[Federal Register Volume 63, Number 232 (Thursday, December 3, 1998)]
[Rules and Regulations]
[Pages 66721-66735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32211]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2 and 51
RIN 3150-AG09
Streamlined Hearing Process for NRC Approval of License Transfers
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission is amending its regulations
to provide specific uniform procedures and rules of practice for
handling requests for hearings associated with license transfer
applications involving material and reactor licenses as well as
licenses issued under the regulations governing the independent storage
of spent nuclear fuel and high-level radioactive waste. Conforming
amendments are also made to certain other parts of the Commission's
regulations. These new provisions provide for public participation and
opportunity for an informal hearing on matters relating to license
transfers, specify procedures for filing and docketing applications for
license transfers, and assign appropriate authorities for issuance of
administrative amendments to reflect approved license transfers. This
rulemaking also adds a categorical exclusion that permits processing of
transfer applications without preparation of Environmental Assessments.
EFFECTIVE DATE: December 3, 1998.
FOR FURTHER INFORMATION CONTACT: James A. Fitzgerald, U.S. Nuclear
Regulatory Commission, Washington, D.C. 20555-0001, telephone (301)
415-1607, e-mail [email protected], or Leo Slaggie, U.S. Nuclear Regulatory
Commission, Washington, D.C. 20555, telephone (301) 415-1605 (TDD), e-
mail [email protected]
SUPPLEMENTARY INFORMATION:
I. Background
On September 11, 1998 (63 FR 48644), the NRC published in the
Federal Register a proposed rule that would amend NRC's regulations by
adding to 10 CFR Part 2, the NRC's Rules of Practice for Domestic
Licensing Proceedings and Issuance of Orders, a subpart M, which would
establish uniform informal procedures for handling requests for
hearings associated with license transfer applications. This initiative
is part of a broad effort to improve the effectiveness of the agency's
programs and processes.
A number of categories of NRC licensees, but in particular the
electric power industry, have undergone and will continue to undergo
significant transformations as a result of changes to the economic and
regulatory environment in which they operate. Electric utilities in
particular are now operating in an environment which is increasingly
characterized by restructuring and organizational change. In recent
years, the Commission has seen a significant increase in the number of
requests for transfers of NRC licenses. The number of requests related
to reactor licenses has increased from a historical average of 2-3 per
year to more than 20 requests in fiscal year 1997. With the
restructuring that the energy industry is undergoing, the Commission
expects this high rate of requests for approval of license transfers to
continue. Because of the need for expeditious decisionmaking from all
agencies, including the Commission, for these kinds of transactions,
timely and effective resolution of requests for transfers on the part
of the Commission is essential.
In general, license transfers do not involve any technical changes
to plant operations. Rather, they involve changes in ownership or
partial ownership of facilities at a corporate level. Section 184 of
the Atomic Energy Act of 1954, as amended (AEA), specifies, however,
that:
[N]o license granted hereunder * * * shall be transferred,
assigned, or in any manner disposed of, either voluntarily or
involuntarily, directly or indirectly, through
[[Page 66722]]
transfer of control of any license to any person, unless the
Commission shall, after securing full information, find that the
transfer is in accordance with the provisions of this Act, and shall
give its consent in writing. (42 U.S.C. 2234; 10 CFR 30.34 (b),
40.46, 50.80, 72.50)
Transfers falling within the foregoing provision include indirect
transfers which might entail, for example, the establishment of a
holding company over an existing licensee, as well as direct transfers,
such as transfer of an ownership interest held by a non-operating,
minority owner, and the complete transfer of the ownership and
operating authority of a single or majority owner. Although other
requirements of the Commission's licensing provisions may also be
addressed to the extent relevant to the particular transfer action,
typical NRC staff review of such applications consists largely of
assuring that the ultimately licensed entity has the capability to meet
financial qualification and decommissioning funding aspects of NRC
regulations. These financial capabilities are important over the long
term, but have no direct or immediate impact on the requirements for
day-to-day operations at a licensed facility. The same is generally
true of applications involving the transfer of materials licenses.
Notwithstanding the nature of the issues relevant to a decision on
whether to consent to a license transfer, past Commission practice has
generally involved the use of formal hearing procedures under the
provisions of 10 CFR Part 2, Subpart G, for license transfers other
than those for materials licenses, which have used the informal hearing
procedures provided by 10 CFR Part 2, Subpart L. However, license
transfers do not, as a general proposition, involve the type of
technical issues with immediate impact on the actual operation of the
facilities that might benefit from review by a multi-member, multi-
disciplined Atomic Safety and Licensing Board historically used by the
Commission in hearings on initial licensing or license amendments that
substantially affect the technical operations. It is a matter suitable
for reasonable discussion whether such complex hearing procedures
provide the best means of reaching decisions on such technical issues,
but, be they the best or not, they clearly are not required and are not
the most efficient means for resolving the issues encountered in
license transfers. Accordingly, the Commission has determined that
requests for hearings on applications for license transfers should be
handled by a separate Subpart of 10 CFR Part 2. This new Subpart M
establishes an efficient and appropriate informal process for handling
hearing requests associated with transfer applications commensurate
with the nature of the issues involved and the rights of all parties.
The basic requirement for an opportunity for a hearing on a license
transfer is found in Section 189.a of the Atomic Energy Act of 1954, as
amended (AEA), which provides that:
[I]n any proceeding under this Act, for the granting,
suspending, revoking, or amending of any license or construction
permit, or application to transfer control, * * * the Commission
shall grant a hearing upon the request of any person whose interest
may be affected by the proceeding, and shall admit any such person
as a party to such proceeding. (42 U.S.C. 2239(1).)
The Commission believes that AEA sections 184 and 189 give the
Commission the flexibility to fashion procedures which provide for a
fair process to consider any issues raised concerning license transfers
while still proceeding in an expedited manner. In 1983, a reviewing
court held that Section 189.a of the Atomic Energy Act did not require
that a hearing on a materials license amendment be conducted ``on the
record.'' City of West Chicago v. U.S. Nuclear Regulatory Commission,
701 F.2d 632, 641-45 (7th Cir. 1983). There, the court declined to read
Section 189.a as requiring formal trial-type hearings, in the absence
of clear Congressional ``intent to trigger the formal on-the-record
hearing provisions of the APA.'' Id. at 641. The Commission has also
taken the position in court that Section 189.a does not require formal
hearings in reactor licensing proceedings. En Banc Brief for
Respondents dated August 30, 1991 (filed in the U.S. Court of Appeals
for the District of Columbia Circuit, No. 89-1381, Nuclear Information
and Resource Service v. NRC, at pp. 32-38). However, the court did not
find it necessary to decide the question. Nuclear Information Resource
Services v. NRC, 969 F.2d 1169, 1180 (D.C. Cir. 1992).
To promote uniformity, the hearing procedures established in the
final rule apply to all license transfers which require prior NRC
approval. The Commission has added to the final rule, as appropriate,
additional language to make explicit that the new procedures apply to
transfers of licenses issued under 10 CFR Part 72 for independent
storage of spent nuclear fuel and high level radioactive waste. The
procedures are designed to provide for public participation in the
event of requests for a hearing under these provisions, while at the
same time providing an efficient process that recognizes the time-
sensitivity normally present in transfer cases.
II. Comments and Commission Responses
The Commission received sixteen letters of comment from interested
persons. Commenters included private corporations who hold or plan to
acquire NRC licenses for nuclear facilities, the Nuclear Energy
Institute, private counsel representing electric utilities and nuclear
plant operating companies, a licensed nuclear power plant operator
employed at a nuclear power station, the president of Local 369 of the
Utility Workers Union of America representing workers at a nuclear
power station, a citizens group, and an individual member of the
public. Twelve of the Commenters expressed strong support for the
proposed rule and provided specific comments and suggestions on
particular provisions. Two Commenters, the individual member of the
public and the citizens group, indicated strong but general opposition
to the proposed Subpart M hearing process.
A review of the comments, not necessarily in the order received,
and the Commission's responses follows:
Comments from individuals:
Comment 1. Mr. Marvin Lewis, a member of the public, opposed the
adoption of informal procedures for hearings on license transfer
applications. Mr. Lewis's brief comment expressed concern that under
the proposed procedures there will be no record upon which findings of
fact and conclusions of law may rest and that ``general findings'' will
suffice to support a license transfer.
