Amendments to Adjudicatory Process Rules and Related Requirements, 10781-10805 [2011-4345]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 76, Number 39 (Monday, February 28, 2011)]
[Proposed Rules]
[Pages 10781-10805]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4345]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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

[[Page 10781]]



NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2, 51, and 54

[NRC-2008-0415]
RIN 3150-AI43


Amendments to Adjudicatory Process Rules and Related Requirements

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission) 
is proposing to amend its adjudicatory rules of practice. This proposed 
rule would make changes to the NRC's adjudicatory process that NRC 
believes will promote fairness, efficiency, and openness in NRC 
adjudicatory proceedings. This proposed rule would also correct errors 
and omissions that have been identified since the major revisions to 
the NRC's Rules of Practice in early 2004.

DATES: Comments on the proposed rule must be received on or before May 
16, 2011. Comments received after this date will be considered if it is 
practical to do so. However, the NRC is able to ensure consideration 
only of comments received on or before this date.

ADDRESSES: Please include Docket ID NRC-2008-0415 in the subject line 
of your comments. For instructions on submitting comments and accessing 
documents related to this action, see Section I, ``Submitting Comments 
and Accessing Information'' in the SUPPLEMENTARY INFORMATION section of 
this document. You may submit comments by any one of the following 
methods:
    Federal rulemaking Web site: Go to https://www.regulations.gov and 
search for documents filed under Docket ID NRC-2008-0415. Address 
questions about NRC dockets to Carol Gallagher, telephone: 301-492-
3668; e-mail: Carol.Gallagher@nrc.gov.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
    E-mail comments to: Rulemaking.Comments@nrc.gov. If you do not 
receive a reply e-mail confirming that we have received your comments, 
contact us directly at 301-415-1966.
    Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852 between 7:30 a.m. and 4:15 p.m. during Federal workdays 
(telephone: 301-415-1966).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
301-415-1101.

FOR FURTHER INFORMATION CONTACT: Tison Campbell, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone: 301-415-8579, e-mail: Tison.Campbell@nrc.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Submitting Comments and Accessing Information
II. Background
III. The Decision to Issue a Proposed Rule
IV. Effectiveness of the Final Rule
V. Discussion of Changes and Corrections of Errors
    A. Part 2--Title
    B. Subpart C--Sections 2.300 Through 2.390
    C. Subpart G--Sections 2.700 Through 2.713
    D. Subpart L--Sections 2.1200 Through 2.1213
    E. Subpart M--Sections 2.1300 Through 2.1331
    F. Subpart N--Sections 2.1400 Through 2.1407
    G. Other Changes
VI. Additional Issues for Public Comment
    A. Scope of Mandatory Disclosures
    B. Alternative Approaches on Interlocutory Appeals
VII. Section-by-Section Analysis
    A. Introductory Provisions--Sections 2.1 Through 2.8
    B. Subpart A--Sections 2.100 Through 2.111
    C. Subpart C--Sections 2.300 Through 2.390
    D. Subpart G--Sections 2.700 Through 2.713
    E. Subpart H--Sections 2.800 Through 2.819
    F. Subpart L--Sections 2.1200 Through 2.1213
    G. Subpart M--Sections 2.1300 Through 2.1331
    H. Subpart N--Sections 2.1400 Through 2.1407
    I. Parts 51 and 54
VIII. Plain Language
IX. Voluntary Consensus Standards
X. Environmental Impact: Categorical Exclusion
XI. Paperwork Reduction Act Statement
    Public Protection Notification
XII. Regulatory Analysis
XIII. Regulatory Flexibility Act Certification
XIV. Backfit Analysis

I. Submitting Comments and Accessing Information

    Comments submitted in writing or in electronic form will be posted 
on the NRC Web site and on the Federal rulemaking Web site, https://www.regulations.gov. Because your comments will not be edited to remove 
any identifying or contact information, the NRC cautions you against 
including any information in your submission that you do not want to be 
publicly disclosed. The NRC requests that any party soliciting or 
aggregating comments received from other persons for submission to the 
NRC inform those persons that the NRC will not edit their comments to 
remove any identifying or contact information, and therefore, they 
should not include any information in their comments that they do not 
want publicly disclosed.
    You can access publicly available documents related to this action 
using the following methods:
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Room 
O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, 
Maryland 20852.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room at https://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC's PDR 
reference staff at 1-800-397-4209, or 301-415-4737, or by e-mail to 
PDR.Resource@nrc.gov.
    Federal rulemaking Web site: Public comments and supporting 
materials related to this proposed rule can be found at https://www.regulations.gov by

[[Page 10782]]

searching on Docket ID NRC-2008-0415.

II. Background

    In a final rulemaking published in the Federal Register on January 
14, 2004, 69 FR 2181 (2004 part 2 revisions), the NRC substantially 
modified its rules of practice governing agency adjudications--Title 10 
of the Code of Federal Regulations (10 CFR) part 2. Portions of 10 CFR 
parts 1, 50, 51, 52, 54, 60, 63, 70, 72, 73, 75, 76 and 110 also were 
amended at that time. On May 11, 2004 (69 FR 25997), the NRC corrected 
errors in 10 CFR part 2, Appendix D.
    Since the new rules of practice became effective, provisions 
requiring correction or clarification of ambiguities, and several areas 
where further improvements could be achieved, have been identified. 
Therefore, the NRC is publishing this proposed rule to solicit public 
comments on proposed corrections of those errors and proposed 
improvements to the rules governing its adjudicatory proceedings. 
Participants in NRC adjudicatory proceedings who will use these rules 
should note that several revisions to 10 CFR part 2 also were adopted 
in recent years:
     Licenses, Certifications, and Approvals for Nuclear Power 
Plants (72 FR 4935; August 28, 2007) (Part 52 Rule);
     Use of Electronic Submissions in Agency Hearings (72 FR 
49139; August 28, 2007) (E-Filing Rule);
     Limited Work Authorizations for Nuclear Power Plants (72 
FR 57415; October 9, 2007);
     Delegated Authority To Order Use of Procedures for Access 
to Certain Sensitive Unclassified Information (73 FR 10978; February 
29, 2008);
     Interlocutory Review of Rulings on Requests by Potential 
Parties for Access to Sensitive Unclassified Non-Safeguards Information 
and Safeguards Information (73 FR 12627; March 10, 2008); and
     Protection of Safeguards Information (73 FR 63545; October 
24, 2008).

III. The Decision To Issue a Proposed Rule

    The amendments in this proposed rulemaking are procedural rules 
exempt from the notice and comment requirements of the Administrative 
Procedure Act (APA) and NRC regulations. 5 U.S.C. 553(b)(3)(A) and 10 
CFR 2.804(d)(1). Nonetheless, the NRC is issuing this rulemaking as a 
proposed rule for public comment in order to benefit from stakeholder 
input.

