that meets the requirements of this section and who have, within the past 12 months, either had initial or refresher training, or have successfully passed a comprehensive examination that meets the requirements in paragraph (b) of this section.

            § 26.31
            Drug and alcohol testing.
            (a) General. To provide a means to deter and detect substance abuse, licensees and other entities who are subject to this part shall implement drug and alcohol testing programs for individuals who are subject to this subpart.
            (b) Assuring the honesty and integrity of FFD program personnel. (1) Licensees and other entities who are subject to this subpart shall carefully select and monitor FFD program personnel, as defined in § 26.4(g), based on the highest standards of honesty and integrity, and shall implement measures to ensure that these standards are maintained. The measures must ensure that the honesty and integrity of these individuals are not compromised and that FFD program personnel are not subject to influence attempts attributable to personal relationships with any individuals who are subject to testing, an undetected or untreated substance abuse problem, or other factors. At a minimum, these measures must include the following considerations:
            (i) Licensees and other entities shall complete appropriate background investigations, credit and criminal history checks, and psychological assessments of FFD program personnel before assignment to tasks directly associated with administration of the FFD program. The background investigations, credit and criminal history checks, and psychological assessments that are conducted to grant unescorted access authorization to individuals under a nuclear power plant licensee's access authorization program are acceptable to meet the requirements of this paragraph. The credit and criminal history checks and psychological assessments must be updated nominally every 5 years;
            (ii) Individuals who have personal relationships with a donor may not perform any assessment or evaluation procedures, including, but not limited to, determinations of fitness. These personal relationships may include, but are not limited to, supervisors, coworkers within the same work group, and relatives of the donor;
            (iii) Except if a directly observed collection is required, a collector who has a personal relationship with the donor may collect specimens from the donor only if the integrity of specimen collections in these instances is assured through the following means:
            (A) The collection must be monitored by an individual who does not have a personal relationship with the donor and who is designated by the licensee or other entity for this purpose, including, but not limited to, security force or quality assurance personnel; and
            (B) Individuals who are designated to monitor collections in these instances shall be trained to monitor specimen collections and the preparation of specimens for transfer or shipping under the requirements of this part;
            (iv) If a specimen must be collected under direct observation, the collector or an individual who serves as the observer, as permitted under § 26.115(e), may not have a personal relationship with the donor; and
            (v) FFD program personnel shall be subject to a behavioral observation program designed to assure that they continue to meet the highest standards of honesty and integrity. When an MRO and MRO staff are on site at a licensee's or other entity's facility, the MRO and MRO staff shall be subject to behavioral observation.
            (2) Licensees and other entities may rely on a local hospital or other organization that meets the requirements of 49 CFR Part 40, “Procedures for Department of Transportation Workplace Drug and Alcohol Testing Programs” (65 FR 41944; August 9, 2001) to collect specimens for drug and alcohol testing from the FFD program personnel listed in § 26.4(g).
            (c) Conditions for testing. Licensees and other entities shall administer drug and alcohol tests to the individuals who are subject to this subpart under the following conditions:
            (1) Pre-access. In order to grant initial, updated, or reinstated authorization to an individual, as specified in subpart C of this part;
            (2) For cause. In response to an individual's observed behavior or physical condition indicating possible substance abuse or after receiving credible information that an individual is engaging in substance abuse, as defined in § 26.5;
            (3) Post-event. As soon as practical after an event involving a human error that was committed by an individual who is subject to this subpart, where the human error may have caused or contributed to the event. The licensee or other entity shall test the individual(s) who committed the error(s), and need not test individuals who were affected by the event whose actions likely did not cause or contribute to the event. The individual(s) who committed the human error(s) shall be tested if the event resulted in—
            (i) A significant illness or personal injury to the individual to be tested or another individual, which within 4 hours after the event is recordable under the Department of Labor standards contained in 29 CFR 1904.7, “General Recording Criteria,” and subsequent amendments thereto, and results in death, days away from work, restricted work, transfer to another job, medical treatment beyond first aid, loss of consciousness, or other significant illness or injury as diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness;
            (ii) A radiation exposure or release of radioactivity in excess of regulatory limits; or
            (iii) Actual or potential substantial degradations of the level of safety of the plant;
            (4) Follow-up. As part of a follow-up plan to verify an individual's continued abstinence from substance abuse; and
            (5) Random. On a statistically random and unannounced basis, so that all individuals in the population subject to testing have an equal probability of being selected and tested.
            (d) General requirements for drug and alcohol testing—(1) Substances tested. At a minimum, licensees and other entities shall test for marijuana metabolite, cocaine metabolite, opiates (codeine, morphine, 6-acetylmorphine), amphetamines (amphetamine, methamphetamine), phencyclidine, adulterants, and alcohol.
            (i) In addition, licensees and other entities may consult with local law enforcement authorities, hospitals, and drug counseling services to determine whether other drugs with abuse potential are being used in the geographical locale of the facility and by the local workforce that may not be detected in the panel of drugs and drug metabolites specified in paragraph (d)(1) of this section.
            (A) When appropriate, the licensee or other entity may add other drugs identified under paragraph (d)(1)(i) of this section to the panel of substances for testing, but only if the additional drugs are listed in Schedules I through V of section 202 of the Controlled Substances Act [21 U.S.C. 812].
            (B) The licensee or other entity shall establish appropriate cutoff limits for these substances.
            (C) The licensee or other entity shall establish rigorous testing procedures for these substances that are consistent with the intent of this part, so that the MRO can evaluate the use of these substances.
            (D) The licensee or other entity may not conduct an analysis for any drug or drug metabolites except those identified in paragraph (d)(1) of this section unless the assay and cutoff levels to be used are certified in writing as scientifically sound and legally defensible by an independent, qualified forensic toxicologist who has no relationships with manufacturers of the assays or instruments to be used or the HHS-certified laboratory that will conduct the testing for the licensee or other entity, which could be construed as a potential conflict of interest. The forensic toxicologist may not be an employee of the licensee or entity, and shall either be a Diplomate of the American Board of Forensic Toxicology or currently holds, has held, or is eligible to hold, the position of Responsible Person at an HHS-certified laboratory, as specified in § 26.155(a). All new assays and cutoff levels must be properly validated consistent with established forensic toxicological standards before implementation. Certification of the assay and cutoff levels is not required if the HHS Guidelines are revised to authorize use of the assay in testing for the additional drug or drug metabolites and the licensee or other entity uses the cutoff levels established in the HHS Guidelines for the drug or drug metabolites, or if the licensee or other entity received written approval of the NRC to test for the additional drug or drug metabolites before April 30, 2008.

