Model Milestones For NRC Adjudicatory Proceedings, 20457-20464 [05-7846]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 70, Number 75 (Wednesday, April 20, 2005)]
[Rules and Regulations]
[Pages 20457-20464]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-7846]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 2

RIN 3150-AH71


Model Milestones For NRC Adjudicatory Proceedings

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
regulations to adopt model milestones for the conduct of NRC 
adjudicatory proceedings, to require a presiding officer to refer to 
the model milestones as a starting point for establishing a hearing 
schedule in an adjudicatory proceeding, and to manage the case in 
accordance with that schedule.

DATES: Effective Date: May 20, 2005. Hearings schedules for proceedings 
commencing on or after the effective date of this rule shall be 
established in

[[Page 20458]]

accordance with the final rule, unless otherwise directed by the 
Commission.

FOR FURTHER INFORMATION CONTACT: Geary Mizuno, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone (301) 415-1639, e-mail gsm@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Background.
II. Purpose of Rulemaking.
III. Rulemaking Procedure.
IV. Section-by-Section Analysis.
V. Voluntary Consensus Standards.
VI. Finding of Categorical Exclusion.
VII. Paperwork Reduction Act Statement.
VIII. Regulatory Analysis.
IX. Regulatory Flexibility Analysis.
X. Backfit Analysis.
XI. Small Business Regulatory Enforcement Fairness Act.

I. Background

    In Spring 2001, the NRC published for public comment a proposed 
rule that would substantially revise the NRC's procedures for the 
conduct of adjudications (66 FR 19610; April 16, 2001). The proposed 
rule included 10 CFR 2.332 and 2.334, requiring the presiding officer 
to establish a hearing schedule and manage the case in accordance with 
that schedule.
    In the statement of considerations (SOC) for the proposed Part 2 
rule, the Commission requested comment on whether, in addition to 
proposed 10 CFR 2.332 and 2.334, either flexible milestones or firm 
schedules should be established in the NRC's rules of practice in 10 
CFR Part 2 (66 FR 19610, 19620). Several commenters on the proposed 
rule supported the adoption by rule of binding schedules. However, one 
commenter opposed the adoption of flexible milestones or firm 
schedules. In the SOC for the final rule, 69 FR 2182 (January 14, 
2004), the Commission stated that it would not establish by rulemaking 
generally-applicable milestones for the conduct of proceedings. 
Instead, it adopted provisions in 10 CFR 2.332 and 2.334 requiring a 
presiding officer to establish a schedule for the conduct of 
proceedings, to manage the case in accordance with that schedule, and 
to notify the Commission when it appears there will be a delay in the 
overall schedule of sixty (60) days or more.