Commission response. The Commission believes the commenter has not
fully understood the proposal. While the procedures do not allow
discovery as such, there will be an extensive record consisting of the
hearing transcript, exhibits, and all papers filed or issued in
connection with the hearing. See Sec. 2.1317. The Presiding Officer
will certify the completed hearing record to the Commission, which will
then issue its decision on the issues raised in the hearing or request
additional testimony and/or documentary evidence if it finds that
additional evidentiary presentations are needed for a decision on the
merits. See Sec. 2.1320. The Commission does not understand Mr. Lewis's
reference to ``general findings'' in the context of this rulemaking.
Before approving a license transfer the Commission must find that the
transfer is in accordance with the provisions of
[[Page 66723]]
the Atomic Energy Act (42 U.S.C. 2234). This finding will necessarily
address the specifics of the transfer in question. Nothing in the rule
alters the nature of the findings needed to support approval of a
license transfer.
Comment 2. The Ohio Citizens for Responsible Energy (``OCRE'')
generally opposed the proposed rule. OCRE characterizes the Subpart M
informal procedures as ``a pro forma exercise'' that in OCRE's view
will not be adequate to deal with the complex inquiry that could arise
in a license transfer proceeding. OCRE also objects to shortened filing
times and to the requirement that common interests be represented by a
single party. OCRE sees such provisions as ``attempts to make life
difficult for intervenors.''
Commission response. For the reasons given in the notice of
proposed rulemaking, the Commission believes that the Subpart M
procedures will be both efficient and effective in dealing with the
issues that license transfer application proceedings typically involve.
They are not ``pro forma'' but in fact provide ample opportunity for
the parties to raise appropriate issues and build a sound evidentiary
record for decision. At the same time, the Commission recognizes that
issues might arise that could require additional procedures. Therefore
the rule explicitly provides that the Commission may use additional
procedures or even convene a formal hearing ``on specific and
substantial disputes of fact necessary for the Commission's decision,
that cannot be resolved with sufficient accuracy except in a formal
hearing.'' See Sec. 2.1322(d). The rule thus provides sufficient
flexibility to cope with extraordinary or unusual cases. For typical
cases, however, a ``streamlined hearing process'' providing faster
decision-making without loss of quality is a desirable objective. The
shortened filing times and other provisions to which OCRE objects are
steps which make this streamlining possible. They are not selective
attempts to burden intervenors. The Commission believes that all
parties to a license transfer application proceeding will benefit from
the use of the Subpart M procedures.
Comment 3. Mr. David Leonardi, a licensed reactor operator,
submitted a two-part comment ``directed more to what is missing in the
proposed rule rather than to what it contains.'' First, Mr. Leonardi
questioned the Commission's statement in the notice of proposed
rulemaking that license transfers in general ``do not involve . . .
significant changes in personnel of consequence to the continued
reasonable assurance of public health and safety.'' Mr. Leonardi called
this ``a dangerous assumption'' and expressed his view that
``significant losses of critical personnel must be anticipated and
factored into the transfer decision.'' He suggested that the proposed
rule ``must require the applicant to submit a critical staff retention
plan.''
Second, with regard to the placement in the Public Document Room of
documents pertaining to each license transfer application, Sec. 2.1303,
Mr. Leonardi commented that he finds the Public Document Room difficult
to use. He indicated his preference for ``a separate section on the NRC
web site for each proposed license transfer where all relevant
documents and correspondence may be accessed.''
Commission response. Mr. Leonardi is correct that if a significant
loss and replacement of critical plant personnel can be anticipated as
the result of a particular license transfer this might well be a reason
not to approve the transfer or to condition the transfer on the
maintenance of adequate technical qualifications. However, the
Commission does not regard this observation as a reason for modifying
this proposed rule, which deals with hearing procedures rather than
with the substantive findings that must be made to support approval of
a license transfer application. The commenter does not assert that the
Subpart M procedures cannot deal adequately with the issue of technical
qualifications of the applicant for license transfer, and the
Commission perceives no potential inadequacy in this regard. The
Commission continues to believe that personnel retention issues and
technical qualifications of the applicant do not involve the type of
technical questions bearing on the actual operation of a facility that
may benefit from different hearing procedures. As for the commenter's
suggestion that the rule should incorporate a requirement for a
critical staff retention plan to be submitted by the applicant for the
license transfer, the Commission finds that Subpart M, which deals
primarily with hearing procedures, is not an appropriate place for such
a substantive requirement. If, in a particular license transfer case, a
need is identified for submission of a critical staff retention plan in
order to address the applicant's technical qualifications, this matter
can readily be addressed in the hearing process and can ultimately
result in a condition on license transfer approval.
Turning to the matter of availability of license transfer
application documents on the NRC web site, the Commission notes that
the NRC is in the process of developing a new and comprehensive
Agencywide Documents Access and Management System (``ADAMS'').
Documents filed in a license transfer case after ADAMS becomes
operational, probably in the second half of 1999, will be placed in the
ADAMS public library. The public will be able to find relevant
documents by using general search criteria such as docket numbers, case
names, and subject topics. The details of how ADAMS will operate have
yet to be fully worked out, but the Commission believes that this
system will prove responsive to the commenter's concern. In the
meantime, the Commission notes that the NRC Public Document Room
licensing files have worked quite well in the past and been readily
available to members of the public who wish to obtain extensive
information on pending licensing actions.
Comment 4. A comment by the president of Local 369, Utility Workers
Union of America, representing 197 workers at a nuclear power station,
acknowledged the need to streamline the hearing process but identified
what the commenter perceived as potential problems with the proposed
Subpart M procedures. In particular, the commenter was concerned about
the Commission's expectation that the procedures will result in the
issuance of a final Commission decision on a license transfer
application within about six to eight months of notice of receipt of
the application. The commenter said that ``a process that proceeds too
rapidly could compromise the Union's and the NRC's ability to obtain
critical information about the license transferee.'' The Commission of
course agrees that what the commenter calls ``a rush to approval''
could fail to obtain adequate information about the transferee's
experience and ability to manage the plant safely. The Commission
notes, however, that the expectation of completing license transfer
proceedings in six to eight months applies to ``routine cases.'' (63 FR
48646, col. 2.) Subpart M itself does not specify or limit the
substantive questions which must be addressed in license transfer
proceedings. If difficult issues arise in unusual cases, they will be
dealt with as sound decisionmaking requires, even if this requires a
greater time commitment than routine cases. The Commission's aim in
adopting the Subpart M procedures is to provide an efficient and
effective hearing process and a structure for compiling a decision
record in a timely manner, not a hurried one.
The commenter also expressed concern that the Union not be denied
the opportunity to participate in license transfer hearings. The new
Subpart M
[[Page 66724]]
does not alter the Commission's usual requirement for standing to
intervene in a proceeding that a person show an interest which may be
affected by the outcome of the proceeding. By showing an interest
(within the ``zone of interests'' of the relevant statutes) which may
be affected by the Commission's action on an application for license
transfer, any person or organization may participate as of right. See
Sec. 2.1306(a). Under current agency case law, the Commission may also
allow discretionary intervention to a person who does not meet standing
requirements, where there is reason to believe the person's
participation will make a valuable contribution to the proceeding and
where a consideration of the other criteria on discretionary
intervention shows that such intervention is warranted.
Comments by or on behalf of members of the nuclear energy industry:
Comment 5. The Nuclear Energy Institute (``NEI''), an organization
representing utilities licensed to operate commercial nuclear power
plants in the United States, nuclear materials licensees, and other
organizations and individuals involved in the nuclear industry,
submitted a comment on behalf of its members. NEI supports as a ``very
positive development'' the use of informal rather than formal trial-
type procedures for consideration of license transfer applications. NEI
suggests the goals of the rule can be furthered by the following
proposed clarification: ``Where the proposed change only involves a
transfer of ownership of all or a portion of the facility, both NRC
staff review and the Subpart M proceeding should be limited solely to
the capability of the transferee to meet financial qualifications and
decommissioning funding requirements.'' Several comments by individual
members of the nuclear energy industry or their representatives
endorsed the comments of NEI.