            (ii) When conducting post-event, followup, and for-cause testing, as defined in § 26.31(c), licensees and other entities may test for any drugs listed on Schedules I through V of section 202 of the Controlled Substances Act [21 U.S.C. 812] that an individual is suspected of having abused, and may consider any drugs or metabolites so detected when determining appropriate action under subpart D of this part. If the drug or metabolites for which testing will be performed under this paragraph are not included in the FFD program's drug panel, the assay and cutoff levels to be used in testing for the additional drugs must be certified by a forensic toxicologist under paragraph (d)(1)(i)(D) of this section. Test results that fall below the established cutoff levels may not be considered when determining appropriate action under subpart D of this part, except if the specimen is dilute and the licensee or other entity has requested the HHS-certified laboratory to evaluate the specimen under §§ 26.163(a)(2) or 26.185(g)(3).
            (iii) The licensee or other entity shall document the additional drug(s) for which testing will be performed in written policies and procedures in which the substances for which testing will be performed are described.
            (2) Random testing. Random testing must—
            (i) Be administered in a manner that provides reasonable assurance that individuals are unable to predict the time periods during which specimens will be collected. At a minimum, the FFD program shall—
            (A) Take reasonable steps to either conceal from the workforce that collections will be performed during a scheduled collection period or create the appearance that specimens are being collected during a portion of each day on at least 4 days in each calendar week at each site. In the latter instance, the portions of each day and the days of the week must vary in a manner that cannot be predicted by donors; and
            (B) Collect specimens on an unpredictable schedule, including weekends, backshifts, and holidays, and at various times during a shift;
            (ii) At a minimum, be administered by the FFD program on a nominal weekly frequency;
            (iii) Require individuals who are selected for random testing to report to the collection site as soon as reasonably practicable after notification, within the time period specified in the FFD program policy;
            (iv) Ensure that all individuals in the population subject to testing have an equal probability of being selected and tested;
            (v) Require that individuals who are off site when selected for testing, or who are on site and are not reasonably available for testing when selected, shall be tested at the earliest reasonable and practical opportunity when both the donor and collectors are available to collect specimens for testing and without prior notification to the individual that he or she has been selected for testing;
            (vi) Provide that an individual completing a test is immediately eligible for another unannounced test; and
            (vii) Ensure that the sampling process used to select individuals for random testing provides that the number of random tests performed annually is equal to at least 50 percent of the population that is subject to the FFD program.
            (3) Drug testing. (i) Testing of urine specimens for drugs and validity, except validity screening and initial drug and validity tests performed by licensee testing facilities under paragraph (d)(3)(ii) of this section, must be performed in a laboratory that is certified by HHS for that purpose, consistent with its standards and procedures for certification. Specimens sent to HHS-certified laboratories must be subject to initial validity and initial drug testing by the laboratory. Specimens that yield positive initial drug test results or are determined by initial validity testing to be of questionable validity must be subject to confirmatory testing by the laboratory, except for invalid specimens that cannot be tested. Licensees and other entities shall ensure that laboratories report results for all specimens sent for testing, including blind performance test samples.

            (ii) Licensees and other entities may conduct validity screening, initial validity, and initial drug tests of urine aliquots to determine which specimens are valid and negative and need no further testing, provided that the licensee's or other entity's staff possesses the necessary training and skills for the tasks assigned, the staff's qualifications are documented, and adequate quality controls for the testing are implemented.
            (iii) At a minimum, licensees and other entities shall apply the cutoff levels specified in § 26.163(a)(1) for initial drug testing at either the licensee testing facility or HHS-certified laboratory, and in § 26.163(b)(1) for confirmatory drug testing at the HHS-certified laboratory. At their discretion, licensees and other entities may implement programs with lower cutoff levels in testing for drugs and drug metabolites.
            (A) If a licensee or other entity implements lower cutoff levels, and the MRO determines that an individual has violated the FFD policy using the licensee's or other entity's more stringent cutoff levels, the individual shall be subject to all management actions and sanctions required by the licensee's or other entity's FFD policy and this part, as if the individual had a confirmed positive drug test result using the cutoff levels specified in this subpart. The licensee or other entity shall document the more stringent cutoff levels in any written policies and procedures in which cutoff levels for drug testing are described.
            (B) The licensee or other entity shall uniformly apply the cutoff levels listed in § 26.163(a)(1) for initial drug testing and in § 26.163(b)(1) for confirmatory drug testing, or any more stringent cutoff levels implemented by the FFD program, to all tests performed under this part and equally to all individuals who are tested under this part, except as permitted in §§ 26.31(d)(1)(ii), 26.163(a)(2), and 26.165(c)(2).
            (C) In addition, the scientific and technical suitability of any more stringent cutoff levels must be evaluated and certified, in writing, by a forensic toxicologist who meets the requirements set forth in § 26.31(d)(1)(i)(D). Certification of the more stringent cutoff levels is not required if the HHS Guidelines are revised to lower the cutoff levels for the drug or drug metabolites in Federal workplace drug testing programs and the licensee or other entity implements the cutoff levels published in the HHS Guidelines, or if the licensee or other entity received written approval of the NRC to test for lower cutoff levels before April 30, 2008.
            (4) Alcohol testing. Initial tests for alcohol must be administered by breath or oral fluids analysis using alcohol analysis devices that meet the requirements of § 26.91(a). If the initial test shows a BAC of 0.02 percent or greater, a confirmatory test for alcohol must be performed. The confirmatory test must be performed with an EBT that meets the requirements of § 26.91(b).
            (5) Medical conditions. (i) If an individual has a medical condition that makes collection of breath, oral fluids, or urine specimens difficult or hazardous, the MRO may authorize an alternative evaluation process, tailored to the individual case, to meet the requirements of this part for drug and alcohol testing. The alternative process must include measures to prevent subversion and achieve results that are comparable to those produced by urinalysis for drugs and breath analysis for alcohol.
            (ii) If an individual requires medical attention, including, but not limited to, an injured worker in an emergency medical facility who is required to have a post-event test, treatment may not be delayed to conduct drug and alcohol testing.
            (6) Limitations of testing. Specimens collected under NRC regulations may only be designated or approved for testing as described in this part and may not be used to conduct any other analysis or test without the written permission of the donor. Analyses and tests that may not be conducted include, but are not limited to, DNA testing, serological typing, or any other medical or genetic test used for diagnostic or specimen identification purposes.
            [73 FR 17176, Mar. 31, 2008, as amended at 74 FR 38327, Aug. 3, 2009]

            § 26.33
            Behavioral observation.