IV. Effectiveness of the Final Rule

    The new and amended requirements in the final rule would not be 
retroactively applied to presiding officer determinations and decisions 
issued prior to the effective date of the final rule (e.g., a presiding 
officer order in response to a petition or motion), nor would these 
requirements be retroactively imposed on parties, such that a party 
would have to compensate for past activities that were accomplished in 
conformance with the requirements in effect at the time, but would no 
longer meet the new or amended requirements in the final rule. Further, 
in ongoing adjudicatory proceedings if there is a dispute over an 
adjudicatory obligation or situation arising prior to the effective 
date of the new rule, such disputes would be governed by the former 
rule provisions. However, the new or amended requirements would be 
effective and govern all obligations and disputes that arise after the 
effective date of the final rule. For example, if a Board issues, prior 
to the effective date of the final rule, a scheduling order 
incorporating by reference Sec.  2.336(d), which requires parties to 
update their disclosures every 14 days, that obligation would change to 
30 days once the effective date of the rule is reached. Therefore, 
Licensing Boards should be aware of the effectiveness of the final rule 
and take the necessary steps to notify parties of their obligations 
once the final rule becomes effective.

V. Discussion of Changes and Corrections of Errors

A. Part 2--Title

    The current title of 10 CFR part 2, Rules of Practice for Domestic 
Licensing Proceedings and Issuance of Orders, does not accurately 
reflect the scope, nor does it track the language of the APA. The NRC 
is proposing a new title for 10 CFR part 2: Agency Rules of Practice 
and Procedure, which would better reflect the scope of its subparts and 
would mirror the language of the APA.

B. Subpart C--Sections 2.300 Through 2.390

    1. Section 2.305--Service of documents; methods; proof.
    Section 2.305(c)(4) currently refers to ``any paper,'' which could 
be interpreted to exclude electronic documents filed through the NRC's 
E-Filing system. The NRC is therefore proposing to clarify that a 
signed certificate of service must be included with ``any document'' 
served upon the parties in a proceeding under 10 CFR part 2. Under this 
rule, the certificate of service must include the name and address of 
each person upon whom service is being made (which for electronic 
submissions under the E-Filing system should include, at a minimum, the 
name and e-mail address used for service of each person in the E-Filing 
system service list for a proceeding upon whom service needs to be 
made) and the date and method of service. Because it is the 
responsibility of a participant submitting a document to the E-Filing 
system to comply with the service requirements, a certificate of 
service that simply states the document is being served ``per the 
service list in the E-Filing system'' without listing the names and 
addresses of each of those being served is insufficient to comply with 
Sec.  2.305(c)(4). The NRC notes that Sec.  2.304 requires that 
electronic documents be signed using a participant's digital 
certificate; in such circumstances it is not necessary to submit an 
electronic copy of the document that includes an actual signature.
    Paragraph 2.305(g)(1) does not currently provide an address for 
service upon the NRC staff when a filing is not being made through the 
E-Filing system and no attorney representing the NRC staff has filed a 
notice of appearance in the proceeding. The proposed paragraph (g)(1) 
would provide addresses to be used to accomplish service on the NRC 
staff in these circumstances.
    2. Section 2.309--Hearing requests, petitions to intervene, 
requirements for standing, and contentions.
    Section 2.309 contains the generally applicable procedures for 
requesting hearings and submitting petitions to intervene in NRC 
proceedings, and sets forth the requirements for submitting contentions 
and establishing legal standing to participate in NRC proceedings. The 
NRC is proposing to make several changes to Sec.  2.309.
    a. Section 2.309(b)--Timing.
    Section 2.309(b)(5) currently references orders issued under Sec.  
2.202, but does not reference notices of violation imposing a civil 
penalty issued under Sec.  2.205. Section 2.205 notices of violation, 
like Sec.  2.202 orders, provide ``twenty (20) days * * * or other time 
specified in the notice'' for individuals to file an answer. This 
provision does not match the 60 days allowed by Sec.  2.309(b), which 
could be interpreted as applying to Sec.  2.205 notices of violation. 
The proposed Sec.  2.309(b)(5) would correct this omission by adding a 
reference to Sec.  2.205 to reflect that notices of violation issued in 
Sec.  2.205 civil penalty proceedings have timing requirements similar 
to those of Sec.  2.202 orders.

[[Page 10783]]