Commission response. The Commission does not accept NEI's proposed
clarification. The Commission observed in the Notice of Proposed
Rulemaking that ``typical staff review consists largely of assuring
that the ultimately licensed entity has the capability to meet
financial qualification and decommissioning funding aspects of NRC
regulations,'' (63 FR 48644, col. 3. (emphasis added)). But financial
qualification and decommissioning funding are not the sole issues that
may bear on a license transfer approval, even when the transfer will
change only the ownership of all or part of a facility and will not
directly affect management or operation. Section 103d of the Atomic
Energy Act, 42 U.S.C. 2133, for example, places certain restrictions on
foreign ownership, control, or domination of certain licenses.
Consideration of the question whether a proposed license transfer is
consistent with this provision of the Act would require a broader scope
for the proceeding than the limited one NEI recommends. Generally, the
Commission believes it is desirable to focus its Subpart M rulemaking
solely on procedures rather than attempting in this rulemaking to
describe and enumerate the substantive issues that license transfers
may involve.
Comment 6. The Southern California Edison Company (``SCE'') stated
its strong support for the proposed rule. SCE supported the comments
submitted by the Nuclear Energy Institute, which the Commission has
already addressed in the response to Comment 5, supra. SCE also offered
suggestions for ``minor enhancements'' to the proposed rule, which the
Commission addresses in its response to this comment.
Commission response. Change (1) suggested by SCE is that the rule
should give the Presiding Officer, in addition to the power to ``strike
or reject duplicative or irrelevant presentations,'' Sec. 2.1320(a)(9),
the responsibility and power to strike or reject unreliable or
immaterial presentations. As the commenter points out, this change
would make Subpart M similar in this regard to 10 CFR Part 2, Subpart
L, Informal Hearing Procedures for Adjudications in Materials and
Operator Licensing Proceedings, which gives the presiding officer the
power to strike portions of a presentation that are ``cumulative,
irrelevant, immaterial, or unreliable.'' (10 CFR 2.1233(e)). The
Commission agrees that unreliable and immaterial presentations detract
from the value of the record and should be subject to exclusion in the
sound discretion of the Presiding Officer. Therefore the Commission
accepts this suggestion and has revised Sec. 2.1320(a)(9) accordingly
in the final rule.
Change (2) suggested by SCE deals with responses to papers served
by mail. SCE notes that proposed Sec. 2.1314(c) provides for three
additional days to respond to papers served pursuant to Sec. 2.1307 by
regular mail. SCE suggests that three additional days for mail service
should be allowed for all responses to service of a paper, not just
those made pursuant to Sec. 2.1307. The Commission accepts this
suggestion and has revised Sec. 2.1314(c) accordingly in the final
rule.
Change (3) suggested by SCE is that proposed Sec. 2.1331(b) be
clarified to make plain that the Commission may consider other
information on the docket when it decides matters that were not
designated as issues for the hearing. The Commission agrees and has
adopted the language proposed by SCE for Sec. 2.1331(b) in the final
rule: ``The decision on issues designated for hearing pursuant to
Sec. 2.1308(d)(1) will be based on the record developed at the
hearing.''
Comment 7. Florida Power & Light Company (``FPL'') submitted a
comment endorsing the comments of the Nuclear Energy Institute, which
the Commission has already addressed in the context of its response to
comment 5, supra. FPL concurred with the Commission's findings in
support of the proposed Subpart M and offered the following additional
suggestions:
(1) FPL suggested that the Commission should extend the informal
hearing process to all NRC adjudicatory proceedings.
Commission response. Although the suggestion goes well beyond the
scope of the proposed rule, the Commission notes elsewhere in this
notice that it has argued in court that section 189a of the Atomic
Energy Act does not require formal hearings, and the Commission has
directed the staff to seek legislation that supports greater use of
informal procedures. The Commission has also asked the staff to advise
the Commission on ways to enhance the Commission's ability to use
informal procedures in any proceeding in which formal procedures are
currently used.
(2) FPL supported close Commission oversight of the Presiding
Officer but believed that the Commissioners should not personally be
involved, as the proposed Subpart M envisions, in developing the
evidentiary record in license transfer application proceedings.
Commission response. Under the proposed rule the Commission ``will
ordinarily be the Presiding Officer at a hearing,'' but the Commission
``may provide * * * that one or more Commissioners, or any other person
permitted by law, may preside.'' See Sec. 2.1319. The Commission
believes this language provides sufficient flexibility to deal with the
commenter's concerns, should the Commission perceive that its direct
involvement in Subpart M hearings is in some cases unduly burdensome or
impractical for the Commission.
(3) FPL stated its belief that allowing all parties to make oral
presentations in every license transfer proceeding ``could defeat the
underlying purpose of the proposed rule: to streamline license transfer
proceedings.'' Comments by several other members of the nuclear
[[Page 66725]]
energy industry or their representatives questioned the proposed rule's
provision that hearings shall be oral unless all parties agree to a
hearing on written submissions. These Commenters recognized the
Commission's intention to avoid delays caused by a need to consider a
party's request that a hearing be oral; that is, the Commission intends
to avoid needless nonsubstantive ``litigation'' over the form (oral or
written) of the litigation on the merits-- but noted that there are
alternative ways to avoid these delays. Two Commenters suggested that
the Commission could provide that hearings will be on written
submissions unless any party requests an oral hearing.
Commission response. Under the proposed Subpart M oral hearings are
the ``default choice'' in that it provides for oral presentations
unless all parties agree to a written hearing. Under the proposed
scheme if the parties take no action the hearing will be oral, and only
unanimous action of the parties in favor of a written hearing will
cause oral procedures to be supplanted. The Commenters' suggested
alternative that the hearing be written unless a party requests an oral
hearing would turn this around and make a written hearing the default
choice. The Commission prefers to retain the approach taken in the
proposed rule. The Commission believes that oral presentations with the
structure established by Subpart M may allow for the compilation of a
better record because the Presiding Officer can more readily ask
follow-up or clarifying questions. A strictly written hearing is likely
to prove more cumbersome in this regard. Furthermore, members of the
public attending oral proceedings will be able to follow the hearing
more readily than by combing through extensive written materials in the
Public Document Room as they would be required to do in a written
hearing context. Accordingly, the Commission does not accept the
commenter's proposed alternative.
(4) FPL noted its support of Commission action to ensure timely
completion of license transfer proceedings but recommended ``that the
final rule specifically require automatic Commission review in the
event that any of the schedular ``milestones'' are exceeded by a
Presiding Officer.''
Commission response. Although the Commission intends to monitor
these proceedings carefully and will be fully prepared to step in to
address schedular problems when necessary, the Commission is not
prepared to require by regulation, and bind itself to, a review of
every instance in which a Presiding Officer exercises discretion to
enlarge the time provided in the rule for filings or other actions. In
view of the Commission's recent Policy Statement on Conduct of
Adjudicatory Proceedings, 48 NRC 18 (1998), (63 FR 41872; August 5,
1998), the Commission is confident that persons serving as Presiding
Officers will be highly sensitive to the need for expeditious
completion of adjudicatory proceedings, consistent with considerations
of fairness and the production of an adequate record, and will
countenance delays only for compelling reasons. The Commission of
course retains discretion to take such action in individual proceedings
as it deems necessary to assure timeliness and adherence to all other
Commission requirements that govern the hearing process.
Comment 8. Texas Utilities Electric Company (``TU Electric'')
expressed support for the proposed rule. TU Electric also offered many
of the suggestions put forward in the comments already described. In
addition, TU Electric expressed concern that the reference in proposed
Sec. 2.1330(b) to 10 CFR 2.790, which is in Subpart G, might convey an
implication that other Subpart G procedures also apply in Subpart M
proceedings.
Commission response. To allay the commenter's concern, the
Commission has modified Sec. 2.1330(b) in the final rule by replacing
the language ``under 10 CFR 2.790'' with the language ``in accordance
with law and policy as reflected in 10 CFR 2.790 . . .'' The intent of
this modification is to remove any possible implication that Subpart G
is intended to apply to license transfer actions.
Comment 9. AmerGen Energy Company, LLC (``AmerGen'') commented that
it favored the proposed rule and urged its prompt adoption. AmerGen
also suggested that the Commission should apply the proposed Subpart M
procedures, at the request of an applicant, in any license transfer
application proceedings that may be undertaken before the final Subpart
M becomes effective. In AmerGen's opinion, the NRC has authority under
the Atomic Energy Act and the Administrative Procedure Act to use the
Subpart M procedures on a case-by-case basis, prior to finalization of
the rule, so long as the Commission provides fair notice to the
potential parties.