            Licensees and other entities shall ensure that the individuals who are subject to this subpart are subject to behavioral observation. Behavioral observation must be performed by individuals who are trained under § 26.29 to detect behaviors that may indicate possible use, sale, or possession of illegal drugs; use or possession of alcohol on site or while on duty; or impairment from fatigue or any cause that, if left unattended, may constitute a risk to public health and safety or the common defense and security. Individuals who are subject to this subpart shall report any FFD concerns about other individuals to the personnel designated in the FFD policy.

            § 26.35
            Employee assistance programs.
            (a) Each licensee and other entity who is subject to this part shall maintain an EAP to strengthen the FFD program by offering confidential assessment, short-term counseling, referral services, and treatment monitoring to individuals who have problems that could adversely affect the individuals' abilities to safely and competently perform their duties. Employee assistance programs must be designed to achieve early intervention and provide for confidential assistance.
            (b) Licensees and other entities need not provide EAP services to a C/V's employees, including those whose work location is a licensee's or other entity's facility, or to individuals who have applied for, but have not yet been granted, authorization under subpart C of this part.
            (c) The EAP staff shall protect the identity and privacy of any individual (including those who have self-referred) seeking assistance from the EAP, except if the individual waives the right to privacy in writing or a determination is made that the individual's condition or actions pose or have posed an immediate hazard to himself or herself or others.
            (1) Licensees and other entities may not require the EAP to routinely report the names of individuals who self-refer to the EAP or the nature of the assistance the individuals sought.
            (2) If EAP personnel determine that an individual poses or has posed an immediate hazard to himself or herself or others, EAP personnel shall so inform FFD program management, and need not obtain a written waiver of the right to privacy from the individual. The individual conditions or actions that EAP personnel shall report to FFD program management include, but are not limited to, substantive reasons to believe that the individual—
            (i) Is likely to commit self-harm or harm to others;
            (ii) Has been impaired from using drugs or alcohol while in a work status and has a continuing substance abuse disorder that makes it likely he or she will be impaired while in a work status in the future; or
            (iii) Has ever engaged in any acts that would be reportable under § 26.719(b)(1) through (b)(3).
            (3) If a licensee or other entity receives a report from EAP personnel under paragraph (c)(2) of this section, the licensee or other entity shall ensure that the requirements of §§ 26.69(d) and 26.77(b) are implemented, as applicable.

            § 26.37
            Protection of information.
            (a) Each licensee or other entity who is subject to this subpart who collects personal information about an individual for the purpose of complying with this part, shall establish, use, and maintain a system of files and procedures that protects the individual's privacy.
            (b) Licensees and other entities shall obtain a signed consent that authorizes the disclosure of the personal information collected and maintained under this part before disclosing the personal information, except for disclosures to the following individuals:
            (1) The subject individual or his or her representative, when the individual has designated the representative in writing for specified FFD matters;
            (2) Assigned MROs and MRO staff;
            (3) NRC representatives;
            (4) Appropriate law enforcement officials under court order;
            (5) A licensee's or other entity's representatives who have a need to have access to the information to perform their assigned duties under the FFD program, including determinations of fitness, FFD program audits, or some human resources functions;
            (6) The presiding officer in a judicial or administrative proceeding that is initiated by the subject individual;
            (7) Persons deciding matters under review in § 26.39; and
            (8) Other persons pursuant to court order.

            (c) Personal information that is collected under this subpart must be disclosed to other licensees and entities, including C/Vs, or their authorized representatives, who are legitimately seeking the information for authorization decisions as required by this part and who have obtained a signed release from the subject individual.
            (d) Upon receipt of a written request by the subject individual or his or her designated representative, the FFD program, including but not limited to, the collection site, HHS-certified laboratory, substance abuse expert (SAE), or MRO, possessing such records shall promptly provide copies of all FFD records pertaining to the individual, including, but not limited to, records pertaining to a determination that the individual has violated the FFD policy, drug and alcohol test results, MRO reviews, determinations of fitness, and management actions pertaining to the subject individual. The licensee or other entity shall obtain records related to the results of any relevant laboratory certification, review, or revocation-of-certification proceedings from the HHS-certified laboratory and provide them to the subject individual on request.
            (e) A licensee's or other entity's contracts with HHS-certified laboratories and C/Vs providing specimen collection services, and licensee testing facility procedures, must require test records to be maintained in confidence, except as provided in paragraphs (b), (c), and (d) of this section.
            (f) This section does not authorize the licensee or other entity to withhold evidence of criminal conduct from law enforcement officials.

            § 26.39
            Review process for fitness-for-duty policy violations.
            (a) Each licensee and other entity who is subject to this subpart shall establish procedures for the review of a determination that an individual who they employ or who has applied for authorization has violated the FFD policy. The review procedure must provide for an objective and impartial review of the facts related to the determination that the individual has violated the FFD policy.
            (b) The review procedure must provide notice to the individual of the grounds for the determination that the individual has violated the FFD policy, and must provide an opportunity for the individual to respond and submit additional relevant information.

            (c) The review procedure must ensure that the individual who conducts the review is not associated with the administration of the FFD program [see the description of FFD program personnel in § 26.4(g)]. Individuals who conduct the review may be management personnel.
            (d) If the review finds in favor of the individual, the licensee or other entity shall update the relevant records to reflect the outcome of the review and delete or correct all information the review found to be inaccurate.
            (e) When a C/V is administering an FFD program on which licensees and other entities rely, and the C/V determines that its employee, subcontractor, or applicant has violated its FFD policy, the C/V shall ensure that the review procedure required in this section is provided to the individual. Licensees and other entities who rely on a C/V's FFD program need not provide the review procedure required in this section to a C/V's employee, subcontractor, or applicant when the C/V is administering its own FFD program and the FFD policy violation was determined under the C/V's program.
            [75 FR 73941, Nov. 30, 2010]

            § 26.41
            Audits and corrective action.
            (a) General. Each licensee and other entity who is subject to this subpart is responsible for the continuing effectiveness of the FFD program, including FFD program elements that are provided by C/Vs, the FFD programs of any C/Vs that are accepted by the licensee or other entity, any FFD program services that are provided to the C/V by a subcontractor, and the programs of the HHS-certified laboratories on whom the licensee or other entity and its C/Vs rely. Each licensee and other entity shall ensure that these programs are audited and that corrective actions are taken to resolve any problems identified.