    b. Sections 2.309(c) and (f)--Subsequent Submission of Petition/
Request or New or Amended Contentions.
    Current Sec.  2.309(c)(1) contains eight balancing factors that 
determine whether to grant or admit ``nontimely'' hearing requests, 
intervention petitions, or contentions. These factors include the three 
factors for standing--also found at Sec.  2.309(d)(1)(ii) through 
(iv)--and the following five factors: Good cause for the failure to 
file on time; the availability of other means to protect the 
requestor's or petitioner's interest; the extent to which the 
requestor's or petitioner's interest will be represented by other 
parties; the extent to which the requestor's or petitioner's interest 
will broaden the issues or delay the proceeding; and the extent to 
which the requestor's or petitioner's participation may reasonably be 
expected to assist in developing a sound record. The ``good cause'' 
factor is given the most weight, and ``[i]f a petitioner cannot show 
good cause, then its demonstration on the other factors must be 
`compelling.''' Dominion Nuclear Connecticut, Inc. (Millstone Nuclear 
Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 564-65 (2005) 
(footnote with citation omitted).
    Good cause is not defined in the regulations, but has been defined 
by the NRC in case law as a showing that the petitioner ``not only * * 
* could not have filed within the time specified in the notice of 
opportunity for hearing, but also that it filed as soon as possible 
thereafter.''  Id. In addition, Sec.  2.309(f)(2) identifies three 
factors to be considered in determining whether to admit a new or 
amended contention. These factors include whether the new or amended 
contention is based on information that was not previously available. 
For example, if a document has not been prepared and is referred to as 
a forthcoming document, the appropriate time to file a contention based 
upon the document is after its publication. The two remaining factors 
in Sec.  2.309(f)(2) include whether the information that was not 
previously available is materially different from information that was 
previously available, and whether the new or amended contention has 
been submitted in a timely fashion after the availability of the new 
information. The Sec.  2.309(f) three factor test appears to be a 
specific application of the case law definition of ``good cause.''
    Thus, in practice, the admissibility of late-filed contentions 
usually depends on whether good cause is found. A showing that many of 
the other factors support the admission of a late-filed contention is 
rarely sufficient to overcome a lack of good cause. See, e.g., Private 
Fuel Storage (Independent Spent Fuel Storage Installation), LBP-00-28, 
52 NRC 226, 239-240 (2000) and Tennessee Valley Authority (Watts Bar 
Nuclear Plant, Unit 2), CLI-10-12, ---- NRC ---- (Mar. 26 2010) (slip 
op.) (the Commission noted that ``it would be a rare case where we 
would excuse a non-timely petition absent good cause'') Id. at 2. And 
in other cases, the NRC's determination on the existence of good cause 
appears to turn on one or two factors unique to that proceeding, with a 
generic recitation or cursory acknowledgement of the other factors and 
how they offset each other. See, e.g., Crow Butte Resources (North 
Trend Expansion Project) LBP-08-06, 67 NRC 241, 259-260 (2008).
    The proposed rule would simplify the requirements governing 
requests for hearing, intervention petitions, or new or amended 
contentions filed after the deadlines in Sec.  2.309(b) by: (1) Making 
good cause the sole factor to be considered when evaluating whether to 
review the admissibility of a new or amended contention, petition, or 
hearing request; (2) defining good cause as those factors currently in 
Sec.  2.309(f)(2)(i) through (iii); (3) adding clarifying information 
regarding the need to address interest and standing; and (4) referring 
to ``nontimely'' contentions as ``new or amended.'' Although we would 
no longer use the terms ``late-filed'' or ``nontimely'' and would use 
the term ``new or amended'' to refer to contentions filed after the 
initial filing date for contentions had expired, the current NRC case 
law would continue to be applied in ruling on those requests.
    The proposed amendments to Sec.  2.309 would apply the good cause 
factor to all filings after the initial filing deadline and would adopt 
the current Sec.  2.309(f)(2)(i) through (iii) factors as the standards 
to be applied when evaluating whether good cause exists. This change 
would simplify the review of filings after the deadlines in Sec.  
2.309(b). These changes would allow the parties, participants, and the 
presiding officer to focus their resources on the most relevant 
questions related to the admissibility of new or amended contentions 
(i.e., whether good cause exists and whether the contentions meet the 
admissibility requirements of Sec.  2.309(f)).
    Section 2.309(c)(1) would require a requestor or petitioner to 
provide a justification supporting the filing after the deadlines in 
Sec.  2.309(b), consisting of ``good cause'' as defined in Sec.  
2.309(c)(2). Paragraph (c)(2) would treat the three criteria for 
considering new or amended contentions that are currently contained in 
paragraph (f)(2) as the factors that must be considered under the good 
cause determination of proposed paragraph (c)(1). The NRC believes that 
the factors in current Sec.  2.309(f)(2)(i) through (iii) are a useful, 
specific application of ``good cause.'' Presiding officers should 
evaluate whether a filing after the deadlines in Sec.  2.309(b) 
satisfies the factors in Sec.  2.309(c)(2)(i) through (iii) to 
determine whether a petitioner has demonstrated good cause.
    Proposed paragraph (c)(3) would make clear that, apart from 
demonstrating good cause, a petitioner seeking admission to the 
proceeding after the deadlines in Sec.  2.309(b) would need to satisfy 
standing and contention admissibility requirements. Paragraph (c)(4) 
would apply to a participant or a party who seeks admission of a new or 
amended contention, and who has already satisfied the standing 
requirements in Sec.  2.309(d).
    This revision would, in part, adopt a line of reasoning first 
proposed by an Atomic Safety and Licensing Board in the Vermont Yankee 
power uprate proceeding; the Board concluded that new or amended 
contentions filed after the initial filing need not satisfy the Sec.  
2.309(c)(1) factors if the Sec.  2.309(f)(2)(i) through (iii) factors 
are met. Entergy Nuclear Vermont Yankee LLC (Vermont Yankee Nuclear 
Power Station), LBP-05-32, 62 NRC 813 (2005). The NRC believes that 
this should be the appropriate standard for presiding officers to apply 
when evaluating whether good cause exists.
    The NRC invites comments on the effect (if any) of eliminating the 
other late-filing factors and relying solely on good cause. As 
discussed above, case law has shown that good cause is given the most 
weight when evaluating new or amended contentions, and absent good 
cause, the other factors must be--but are rarely found to be--
compelling. Would limiting the late-filing criteria to good cause have 
a detrimental effect on a petitioner's ability to have new or amended 
contentions admitted? How often, without showing good cause, have 
petitioners been able to rely on the other factors to meet the 
requirements of Sec.  2.309(c)? Should the NRC consider removing only 
some of the other late-filing requirements? If so, which ones?
    c. Section 2.309(d)--Standing.
    Section 2.309(d) sets forth the standing requirements and also 
contains some requirements that do not generally relate to standing. To 
clarify and to better articulate the generally applicable standing 
requirements, several revisions to Sec.  2.309(d) are being proposed. 
The

[[Page 10784]]

general standing criteria in Sec.  2.309(d)(1) would remain the same. A 
revised Sec.  2.309(d)(2) would adopt the requirements of the first 
sentence of current Sec.  2.309(d)(3), which requires the presiding 
officer to consider the paragraph (d)(1) factors when determining 
whether the petitioner has an interest affected by the proceeding. 
Revised paragraph (d)(3) would retain the existing provision that in 
enforcement proceedings the licensee or other person against whom the 
action is taken is deemed to have standing. Current Sec.  2.309(d)(2) 
contains special requirements for States, local governmental bodies, 
and Federally-recognized Indian Tribes that seek status as parties in 
proceedings. But some of these requirements (e.g., the need to propose 
one or more contentions; the need to designate a single representative) 
do not relate to standing. The present Sec.  2.309(d)(2) provisions 
would be revised and would be moved to a new Sec.  2.309(h), which is 
discussed in the next section.
    d. Section 2.309(d)(2) moved to 2.309(h)--State, local governmental 
body, and Federally-recognized Indian Tribe.
    As stated, the present Sec.  2.309(d)(2) provisions for government 
participation, which do not contain generally applicable standing 
requirements like the rest of Sec.  2.309, would be revised and moved 
to a new Sec.  2.309(h). The proposed Sec.  2.309(h)(1), based on the 
existing Sec.  2.309(d)(2)(i), would require any State, local 
governmental body or Federally-recognized Indian Tribe seeking to 
participate as a party to submit at least one admissible contention. 
This section would also include the requirement that each governmental 
entity designate a single representative for the hearing. If a request 
for hearing or petition to intervene were granted, the NRC would admit 
as a party a single designated representative of the State, a single 
designated representative for each local governmental body (county, 
municipality, or other subdivision), and a single designated 
representative for each Federally-recognized Indian Tribe, as 
applicable. This proposed section would also require, as provided in 
the statement of considerations for the 2004 part 2 revisions, that:

    Where a State's constitution provides that both the Governor and 
another State official or State governmental body may represent the 
interests of the State in a proceeding, the Governor and the other 
State official/government body will be considered separate potential 
parties. Each must separately satisfy the relevant contention 
requirement, and each must designate its own representative (that 
is, the Governor must designate a single representative, and the 
State official must separately designate a representative). (69 FR 
2182, 2222; January 14, 2004).