II. Purpose of Rulemaking

    Although the Commission decided not to adopt, as part of the final 
Part 2 rulemaking, generally-applicable schedules or milestones for the 
conduct of NRC adjudications, the Commission continued to evaluate the 
matter. The Commission's considerations were directed towards 
identifying possible alternatives for governing the pace and timing of 
adjudicatory proceedings in a manner which fully recognizes the rights 
of all parties to a fair hearing process and meets the Commission's 
goal for effective and timely adjudicatory processes. After reviewing 
several alternatives the Commission has decided to adopt model 
milestones and changes to the generally-applicable procedures in 
Subpart C of Part 2 that would govern how these milestones are to be 
used by presiding officers.
    The purpose of the model milestones and accompanying changes to 
Subpart C are to enhance the efficiency and effectiveness of NRC 
adjudications, while ensuring that the rights of all parties to fair, 
effective, and timely adjudications are maintained. The model 
milestones would be used to establish an initial schedule for an 
adjudication from which the presiding officer could depart, where 
appropriate, because of the circumstances of the particular proceeding. 
The model milestones are tailored to the different types of licensing 
and regulatory activities the NRC conducts and would better focus the 
limited resources of involved parties and the NRC. In addition, the 
model milestones will provide the presiding officer with the 
flexibility to manage the process reasonably and fairly in establishing 
initial schedules. The model milestones will also allow for the 
necessary adaptability in the hearing process by permitting departures 
from unnecessary interim steps to the major milestones. Thus, the model 
milestones will increase stakeholder confidence in the independence and 
fairness of the adjudicatory process by providing the presiding officer 
with a starting point to create a hearing schedule while maintaining 
flexibility to consider the individual and unique considerations 
inherent in any adjudication, and authorizing departures from the 
hearing schedule as unexpected circumstances arise.
    The Commission looked at several alternatives to the concept of 
model milestones including: Model schedules, binding schedules, binding 
milestones, and case-by-case imposition by the Commission. Model 
schedules set forth specific days or periods of time for both the 
conduct and completion of hearing activities and actions, or the filing 
of certain specified types of motions. Thus, in contrast to the concept 
of model milestones, the underlying consideration in the development of 
the model schedules was the need for detailed and specific guidance to 
presiding officers on the time periods to be accorded to each discrete 
step of the hearing. Binding schedules would contain the added 
requirement that the presiding officer report to the Commission any 
deviation from the applicable model schedule. Binding milestones would 
apply the more general and flexible milestones, as described above, to 
the proceedings but would require the presiding officer to report to 
the Commission when there was a deviation from the applicable model 
milestone. Finally, case-by-case oversight by the Commission was 
considered where the Commission would monitor the presiding officer's 
actions, and require the Commission's concurrence for certain issues.
    Model schedules were rejected as an alternative because of the 
numerous advantages to utilizing model milestones, as compared with the 
alternative of model schedules. Model schedules are more detailed and 
prescriptive and departures from the model schedule must be justified 
and may themselves become the subject of collateral litigation. In 
addition, the wide variation of participants, the number of 
contentions, and other case-specific circumstances and considerations 
may make it difficult to adhere to a strict set of model schedules.
    Binding milestones and binding schedules were rejected because the 
Commission deemed them too inflexible. Case-specific issues and 
circumstances require presiding officers to have the flexibility to 
handle cases on an individual basis without requiring Commission 
approval for each proposed alteration to the case schedule. In 
addition, unexpected occurrences or circumstances in the proceedings 
may require adjustments to the case schedule during the proceedings 
which would be more efficiently dealt with by the presiding officer 
without requiring Commission approval.
    The Commission rejected the alternative of case-by-case imposition 
by the Commission because it interfered with matters normally left to 
the presiding officer. In addition, it would involve substantial 
expenditure of resources by the Commission. Finally, the Commission 
determined the goals of a more efficient and fair adjudication process 
could be accomplished in a less intrusive manner.
    Compared with the four alternatives discussed above, model 
milestones allow for the necessary flexibility to adjust to the 
specific requirements of each individual hearing and will allow for 
strong case management and control by the presiding officer. Model 
milestones merely provide a starting point for the proceedings while

[[Page 20459]]

allowing for the necessary flexibility to adjust to the specific 
requirements of each hearing. Thus, milestones have the advantage of 
potentially resulting in less delay and unnecessary expenditure of the 
presiding officer's and parties' resources and should result in less 
motion practice over what hearing procedures to use.

III. Rulemaking Procedure

    Because these amendments constitute minor administrative changes to 
the regulations, the notice and comment provisions of the 
Administrative Procedure Act do not apply. See 5 U.S.C. 553(b)(A) and 5 
U.S.C. 553(b)(B). As stated in section 553(b)(A), the requirement for 
notice and comment does not apply to ``interpretive rules, general 
statements of policy, or rules of agency organization, procedure, or 
practice.'' The changes involved in the present rule are changes to 
agency procedure and practice and simply prescribe the manner in which 
the parties present themselves or their viewpoints to the agency. The 
rule does not alter the substantive rights or interests of the parties. 
In addition, the balance between the need for public participation in 
agency decisionmaking and the agency's competing interest in retaining 
latitude in organizing its operations weighs in favor of the agency 
because the rule merely establishes a starting point which the 
presiding officer will utilize to establish a hearing schedule. The 
public's rights to and interests in a hearing are not altered or 
affected by establishing this starting point to the hearing schedule. 
Thus, this rulemaking is exempt from the notice and comment provisions.
    In addition, 5 U.S.C. 553(b)(B) provides that when an agency finds 
good cause that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest, the rulemaking is 
exempt from notice and comment requirements. In the present case, the 
model milestones are largely drawn from the time periods specifically 
provided in the January 14, 2004 revisions to 10 CFR Part 2, on which 
the public has already had an opportunity to comment as part of that 
rulemaking. Additionally, as noted above, the Commission adopted 
provisions in 10 CFR 2.332 and 2.334 requiring a presiding officer to 
establish a schedule for the conduct of proceedings, to manage the case 
against that schedule, and to notify the Commission when it appears 
there will be slippage in the overall schedule. Thus, the present 
rulemaking merely provides the starting point for the presiding officer 
to base the schedule of proceedings. Public notice and comment was 
already provided for the implementation of a schedule and for the time 
periods. Thus, additional notice and comment procedures would be 
duplicative and unnecessary.