Commission response. For reasons discussed elsewhere in this
notice, the Commission is making this rule effective upon publication,
pursuant to the provisions of the Administrative Procedure Act for
immediate effectiveness. 5 U.S.C. 553(d)(1) and 553(d)(3). Any
applications received but not yet noticed as of the effective date of
this rule will be subject to Subpart M procedures. In the case of
license transfer applications, if any, that have been noticed and for
which proceedings are pending as of the date of this notice of final
rulemaking, affected applicants or parties to such proceedings who wish
to avail themselves of the new procedures may file motions with the
Presiding Officer in those proceedings, requesting that Subpart M
procedures be applied as appropriate to the remainder of the pending
proceeding.
Comment 10. Morgan, Lewis, & Bockius, a private law firm commenting
on behalf of Alliant Utilities--IES Utilities and STP Nuclear Operating
Company, endorsed the comments of NEI (see Comment 5, supra) in support
of the rule. The commenter also made several suggestions for changes.
Commission response. The changes suggested by this commenter are
similar to suggestions made in other comments described and responded
to in the preceding discussion.
Comment 11. Shaw, Pittman, Potts & Trowbridge (``Shaw Pittman''), a
private law firm commenting on behalf of itself and several utilities,
strongly supported the proposed rule. Shaw Pittman believed, however,
that several aspects of the rule require ``clarification and
refinement.'' These aspects, together with the Commission's response,
are as follows:
(1) Shaw Pittman expressed concern ``that the rule does not
identify the circumstances that would permit the NRC Staff to delay the
approval or denial of a license transfer request pending any requested
hearing.'' The commenter noted that proposed Sec. 2.1316(a) says that
during the pendency of a hearing under Subpart M ``the staff is
expected to promptly issue approval or denial of license transfer
requests.'' The commenter believed that the final rule or its statement
of consideration ``should describe the circumstances or the factors
that the NRC Staff are to consider in deciding whether to postpone
approval or denial of a transfer pending a requested hearing.''
Commission response. The Commission does not accept this
suggestion. As noted previously (see response to Comment 5), the scope
and focus of the Subpart M rulemaking are on procedures for the conduct
of hearings, rather than the substantive questions involved in approval
of license transfer applications. The Commission is confident that the
present language of Sec. 2.1316(a) adequately conveys to the NRC staff
that staff action on license transfer requests
[[Page 66726]]
should not be delayed except for sound reasons. The Commission relies
on the staff, subject to Commission oversight, to exercise good
judgment in this regard. As the rule indicates, the Commission believes
that staff approval or denial can usually be issued promptly, but it
would be unwise for the Commission at this point to attempt to
anticipate all the circumstances that might warrant delay in the
staff's review or action on the application.
(2) Shaw Pittman commented that the Commission ``should clarify the
evidentiary value of written position statements and oral presentations
allowed under the present rule.'' The commenter would have the rule
specify that the Commission cannot base a decision on ``written
position statements and oral presentations, in and of themselves.'' The
commenter would require parties to document and support their positions
by written testimony with supporting affidavits.
Commission response. The Commission does not believe that extensive
clarification is necessary. Setting out evidentiary requirements in
more detail could be at variance with the Commission's intention to
move away from time-consuming formality in its hearing processes. In
making a decision based on the record produced in a Subpart M
proceeding, the Commission will of course take proper account of the
evidentiary value of the record material. Written statements of
position and oral arguments will be treated as such statements and
arguments are treated in the NRC's formal adjudications under Subpart G
and informal proceedings under Subpart L, i.e. as arguments and
positions of the parties but not as facts. Factual assertions
unsupported by affidavits, expert testimony, or other appropriate
evidentiary submissions are less likely to carry weight than assertions
with proper evidentiary support.
(3) Shaw Pittman urged the Commission to revise the proposed rule
expressly to allow parties to submit proposed questions to the
Presiding Officer within seven days of the filing of rebuttal
testimony. The commenter noted that under the proposed rule, rebuttal
testimony and proposed questions for the Presiding officer to ask
witnesses in the Presiding Officer's examination are to be filed at the
same time. See Sec. 2.1321(b) and Sec. 2.1322(a)(2). Thus, there is no
explicit provision for proposing questions directed to the rebuttal
testimony itself, although the Presiding Officer has the discretion to
provide for such questions. The commenter believed that the timeframe
of the rule would reasonably allow for this additional filing without
extending the date for commencement of the oral hearing beyond 65 days
after the date of the Commission's notice granting a hearing.
Commission response. The Commission finds the commenter's point
well-taken and has placed language in the final rule to authorize
proposed questions directed to rebuttal testimony to be filed within
seven days of the filing of the rebuttal testimony.
(4) Shaw Pittman finds confusing the language of proposed 10 CFR
2.1323(a) that ``[a]ll direct testimony in an oral hearing shall be
filed no later than 15 days before the hearing.* * *'' The commenter
believes this language ``could arguably be read to allow the filing of
direct testimony subsequent to the 30 day deadline provided for by
proposed 10 CFR 2.1322(a)(1).''
Commission response. The Commission does not see any reason for
confusion. To be timely the filings in question must be made within 30
days after the date of the Commission's notice granting a hearing
[Sec. 2.1322(a)] but in any event no later than 15 days before the
hearing [Sec. 2.1323(a)]. There is no potential contradiction between
the two provisions. Rather than being an unnecessary provision, as the
commenter asserts, Sec. 2.1323(a) assures that parties will receive
filings in adequate time to prepare for the oral hearing.
(5) Shaw-Pittman asked that the Commission clarify in its
promulgation of the final rule the extent to which license transfer
applications filed before the effective date of the rule will be
subject to the new Subpart M procedures. The commenter favored making
the new rule immediately effective and applying the Subpart M
procedures to pending applications.
Commission response. See the Commission's response to Comment 9.
Comment 12. GPU Nuclear stated its strong support for the rule and
recommended that the new procedures be applied as soon as possible.
Commission response. See the Commission's response to Comment 9.
Comment 13. Duke Energy Company (``Duke''), represented by Winston
& Strawn, supported the proposed rule but expressed concern about the
elimination of cross-examination by parties under Subpart M. Duke
stated that ``the final rule should retain provisions allowing the
parties to present recommended questions to the presiding officer.''
Duke commented that the final rule ``should define with greater
precision the types of issues appropriate for review * * * '' and
suggested limiting the proceedings to issues associated with financial
qualifications and decommissioning funding. Duke also commented that
the final rule should explicitly grant parties to a contested license
transfer hearing the right to appeal an adverse decision by the
Commission. Duke suggested that the informal, legislative-style hearing
process should be extended to other NRC adjudicatory proceedings.
Commission response. The proposed Subpart M rule provides for
parties to submit proposed questions to the Presiding Officer. This
will allow the parties to suggest what they believe to be appropriate
questions for the witnesses but will allow the Presiding Officer better
control of the examination of witnesses. This provision should
effectively eliminate the need for objections and interruptions during
witness examination. For these reasons the Commission has retained the
proposed procedure in the final rule. The Commission rejects the
commenter's suggestion that the rule should define and limit the issues
appropriate for review, for reasons already discussed in previous
responses to similar comments. The Commission also sees no point in
addressing statutory appeal rights in the final rule. A party's right
to judicial review of an adverse decision is set out in Section 189b.
of the Atomic Energy Act in conjunction with Chapter 158 of title 28,
United States Code, and the Administrative Procedure Act. Extension of
the proposed procedures for license transfer applications to other
types of NRC proceedings is beyond the scope of this rulemaking, but,
as noted in more detail in response to an earlier comment, the
Commission is taking steps to expand the use of similar procedures in
other proceedings.
Comment 14. PECO Nuclear noted its view that the proposed rule is
``a positive step.'' The commenter suggested several minor changes in
words and punctuation needed to clarify the text of the rule.
Commission response. The Commission has incorporated in the final
rule the commenter's suggested minor changes, which do not affect the
substance of the rule.
Comment 15. Wisconsin Electric Power Company supported the
Commission's proposed rule and suggested certain ``clarifications and
refinements.''
Commission response. The commenter's suggestions do not differ in
substance from suggestions made by other commenters that the Commission
has responded to above.
Other Comments.
[[Page 66727]]
Members of the NRC staff in Office of Nuclear Materials Safety and
Safeguards submitted a comment asking that it be made clear that the
proposed Subpart M applies to license transfers under 10 CFR Part 72
and that applications for transfers under Part 72 be noticed in the
Federal Register pursuant to Sec. 2.1301(b).