            (b) FFD program. Each licensee and other entity who is subject to this subpart shall ensure that the entire FFD program is audited as needed, but no less frequently than nominally every 24 months. Licensees and other entities are responsible for determining the appropriate frequency, scope, and depth of additional auditing activities within the nominal 24-month period based on the review of FFD program performance, including, but not limited to, the frequency, nature, and severity of discovered problems, testing errors, personnel or procedural changes, and previous audit findings.
            (c) C/Vs and HHS-certified laboratories. (1) FFD services that are provided to a licensee or other entity by C/V personnel who are off site or are not under the direct daily supervision or observation of the licensee's or other entity's personnel and HHS-certified laboratories must be audited on a nominal 12-month frequency.
            (2) Audits of HHS-certified laboratories that are conducted for licensees and other entities who are subject to this subpart need not duplicate areas inspected in the most recent HHS certification inspection. However, the licensee and other entity shall review the HHS certification inspection records and reports to identify any areas in which the licensee or other entity uses services that the HHS certification inspection did not address. The licensee or other entity shall ensure that any such areas are audited on a nominal 12-month frequency. Licensees and other entities need not audit organizations and professionals who may provide an FFD program service to the licensee or other entity, but who are not routinely involved in providing services to a licensee's or other entity's FFD program, as specified in § 26.4(i)(1).
            (d) Contracts. (1) The contracts of licensees and other entities with C/Vs and HHS-certified laboratories must reserve the right to audit the C/V, the C/V's subcontractors providing FFD program services, and the HHS-certified laboratories at any time, including at unannounced times, as well as to review all information and documentation that is reasonably relevant to the audits.
            (2) Licensees' and other entities' contracts with C/Vs and HHS-certified laboratories must also permit the licensee or other entity to obtain copies of and take away any documents, including reviews and inspections pertaining to a laboratory's certification by HHS, and any other data that may be needed to assure that the C/V, its subcontractors, or the HHS-certified laboratory are performing their functions properly and that staff and procedures meet applicable requirements. In a contract with a licensee or other entity who is subject to this subpart, an HHS-certified laboratory may reasonably limit the use and dissemination of any documents copied or taken away by the licensee's or other entity's auditors in order to ensure the protection of proprietary information and donors' privacy.
            (3) In addition, before awarding a contract, the licensee or other entity shall ensure completion of pre-award inspections and/or audits of the procedural aspects of the HHS-certified laboratory's drug-testing operations, except as provided in paragraph (g)(5) of this section.
            (e) Conduct of audits. Audits must focus on the effectiveness of the FFD program or program element(s), as appropriate, and must be conducted by individuals who are qualified in the subject(s) being audited. The individuals performing the audit of the FFD program or program element(s) shall be independent from both the subject FFD program's management and from personnel who are directly responsible for implementing the FFD program.
            (f) Audit results. The result of the audits, along with any recommendations, must be documented and reported to senior corporate and site management. Each audit report must identify conditions that are adverse to the proper performance of the FFD program, the cause of the condition(s), and recommended corrective actions. The licensee or other entity shall review the audit findings and take corrective actions, including re-auditing of the deficient areas where indicated, to preclude, within reason, repetition of the condition. The resolution of the audit findings and corrective actions must be documented.

            (g) Sharing of audits. Licensees and other entities may jointly conduct audits, or may accept audits of C/Vs and HHS-certified laboratories that were conducted by other licensees and entities who are subject to this subpart, if the audit addresses the services obtained from the C/V or HHS-certified laboratory by each of the sharing licensees and other entities.
            (1) Licensees and other entities shall review audit records and reports to identify any areas that were not covered by the shared or accepted audit.
            (2) Licensees and other entities shall ensure that FFD program elements and services on which the licensee or entity relies are audited, if the program elements and services were not addressed in the shared audit.
            (3) Sharing licensees and other entities need not re-audit the same C/V or HHS-certified laboratory for the same period of time.
            (4) Each sharing licensee and other entity shall maintain a copy of the shared audit and HHS certification inspection records and reports, including findings, recommendations, and corrective actions.
            (5) If an HHS-certified laboratory loses its certification, in whole or in part, a licensee or other entity is permitted to immediately use another HHS-certified laboratory that has been audited within the previous 12 months by another NRC licensee or entity who is subject to this subpart. Within 3 months after the change, the licensee or other entity shall ensure that an audit is completed of any areas that have not been audited by another licensee or entity who is subject to this subpart within the past 12 months.
            [73 FR 17176, Mar. 31, 2008, as amended at 74 FR 38327, Aug. 3, 2009]

          Subpart C—Granting and Maintaining Authorization

            § 26.51
            Applicability.
            The requirements in this subpart apply to the licensees and other entities identified in § 26.3(a), (b), and, as applicable, (c) for the categories of individuals in § 26.4(a) through (d), and, at the licensee's or other entity's discretion, in § 26.4(g) and, if necessary, § 26.4(j). The requirements in this subpart also apply to the licensees and other entities specified in § 26.3(c), as applicable, for the categories of individuals in § 26.4(e). At the discretion of a licensee or other entity in § 26.3(c), the requirements of this subpart also may be applied to the categories of individuals identified in § 26.4(f). In addition, the requirements in this subpart apply to the entities in § 26.3(d) to the extent that a licensee or other entity relies on the C/V to meet the requirements of this subpart. Certain requirements in this subpart also apply to the individuals specified in § 26.4(h).

            § 26.53
            General provisions.
            (a) In order to grant authorization to an individual, a licensee or other entity shall ensure that the requirements in this subpart have been met for either initial authorization, authorization update, authorization reinstatement, or authorization with potentially disqualifying FFD information, as applicable.
            (b) For individuals who have previously held authorization under this part but whose authorization has since been favorably terminated, the licensee or other entity shall implement the requirements for either initial authorization, authorization update, or authorization reinstatement, based on the total number of days that the individual's authorization is interrupted, to include the day after the individual's last period of authorization was terminated and the intervening days until the day on which the licensee or other entity grants authorization to the individual. If potentially disqualifying FFD information is disclosed or discovered about an individual, licensees and other entities shall implement the applicable requirements in § 26.69 in order to grant or maintain an individual's authorization.
            (c) The licensee or other entity shall ensure that an individual has met the applicable FFD training requirements in §§ 26.29 and 26.203(c) before granting authorization to the individual.

