Non-Substantive Amendments to Adjudicatory Proceeding Requirements, 70435-70439 [2020-24155]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 85, Number 215 (Thursday, November 5, 2020)]
[Rules and Regulations]
[Pages 70435-70439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24155]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 2

[NRC-2020-0033]
RIN 3150-AK46


Non-Substantive Amendments to Adjudicatory Proceeding 
Requirements

AGENCY: Nuclear Regulatory Commission.

ACTION: Direct final rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its 
regulations to revise and clarify the agency's rules of practice and 
procedure to reflect current Atomic Safety and Licensing Board Panel 
practice, Commission case law, and a decision of the Supreme Court of 
the United States and to enhance consistency within the NRC's 
regulations.

DATES: This final rule is effective January 19, 2021, unless 
significant adverse comments are received by December 7, 2020. If the 
direct final rule is withdrawn as a result of such comments, timely 
notice of the withdrawal will be published in the Federal Register. 
Comments received after this date will be considered if it is practical 
to do so, but the NRC is able to ensure consideration only for comments 
received on or before this date. Comments received on this direct final 
rule will also be considered to be comments on a companion proposed 
rule published in the Proposed Rules section of this issue of the 
Federal Register.

ADDRESSES: You may submit comments by any of the following methods:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2020-0033. Address 
questions about NRC dockets to Dawn Forder; telephone: 301-415-3407; 
email: [email protected]. For technical questions, contact the 
individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     Email comments to: [email protected]. If you do 
not receive an automatic email reply confirming receipt, then contact 
us at 301-415-1677.
     Mail comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and 
Adjudications Staff.
    For additional direction on obtaining information and submitting 
comments, see ``Obtaining Information and Submitting Comments'' in the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Ian Irvin, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; 
telephone: 301-287-9193; email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Obtaining Information and Submitting Comments
II. Rulemaking Procedure
III. Background
IV. Discussion
V. Plain Writing
VI. National Environmental Policy Act
VII. Paperwork Reduction Act Act
VIII. Congressional Review Act

I. Obtaining Information and Submitting Comments

A. Obtaining Information

    Please refer to Docket ID NRC-2020-0033 when contacting the NRC 
about the availability of information for this action. You may obtain 
publicly available information related to this action by any of the 
following methods:

[[Page 70436]]

     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2020-0033.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly available documents online in the 
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS 
Search.'' For problems with ADAMS, please contact the NRC's PDR 
reference staff at 1-800-397-4209, at 301-415-4737, or by email to 
[email protected]. The ADAMS accession number for each document 
referenced (if it is available in ADAMS) is provided the first time 
that it is mentioned in this document.
     Attention: The Public Document Room (PDR), where you may 
examine and order copies of public documents, is currently closed. You 
may submit your request to the PDR via email at [email protected] or 
call 1-800-397-4209 between 8:00 a.m. and 4:00 p.m. (EST), Monday 
through Friday, except Federal holidays.

B. Submitting Comments

    The NRC encourages electronic comment submission through the 
Federal Rulemaking website (https://www.regulations.gov). Please 
include Docket ID NRC-2020-0033 in your comment submission.
    The NRC cautions you not to include identifying or contact 
information that you do not want to be publicly disclosed in your 
comment submission. The NRC will post all comment submissions at 
https://www.regulations.gov as well as enter the comment submissions 
into ADAMS. The NRC does not routinely edit comment submissions to 
remove identifying or contact information.
    If you are requesting or aggregating comments from other persons 
for submission to the NRC, then you should inform those persons not to 
include identifying or contact information that they do not want to be 
publicly disclosed in their comment submission. Your request should 
state that the NRC does not routinely edit comment submissions to 
remove such information before making the comment submissions available 
to the public or entering the comment into ADAMS.