IV. Section-by-Section Analysis

Effective Date

    The new provisions in Sec. Sec.  2.332 and 2.334, requiring 
presiding officers to establish a hearing schedule for a proceeding 
based upon the applicable model milestones and to manage the case 
against that hearing schedule, are applicable to all proceedings 
commencing on or after the effective date of the final rule. For a 
proceeding in which a notice of hearing or a notice of opportunity for 
hearing are published in the Federal Register, the proceeding 
``commences'' on the date of publication in the Federal Register of the 
notice of hearing, or the notice of opportunity for hearing or petition 
to intervene for that proceeding, as applicable. For a proceeding in 
which a notice of hearing or opportunity for hearing is not published 
in the Federal Register, the proceeding ``commences'' on the date that 
the first request for hearing or petition to intervene is received by 
the Commission.

Section 2.332 General Case Scheduling and Management

    10 CFR 2.332(a) would be amended to add language requiring the 
scheduling order, created by the hearing officer, to also establish 
when the oral phase of the hearing will commence.
    10 CFR 2.332(a)(2) would remove the term ``and hearings'' because 
the scheduling order is now required to establish the limits to 
commence the oral phase of the hearing under paragraph (a). Thus the 
language in (a)(2) permitting the scheduling order to contain such 
information is unnecessary.
    A new 10 CFR 2.332(b) is added to require the presiding officer to 
utilize the applicable model milestones in Appendix B of this part as a 
starting point to establish the scheduling order. This section provides 
that appropriate modifications by the presiding officer may be made 
based upon all relevant information. The flexibility provided by this 
section allows the presiding officer to consider all relevant 
information, which includes but is 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 (d) 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.

Section 2.334 Implementing Hearing Schedule for Proceeding

    10 CFR 2.334(a) contains conforming changes which reflect the 
change in 10 CFR 2.332(b). 10 CFR 2.332(b) now requires the presiding 
officer to utilize the applicable model milestones in Appendix B to 
this part as a starting point to create the hearing schedule.
    The language in former 10 CFR 2.332(b) would be transferred to 10 
CFR 2.334(b). The language is otherwise unchanged except for a 
modification to refer to ``hearing schedule,'' as opposed to 
``schedule.''
    10 CFR 2.334(b) is renumbered 10 CFR 2.334(c). In addition, an 
added provision requires the presiding officer assigned to the 
proceeding to provide written notification to the Commission any time 
during the course of the proceeding when it appears that there will be 
a delay of greater 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). This requirement ensures that 
the Commission is kept well informed regarding any potential delays in 
the hearing schedule and encourages the parties and presiding officer 
to adhere to the established hearing schedule if possible. An 
additional conforming change to refer to ``hearing schedule'' is also 
made.

Part 2, Appendix B--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

    10 CFR Part 2, Appendix B contains four model milestones for 
adjudicatory hearings: The generic hearing track (Subpart L), license 
transfer (Subpart M), enforcement action (Subpart G), and enforcement 
action (Subpart N). In establishing a schedule, the presiding officer 
is required by 10 CFR 2.332 to 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 includes, but is not 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

[[Page 20460]]

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.
    10 CFR 2.334 allows the presiding officer to modify the hearing 
schedule from the initial milestones upon a finding by the presiding 
officer or the Commission of good cause. Factors such as whether the 
requesting party has exercised due diligence to adhere to the schedule, 
whether the requested change is the result of unavoidable 
circumstances, whether the other parties have agreed to the change, and 
the overall effect of the change on the schedule of the case are taken 
into account. In addition, the presiding officer is required by 10 CFR 
2.334 to provide written notification to the Commission any time during 
the course of the proceeding when it appears that there will be a delay 
of greater 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). Finally, 10 CFR 2.334 requires the 
presiding officer to provide written notification if 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 model milestones reflect 
electronic filing and service in accordance with 10 CFR 2.305.

Appendix B. I.--Model Milestones for a Hearing on an Enforcement Action 
Conducted Under 10 CFR Part 2, Subpart G

    This model set of milestones applies to hearings in 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. 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). 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.