            (d) Licensees and other entities who are seeking to grant authorization to an individual who is maintaining authorization under another FFD program that is implemented by a licensee or entity who is subject to this subpart may rely on the transferring FFD program to satisfy the requirements of this subpart. The individual may maintain his or her authorization if he or she continues to be subject to either the receiving FFD program or the transferring FFD program, or a combination of elements from both programs that collectively satisfy the applicable requirements of this part. The receiving FFD program shall ensure that the program elements to which the individual is subject under the transferring FFD program remain current.
            (e) Licensees and other entities in § 26.3(a) through (c) may also rely on a C/V's FFD program or program elements when granting or maintaining the authorization of an individual who is or has been subject to the C/V's FFD program, if the C/V's program or program elements meet the applicable requirements of this part.
            (1) A C/V's FFD program may grant and maintain an individual's authorization, as defined in § 26.5, under the C/V's FFD program. However, only a licensee or other entity in § 26.3(a) through (c) may grant or maintain an individual's authorization to have the types of access or perform the duties specified in § 26.4(a) through (e) and (g), and, at the licensee's or other entity's discretion, § 26.4(f).
            (2) If a C/V's FFD program denies or unfavorably terminates an individual's authorization, and the individual is performing any duties for a licensee or other entity that are specified in § 26.4(a) through (e) and (g), or, at the licensee's or other entity's discretion, § 26.4(f), then the C/V shall inform the affected licensee or other entity of the denial or unfavorable termination. The licensee or other entity shall deny or unfavorably terminate the individual's authorization to perform those duties on the day that the licensee or other entity receives the information from the C/V, or implement the applicable process in § 26.69 to maintain the individual's authorization.
            (3) If an individual is maintaining authorization under a C/V's FFD program, a licensee or other entity in § 26.3(a) through (c) may grant authorization to the individual to have the types of access and perform the duties specified in § 26.4(a) through (e) and (g), and, at the licensee's or other entity's discretion, § 26.4(f), and maintain his or her authorization, if the individual continues to be subject to either the receiving FFD program or a combination of elements from the receiving FFD program and the C/V's program that collectively satisfy the applicable requirements of this part. The receiving licensee's or other entity's FFD program shall ensure that the program elements to which the individual is subject under the C/V's FFD program remain current.
            (f) Licensees and other entities who are seeking to grant authorization to an individual who has been subject to an FFD program under subpart K may not rely on that program or its program elements to meet the requirements of this subpart, except if the program or program element(s) of the FFD program for construction satisfy the applicable requirements of this part.
            (g) The licensees and other entities specified in § 26.3(a) and, as applicable, (c) and (d), shall identify any violation of any requirement of this part to any licensee who has relied on or intends to rely on the FFD program element that is determined to be in violation of this part.

            (h) The licensees and other entities specified in § 26.3(a) and, as applicable, (c) and (d), may not initiate any actions under this subpart without the knowledge and written consent of the subject individual. The individual may withdraw his or her consent at any time. If an individual withdraws his or her consent, the licensee or other entity may not initiate any elements of the authorization process specified in this subpart that were not in progress at the time the individual withdrew his or her consent, but shall complete and document any elements that are in progress at the time consent is withdrawn. The licensee or other entity shall record the individual's application for authorization; his or her withdrawal of consent; the reason given by the individual for the withdrawal, if any; and any pertinent information gathered from the elements that were completed (e.g., the results of pre-access drug tests, information obtained from the suitable inquiry). The licensee or other entity to whom the individual has applied for authorization shall inform the individual that—
            (1) Withdrawal of his or her consent will withdraw the individual's current application for authorization under the licensee's or other entity's FFD program; and
            (2) Other licensees and entities will have access to information documenting the withdrawal as a result of the information sharing that is required under this part.
            (i) The licensees and other entities specified in § 26.3(a) and, as applicable, (c) and(d), shall inform, in writing, any individual who is applying for authorization that the following actions related to providing and sharing the personal information required under this subpart are sufficient cause for denial or unfavorable termination of authorization:
            (1) Refusal to provide written consent for the suitable inquiry;
            (2) Refusal to provide or the falsification of any personal information required under this part, including, but not limited to, the failure to report any previous denial or unfavorable termination of authorization;
            (3) Refusal to provide written consent for the sharing of personal information with other licensees or other entities required under this part; and
            (4) Failure to report any legal actions, as defined in § 26.5.

            § 26.55
            Initial authorization.
            (a) Before granting authorization to an individual who has never held authorization under this part or whose authorization has been interrupted for a period of 3 years or more and whose last period of authorization was terminated favorably, the licensee or other entity shall ensure that—
            (1) A self-disclosure has been obtained and reviewed under the applicable requirements of § 26.61;
            (2) A suitable inquiry has been completed under the applicable requirements of § 26.63;
            (3) The individual has been subject to pre-access drug and alcohol testing under the applicable requirements of § 26.65; and
            (4) The individual is subject to random drug and alcohol testing under the applicable requirements of § 26.67.
            (b) If potentially disqualifying FFD information is disclosed or discovered, the licensee or other entity may not grant authorization to the individual, except under § 26.69.

            § 26.57
            Authorization update.
            (a) Before granting authorization to an individual whose authorization has been interrupted for more than 365 days but less than 3 years and whose last period of authorization was terminated favorably, the licensee or other entity shall ensure that—
            (1) A self-disclosure has been obtained and reviewed under the applicable requirements of § 26.61;
            (2) A suitable inquiry has been completed under the applicable requirements of § 26.63;
            (3) The individual has been subject to pre-access drug and alcohol testing under the applicable requirements of § 26.65; and
            (4) The individual is subject to random drug and alcohol testing under the applicable requirements of § 26.67.
            (b) If potentially disqualifying FFD information is disclosed or discovered, the licensee or other entity may not grant authorization to the individual, except under § 26.69.

            § 26.59
            Authorization reinstatement.
            (a) In order to grant authorization to an individual whose authorization has been interrupted for a period of more than 30 days but no more than 365 days and whose last period of authorization was terminated favorably, the licensee or other entity shall ensure that—
            (1) A self-disclosure has been obtained and reviewed under the applicable requirements of § 26.61;