II. Rulemaking Procedure

    Because the NRC considers this action to be non-controversial, the 
NRC is using the ``direct final rule procedure'' for this rule. This 
amendment to the rule will become effective on January 19, 2021. 
However, if the NRC receives significant adverse comments on this 
direct final rule by December 7, 2020, then the NRC will publish a 
document that withdraws this action and will subsequently address the 
comments received in a final rule as a response to the companion 
proposed rule published in the Proposed Rules section of this issue of 
the Federal Register. Absent significant modifications to the proposed 
revisions requiring republication, the NRC will not initiate a second 
comment period on this action.
    A significant adverse comment is a comment where the commenter 
explains why the rule would be inappropriate, including challenges to 
the rule's underlying premise or approach, or would be ineffective or 
unacceptable without a change. A comment is adverse and significant if:
    (1) The comment opposes the rule and provides a reason sufficient 
to require a substantive response in a notice-and-comment process. For 
example, a substantive response is required when:
    (a) The comment causes the NRC to reevaluate (or reconsider) its 
position or conduct additional analysis;
    (b) The comment raises an issue serious enough to warrant a 
substantive response to clarify or complete the record; or
    (c) The comment raises a relevant issue that was not previously 
addressed or considered by the NRC.
    (2) The comment proposes a change or an addition to the rule, and 
it is apparent that the rule would be ineffective or unacceptable 
without incorporation of the change or addition.
    (3) The comment causes the NRC to make a change (other than 
editorial) to the rule.
    For detailed instructions on filing comments, please see the 
ADDRESSES section of this document.

III. Background

    The NRC's regulations governing the conduct of adjudicatory 
proceedings before the agency are contained in part 2 of title 10 of 
the Code of Federal Regulations (10 CFR), ``Agency Rules of Practice 
and Procedure.'' Periodically, the NRC has amended these rules, 
including adopting changes in 2004 to enhance efficiency; in 2012 to 
promote fairness, efficiency, and openness; and in 2016 to reflect 
technological advances and current agency practice. Since the last 
update to the agency's rules of practice and procedure, the NRC has 
identified additional provisions that should be updated to reflect 
technological advances and current agency practice. This direct final 
rule makes those updates and clarifies that any administrative law 
judge designated to preside over an NRC adjudication must be appointed 
by the Commission consistent with the Supreme Court decision in Lucia 
v. Securities and Exchange Commission (138 S. Ct. 2044 (2018)).

IV. Discussion

Appointment of Administrative Law Judges

    This direct final rule revises Sec.  2.313(a) to clarify that any 
Administrative Law Judge (ALJ) designated to preside in a 10 CFR part 2 
proceeding must be appointed by the Commission, consistent with the 
Supreme Court's decision in Lucia v. Securities and Exchange 
Commission. Part 2 permits the use of an ALJ as presiding officer in an 
NRC adjudication, although the agency does not currently employ any 
ALJs (members of the Atomic Safety and Licensing Board Panel are not 
ALJs but are administrative judges whose appointments are already 
approved by the Commission). In addition, this direct final rule 
updates the definition of ``administrative law judge'' in Sec.  2.4, 
which cites an outdated section of the Administrative Procedure Act, by 
citing to the correct statutory authority for the appointment of ALJs.

Timely Renewal

    This direct final rule revises Sec.  2.109 by adding new paragraph 
(e), which provides that if an Independent Spent Fuel Storage 
Installation licensee submits a renewal application at least 2 years 
before the license expires, the existing license will continue in 
effect until a final decision is reached on the application. New 
paragraph (e) provides consistency between Sec. Sec.  2.109 and 
72.42(c) of the NRC's regulations. Conforming changes are made to Sec.  
2.109(a) to reflect the addition of new paragraph (e).

Orders

    This direct final rule revises Sec.  2.202 by redesignating 
paragraph (a)(3) as paragraph (a)(3)(i) and adding a new paragraph 
(a)(3)(ii), which clarifies that a person other than the recipient of 
an order under that section who may be adversely affected by the order 
must meet the requirements of Sec.  2.309 when requesting a hearing. 
Section 2.202(a)(3)(i) is revised to clarify that the recipient of an 
order has the right to demand a hearing on all or part of the order 
within 20 days of the date of the order.