Appendix B. II.--Model Milestones for Hearings Conducted Under 10 CFR 
Part 2, Subpart L

    This model set of milestones applies to hearings 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 need not be 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. 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.

Appendix B. III.--Model Milestones for a Hearing on a Transfer of a 
License Conducted Under 10 CFR Part 2, Subpart M

    This model set of milestones applies to hearings on license 
transfer proceedings conducted under 10 CFR Part 2, Subpart M. Subpart 
M governs 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. As required by 
10 CFR 2.332 and 2.334, the presiding officer establishes, by order, a 
schedule for the conduct of each proceeding. The model milestones are 
based on the Commission's Rules of Practice in 10 CFR Part 2, Subparts 
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).

Appendix B. IV.--Model Milestones for a Hearing on an Enforcement 
Action Conducted Under 10 CFR Part 2, Subpart N

    This model set of milestones applies to hearings on enforcement 
proceedings conducted under 10 CFR Part 2, Subpart N. Subpart N 
provides simplified procedures for the expeditious resolution of 
disputes among parties in an informal hearing process. As required by 
10 CFR 2.332 and 2.334, the presiding officer establishes, by order, a 
schedule for the conduct of each proceeding. 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 only discovery provided is the mandatory 
disclosure made by each party pursuant to 10 CFR 2.336.

V. Voluntary Consensus Standards

    The National Technology Transfer Act of 1995 (Pub. L. 104-113), 
requires that Federal agencies use technical standards that are 
developed or adopted by voluntary consensus standards bodies unless the 
use of such a standard is inconsistent with applicable law or otherwise 
impractical. In this final rule, the NRC is requiring the presiding 
officer to refer to the model milestones as a starting point for 
establishing a hearing schedule and managing the case against that 
schedule. This action does not constitute the establishment of a 
government-unique standard as defined in the Office of Management and 
Budget (OMB) Circular A-119 (1998).

VI. Environmental Impact: Categorical Exclusion

    The NRC has determined that this final rule is the type of action 
described in categorical exclusion 10 CFR 51.22(c)(1). 10 CFR 
51.22(c)(1) provides a categorical exclusion for amendments to certain 
parts of this chapter including 10 CFR Part 2. Therefore, neither an

[[Page 20461]]

environmental impact statement nor an environmental assessment has been 
prepared for this final rule.

VII. Paperwork Reduction Act Statement

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

VIII. Regulatory Analysis

    A regulatory analysis has not been prepared for this final rule 
because this rule is considered minor and not a substantial amendment; 
it has no economic impact on NRC licensees or the public.

IX. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), does not 
apply to a final rule for which a proposed rule was not issued, and 
thus is not applicable to this rulemaking.

X. Backfit Analysis

    The NRC has determined that the backfit rules (Sec. Sec.  50.109, 
70.76, 72.62, or 76.76) do not apply to this direct final rule because 
this amendment does not involve any provisions that would impose 
backfits as defined in 10 CFR Chapter I. Therefore, a backfit analysis 
is not required.

XI. Small Business Regulatory Enforcement Fairness Act

    In accordance with the Small Business Regulatory Enforcement 
Fairness Act of 1996, the NRC has determined that this action is not a 
major rule and has verified this determination with the Office of 
Information and Regulatory Affairs of OMB.

List of Subjects in 10 CFR Part 2

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

0
For the reasons set out in the preamble and under the authority of the 
Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 
1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the 
following amendments to 10 CFR Part 2.

PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND 
ISSUANCE OF ORDERS

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

    Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 
5841); 5 U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 
note). Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 
104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 
U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. 
L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10143(f)), sec. 102, 
Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 
88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 
2.721 also issued under secs. 102, 103, 104, 105, 183i, 189, 68 
Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 
2134, 2135, 2233, 2239). Sections 2.105 also issued under Pub. L. 
97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also 
issued under secs. 161 b, I, o, 182, 186, 234, 68 Stat. 948-951, 
955, 83 Stat. 444, as amended (42 U.S.C. 2201 (b), (I), (o), 2236, 
2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Section 2.205(j) 
also issued under Pub. L. 101-410, 104 Stat. 90, as amended by 
section 3100(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 
note). Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-
190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 
2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 
2.780 also issued under 5 U.S.C. 557. Section 2.764 also issued 
under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 
10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat. 
936, as amended (42 U.S.C. 2133), and 5 U.S.C. 552. Sections 2.800 
and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued 
under 5 U.S.C. 553, and sec. 29, Pub. L. 85-256, 71 Stat. 579, as 
amended (42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 
Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 
(42 U.S.C. 10154). Subpart L also issued under sec. 189, 68 Stat. 
955 (42 U.S.C. 2239). Subpart M also issued under sec. 184 (42 
U.S.C. 2234) and sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A 
also issued under sec. 6, Pub. L. 91-560, 84 Stat. 1473 (42 U.S.C. 
2135).