    The proposed Sec.  2.309(h)(2) would be based on the existing Sec.  
2.309(d)(2)(ii), which states that in any potential proceeding for a 
facility (the term ``facility'' is defined in Sec.  2.4) located within 
its boundaries, the State, local governmental body or Federally-
recognized Indian Tribe seeking party status need not further establish 
its standing. As revised, proposed Sec.  2.309(h)(1) and (h)(2) would 
delete the word ``affected'' from the phrase ``Federally-recognized 
Indian Tribe.'' The use of ``affected'' in this context is proper only 
in a high-level radioactive waste disposal proceeding. For the same 
reason, the NRC proposes to remove ``affected'' from Sec.  2.315(c) 
(regarding interested government participation) and from the definition 
of ``Participant'' added to Sec.  2.4 in the E-Filing Rule (August 28, 
2007; 49139, 49149). Existing Sec.  2.309(d)(2)(iii) would be 
redesignated as Sec.  2.309(h)(3).
    e. Section 2.309(h) moved to 2.309(i)--Answers to requests for 
hearing and petitions to intervene; Replies to answers.
    The present Sec.  2.309(h), governing the filing of answers and 
replies to hearing requests and petitions to intervene, would be 
redesignated as Sec.  2.309(i) and would be further revised. The 
current Sec.  2.309(h)(1) refers to ``proffered contentions,'' the 
preamble of current Sec.  2.309(h) limits paragraph (h) to filing 
deadlines for hearing requests and intervention petitions, and there is 
no clear reference to contentions submitted after the initial filing. 
The NRC believes that the same deadlines should apply to answers and 
replies for new or amended contentions as apply to intervention 
petitions and hearing requests filed after the deadlines in Sec.  
2.309(b). The NRC is therefore proposing to amend this section to 
include answers and replies to requests to admit new or amended 
contentions after the initial filing. Because this change would cover 
all filings after the deadlines in Sec.  2.309(b), the reference to 
``proffered contentions'' in paragraph (h)(1) (proposed paragraph 
(i)(1)) would no longer be necessary and would be removed. The 
reference in current paragraph (h)(1) to ``paragraphs (a) through (g)'' 
would be changed to ``paragraphs (a) through (h)'' due to the addition 
of proposed new paragraph (h).
    f. Section 2.309(i) moved to new 2.309(j)--Decision on request/
petition.
    The current Sec.  2.309(i) would be redesignated as Sec.  2.309(j). 
The redesignated Sec.  2.309(j) would contain a new citation reference 
made necessary by the new Sec.  2.309(h). Also, proposed Sec.  2.309(j) 
would be revised to provide that if the presiding officer cannot issue 
a decision on each request for hearing or petition to intervene within 
45 days of the conclusion of the pre-hearing conference, the presiding 
officer shall issue a notice advising the Commission and the parties as 
to when the decision will issue. If no pre-hearing conference is 
conducted, the 45-day period begins after the filing of answers and 
replies under Sec.  2.309(i).
    3. Section 2.311--Interlocutory review of rulings on requests for 
hearings/petitions to intervene, selection of hearing procedures, and 
requests by potential parties for access to sensitive unclassified non-
safeguards information and safeguards information.
    Section 2.311(b) allows parties to appeal orders of the presiding 
officer to the Commission concerning a request for hearing, petition to 
intervene, or a request to access SUNSI or SGI within ten days after 
the service of the order. Any party who opposes the appeal may file a 
brief in opposition within ten days after service of the appeal. 
Experience has demonstrated that the filing time provided under this 
section is unnecessarily short, and sometimes results in superficial 
appellate briefs. Most adjudicatory bodies allow substantially more 
time for litigants to frame appellate arguments and to perform the 
necessary research and analysis. Well-considered briefs enable the 
appellate body, here the Commission, to make faster and better-reasoned 
decisions. The NRC is therefore proposing to extend the time to file an 
appeal and a brief in opposition to an appeal from ten to 25 days. The 
NRC does not expect the proposed change in appeal deadlines to result 
in any delays in licensing. For one thing, higher-quality briefs should 
expedite appellate decision-making. Moreover, most of the appellate 
litigation at the NRC is preliminary to any final licensing decisions; 
it takes place before the NRC staff finishes its safety and 
environmental reviews and generally does not affect the timing of those 
reviews.
    4. Section 2.314--Appearance and practice before the Commission in 
adjudicatory proceedings.
    Paragraph 2.314(c)(3) allows anyone disciplined under Sec.  
2.314(c) to file an appeal with the Commission within ten days after 
issuance of the order. Experience since the 2004 revisions of part 2 
has demonstrated that ten days frequently is not adequate for parties 
to prepare quality appeals. The NRC is therefore proposing to extend 
the time to file an appeal of an order disciplining

[[Page 10785]]

a party from ten to 25 days. The NRC believes that extending the time 
for appeals will result in higher-quality appeals.
    5. Section 2.315--Participation by a person not a party.
    Current Sec.  2.315(c) allows interested State, local governmental 
bodies, and Federally-recognized Indian Tribes that have not been 
admitted as parties under Sec.  2.309 a reasonable opportunity to 
participate in hearings. The NRC is proposing to amend Sec.  2.315(c) 
to clarify that States, local governmental bodies, or Federally-
recognized Indian Tribes that are allowed to participate in hearings 
take the proceeding as they find it, consistent with longstanding NRC 
case law. See, e.g., Pacific Gas and Electric Co. (Diablo Canyon 
Nuclear Power Plant, Units 1 and 2), ALAB-600, 12 NRC 3, 8 (1980); Long 
Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-
13, 17 NRC 469, 471-72 (1983), citing 10 CFR 2.714(c) (current 
2.315(c)); Cincinnati Gas and Electric Co. (Wm. H. Zimmer Nuclear 
Station), LBP-80-6, 11 NRC 148, 151 (1980).
    6. Section 2.319--Power of the presiding officer.
    As part of the 2004 revisions to part 2, the NRC eliminated 
``redundant or duplicate provisions in Subpart J that would be covered 
by the generally applicable provisions in Subpart C'' (69 FR 2212; 
January 14, 2004). Section 2.319(l) would be updated to clarify the 
scope of the power of the presiding officer to refer rulings or certify 
questions to the Commission, consistent with the change to Sec.  2.323, 
discussed in the next section.
    7. Section 2.323--Motions.
    The NRC proposes to amend Sec.  2.323(f) to clarify the criteria 
for referrals in this paragraph, and to make the referral criteria 
consistent with the Commission's standards for consideration of such 
referrals. The criterion on ``prompt decision * * * necessary to 
prevent detriment to the public interest or unusual delay or expense'' 
would be removed to make clear that this criterion concerns the prompt 
decision of the Commission. The second criterion on ``the decision or 
ruling involves a novel issue that merits Commission review'' would be 
revised to make clear that: (1) This criterion concerns the presiding 
officer's decision, and (2) the presiding officer's decision must raise 
or create ``significant and novel'' issues that may be either ``legal 
or policy'' in nature.
    8. Section 2.335--Consideration of Commission rules and regulations 
in adjudicatory proceedings.
    Section 2.335 details the procedures through which a challenge to 
the Commission's regulations may be raised as part of an adjudicatory 
proceeding. The current text of the rule limits these challenges to ``a 
party to an adjudicatory proceeding,'' which would seem to exclude 
petitioners from challenging the Commission's regulations. The 
Commission recognizes that challenges to the Commission's regulations 
are frequently contained in petitions to intervene and requests for 
hearing. Further, the Commission recognizes that petitioners may have a 
legitimate interest in raising such challenges before they are granted 
party status and that Atomic Safety and Licensing Boards have allowed 
petitioners to raise these concerns before being admitted as parties. 
See, e.g., Carolina Power and Light Co. (Shearon Harris Nuclear Power 
Plant, Unit 1), LBP-07-11, 66 NRC 41, 57-58 (2007).