Commission response. The proposed rules were intended to apply to
all license transfer applications, including those filed under Part 72.
To make this clear, the Commission has included explicit references to
Part 72 in this statement of consideration for the final rule. The
Commission has also modified Sec. 2.1301(b) to list transfer
applications under Part 72 as one of the class of applications that
will be noticed in the Federal Register.
III. Description of Final Rule
The procedures adopted in this rulemaking cover any direct or
indirect license transfer for which NRC approval is required pursuant
to the regulatory provisions under which the license was issued. NRC
regulations and the Atomic Energy Act require approval of any transfer
of control of a license. See AEA, Sec. 184, 42 U.S.C. 2234. This
includes those transfers that require license amendments and those that
do not. It should be recognized that not all license transfers will
require license amendments. For example, the total acquisition of a
licensee, without a change in the name of the licensee, (e.g., through
the creation of a holding company which acquires the existing licensee
but which, beyond ownership of the licensee, does not otherwise affect
activities for which a license is required), would require NRC
approval, but would not necessarily require any changes in the NRC
license for the facilities owned by the licensee.
These procedures do not expand or change the circumstances under
which NRC approval of a transfer is necessary nor do they change the
circumstances under which a license amendment would be required to
reflect an approved transfer. Amendments to licenses are required only
to the extent that ownership or operating authority of a licensee, as
reflected in the license itself, is changed by a transfer. A discussion
of the process for issuing amendments associated with an approved
transfer, when necessary, is provided below.
The procedures, similar to those used by the Commission in cases
involving export licensing hearings under 10 CFR Part 110, provide for
an informal type hearing for license transfers. These procedures
provide opportunities for meaningful public participation while
minimizing areas where a formal adjudicatory process could introduce
delays without any commensurate benefit to the substance of the
Commission's decisionmaking.
The Commission will either elect to develop an evidentiary record
and render a final decision itself, or will appoint a Presiding Officer
who will be responsible for collecting evidence and developing a record
for submission to the Commission. For such proceedings, the Commission
may appoint a Presiding Officer from the Atomic Safety and Licensing
Board Panel (ASLBP), although the proposed regulations do not restrict
the sources from which the Commission may select.
It should be noted that the regulations do not require the NRC
staff to participate in the proceedings as a formal party unless the
Commission directs the use of Subpart G procedures or otherwise directs
the staff to participate as a party. The Commission expects,
nevertheless, that, in most cases, the NRC staff will participate to
the extent that it will offer into evidence staff's Safety Evaluation
Report that supports its conclusions on whether to initially grant or
deny the requested license transfer and provide one or more appropriate
sponsoring witnesses. Greater NRC staff involvement may be directed by
the Commission on its own initiative or at the staff's choosing, as
circumstances warrant.
One aspect of the rule designed to improve efficiency is the
decision to require oral hearings on all transfers where a hearing is
to be held under Subpart M, with very limited exceptions. It has been
the Commission's experience in Subpart L proceedings that intervenors
are particularly interested in having the opportunity to make oral
presentations or arguments for inclusion in the record. Even though
such requests are rarely granted,1 intervenors can and do
introduce the issue of whether to have oral presentations in individual
proceedings. Rather than have the issue of oral presentations become a
point of contention in individual proceedings (which could introduce
unnecessary delays in completing the record) the rule resolves this
concern by ensuring that all parties have the opportunity to present
oral testimony. The question of whether cross examination of witnesses
should be allowed has also led to arguments in Subpart L
proceedings.2 The Commission has addressed this area of
potential dispute by providing in Subpart M for questioning of
witnesses only by the Presiding Officer. Although only the Presiding
Officer may question witnesses, the rule specifically provides parties
the opportunity to present recommended questions to the Presiding
Officer.
---------------------------------------------------------------------------
\1\ Curators of the University of Missouri, CLI-95-1, 41 NRC 71
120 (1995).
\2\ Id.
---------------------------------------------------------------------------
Another aspect of the rule intended to improve the efficiency of
the adjudicatory process is that, while it does not provide for any
separate discovery, it does require that a Hearing Docket containing
all relevant documents and correspondence be established and be made
available at the Commission's Public Document Room. This approach is in
keeping with establishment of a case file as described in the
Commission's recent Statement of Policy on Conduct of Adjudicatory
Proceedings, CLI-98-12 (63 FR 41872; August 5, 1998).
Finally, to improve the efficiency of the adjudicatory process the
rule imposes schedular milestones for the filing of testimony and
responses and for the commencement of oral hearings. Subject to the
Presiding Officer's scheduling adjustments in particular proceedings,
the procedures require initial testimony, statements of position on the
issues, and responsive testimony to be filed within 50 days of the
Commission's decision to grant a request for a hearing. The hearing
will commence in just over two months from the Commission's decision to
hold a hearing. Assuming that the NRC staff is able to complete its
technical review and take initial action on the transfer application
within three to four months of its notice of receipt of the
application, these procedures are expected to result in the issuance of
a final Commission decision on the license transfer within about six to
eight months of the notice of receipt of the application in routine
cases. Complex cases requiring more extensive review or the use of
different hearing procedures may take more time.
Administrative License Amendments Associated With License Transfers
As discussed above, not all license transfers require license
amendments. Only when the license specifically has references to
entities or persons that no longer are accurate following the approved
transfer will a situation exist that requires amendments to the
license. Such amendments are essentially administrative in nature. That
is, in determining whether to approve such amendments, the only issue
is whether the license amendment accurately reflects the approved
transfer. Substantive issues regarding requests for a hearing on the
appropriateness of the
[[Page 66728]]
transfer itself may only be considered using the procedures in this
rule. The Commission has previously noted that issuance of such an
administrative amendment, following the review and approval of the
transfer itself, ``presents no safety questions and clearly involves no
significant hazards considerations.'' Long Island Lighting Company,
supra, 35 NRC at 77, n.6.
Safety Evaluation Reports (SERs) prepared in connection with
previous license transfers confirm that such transfers do not, as a
general matter, have significant impacts on the public health and
safety. Accordingly, the new regulations provide that conforming
amendments to the license may be issued by the NRC staff at any time
after the staff has reviewed and approved the proposed transfer,
notwithstanding the pendency of any hearing under the proposed Subpart
M. As is done currently, NRC staff approval of a transfer application
will take the form of an order. Such order will also identify any
license amendment issued.
The Commission, through this rulemaking, is making a generic
finding that, for purposes of 10 CFR 50.58(b)(5), 50.91 and 50.92, and
72.46 and 72.50, administrative amendments which do no more than
reflect an approved transfer and do not directly affect actual
operating methods and actual operation of the facility do not involve a
``significant hazards consideration'' or a ``genuine issue
consideration,'' respectively, and do not require that a hearing
opportunity be provided prior to issuance. It must be emphasized that
any post-effectiveness hearing on such administrative amendments will
be limited to the question of whether the amendment accurately reflects
the approved transfer. The Commission does note, however, that it
retains the authority, as a matter of discretion, to direct completion
of hearings prior to issuance of the transfer approval and any required
amendments in individual cases and to direct the use of other hearing
procedures, if the Commission believes it is in the interest of public
health and safety to do so.
Environmental Issues
The NRC staff has completed many Environmental Assessments related
to license transfers. These assessments have uniformly demonstrated
that there are no significant environmental effects from license
transfers. Indeed, as the Commission has noted previously, amendments
effectuating an approved transfer present no safety questions and
involve no significant hazards considerations.3 Accordingly,
the Commission has determined that a new categorical exclusion should
be added to 10 CFR Part 51 which will obviate the need for the NRC
staff to continue to conduct individual Environmental Assessments in
each transfer case.
---------------------------------------------------------------------------
\3\ Long Island Lighting Company, supra, 35 NRC at 77, n. 6.
---------------------------------------------------------------------------
Limitation to License Transfers
The Commission wishes to emphasize that the proposed rules address
only license transfers and associated administrative amendments to
reflect transfers. Requests for license amendments that involve changes
in actual operations or requirements directly involving health and
safety-related activities will continue to be subject to the amendment
processes currently in use in Parts 50 and 72, including the
requirement for individualized findings under 10 CFR 50.58, 50.91 and
50.92 that address the necessity for pre-effectiveness hearings.