            (2) A suitable inquiry has been completed under the requirements of § 26.63 within 5 business days of reinstating authorization. If the suitable inquiry is not completed within 5 business days due to circumstances that are outside of the licensee's or other entity's control and the licensee or other entity is not aware of any potentially disqualifying information regarding the individual within the past 5 years, the licensee or other entity may maintain the individual's authorization for an additional 5 business days. If the suitable inquiry is not completed within 10 business days of reinstating authorization, the licensee or other entity shall administratively withdraw the individual's authorization until the suitable inquiry is completed;
            (3) The individual has been subject to pre-access drug and alcohol testing under the applicable requirements of § 26.65; and
            (4) The individual is subject to random drug and alcohol testing under the applicable requirements of § 26.67.
            (b) If a licensee or other entity administratively withdraws an individual's authorization under paragraph (a)(2) of this section, and until the suitable inquiry is completed, the licensee or other entity may not record the administrative action to withdraw authorization as an unfavorable termination and may not disclose it in response to a suitable inquiry conducted under the provisions of § 26.63, a background investigation conducted under the provisions of this chapter, or any other inquiry or investigation. The individual may not be required to disclose the administrative action in response to requests for self-disclosure of potentially disqualifying FFD information, except if the individual's authorization was subsequently denied or terminated unfavorably by the licensee or other entity.
            (c) Before granting authorization to an individual whose authorization has been interrupted for a period of no more than 30 days and whose last period of authorization was terminated favorably, the licensee or other entity shall ensure that—
            (1) A self-disclosure has been obtained and reviewed under the applicable requirements of § 26.61;
            (2) The individual has been subject to pre-access drug and alcohol testing under the applicable requirements of § 26.65, if the individual's authorization was interrupted for more than 5 days; and
            (3) The individual is subject to random drug and alcohol testing under the applicable requirements of § 26.67.
            (d) If potentially disqualifying FFD information is disclosed or discovered, the licensee or other entity may not grant authorization to the individual, except under § 26.69.

            § 26.61
            Self-disclosure and employment history.
            (a) Before granting authorization, the licensee or other entity shall ensure that a written self-disclosure and employment history has been obtained from the individual who is applying for authorization, except as follows:
            (1) If an individual previously held authorization under this part, and the licensee or other entity has verified that the individual's last period of authorization was terminated favorably, and the individual has been subject to a behavioral observation program that includes arrest reporting, which meets the requirements of this part, throughout the period since the individual's last authorization was terminated, the granting licensee or other entity need not obtain the self-disclosure or employment history in order to grant authorization; and
            (2) If the individual's last period of authorization was terminated favorably within the past 30 days, the licensee or other entity need not obtain the employment history.
            (b) The written self-disclosure must—
            (1) State whether the individual has—
            (i) Violated a licensee's or other entity's FFD policy;
            (ii) Had authorization denied or terminated unfavorably under §§ 26.35(c)(2), 26.53(i), 26.63(d), 26.65(g), 26.67(c), 26.69(f), or 26.75(b) through (e);
            (iii) Used, sold, or possessed illegal drugs;
            (iv) Abused legal drugs or alcohol;
            (v) Subverted or attempted to subvert a drug or alcohol testing program;
            (vi) Refused to take a drug or alcohol test;
            (vii) Been subject to a plan for substance abuse treatment (except for self-referral); or

            (viii) Had legal action or employment action, as defined in § 26.5, taken for alcohol or drug use;

            (2) Address the specific type, duration, and resolution of any matter disclosed, including, but not limited to, the reason(s) for any unfavorable termination or denial of authorization; and
            (3) Address the shortest of the following periods:
            (i) The past 5 years;
            (ii) Since the individual's eighteenth birthday; or
            (iii) Since the individual's last period of authorization was terminated, if authorization was terminated favorably within the past 3 years.
            (c) The individual shall provide a list of all employers, including the employer by whom the individual claims to have been employed on the day before he or she completes the employment history, if any, with dates of employment, for the shortest of the following periods:
            (1) The past 3 years;
            (2) Since the individual's eighteenth birthday; or
            (3) Since authorization was last terminated, if authorization was terminated favorably within the past 3 years.

            § 26.63
            Suitable inquiry.
            (a) In order to grant authorization, licensees and other entities shall ensure that a suitable inquiry has been conducted, on a best effort basis, to verify the individual's self-disclosed information and determine whether any potentially disqualifying FFD information is available, except if all of the following conditions are met:
            (1) The individual previously held authorization under this part;
            (2) The licensee or other entity has verified that the individual's last period of authorization was terminated favorably; and
            (3) The individual has been subject to a behavioral observation program that includes arrest reporting, which meets the requirements of this part, throughout the period of interruption.
            (b) To meet the suitable inquiry requirement, licensees and other entities may rely on the information that other licensees and entities who are subject to this subpart have gathered for previous periods of authorization. Licensees and other entities may also rely on those licensees' and entities' determinations of fitness that were conducted under § 26.189, as well as their reviews and resolutions of potentially disqualifying FFD information, for previous periods of authorization.
            (c) The licensee or other entity shall ensure that the suitable inquiry has been conducted, on a best effort basis, by questioning former employers, and the employer by whom the individual claims to have been employed on the day before he or she completes the employment history, if an employment history is required under § 26.61.
            (1) For the claimed employment period, the suitable inquiry must ascertain the reason for termination, eligibility for rehire, and other information that could reflect on the individual's fitness to be granted authorization.
            (2) If the claimed employment was military service, the licensee or other entity who is conducting the suitable inquiry shall request a characterization of service, reason for separation, and any disciplinary actions related to potentially disqualifying FFD information. If the individual's last duty station cannot provide this information, the licensee or other entity may accept a hand-carried copy of the DD 214 presented by the individual which on face value appears to be legitimate. The licensee or other entity may also accept a copy of a DD 214 provided by the custodian of military records.