    Also, a contention that challenges any Commission rule is 
outside the scope of the proceeding because, absent a waiver, `no 
rule or regulation of the Commission * * * is subject to attack * * 
* in any adjudicatory proceeding.' Similarly, any contention that 
amounts to an attack on applicable statutory requirements must be 
rejected by a licensing board as outside the scope of the 
proceeding. A petitioner may, however, within the adjudicatory 
context submit a request for waiver of a rule under 10 CFR 2.335, 
and outside the adjudicatory context file a petition for rulemaking 
under 10 CFR 2.802 or a request that the NRC Staff take enforcement 
action under 10 CFR 2.206. Id. (citations omitted).

    The NRC is therefore proposing to amend this section to clarify 
that, in accordance with NRC practice, ``participants to an 
adjudicatory proceeding,'' not just parties, may seek a waiver or an 
exception for a particular proceeding.
    9. Section 2.336--General Discovery.
    Section 2.336(d) currently requires parties to update their 
mandatory disclosures every 14 days. Experience with adjudications 
since early 2004 has demonstrated that the current disclosure 
provisions are much more burdensome for litigants than was initially 
anticipated. Part of the burden is the frequency of required updates to 
the mandatory disclosures. The NRC is therefore proposing to replace 
the requirement to disclose information or documents within 14 days of 
discovery with a continuing duty to provide a disclosure update every 
30 days. The Commission is also considering an alternative timeline to 
the proposed rule for disclosure updates. Like the proposed rule, this 
approach would require disclosure updates every thirty days, but, as 
specified hearing milestones approach, this would mirror the 14-day 
disclosure requirements of the current version of Sec.  2.336(d). This 
hearing-sensitive timeline would mitigate the burdens of the current 
rule, while preserving the utility of more frequent disclosure updates 
as hearing milestones approach.
    Each update under the proposed versions of Sec.  2.336(d) would 
include documents subject to disclosure under this section that have 
not been disclosed in a prior update and that are developed, obtained, 
or discovered during the period that runs from five business days 
before the last disclosure update to five business days before the 
filing of the update. It is anticipated that this change to Sec.  
2.336(d) would reduce the burden and increase the robustness of updated 
disclosures. The NRC also proposes to add a sentence to the end of 
Sec.  2.336(d), stating that the duty of mandatory disclosure with 
respect to new information or documents relevant to a contention ends 
when the presiding officer issues a decision on that contention, or 
when otherwise specified by the presiding officer or the Commission.
    10. Section 2.340--Initial decision in certain contested 
proceedings; immediate effectiveness of initial decisions; issuance of 
authorizations, permits, and licenses.
    Sections 2.340(a) and (b) currently imply that the presiding 
officer must reach a decision prior to the issuance of a license or 
license amendment. But this is not necessarily the case. For operating 
licenses associated with production and utilization facilities, both 
the Atomic Energy Act and the NRC's regulations allow for the issuance 
of a license amendment upon a determination of ``no significant hazards 
consideration.'' See, e.g., 42 U.S.C. 2239, 10 CFR 50.91. Further, 
subparts L and N of 10 CFR part 2 allow the staff to act on an 
application, including an application for an initial or renewed 
operating license or operating license amendment, and in proceedings 
for an initial license or license amendment not involving a production 
and utilization facility, prior to the completion of any contested 
hearing, assuming that all other relevant regulatory requirements are 
met. 10 CFR 2.1202(a), 2.1210(c)(3), and 2.1403(a). The NRC is 
proposing to revise Sec.  2.340 to clarify that production and 
utilization facility applications--for an initial license, a renewed 
license, or a license amendment where the NRC has made a determination 
of no significant hazards consideration--could be acted upon prior to 
the completion of a contested hearing. The NRC also would make 
conforming amendments to paragraphs

[[Page 10786]]