Basis for Immediate Effectiveness
The Commission has determined that this rule should become
immediately effective upon publication. The Administrative Procedure
Act relieves the agency of the requirement that publication of a
substantive rule be made not less than thirty days before its effective
date in the case of ``a substantive rule which...relieves a
restriction'' or ``as otherwise provided by the agency for good cause
found and published with the rule.'' 5 U.S.C. 553(d)(1) and 553(d)(3).
The purpose of the thirty-day waiting period ``is to give affected
parties a reasonable time to adjust their behavior before the final
rule takes effect.'' Omnipoint Corp. v. F.C.C., 78 F. 3d 620 (D.C. Cir.
1996). The rule deals primarily with procedures that will be used in
future hearings on applications for license transfers. The rule adds no
burden to the conduct of activities regulated by the NRC. Thus there is
no need for NRC licensees or anyone else ``to adjust their behavior''
to achieve compliance with the rule. Moreover, comments by persons most
likely to be affected by the rule (potential applicants) appear to
favor the rule and its prompt implementation. The Commission therefore
finds there is good cause to make this rule immediately effective.
Alternatively, the Commission notes that the rule in effect ``relieves
a restriction'' in that the hearing process established by Subpart M
should be less burdensome for parties to license transfer proceedings
than the procedures which the Commission has previously by practice
applied. Thus the Commission's decision to dispense with the thirty day
waiting period is also supported by 5 U.S.C. 553(d)(1) .
Finding of No Significant Environmental Impact and Categorical
Exclusion
The Commission has determined under the National Environmental
Policy Act (NEPA) of 1969, as amended, and the Commission's regulations
in Subpart A of 10 CFR Part 51, that this rule falls within the
categorical exclusion appearing at 10 CFR 51.22 (c)(1) for which
neither an Environmental Assessment nor an Environmental Impact
Statement is required.
Further, under its procedures for implementing NEPA, the Commission
may exclude from preparation of an environmental impact statement, or
an environmental assessment, a category of actions which do not
individually or cumulatively have a significant effect on the human
environment and which have been found to have no such effect in NRC
proceedings. In this rulemaking, the Commission finds that the approval
of a direct or indirect license transfer, as well as any required
administrative license amendments to reflect the approved transfer,
comprises a category of actions which do not individually or
cumulatively have a significant effect on the human environment.
Actions in this category are similar in that, under the AEA and
Commission regulations, transfers of licenses (and associated
administrative amendments to licenses) will not in and of themselves
permit the licensee to operate the facility in any manner different
from that which has previously been permitted under the existing
license. Thus, the transfer will usually not raise issues of
environmental impact that differ from those considered in initial
licensing of a facility. In addition, the denial of a transfer would
also have in and of itself no impact on the environment, since the
licensee would still be authorized to operate the facility in
accordance with the existing license.
Environment assessments that have been conducted regarding numerous
license transfers under existing regulations have not demonstrated the
existence of a major federal action significantly affecting the
environment. Further, the final rule does not apply to any request for
an amendment that would directly affect the actual operation of a
facility. Amendments that directly affect the actual operation of a
facility would be subject to consideration pursuant to the existing
license amendment processes, including the requirements in 10 CFR Part
2,
[[Page 66729]]
Subpart G or L as appropriate and applicable environmental review
requirements of 10 CFR Part 51.
Paperwork Reduction Act Statement
The final rule does not contain a new or amended information
collection requirement subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501, et. seq.). Existing requirements for 10 CFR Part 51
were approved by the Office of Management and Budget, approval number
3150-0021.
Public Protection Notification
If an information collection does not display a currently valid OMB
control number, the NRC may not conduct or sponsor, and a person is not
required to respond to, the information collection.
Regulatory Analysis
To determine whether the amendments to 10 CFR Part 2 contained in
this final rule were appropriate, the Commission considered the
following options:
1. The No-Action Alternative
This alternative was not deemed acceptable for the following
reasons. First, this option would leave reactor transfers subject to
past practice which generally involved hearings using multi-member,
multi-disciplined licensing boards, even though such transfers do not
involve the type of complex technical questions for which multi-member
boards of diverse background may provide a useful technical pool of
experience.
Second, the formal adjudicatory hearing process would needlessly
add formality and resource burdens to the development of a record for
reaching a decision on applications for transfer approval without any
commensurate benefit to the public health and safety or the common
defense and security.
Third, the current process for materials licensees under 10 CFR
Part 2, Subpart L, while not utilizing the multi-member licensing
boards, does not necessarily result in uniform treatment of all license
transfer requests, and provides at least the potential for more formal
hearings. Even if the requests for more formal procedures are not
granted in typical materials cases, the process of receiving motions
for more formal procedures, allowing responses from all parties to
those requests, and the need for parties' responses to those requests,
and the need for the Presiding Officer to consider and rule on such
requests introduces issues and litigation on matters not involving the
merits of the particular application and thus introduces the potential
for delays in materials license transfer proceedings, without clear
benefit to the public health and safety or the common defense and
security.
2. Use 10 CFR Part 2, Subpart G for All License Transfers
While assuring uniformity for all license transfer requests, this
option would not result in an expeditious process that would avoid the
use of multi-member licensing boards, which is unnecessary given the
nature of typical transfer applications. It would also result in added
formality and resources being devoted to materials license transfers on
the part of all parties to the hearing, without any resulting benefit
to public health and safety.
3. Use of 10 CFR Part 2, Subpart L for All License Transfers
This option was considered as viable to achieve uniformity and to
avoid the need for multi-member licensing boards for conducting
requested hearings. Subpart L provides for paper hearings unless oral
presentations are ordered by the Presiding Officer. Further, Subpart L
allows the Presiding Officer the option of recommending to the
Commission that more formal procedures be used. Even though such
requests are rarely granted, as a practical matter there are delays in
the proceeding while parties petition the Presiding Officer and/or the
Commission to have oral hearings and to use additional procedures, such
as cross-examination and formal discovery. Such discretion in
structuring individual hearings is appropriate where the breadth of
potential actions and licensees (covering essentially all amendments
for a wide variety of materials licensees) is governed by a single
hearing process. This flexibility, however, inevitably leads to delays
as each party to the hearings proposes and presents arguments to the
Presiding Officer concerning how the hearing should be structured.
4. Use of a New Subpart M for all License Transfers
In the case of license transfer applications the Commission is
concerned with only one type of approval, so the Commission has the
ability to resolve through rulemaking many of these procedural points
concerning the conduct of the hearing. The resolution of these issues
will allow the parties in license transfer proceedings to move
expeditiously to examination of the substantive issues in the
proceeding. The Subpart M process, similar to a legislative-type
hearing, will also result in the record promptly reaching the
Commission, where a final agency determination can be made. The rule
dictates that oral hearings be held on each application for which a
hearing request is granted unless the parties unanimously agree to
forgo the oral hearing. This will remove the potential for a delay
while parties petition the Presiding Officer for an oral hearing.
Further, the rule provides that the Presiding Officer will conduct all
questioning of witnesses, and there are no provisions for formal
discovery, although docket files with relevant materials will be
publicly available. The rule resolves several areas of frequent dispute
in subpart L proceedings and was seen, therefore, as being more
appropriate for license transfer proceedings where a timely decision is
important to the public interest. These efficiencies can be achieved
without any negative effect on substantive decisonmaking or the rights
of all parties to present relevant witnesses, written testimony, and
oral arguments, which should result in a high quality record on
substantive issues for use by the Commission in reaching a decision on
contested issues.
5. Conclusion.
Based on the foregoing considerations, the Commission has decided
to adopt Subpart M and the attendant conforming amendments to provide
the procedures for actions on license transfer applications. This
constitutes the NRC's regulatory analysis.
Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission hereby certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
This rule does not change any requirements for submittal of license
transfer requests to NRC, rather, the procedures designate how NRC will
handle requests for hearings on applications for license transfers.
Most requested hearings on license transfer applications involve
reactor licensees which are large organizations which do not fall
within the definition of a small business found in section 3 of the
Small Business Action, 15 U.S.C. 632, or within the Small Business
Standards set forth in 13 CFR Part 121 or in the size standards adopted
by the NRC (10 CFR 2.810). Based on the historically low number of
requests for hearings involving materials licensees, it is not expected
that this rule will have any significant economic impact on a
substantial number of small businesses.