            (3) If a company, previous employer, or educational institution to whom the licensee or other entity has directed a request for information refuses to provide information or indicates an inability or unwillingness to provide information within 3 business days of the request, the licensee or other entity shall document this refusal, inability, or unwillingness in the licensee's or other entity's record of the investigation, and obtain a confirmation of employment or educational enrollment and attendance from at least one alternate source, with suitable inquiry questions answered to the best of the alternate source's ability. This alternate source may not have been previously used by the licensee or other entity to obtain information about the individual's character. If the licensee or other entity uses an alternate source because employer information is not forthcoming within 3 business days of the request, the licensee or other entity need not delay granting authorization to wait for any employer response, but shall evaluate and document the response if it is received.
            (d) When any licensee or other entity in § 26.3(a) through (d) is legitimately seeking the information required for an authorization decision under this subpart and has obtained a signed release from the subject individual authorizing the disclosure of information, any licensee or other entity who is subject to this part shall disclose whether the subject individual's authorization was denied or terminated unfavorably as a result of a violation of an FFD policy and shall make available the information on which the denial or unfavorable termination of authorization was based, including, but not limited to, drug or alcohol test results, treatment and followup testing requirements or other results from a determination of fitness, and any other information that is relevant to an authorization decision.
            (e) In conducting a suitable inquiry, a licensee or other entity may obtain information and documents by electronic means, including, but not limited to, telephone, facsimile, or e-mail. The licensee or other entity shall make a record of the contents of the telephone call and shall retain that record, and any documents or electronic files obtained electronically, under §§ 26.711 and 26.713(a), (b), and (c), as applicable.
            (f) For individuals about whom no potentially disqualifying FFD information is known (or about whom potentially disqualifying FFD information is known, but it has been resolved by a licensee or other entity who is subject to this subpart) at the time at which the suitable inquiry is initiated, the licensee or other entity shall ensure that a suitable inquiry has been conducted as follows:
            (1) Initial authorization. The period of the suitable inquiry must be the past 3 years or since the individual's eighteenth birthday, whichever is shorter. For the 1-year period immediately preceding the date on which the individual applies for authorization, the licensee or other entity shall ensure that the suitable inquiry has been conducted with every employer, regardless of the length of employment. For the remaining 2-year period, the licensee or other entity shall ensure that the suitable inquiry has been conducted with the employer by whom the individual claims to have been employed the longest within each calendar month, if the individual claims employment during the given calendar month.
            (2) Authorization update. The period of the suitable inquiry must be the period since authorization was terminated. For the 1-year period immediately preceding the date on which the individual applies for authorization, the licensee or other entity shall ensure that the suitable inquiry has been conducted with every employer, regardless of the length of employment. For the remaining period since authorization was terminated, the licensee or other entity shall ensure that the suitable inquiry has been conducted with the employer by whom the individual claims to have been employed the longest within each calendar month, if the individual claims employment during the given calendar month.
            (3) Authorization reinstatement after an interruption of more than 30 days. The period of the suitable inquiry must be the period since authorization was terminated. The licensee or other entity shall ensure that the suitable inquiry has been conducted with the employer by whom the individual claims to have been employed the longest within the calendar month, if the individual claims employment during the given calendar month.

            § 26.65
            Pre-access drug and alcohol testing.
            (a) Purpose. This section contains pre-access testing requirements for granting authorization to an individual who either has never held authorization or whose last period of authorization was terminated favorably and about whom no potentially disqualifying FFD information has been discovered or disclosed that was not previously reviewed and resolved by a licensee or other entity under the requirements of this subpart.

            (b) Accepting tests conducted within the past 30 days. If an individual has negative results from drug and alcohol tests that were conducted under the requirements of this part before the individual applied for authorization from the licensee or other entity, and the specimens for such testing were collected within the 30-day period preceding the day on which the licensee or other entity grants authorization to the individual, the licensee or other entity may rely on the results of those drug and alcohol tests to meet the requirements for pre-access testing in this section.
            (c) Initial authorization and authorization update. Before granting authorization to an individual who has never held authorization or whose authorization has been interrupted for a period of more than 365 days, the licensee or other entity shall verify that the results of pre-access drug and alcohol tests, which must be performed within the 30-day period preceding the day the licensee or other entity grants authorization to the individual, are negative. The licensee or other entity need not conduct pre-access testing if—
            (1) The individual previously held authorization under this part and has been subject to a drug and alcohol testing program that includes random testing and a behavioral observation program that includes arrest reporting, which both meet the requirements of this part, from the date the individual's last authorization was terminated through the date the individual is granted authorization; or
            (2) The licensee or other entity relies on negative results from drug and alcohol tests that were conducted under the requirements of this part at any time before the individual applied for authorization, and the individual has remained subject to a drug and alcohol testing program that includes random testing and a behavioral observation program that includes arrest reporting, which both meet the requirements of this part, beginning on the date the drug and alcohol testing was conducted through the date the individual is granted authorization and thereafter.
            (d) Authorization reinstatement after an interruption of more than 30 days. (1) To reinstate authorization for an individual whose authorization has been interrupted for a period of more than 30 days but no more than 365 days, except as permitted in paragraph (d)(2) of this section, the licensee or other entity shall—
            (i) Verify that the individual has negative results from alcohol testing and collect a specimen for drug testing within the 30-day period preceding the day the licensee reinstates the individual's authorization; and
            (ii) Verify that the drug test results are negative within 5 business days of specimen collection or administratively withdraw authorization until the drug test results are received.
            (2) The licensee or other entity need not conduct pre-access testing of these individuals if—
            (i) The individual previously held authorization under this part and has been subject to a drug and alcohol testing program that includes random testing and a behavioral observation program that includes arrest reporting, which both meet the requirements of this part, beginning on the date the individual's last authorization was terminated through the date the individual is granted authorization; or
            (ii) The licensee or other entity relies on negative results from drug and alcohol tests that were conducted under the requirements of this part at any time before the individual applied for authorization, and the individual remains subject to a drug and alcohol testing program that includes random testing and a behavioral observation program that includes arrest reporting, which both meet the requirements of this part, beginning on the date the drug and alcohol testing was conducted through the date the individual is granted authorization.
            (e) Authorization reinstatement after an interruption of 30 or fewer days. (1) The licensee or other entity need not conduct pre-access testing before granting authorization to an individual whose authorization has been interrupted for 5 or fewer days. In addition, the licensee or other entity need not conduct pre-access testing if the individual has been subject to a drug and alcohol testing program that includes random testing and a behavioral observation program that includes arrest reporting, which both meet the requirements of this part, from the date the individual's last authorization was terminated through the date the individual is granted authorization.
            (2) In order to reinstate authorization for an individual whose authorization has been interrupted for a period of more than 5 days but not more than 30 days, except as permitted in paragraph (e)(1) of this section, the licensee or other entity shall take the following actions:
            (i) The licensee or other entity shall subject the individual to random selection for pre-access drug and alcohol testing at a one-time probability that is equal to or greater than the normal testing rate specified in § 26.31(d)(2)(vii) calculated for a 30-day period;
            (ii) If the individual is not selected for pre-access testing under paragraph (e)(2)(i) of this section, the licensee or other entity need not perform pre-access drug and alcohol tests; or
            (iii) If the individual is selected for pre-access testing under this paragraph, the licensee or other entity shall—
            (A) Verify that the individual has negative results from alcohol testing and collect a specimen for drug testing before reinstating authorization; and
            (B) Verify that the drug test results are negative within 5 business days of specimen collection or administratively withdraw authorization until negative drug test results are received.
            (f) Administrative withdrawal of authorization. If a licensee or other entity administratively withdraws an individual's authorization under paragraphs (d)(1)(ii) or (e)(2)(iii)(B) of this section, and until the drug test results are known, the licensee or other entity may not record the administrative action to withdraw authorization as an unfavorable termination. The individual may not be required to disclose the administrative action in response to requests for self-disclosure of potentially disqualifying FFD information, except if the individual's authorization was subsequently denied or terminated unfavorably by a licensee or entity. Immediately on receipt of negative test results, the licensee or other entity shall ensure that any matter that could link the individual to the temporary administrative action is eliminated from the donor's personnel record and other records.
            (g) Sanctions. If an individual has confirmed positive, adulterated, or substituted test results from any drug, validity, or alcohol tests that may be required in this section, the licensee or other entity shall, at a minimum and as appropriate—
            (1) Deny authorization to the individual, as required by § 26.75(b), (d), (e)(2), or (g);
            (2) Terminate the individual's authorization, if it has been reinstated, under § 26.75(e)(1) or (f); or
            (3) Grant authorization to the individual under § 26.69.