(d) and (e) of this section to clarify that in proceedings involving a 
manufacturing license under subpart C of 10 CFR part 52, and in 
proceedings not involving production and utilization facilities, the 
NRC staff--provided it is able to make all of the necessary findings 
associated with the licensing action--may act on a license, permit, or 
license amendment prior to the completion of a contested hearing.
    Finally, this section would be amended to clarify that the 
presiding officer could make findings of fact and conclusions of law on 
any matter not put into controversy by the parties, but only to the 
extent that the presiding officer determines that a serious safety, 
environmental or common defense and security matter exists, and only to 
the extent the Commission, upon a required referral by the presiding 
officer, approves an examination of and decision on the referred 
matters.
    11. Section 2.341--Review of decisions and actions of a presiding 
officer.
    a. Section 2.341(b)--Petitions for review.
    Section 2.341 contains requirements pertaining to the review of 
decisions and actions of a presiding officer by the Commission. Current 
Sec.  2.341(b)(1) allows parties to file a petition for review of a 
full or partial initial decision by a presiding officer or any other 
decision or action by a presiding officer with respect to which a 
petition for review is authorized by this part. Under the current 
regulations a petition for review must be filed with the Commission 
within 15 days of service of the decision. Similarly, Sec.  2.341(b)(3) 
allows other parties to file an answer supporting or opposing 
Commission review within ten days after service of a petition for 
review. And the petitioning party is allowed to file a reply brief 
within five days of service of any answer. Experience has demonstrated 
that the time the NRC's rules allow for petitions for review of an 
order of a presiding officer (15 days) is unnecessarily short, and 
sometimes results in superficial appellate briefs. Most adjudicatory 
bodies allow substantially more time for litigants to frame appellate 
arguments and to perform the necessary research and analysis. Well-
considered briefs enable the appellate body, here the Commission, to 
make faster and better-reasoned decisions. The NRC is therefore 
proposing to extend the time to file a petition for review and an 
answer to the petition from ten to 25 days. The NRC also is proposing 
to extend the time to file a reply to an answer from five to ten days.
    The NRC does not expect the proposed change in appeal deadlines to 
result in any unnecessary delays in licensing. For one thing, higher-
quality briefs should expedite appellate decisionmaking. Moreover, most 
of the appellate litigation at the NRC is preliminary to any final 
licensing decisions; it takes place before the NRC staff finishes its 
safety and environmental reviews and generally does not affect the 
timing of those reviews. Finally, even when a final presiding officer 
decision approving a license comes before the Commission on a petition 
for review, the license can be issued immediately, notwithstanding the 
pendency of a petition for review. See 10 CFR 2.340(f), 2.341(e).
    b. Section 2.341(c)--Petitions for review not acted upon deemed 
denied.
    As stated in the 2004 part 2 revisions, Sec.  2.341 was intended to 
essentially restate the provisions of former Sec.  2.786 (See 69 FR 
2225; January 14, 2004). But the provisions of former Sec.  2.786(c), 
under which petitions for Commission review not acted upon were deemed 
denied, were inadvertently omitted from Sec.  2.341. Accordingly, the 
NRC proposes to add a new Sec.  2.341(c)(1); existing Sec.  2.341(c)(1) 
would be redesignated as Sec.  2.341(c)(2), and existing Sec.  
2.341(c)(2) would be redesignated as Sec.  2.341(c)(3). Proposed Sec.  
2.341(c)(1) would adopt the deemed denied provisions of the former 
Sec.  2.786(c) with the exception of the 30-day time limit, which would 
be extended to allow 120 days for Commission review. As a practical 
matter, the 30-day timeframe has necessitated extensions of time in 
most proceedings, as the prescribed briefing period comprehends 30 
days. A 120-day Commission review period would allow for sufficient 
time to review the filings at the outset, without the unintended 
consequence of the frequent need for extensions. The NRC therefore is 
proposing to adopt the deemed denied provisions of former Sec.  2.786 
with a 120-day time limit as a new Sec.  2.341(c)(1).
    c. Section 2.341(a)--Time to act on a petition for review.
    Section 2.341(a)(2) currently provides the Commission with 40 days 
to act on a decision of a presiding officer or a petition for review. 
The current 40-day timeframe has necessitated extensions of time in 
most proceedings, as the prescribed briefing period comprehends 30 
days, often leaving the Commission insufficient time for an effective 
review of the filings. As discussed above with respect to the ``deemed 
denied'' provision, a 120-day Commission review period provides for a 
reasonable period to review the filings without the unintended 
consequence of the frequent need for extensions. The NRC therefore is 
proposing to extend the time for Commission review from 40 days to 120 
days. As has always been the case, the Commission may act before that 
time or extend that period as it deems necessary.
    d. Section 2.341(f)--Standards for Atomic Safety Licensing Board 
certifications and referrals.
    The NRC proposes to revise paragraph (f) of this section to address 
a perceived inconsistency in the standards for Atomic Safety Licensing 
Board certifications and referrals to the Commission and Commission 
review of these issues. Section 2.323(f) currently allows a presiding 
officer to refer a ruling to the Commission if prompt decision is 
necessary to prevent detriment to the public interest or unusual delay 
or expense, or if the presiding officer determines that the decision or 
ruling involves a novel issue that merits Commission review at the 
earliest opportunity. Current Sec.  2.341(f) states that referred or 
certified rulings ``will be reviewed'' by the Commission only if the 
referral or certification ``raises significant and novel legal or 
policy issues, and resolution of the issues would materially advance 
the orderly disposition of the proceeding'' (emphasis added). This 
language has been interpreted as allowing the Commission to accept 
referrals or certifications only if both standards in Sec.  2.341(f) 
are met, even though Sec.  2.323(f) allows a presiding officer to refer 
or certify a question or ruling if either of the comparable criteria in 
Sec.  2.323(f) is met. Tennessee Valley Authority (Bellefonte Nuclear 
Power Plant, Units 3 and 4), CLI-09-3, 69 NRC 68, 72 (2009). The 
proposed revision to Sec.  2.341(f) would provide the Commission with 
maximum flexibility by allowing, but not requiring, the Commission to 
review an issue if it raises significant legal or policy issues, or if 
resolution of the issue would materially advance the orderly 
disposition of the proceeding, or if both standards are met.
    12. Section 2.346--Authority of the Secretary.
    Currently, Sec.  2.346(j) authorizes the Secretary to ``[t]ake 
action on minor procedural matters.'' Since 2004, experience with the 
subpart C hearing procedures has shown that greater efficiencies could 
be achieved if the Secretary is given explicit authority to take action 
on more than minor procedural matters. The NRC is therefore proposing 
to authorize the Secretary to ``take action on procedural or other 
minor matters.'' This change would allow the Secretary to take action 
on a variety of non-substantive

[[Page 10787]]

procedural matters, such as motions raising matters that do not 
explicitly fit within the Secretary's existing authority (e.g., a 
motion to suspend a hearing notice or the unopposed withdrawal of 
construction and operating license applications). Time is frequently of 
the essence on some minor matters; requiring Commission orders and 
affirmation sessions can sometimes result in undesirable delay in 
issuing needed procedural directives because of the need to schedule 
affirmation sessions. Accordingly, the NRC is proposing to amend Sec.  
2.346(j) to give the Secretary the authority to ``take action on 
procedural or other minor matters.'' The NRC is also proposing removing 
the reference to Sec.  2.311 in paragraph (e). Requests for review 
under Sec.  2.311 are termed ``appeals'' rather than ``petitions for 
review.'' Moreover, there are no deadlines for Commission action on 
appeals under Sec.  2.311.
    13. Section 2.347--Ex parte communications.
    Section 2.347 prohibits what are known as ex parte communications 
between persons outside the NRC and NRC adjudicatory personnel on 
matters relevant to the merits of an ongoing hearing; this section 
currently applies to Sec.  2.204 demands for information. Unlike the 
NRC actions subject to Sec. Sec.  2.104(a), 2.105(e)(2), 2.202(c), 
2.205(e) and 2.312 (which would continue to be referenced in Sec.  
2.347(e)(1)(i) and (ii)), hearing rights do not attach to a demand for 
information because it is not an order; it is a pre-enforcement 
document requesting information. 56 FR 40663, 40670, 40682; August 15, 
1991. The NRC is therefore proposing to amend the ex parte 
communication provisions in Sec.  2.347(e)(1)(i) and (ii) by deleting 
the two references to Sec.  2.204. Formerly, Sec.  2.204 pertained to 
orders for modification of licenses and orders to show cause, and these 
orders did involve the right to a hearing. (50 FR 38113; September 20, 
1985). Thus, when Sec.  2.780--the precursor to Sec.  2.347--was 
established in 1988, the references to Sec.  2.204 were proper. But in 
1991 the references became erroneous when the provisions for orders for 
modification of licenses were deleted and replaced by the Sec.  2.204 
provisions regarding demands for information. Accordingly, the NRC is 
proposing conforming changes to Sec.  2.347(e)(1)(i) and (ii).
    14. Section 2.348--Separation of functions.
    The separation of functions provisions in Sec.  2.348 prohibit 
certain communications between specified sets of NRC personnel on 
matters relevant to the merits of an ongoing adjudicatory hearing. 
Similar to the Sec.  2.347 proposal discussed above, the NRC is 
proposing to correct the separation of functions provisions in Sec.  
2.348(d)(1)(i) and (ii) by deleting the two references to Sec.  2.204. 
As explained above, unlike the other specified NRC actions, hearing 
rights do not attach to a demand for information. When Sec.  2.781--the 
precursor to Sec.  2.348--was established in 1988, the references to 
Sec.  2.204 were proper. But the references became erroneous in 1991 
for the reasons stated above with respect to Sec.  2.347(e)(1)(i) and 
(ii). Accordingly, the NRC is now proposing the conforming changes to 
Sec.  2.348(d)(1)(i) and (ii).