[[Page 66730]]
Backfit Analysis
The NRC has determined that the backfit rule, 10 CFR 50.109 and
72.62, does not apply to this proposed rule and a backfit analysis is
not required, because these amendments do not involve any provisions
that would impose backfits as defined in either 10 CFR 50.109 or 72.62.
The rule does not constitute a backfit under either of these sections
because it does not propose a change to or additions to requirements
for existing structures, systems, components, procedures, organizations
or designs associated with the construction or operation of a facility
under Part 50 or 72.
Small Business Regulatory Enforcement Fairness Act
In accordance with the 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
10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Environmental protection, Nuclear
materials, Nuclear power plants and reactors, Penalties, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
10 CFR Part 51
Administrative practice and procedure, Environmental impact
statement, Nuclear materials, Nuclear power plants and reactors,
Reporting and record keeping requirements.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended, the Energy Reorganization
Act of 1974, as amended, and 5 U.S.C. 552 and 553, the Nuclear
Regulatory Commission is adopting the following amendments to 10 CFR
Parts 2 and 51:
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS
1. The authority citation for Part 2 is revised 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.
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). Section 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). Section 2.105 also issued under Pub. L. 97-
415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also
issued under secs. 161 b, i, o, 182, 186, 234, 68 Stat. 948-951,
955, 83 Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o), 2236,
2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Sections 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). Section 2.600-2.606 also issued under sec. 102, Pub. L. 91-
190, 83 Stat. 853, as amended (42 U.S.C. 4332). Section 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).
2. In Sec. 2.101, paragraph (a)(1) is revised to read as follows:
Sec. 2.101 Filing of application.
(a)(1) An application for a license, a license transfer, or an
amendment to a license shall be filed with the Director of the Office
of Nuclear Reactor Regulation or Director of the Office of Nuclear
Material Safety and Safeguards, as prescribed by the applicable
provisions of this chapter. A prospective applicant may confer
informally with the NRC staff prior to the filing of an application.
* * * * *
3. In Sec. 2.1103, after the final sentence the following sentence
is added to read as follows:
Sec. 2.1103 Scope.
* * * This subpart shall not apply to proceedings on applications
for transfer of a license issued under Part 72 of this chapter. Subpart
M of this part applies to license transfer proceedings.
4. In Sec. 2.1201, paragraph (a)(1) is revised to read as follows:
Sec. 2.1201 Scope of subpart.
(a) * * *
(1) The grant, renewal or licensee-initiated amendment of a
materials license subject to parts 30, 32 through 35, 39, 40, or 70 of
this chapter, with the exception of a license amendment related to an
application to transfer a license; or
* * * * *
5. In Sec. 2.1205, paragraphs (a) and (b) are revised to read as
follows:
Sec. 2.1205 Request for a hearing: petition for leave to intervene.
(a) Any person whose interest may be affected by a proceeding for
the grant, renewal, or licensee-initiated amendment of a license
subject to this subpart may file a request for a hearing.
(b) An applicant for a license, a license amendment, or a license
renewal who is issued a notice of proposed denial or a notice of denial
and who desires a hearing shall file the request for the hearing within
the time specified in Sec. 2.103 in all cases. An applicant may include
in the request for hearing a request that the presiding officer
recommend to the Commission that procedures other than those authorized
under this subpart be used in the proceeding, provided that the
applicant identifies the special factual circumstances or issues which
support the use of other procedures.
* * * * *
6. In Part 2, a new Subpart M is added to read as follows:
Subpart M--Public Notification, Availability of Documents and Records,
Hearing Requests and Procedures for Hearings on License Transfer
Applications.
Sec.
2.1300 Scope of subpart M.
2.1301 Public notice of receipt of a license transfer application.
2.1302 Notice of withdrawal of an application.
2.1303 Availability of documents in the Public Document Room.
2.1304 Hearing procedures.
2.1305 Written comments.
2.1306 Hearing request or intervention petition.
2.1307 Answers and replies.
2.1308 Commission action on a hearing request or intervention
petition.
2.1309 Notice of oral hearing.
2.1310 Notice of hearing consisting of written comments.
2.1311 Conditions in a notice or order.
2.1312 Authority of the Secretary.
2.1313 Filing and service.
2.1314 Computation of time.
2.1315 Generic determination regarding license amendments to
reflect transfers.
2.1316 Authority and role of NRC staff.
2.1317 Hearing docket.
2.1318 Acceptance of hearing documents.
2.1319 Presiding Officer.
2.1320 Responsibility and power of the Presiding Officer in an oral
hearing.
[[Page 66731]]
2.1321 Participation and schedule for submissions in a hearing
consisting of written comments.
2.1322 Participation and schedule for submissions in an oral
hearing.
2.1323 Presentation of testimony in an oral hearing.
2.1324 Appearance in an oral hearing.
2.1325 Motions and requests.
2.1326 Burden of proof.
2.1327 Application for a stay of the effectiveness of NRC staff
action on license transfer.
2.1328 Default.
2.1329 Waiver of a rule or regulation.
2.1330 Reporter and transcript for an oral hearing.
2.1331 Commission action.
Subpart M--Public Notification, Availability of Documents and
Records, Hearing Requests and Procedures for Hearings on License
Transfer Applications.
Sec. 2.1300 Scope of subpart M.
This subpart governs requests for, and procedures for conducting,
hearings on any application for the direct or indirect transfer of
control of an NRC license which transfer requires prior approval of the
NRC under the Commission's regulations, governing statutes, or pursuant
to a license condition. This subpart is to provide the only mechanism
for requesting hearings on license transfer requests, unless contrary
case specific orders are issued by the Commission.
Sec. 2.1301 Public notice of receipt of a license transfer
application.
(a) The Commission will notice the receipt of each application for
direct or indirect transfer of a specific NRC license by placing a copy
of the application in the NRC Public Document Room.
(b) The Commission will also publish in the Federal Register a
notice of receipt of an application for approval of a license transfer
involving 10 CFR part 50 and part 52 licenses, major fuel cycle
facility licenses issued under part 70, or part 72 licenses. This
notice constitutes the notice required by Sec. 2.105 with respect to
all matters related to the application requiring NRC approval.
(c) Periodic lists of applications received may be obtained upon
request addressed to the Public Document Room, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001.
Sec. 2.1302 Notice of withdrawal of an application.
The Commission will notice the withdrawal of an application by
publishing the notice of withdrawal in the same manner as the notice of
receipt of the application was published under Sec. 2.1301.
Sec. 2.1303 Availability of documents in the Public Document Room.
Unless exempt from disclosure under part 9 of this chapter, the
following documents pertaining to each application for a license
transfer requiring Commission approval will be placed in the Public
Document Room when available:
(a) The license transfer application and any associated requests;
(b) Commission correspondence with the applicant or licensee
related to the application;
(c) Federal Register notices;
(d) The NRC staff Safety Evaluation Report (SER).
(e) Any NRC staff order which acts on the license transfer
application; and
(f) If a hearing is held, the hearing record and decision.
Sec. 2.1304 Hearing procedures.
The procedures in this subpart will constitute the exclusive basis
for hearings on license transfer applications for all NRC specific
licenses.
Sec. 2.1305 Written comments.
(a) As an alternative to requests for hearings and petitions to
intervene, persons may submit written comments regarding license
transfer applications. The Commission will consider and, if
appropriate, respond to these comments, but these comments do not
otherwise constitute part of the decisional record.
(b) These comments should be submitted within 30 days after public
notice of receipt of the application and addressed to the Secretary,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
Attention: Rulemakings and Adjudications Staff.
(c) The Commission will provide the applicant with a copy of the
comments. Any response the applicant chooses to make to the comments
must be submitted within 10 days of service of the comments on the
applicant. Such responses do not constitute part of the decisional
record.
Sec. 2.1306 Hearing request or intervention petition.
(a) Any person whose interest may be affected by the Commission's
action on the application may request a hearing or petition for leave
to intervene on a license application for approval of a direct or
indirect transfer of a specific license.