            § 26.67
            Random drug and alcohol testing of individuals who have applied for authorization.
            (a) When the licensee or other entity collects specimens from an individual for any pre-access testing that may be required under §§ 26.65 or 26.69, and thereafter, the licensee or other entity shall subject the individual to random testing under § 26.31(d)(2), except if—
            (1) The licensee or other entity does not grant authorization to the individual; or
            (2) The licensee or other entity relies on drug and alcohol tests that were conducted before the individual applied for authorization to meet the applicable requirements for pre-access testing. If the licensee or other entity relies on drug and alcohol tests that were conducted before the individual applied for authorization, the licensee or other entity shall subject the individual to random testing when the individual arrives at a licensee's or other entity's facility for in-processing and thereafter.
            (b) If an individual is selected for one or more random tests after any applicable requirement for pre-access testing in §§ 26.65 or 26.69 has been met, the licensee or other entity may grant authorization before random testing is completed, if the individual has met all other applicable requirements for authorization.

            (c) If an individual has confirmed positive, adulterated, or substituted test results from any drug, validity, or alcohol test required in this section, the licensee or other entity shall, at a minimum and as appropriate—
            (1) Deny authorization to the individual, as required by § 26.75(b), (d), (e)(2), or (g);
            (2) Terminate the individual's authorization, if it has been granted, as required by § 26.75(e)(1) or (f); or
            (3) Grant authorization to the individual under § 26.69.

            § 26.69
            Authorization with potentially disqualifying fitness-for-duty information.
            (a) Purpose. This section defines the management actions that licensees and other entities who are subject to this subpart shall take to grant or maintain, at the licensee's or other entity's discretion, the authorization of an individual who is in the following circumstances:
            (1) Potentially disqualifying FFD information within the past 5 years has been disclosed or discovered about the individual by any means, including, but not limited to, the individual's self-disclosure, the suitable inquiry, drug and alcohol testing, the administration of any FFD program under this part, a self-report of a legal action, behavioral observation, or other sources of information, including, but not limited to, any background investigation or credit and criminal history check conducted under the requirements of this chapter; and
            (2) The potentially disqualifying FFD information has not been reviewed and favorably resolved by a previous licensee or other entity under this section.
            (b) Authorization after a first confirmed positive drug or alcohol test result or a 5-year denial of authorization. The requirements in this paragraph apply to individuals whose authorization was denied or terminated unfavorably for a first violation of an FFD policy involving a confirmed positive drug or alcohol test result and individuals whose authorization was denied for 5 years under § 26.75(c), (d), (e)(2), or (f). To grant, and subsequently maintain, the individual's authorization, the licensee or other entity shall—
            (1) Obtain and review a self-disclosure and employment history from the individual that addresses the shorter period of either the past 5 years or since the individual's last period of authorization was terminated, and verify that the self-disclosure does not contain any previously undisclosed potentially disqualifying FFD information before granting authorization;
            (2) Complete a suitable inquiry with every employer by whom the individual claims to have been employed during the period addressed in the employment history obtained under paragraph (b)(1) of this section, and obtain and review any records that other licensees or entities who are subject to this part may have developed related to the unfavorable termination or denial of authorization;
            (3) If the individual was subject to a 5-year denial of authorization under this part, verify that he or she has abstained from substance abuse for at least the past 5 years;
            (4) Ensure that an SAE has conducted a determination of fitness and concluded that the individual is fit to safely and competently perform his or her duties.
            (i) If the individual's authorization was denied or terminated unfavorably for a first confirmed positive drug or alcohol test result, ensure that clinically appropriate treatment and followup testing plans have been developed by an SAE before granting authorization;
            (ii) If the individual was subject to a 5-year denial of authorization, ensure that any recommendations for treatment and followup testing from an SAE's determination of fitness are initiated before granting authorization; and
            (iii) Verify that the individual is in compliance with, and successfully completes, any followup testing and treatment plans.

            (5) Within 10 business days before granting authorization, perform a pre-access alcohol test, collect a specimen for drug testing under direct observation, and ensure that the individual is subject to random testing thereafter. Verify that the pre-access drug and alcohol test results are negative before granting authorization.

            (6) If the individual's authorization was denied or terminated unfavorably for a first confirmed positive drug or alcohol test result and a licensee or other entity grants authorization to the individual, ensure that the individual is subject to unannounced testing at least quarterly for 3 calendar years after the date the individual is granted authorization. Both random and followup tests, as defined in § 26.31(c), satisfy this requirement. Verify that the individual has negative test results from a minimum of 15 tests distributed over the 3-year period, except as follows:
            (i) If the individual does not continuously hold authorization during the 3-year period, the licensee or other entity shall ensure that at least one unannounced test is conducted in any quarter during which the individual holds authorization;
            (ii) If the 15 tests are not completed within the 3-year period specified in this paragraph due to periods during which the individual does not hold authorization, the followup testing program may be extended up to 5 calendar years to complete the 15 tests;
            (iii) If the individual does not hold authorization during the 5-year period a sufficient number of times or for sufficient periods of time to complete the 15 tests required in this paragraph, the licensee or other entity shall ensure that an SAE conducts a determination of fitness to assess whether further followup testing is required and implement the SAE's recommendations; and
            (7) Verify that any drug and alcohol tests required in this paragraph, and any other drug and alcohol tests that are conducted under this part since authorization was terminated or denied, yield results indicating no further drug abuse, as determined by the MRO after review, or alcohol abuse, as determined by the result of confirmatory alcohol testing.
            (c) Granting authorization with other potentially disqualifying FFD information. The requirements in this paragraph apply to an individual who has applied for authorization, and about whom potentially disqualifying FFD information has been discovered or disclosed that is not a first confirmed positive drug or alcohol test result or a 5-year denial of authorization. If potentially disqualifying FFD information is obtained about an individual by any means, including, but not limited to, the individual's self-disclosure, the suitable inquiry, the administration of any FFD program under this part, a self-report of a legal action, behavioral observation, or other sources of informat
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