Motions

    This direct final rule revises Sec.  2.323 to clarify that the 
deadlines for general motions do not apply to motions for summary 
disposition.

[[Page 70437]]

Evidentiary Exhibit Submission Requirements

    This direct final rule updates the evidentiary exhibit submission 
requirements to reflect the current practices of using the E-Filing 
system to submit exhibits unless the Commission or presiding officer 
grants an exemption permitting an alternative filing method or unless 
the filing falls within the scope of Sec.  2.302(g)(1). This direct 
final rule revises Sec. Sec.  2.337(d) and 2.711(h) to require that 
information referenced through hyperlinks must be submitted in its 
entirety, either in the exhibit or in a separate exhibit, if a party 
wants that information included in the evidentiary record.

Separation of Functions

    This direct final rule revises the separation of functions 
provision to include employees in the Office of Commission Appellate 
Adjudication in Sec.  2.348(b)(2). The rule generally prohibits 
communications between NRC officers or employees engaged in 
investigative or litigating functions in the proceeding or in a 
factually related proceeding with respect to a disputed issue in that 
proceeding. The rule also sets forth various types of communications 
that are permissible. The direct final rule adds employees in the 
Office of Commission Appellate Adjudication to the list of Commission 
adjudicatory employees covered by the exception in paragraph (b)(2) to 
the general prohibition set forth in paragraph (a).

Deposition Transcripts in Subpart G Proceedings

    This direct final rule revises Sec.  2.706(a)(5) for forwarding 
deposition transcripts to the Commission consistent with the agency's 
E-filing rules. This revision requires the party that took the 
deposition to promptly transmit an electronic copy of the deposition to 
the Secretary of the Commission for entry into the electronic docket.

Part 2 Subpart L Model Milestones

    This direct final rule makes a conforming change to the Subpart L 
Model Milestones in appendix B to 10 CFR part 2 to replace ``late-filed 
contentions'' with ``new or amended contentions filed after the 
deadline.'' The NRC issued a final rule in 2012, titled ``Amendments to 
Adjudicatory Process Rules and Related Requirements'' (77 FR 46562), to 
discontinue using the terms ``late-filed'' or ``nontimely'' with regard 
to such contentions and instead use ``new or amended contentions filed 
after the deadline.'' The current Subpart L Model Milestones refer to 
``late-filed contentions'' in three places. This direct final rule 
updates this language to ``new or amended contentions filed after the 
deadline'' consistent with the 2012 final rule.
    This direct final rule also revises the Subpart L Model Milestones 
in appendix B to 10 CFR part 2 to separate the model milestone for 
filing proposed new or amended contentions filed after the deadline and 
the model milestone for filing motions for summary disposition on 
previously admitted contentions. This change is made for clarity. New 
or amended contentions filed after the deadline would continue to be 
due within 30 days after issuance. Motions for summary disposition on 
previously admitted contentions would continue to be due within 30 days 
of the issuance of the SER and any necessary NEPA document.

V. Plain Writing

    The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal 
agencies to write documents in a clear, concise, and well-organized 
manner. The NRC has written this document to be consistent with the 
Plain Writing Act as well as the Presidential Memorandum, ``Plain 
Language in Government Writing,'' published June 10, 1998 (63 FR 
31883).

VI. National Environmental Policy Act

    The NRC has determined that this final rule is the type of action 
described in 10 CFR 51.22(c)(1). Therefore, neither an environmental 
impact statement nor environmental assessment has been prepared for 
this final rule.

VII. Paperwork Reduction Act

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

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless the document requesting 
or requiring the collection displays a currently valid OMB control 
number.

VIII. Congressional Review Act

    This direct final rule is a rule as defined in the Congressional 
Review Act (5 U.S.C. 801-808). However, the Office of Management and 
Budget has not found it to be a major rule as defined in the 
Congressional Review Act.