0
2. In 10 CFR 2.332, the introductory text of paragraph (a) and 
paragraphs (a)(2) and (b) are revised to read as follows:


Sec.  2.332  General case scheduling and management.

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

0
3. Section 2.334 is revised to read as follows:


Sec.  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

[[Page 20462]]

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.

0
4. New Appendix B to 10 CFR Part 2 is added to read as follows:

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       Person subject to order files
 enforcement order:                       answer; if order immediately
                                          effective, motion to set aside
                                          immediate effectiveness due;
                                          requests for hearing due.
 Within 100 days of enforcement  Presiding officer issues order
 order:                                   on hearing request by person
                                          who is subject of enforcement
                                          order.
 Within 25 days of presiding     Presiding officer sets initial
 officer decision granting hearing:       schedule for the proceeding.
 Within 145 days of presiding    Discovery complete.
 officer decision granting hearing:
 Within 155 days of presiding    Motions for summary disposition
 officer decision granting hearing:       due.
 Within 235 days of presiding    Presiding officer decisions on
 officer decision granting hearing:       motions for summary
                                          disposition.
 Within 245 days of presiding    Prehearing conference
 officer decision granting hearing:       (optional); presiding officer
                                          sets schedule for remainder of
                                          proceeding.
 Within 275 days of presiding    Written testimony filed.
 officer decision granting hearing:
 Within 90 days of end of        Presiding officer issues
 evidentiary hearing and closing of       initial decision.
 record:
------------------------------------------------------------------------

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

[[Page 20463]]

 
 Within 30 days of issuance of   Proposed late-filed contentions
 SER and any necessary NEPA document:     on SER and necessary NEPA
                                          documents filed; motions for
                                          summary disposition on
                                          previously admitted
                                          contentions due.
 Within 85 days of issuance of   Presiding officer decision on
 SER and NEPA document:                   admission of proposed late-
                                          filed contentions and motions
                                          for summary disposition;
                                          presiding officer sets
                                          schedule for remainder of
                                          proceeding.
 Within 14 days after presiding  All parties complete updates of
 officer decision on amended/late-filed   mandatory disclosures.
 contentions:
 Within 115 days of issuance of  Motions for summary disposition
 SER and NEPA document:                   due.
 Within 155 days of issuance of  Written direct testimony filed.
 SER and NEPA document:
 Within 175 days of issuance of  Evidentiary hearing begins.
 SER and NEPA document:
 Within 90 days of end of        Presiding officer issues
 evidentiary hearing and closing of       initial decision.
 record:
------------------------------------------------------------------------

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  Presiding officer decision on
 of Federal Register notice of            intervention petitions and
 opportunity for hearing:                 admission of contentions.
 Within 30 days of order         NRC staff and other parties
 granting hearing petitions:              complete mandatory
                                          disclosures.
 Within 12 days of completion    Presiding Officer issues
 of mandatory disclosures:                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    Oral hearing commences.
 order:
 Within 25 days after hearing    Presiding officer certifies
 ends:                                    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            Person subject to order files
 enforcement order:                       answer; if order immediately
                                          effective, motion to set aside
                                          immediate effectiveness due;
                                          requests for hearing due,
                                          including joint motion to use
                                          Subpart N procedures.

[[Page 20464]]

 
 Within 50 days of date of       Presiding officer decision on
 enforcement order:                       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     Mandatory disclosures complete.
 officer decision granting hearing:
 Within 40 days of presiding     Prehearing conference to
 officer decision granting hearing:       specify issues for hearing and
                                          set schedules for remaining
                                          course of proceeding.
 Within 60 days of presiding     Evidentiary hearing begins.
 officer decision granting hearing:
 Within 30 days of end of        Presiding officer issues
 evidentiary hearing and closing of       initial decision.
 record:
------------------------------------------------------------------------


    Dated at Rockville, Maryland, this 14th day of April, 2005.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 05-7846 Filed 4-19-05; 8:45 am]
BILLING CODE 7590-01-P