C. Subpart G--Sections 2.700 through 2.713

    1. Section 2.704--Discovery--required disclosures.
    Sections 2.704(a) through (c) set forth the required disclosures 
that parties other than the NRC staff must make in formal NRC 
adjudications. To conform with the timing provisions of Sec.  2.336(d), 
a change in Sec.  2.704(a)(3) is being proposed. Presently, Sec.  
2.704(a)(3) requires that the initial disclosures be made within 45 
days after a prehearing conference order following the initial 
prehearing conference specified in Sec.  2.329. And Sec.  2.704(e) 
requires a party that has made a disclosure under Sec.  2.704 to 
supplement its disclosure if the party learns that in some material 
respect the information disclosed was incomplete or incorrect (provided 
the additional or new information was not made available to other 
parties during the discovery process or in writing). In addition, with 
respect to the testimony of an expert from whom a report is required 
under Sec.  2.704(b), the duty to supplement under Sec.  2.704(e) 
extends to both the information contained in the report and provided 
through a deposition of the expert. The proposed Sec.  2.704(a)(3) 
would require that unless otherwise stipulated or directed by order of 
the presiding officer, a party's initial disclosures must be made 
within 30 days of the order granting a hearing and that parties must 
provide disclosure updates every 30 days. Each update would include 
documents subject to disclosure under this section that have not been 
disclosed in a prior update, and that are developed, obtained, or 
discovered during the period that runs from the last disclosure update 
to 5 business days before the filing of the update.
    2. Section 2.705--Discovery--additional methods.
    Section 2.705(b)(2) allows the presiding officer to ``alter the 
limits in these rules on the number of depositions and 
interrogatories.'' But the rules do not limit the number of depositions 
or interrogatories. The NRC is therefore proposing to amend this 
section to allow the presiding officer to set reasonable limits on the 
number of interrogatories and depositions. This proposed change would 
remove the confusion in this section and improve the efficiency of NRC 
adjudicatory proceedings.
    3. Sections 2.709--Discovery against NRC staff and 2.336--General 
Discovery.
    a. Sections 2.709(a)(6)--Required initial disclosures in 
enforcement proceedings and 2.336--General Discovery.
    The NRC is proposing to amend the NRC staff's mandatory disclosure 
obligations for enforcement proceedings conducted under subpart G of 10 
CFR part 2. The current regulation that applies to these proceedings, 
Sec.  2.336, requires the disclosure of documents that are outside of 
the scope of the enforcement proceeding, which results in the inclusion 
of many unrelated documents in the mandatory disclosures. Therefore, 
the NRC is proposing to amend Sec.  2.336(b) to remove subpart G 
enforcement proceedings from the general discovery requirements; a 
corresponding amendment would be made to Sec.  2.709 to specify the 
staff's disclosure obligations in a subpart G enforcement proceeding. 
This amended section would limit the scope of the staff's disclosures 
to documents relevant to disputed issues alleged with particularity in 
the pleadings. Not only would these amended disclosure requirements 
benefit the NRC staff (by reducing the resources necessary to review, 
prepare, and provide the required documents), but they would also aid 
the other parties to the proceeding (by reducing the number of 
documents they need to review to only documents that are relevant to 
the issues in the proceeding).
    Further, this disclosure requirement would parallel the initial 
document disclosure requirement in Sec.  2.704(a)(2) for parties other 
than the NRC staff. Although parties other than the NRC staff are also 
required by Sec.  2.704(a)(1) to identify individuals likely to have 
discoverable information relevant to disputed issues, the NRC considers 
a similar disclosure requirement for the NRC staff to be unnecessary. 
The discoverable portions of any pertinent Office of Investigations 
report or related inspection report should identify many of the 
individuals likely to have discoverable information relevant to 
disputed issues.

[[Page 10788]]

    Proposed Sec.  2.709(a)(6)(i) would also require that if a claim of 
privilege or protected status is made by the NRC staff for any 
documents, a list of these documents must be provided with sufficient 
information for assessing the claim of privilege or protected status. 
Finally, proposed Sec.  2.709(a)(6)(ii) would require the NRC staff to 
provide disclosure updates every 30 days. Each update would include 
documents subject to disclosure under this section that have not been 
disclosed in a prior update and that are developed, obtained, or 
discovered during the period that runs from 5 business days before the 
last disclosure update to 5 business days before the filing of the 
update, as would be required of other parties by proposed Sec.  
2.704(a)(3).
    b. Section 2.709(a)(7)--Form and type of NRC staff disclosures.
    Proposed Sec.  2.709(a)(7) would specify the manner in which the 
NRC staff may disclose information in subpart G proceedings. For 
publicly available documents, data compilations, or other tangible 
things, the NRC staff's duty to disclose such information to the other 
parties and the presiding officer would be met by identifying the 
location, the title, and a page reference to the subject information. 
If the publicly available documents, data compilations, or other 
tangible things can be accessed at either the NRC Web site, https://www.nrc.gov, or at the NRC Public Document Room, the staff would 
provide the parties and the presiding officer with any citations 
necessary to access this information. This addition parallels Sec.  
2.704(a)(2) for disclosures by parties other than the NRC Staff.