List of Subjects in 10 CFR Part 2

    Administrative practice and procedure, Antitrust, Byproduct 
material, Classified information, Confidential business information, 
Freedom of information, Environmental protection, Hazardous waste, 
Nuclear energy, Nuclear materials, Nuclear power plants and reactors, 
Penalties, Reporting and recordkeeping requirements, Sex 
discrimination, Source material, Special nuclear material, Waste 
treatment and disposal.

    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--AGENCY RULES OF PRACTICE AND PROCEDURE

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

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


0
2. In Sec.  2.4, revise the definition of ``Administrative Law Judge'' 
to read as follows:


Sec.  2.4   Definitions.

* * * * *
    Administrative Law Judge means an individual appointed by the 
Commission pursuant to 5 U.S.C. 3105 to conduct proceedings subject to 
this part.
* * * * *

0
3. In Sec.  2.109, revise paragraph (a) and add paragraph (e) to read 
as follows:


Sec.  2.109   Effect of timely renewal application.

    (a) Except for the renewal of licenses identified in paragraphs (b) 
through (e) of this section, if at least 30 days before the expiration 
of an existing license authorizing any activity of a continuing nature, 
the licensee files an application for a renewal or for a new license 
for the activity so authorized, the existing license will not be deemed 
to have

[[Page 70438]]

expired until the application has been finally determined.
* * * * *
    (e) If the licensee of an Independent Spent Fuel Storage 
Installation (ISFSI) licensed under subpart C of part 72 of this 
chapter files a sufficient application for renewal under Sec.  72.42 of 
this chapter at least 2 years before the expiration of the existing 
license, the existing license will not be deemed to have expired until 
the application has been finally determined.

0
4. In Sec.  2.202, redesignate paragraph (a)(3) as paragraph (a)(3)(i) 
and revise the newly redesignated paragraph, and add paragraph 
(a)(3)(ii) to read as follows:


Sec.  2.202  Orders.

    (a) * * *
    (3)(i) Inform the licensee or any other person to whom the order 
was issued of their right, within twenty (20) days of the date of the 
order, or within such other time as may be specified in the order, to 
demand a hearing on all or part of the order, except in a case where 
the licensee or other person to whom the order was issued has consented 
in writing to the order;
    (3)(ii) State that a request for a hearing by any other person who 
may be adversely affected by the order must be made within twenty (20) 
days of the date of the order, or within such other time as may be 
specified in the order, and must meet the requirements of Sec.  2.309;
* * * * *

0
5. In Sec.  2.313, revise paragraph (a)(1) to read as follows:


Sec.  2.313  Designation of presiding officer, disqualification, 
unavailability, and substitution.

    (a) * * *
    (1) An Atomic Safety and Licensing Board appointed under Section 
191 of the Atomic Energy Act of 1954, as amended, or an administrative 
law judge appointed by the Commission pursuant to 5 U.S.C. 3105, for a 
hearing conducted under subparts G, J, K, L, or N of this part; or
* * * * *

0
6. In Sec.  2.323, revise paragraphs (a)(2) and (c) to read as follows:


Sec.  2.323   Motions.

    (a) * * *
    (2) Presentation and disposition. All motions must be addressed to 
the Commission or other designated presiding officer. All motions, 
other than motions for summary disposition, must be made no later than 
ten (10) days after the occurrence or circumstance from which the 
motion arises. All written motions must be filed with the Secretary and 
served on all parties to the proceeding.
* * * * *
    (c) Answers to motions. For all written motions, other than motions 
for summary disposition, within ten (10) days after service of the 
motion, or other period as determined by the Secretary, the Assistant 
Secretary, or the presiding officer, a party may file an answer in 
support of or in opposition to the motion, accompanied by affidavits or 
other evidence. The moving party has no right to reply, except as 
permitted by the Secretary, the Assistant Secretary, or the presiding 
officer. Permission may be granted only in compelling circumstances, 
such as where the moving party demonstrates that it could not 
reasonably have anticipated the arguments to which it seeks leave to 
reply.
* * * * *

0
7. In Sec.  2.337, revise paragraph (d) to read as follows:


Sec.  2.337  Evidence at a hearing.