D. Subpart L--Sections 2.1200 Through 2.1213

    1. Subpart L--Title.
    Subpart L of 10 CFR part 2 contains the adjudicatory procedures 
that the NRC uses to conduct most of its licensing proceedings. The 
procedures in subpart L were substantially revised in 2004 (69 FR 2182; 
January 14, 2004), and are intended to be used with the generally 
applicable provisions in subpart C of 10 CFR part 2. Under the 
provisions of 10 CFR part 2 as revised in 2004, a hearing conducted 
under subpart L meets the APA requirements for an ``on the record'' or 
``formal'' hearing. Citizens Awareness Network, Inc. v. NRC, 391 F.3d 
338, 351 (2004). This is true despite the fact that the NRC also 
provides more formal adjudicatory procedures under subpart G of part 2. 
However, the title of subpart L was not revised in 2004 to reflect the 
changed (i.e., less formal) character of its procedures. To eliminate 
any confusion caused by the current title of subpart L, the NRC 
proposes to revise the title of subpart L to ``Simplified Hearing 
Procedures for NRC Adjudications.'' The revised title would reflect 
that these proceedings are less formal than the formal part 2 subpart G 
hearings, but are still formal ``on the record'' hearings under the 
APA, and not ``informal'' hearings as might be inferred from the 
current title.
    2. Section 2.1202--Authority and role of NRC staff.
    Section 2.1202 pertains to the authority and role of the NRC staff 
in less formal hearings. The introductory text of Sec.  2.1202(a) could 
be erroneously interpreted as suggesting that the staff is required to 
advise the presiding officer on the merits of contested matters. The 
NRC proposes to revise Sec.  2.1202(a) to require that in subpart L 
proceedings the staff's notice to parties regarding relevant staff 
licensing actions must include an explanation of why both the public 
health and safety is protected and the action is in accord with the 
common defense and security, despite the ``pendency of the contested 
matter before the presiding officer.''
    A conforming change to the introductory text of Sec.  2.1403(a) 
also is being proposed to require the NRC staff to provide this 
explanation when the same situation arises in subpart N proceedings.
    3. Sections 2.1205 and 2.710--Summary disposition; Motions for 
summary disposition; Authority of the presiding officer to dispose of 
certain issues on the pleadings.
    The summary disposition motion requirements in Sec.  2.1205 do not 
require the inclusion of a statement of material facts. Before the 2004 
amendments to 10 CFR part 2, the NRC's requirements governing motions 
for summary disposition required these motions to be accompanied by a 
``separate, short and concise statement of material facts as to which 
the moving party contends that there is no genuine issue to be heard.'' 
When the summary disposition motion requirements were included in the 
hearing procedures in 10 CFR part 2, subpart L, the requirement for a 
statement of material facts was inadvertently omitted from Sec.  
2.1205. Proposed Sec.  2.1205 would restore the requirement for a 
statement of material facts for which the moving party contends that 
there is no genuine issue. This section would not include the 
requirement for a ``separate'' statement of material facts in dispute, 
as the rule already requires that the statement be ``attached'' to the 
motion. The NRC is proposing a conforming change to Sec.  2.710 to 
remove the word, ``separate,'' which would ensure that Sec. Sec.  2.710 
and 2.1205 are identical in this regard.
    4. Section 2.1209--Findings of fact and conclusions of law.
    Section 2.712(c) specifies the format for proposed findings of fact 
and conclusions of law in subpart G proceedings, but a similar format 
provision does not exist in subpart L. The NRC, therefore, is proposing 
to amend Sec.  2.1209 by adding the format requirements now contained 
in Sec.  2.712(c). These format requirements would aid presiding 
officers in subpart L proceedings by ensuring that proposed findings of 
fact and conclusions of law clearly and precisely communicate the 
parties' positions on the material issues in the proceeding, with exact 
citations to the factual record.
    5. Section 2.1213--No significant hazards consideration 
determinations not subject to stay provisions.
    The proposed amendment to Sec.  2.1213 would add a new paragraph 
(f). The proposed paragraph would exclude from the stay provisions 
matters limited to whether a no significant hazards consideration 
determination for a power reactor license amendment was proper. No 
significant hazards consideration determinations may be made in license 
amendment proceedings for production or utilization facilities that are 
subject to the 10 CFR part 50 requirements; challenges to these 
determinations are not allowed in accordance with 10 CFR 50.58(b)(6). 
Excluding no significant hazards consideration determinations from the 
stay provisions also is consistent with Federal case law holding that 
these findings are final agency actions, which are not appealable to 
the Commission. Center for Nuclear Responsibility, Inc. v. U.S. Nuclear 
Regulatory Comm'n, 586 F.Supp. 579, 580-81 (D.DC 1984).

E. Subpart M--Sections 2.1300 Through 2.1331

    The following changes are being proposed to subpart M of 10 CFR 
part 2, which sets forth the procedures that are applicable to hearings 
on license transfer applications.
    1. Sections 2.1300 and 2.1304--Provisions governing hearing 
procedures for subpart M hearings.
    Section 2.1300 states that the provisions of subpart M, together 
with subpart C, govern all adjudicatory proceedings on license 
transfers, but current Sec.  2.1304 states that the procedures in 
subpart M ``will constitute the exclusive basis for hearings on license 
transfer applications.'' Section 2.1304, part of the original subpart 
M, was effectively replaced by Sec.  2.1300 in

[[Page 10789]]

the 2004 part 2 revisions, and could have been removed as part of that 
rulemaking. The NRC is now proposing to remove Sec.  2.1304 and amend 
Sec.  2.1300 to clarify that, in subpart M hearings on license 
transfers, both the generally applicable intervention provisions in 
subpart C and the specific subpart M hearing procedures govern.
    2. Section 2.1316--Authority and role of NRC staff.
    Section 2.1316(c) provides the procedures for the NRC staff to 
participate as a party in subpart M hearings. These procedures would be 
updated to mirror the requirements of Sec.  2.1202(b)(2) and (3), which 
set forth the NRC staff's authority and role in subpart L hearings. 
Proposed Sec.  2.1316(c)(1) would require the NRC staff--within 15 days 
of the issuance of an order granting requests for hearing or petitions 
to intervene and admitting contentions--to notify the presiding officer 
and the parties whether it desires to participate as a party in the 
proceeding. If the staff decides to participate as a party, its notice 
would identify the contentions on which it will participate as a party. 
If the NRC staff later desires to be a party, the NRC staff would 
notify the presiding officer and the parties, and identify the 
contentions on which it wished to participate as a party, and would 
make the disclosures required by Sec.  2.336(b)(3) through (5) unless 
accompanied by an affidavit explaining why the disclosures cannot be 
provided to the parties with the notice. Once the NRC staff chooses to 
participate as a party in a subpart M license transfer proceeding, it 
would have all the rights and responsibilities of a party with respect 
to the admitted contention or matter in controversy on which the staff 
chose to participate. As with Sec.  2.1202, ``the NRC staff must take 
the proceeding in whatever posture the hearing may be at the time that 
it chooses to participate as a party.'' (69 FR 2228; January 14, 2004).

F. Subpart N--Sections 2.1400 Through 2.1407

    Section 2.1407--Appeal and Commission review of initial decision.
    Current Sec.  2.1407(a)(1) allows parties to appeal orders of the 
presiding officer to the Commission within 15 days after the service of 
the order. Similarly, Sec.  2.1407(a)(3) allows parties that are 
opposed to an appeal to file a brief in opposition within 15 days of 
the filing of the appeal. Experience has demonstrated that the time the 
NRC's rules allow for appeals from an order of a presiding officer is 
unnecessarily short, and sometimes results in superficial appellate 
briefs. Most adjudicatory bodies allow substantially more time for 
litigants to frame appellate arguments and to perform the necessary 
research and analysis. Well-considered briefs enable the appellate 
body, here the Commission, to make faster and better-reasoned 
decisions. The NRC is therefore proposing to extend the time to file an 
appeal and a brief in opposition to an appeal from 15 to 25 days. The 
NRC does not expect the proposed change in appeal deadlines to result 
in any delays in licensing. For one thing, higher-quality briefs should 
expedite appellate decision-making. Moreover, most of the appellate 
litigation at the NRC is preliminary to any final licensing decisions; 
it takes place before the NRC staff finishes its safety and 
environmental reviews and generally does not affect the timing of those 
reviews.

G. Other Changes

    1. Section 2.4--Definitions.
    The current definition of ``Participant'' applies to an 
``individual or organization,'' and does not explicitly apply to 
governmental entities that have petitioned to intervene in a 
proceeding. The NRC proposes to correct this definition by adding a 
parenthetical reference to ``individual or organization'' so that it 
reads: ``individual or organization (including governmental 
entities).''
    The current definition of ``NRC personnel'' in Sec.  2.4 contains 
outdated references to Sec. Sec.  2.336 and 2.1018. The proposed 
revision of ``NRC personnel'' would update this definition by removing 
references to Sec. Sec.  2.336 and 2.1018, neither of which references 
the term ``NRC personnel.''
    2. Section 2.101--Filing of application.
    In 2005, Sec.  2.101 was amended to remove paragraph (e