* * * * *
    (d) Exhibits. Exhibits must be filed through the agency's E-Filing 
system, unless the presiding officer grants an exemption permitting an 
alternative filing method under Sec.  2.302(g)(2) or (g)(3) or unless 
the filing falls within the scope of Sec.  2.302(g)(1) as not being 
subject to electronic transmission. When an exhibit is not filed 
through the E-Filing system, the presiding officer may permit a party 
to replace with a true copy an original document admitted into 
evidence. Information that a party references through hyperlinks in an 
exhibit must be submitted by that party, in its entirety, either as 
part of the exhibit or as a separate exhibit, for that information to 
be included in the evidentiary record.
* * * * *

0
8. In Sec.  2.348, revise paragraph (b)(2) introductory text to read as 
follows:


Sec.  2.348   Separation of functions.

* * * * *
    (b) * * *
    (2) Communications to or from Commissioners, members of their 
personal staffs, employees of the Office of Commission Appellate 
Adjudication, Commission adjudicatory employees in the Office of the 
General Counsel, and the Secretary and employees of the Office of the 
Secretary, regarding--
* * * * *

0
9. In Sec.  2.706, revise paragraph (a)(5) to read as follows:


Sec.  2.706   Depositions upon oral examination and written 
interrogatories; interrogatories to parties.

    (a) * * *
    (5) When the testimony is fully transcribed, the deposition must be 
submitted to the deponent for examination and signature unless he or 
she is ill, cannot be found, or refuses to sign. The officer shall 
certify the deposition or, if the deposition is not signed by the 
deponent, shall certify the reasons for the failure to sign. The 
deposing party shall promptly transmit an electronic copy of the 
deposition to the Secretary of the Commission for entry into the 
electronic docket.
* * * * *

0
10. In Sec.  2.711, revise paragraph (h) to read as follows:


Sec.  2.711   Evidence.

* * * * *
    (h) Exhibits. Exhibits must be filed through the agency's E-Filing 
system, unless the presiding officer grants an exemption permitting an 
alternative filing method under Sec.  2.302(g)(2) or (g)(3) or unless 
the filing falls within the scope of Sec.  2.302(g)(1) as not being 
subject to electronic submission. When an exhibit is not filed through 
the E-Filing system, the presiding officer may permit a party to 
replace with a true copy an original document admitted into evidence. 
Information that a party references through hyperlinks in an exhibit 
must be submitted by that party, in its entirety, either as part of the 
exhibit or as a separate exhibit, for that information to be included 
in the evidentiary record.
* * * * *

0
11. In appendix B to part 2, under section II, revise the table ``Model 
Milestones [10 CFR Part 2, Subpart L]'' 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.

* * * * *

II. * * *

[[Page 70439]]



                            Model Milestones
                       [10 CFR part 2, subpart L]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 Within 140 days of publication  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.
 Within 30 days of issuance of   Proposed new or amended
 SER and any necessary NEPA document.     contentions filed after the
                                          deadline on SER and necessary
                                          NEPA documents due.
 Within 30 days of issuance of   Motions for summary disposition
 SER and any necessary NEPA document.     on previously admitted
                                          contentions due.
 Within 85 days of issuance of   Presiding officer decision on
 SER and NEPA document.                   admission of proposed new or
                                          amended contentions filed
                                          after the deadline 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 new or amended       mandatory disclosures.
 contentions filed after the deadline.
 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.
------------------------------------------------------------------------

* * * * *

    Dated October 21, 2020.

    For the Nuclear Regulatory Commission.
Margaret M. Doane,
Executive Director for Operations.
[FR Doc. 2020-24155 Filed 11-4-20; 8:45 am]
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