(b) Hearing requests and intervention petitions must--
(1) State the name, address, and telephone number of the requestor
or petitioner;
(2) Set forth the issues sought to be raised and
(i) Demonstrate that such issues are within the scope of the
proceeding on the license transfer application,
(ii) Demonstrate that such issues are relevant to the findings the
NRC must make to grant the application for license transfer,
(iii) Provide a concise statement of the alleged facts or expert
opinions which support the petitioner's position on the issues and on
which the petitioner intends to rely at hearing, together with
references to the specific sources and documents on which the
petitioner intends to rely to support its position on the issues, and
(iv) Provide sufficient information to show that a genuine dispute
exists with the applicant on a material issue of law or fact;
(3) Specify both the facts pertaining to the petitioner's interest
and how the interest may be affected, with particular reference to the
factors in Sec. 2.1308(a);
(4) Be served on both the applicant and the NRC Office of the
Secretary by any of the methods for service specified in Sec. 2.1313.
(c) Hearing requests and intervention petitions will be considered
timely only if filed not later than:
(1) 20 days after notice of receipt is published in the Federal
Register, for those applications published in the Federal Register;
(2) 45 days after notice of receipt is placed in the Public
Document Room for all other applications; or
(3) Such other time as may be provided by the Commission.
Sec. 2.1307 Answers and replies.
(a) Unless otherwise specified by the Commission, an answer to a
hearing request or intervention petition may be filed within 10 days
after the request or petition has been served.
(b) Unless otherwise specified by the Commission, a reply to an
answer may be filed within 5 days after service of that answer.
(c) Answers and replies should address the factors in Sec. 2.1308.
Sec. 2.1308 Commission action on a hearing request or intervention
petition.
(a) In considering a hearing request or intervention petition on an
application for a transfer of an NRC license, the Commission will
consider:
(1) The nature of the Petitioner's alleged interest;
(2) Whether that interest will be affected by an approval or denial
of the application for transfer;
[[Page 66732]]
(3) The possible effect of an order granting the request for
license transfer on that interest, including whether the relief
requested is within the Commission's authority, and, if so, whether
granting the relief requested would redress the alleged injury; and
(4) Whether the issues sought to be litigated are--
(i) Within the scope of the proceeding;
(ii) Relevant to the findings the Commission must make to act on
the application for license transfer;
(iii) Appropriate for litigation in the proceeding; and
(iv) Adequately supported by the statements, allegations, and
documentation required by Sec. 2.1306(b)(2) (iii) and (iv).
(b) Untimely hearing requests or intervention petitions may be
denied unless good cause for failure to file on time is established. In
reviewing untimely requests or petitions, the Commission will also
consider:
(1) The availability of other means by which the requestor's or
petitioner's interest will be protected or represented by other
participants in a hearing; and
(2) The extent to which the issues will be broadened or final
action on the application delayed.
(c) The Commission will deny a request or petition to the extent it
pertains solely to matters outside its jurisdiction.
(d)(1) After consideration of the factors covered by paragraphs (a)
through (c) of this section, the Commission will issue a notice or
order granting or denying a hearing request or intervention petition,
designating the issues for any hearing that will be held and
designating the Presiding Officer. A notice granting a hearing will be
published in the Federal Register and served on the parties to the
hearing.
(2) Hearings under this subpart will be oral hearings, unless,
within 15 days of the service of the notice or order granting a
hearing, the parties unanimously agree and file a joint motion
requesting a hearing consisting of written comments. No motion to hold
a hearing consisting of written comments will be entertained absent
unanimous consent of all parties.
(3) A denial of a request for hearing and a denial of any petition
to intervene will set forth the reasons for the denial.
Sec. 2.1309 Notice of oral hearing.
(a) A notice of oral hearing will--
(1) State the time, place, and issues to be considered;
(2) Provide names and addresses of participants,
(3) Specify the time limit for participants and others to indicate
whether they wish to present views;
(4) Specify the schedule for the filing of written testimony,
statements of position, proposed questions for the Presiding Officer to
consider, and rebuttal testimony consistent with the schedule
provisions of Sec. 2.1321.
(5) Specify that the oral hearing shall commence within 15 days of
the date for submittal of rebuttal testimony unless otherwise ordered;
(6) State any other instructions the Commission deems appropriate;
(7) If so determined by the NRC staff or otherwise directed by the
Commission, direct that the staff participate as a party with respect
to some or all issues.
(b) If the Commission is not the Presiding Officer, the notice of
oral hearing will also state:
(1) When the jurisdiction of the Presiding Officer commences and
terminates;
(2) The powers of the Presiding Officer;
(3) Instructions to the Presiding Officer to certify promptly the
completed hearing record to the Commission without a recommended or
preliminary decision.
Sec. 2.1310 Notice of hearing consisting of written comments.
A notice of hearing consisting of written comments will:
(a) State the issues to be considered;
(b) Provide the names and addresses of participants;
(c) Specify the schedule for the filing of written testimony,
statements of position, proposed questions for the Presiding Officer to
consider for submission to the other parties, and rebuttal testimony,
consistent with the schedule provisions of Sec. 2.1321.
(d) State any other instructions the Commission deems appropriate.
Sec. 2.1311 Conditions in a notice or order.
(a) A notice or order granting a hearing or permitting intervention
shall--
(1) Restrict irrelevant or duplicative testimony; and
(2) Require common interests to be represented by a single
participant.
(b) If a participant's interests do not extend to all the issues in
the hearing, the notice or order may limit her/his participation
accordingly.
Sec. 2.1312 Authority of the Secretary.
The Secretary or the Assistant Secretary may rule on procedural
matters relating to proceedings conducted by the Commission itself
under this subpart to the same extent they can do so under Sec. 2.772
for proceedings under subpart G.
Sec. 2.1313 Filing and service.
(a) Hearing requests, intervention petitions, answers, replies and
accompanying documents must be served as described in paragraph (b) of
this section by delivery, facsimile transmission, e-mail or other means
that will ensure receipt by close of business on the due date for
filing. Any participant filing hearing requests, intervention
petitions, replies and accompanying documents should include
information on mail and delivery addresses, e-mail addresses, and
facsimile numbers in their initial filings which may be used by the
Commission, Presiding Officer and other parties for serving documents
on the participant.
(b) All filings must be served upon the applicant; the General
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001;
the Secretary of the Commission, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001; and participants if any. If service to the
Secretary is by delivery or by mail the filings should be addressed to
the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, Attention: Rulemakings and Adjudications Staff. E-mail
filings may be sent to the Secretary at the following e-mail address:
[email protected] Facsimile transmission filings may be filed with the
Secretary using the following number: 301-415-1101.
(c) Service is completed by:
(1) Delivering the paper to the person; or leaving it in her or his
office with someone in charge; or, if there is no one in charge,
leaving it in a conspicuous place in the office; or, if the recipient
has no office or it is closed, leaving it at her or his usual place of
residence with some occupant of suitable age and discretion;
(2) Depositing it in the United States mail, properly stamped and
addressed; or
(3) Any other manner authorized by law, when service cannot be made
as provided in paragraphs (c)(1) or (2) of this section.
(4) For facsimile transmission, sending copies to the facsimile
machine of the person being served;
(5) For e-mail, sending the filing in electronic form attached to
an e-mail message directed to the person being served.
(d) Proof of service, stating the name and address of the person
served and the manner and date of service, shall be shown, and may be
made by--
(1) Written acknowledgment of the person served or an authorized
representative; or
[[Page 66733]]
(2) The certificate or affidavit of the person making the service.
(e) The Commission may make special provisions for service when
circumstances warrant.
Sec. 2.1314 Computation of time.
(a) In computing time, the first day of a designated time period is
not included and the last day is included. If the last day is a
Saturday, Sunday or legal holiday at the place where the required
action is to be accomplished, the time period will end on the next day
which is not a Saturday, Sunday or legal holiday.
(b) In time periods of 7 days or less, Saturdays, Sundays and
holidays are not counted.
(c) Whenever an action is required within a prescribed period
following service of a paper, 3 days shall be added to the prescribed
period if service is by regular mail.
Sec. 2.1315 Generic determination regarding license amendments to
reflect transfers.
(a) Unless otherwise determined by the Commission with regard to a
specific application, the Commission has determined that any amendment
to the license of a utilization facility or the license of an
Independent Spent Fuel Storage Installation which does no more than
conform the license to reflect the transfer action, involves
respectively, ``no significant hazards consideration'' or ``no generic
issue as to whether the health and safety of the public will be
significantly affected.''
(b) Where administrative license amendments are necessary to
reflect an approved transfer, such amendments will be included in the
order that approves the transfer. Any challenge to the administrative
license amendment is limited to the question of whether the license
amendment accurately reflects the approved transfer.
Sec. 2.1316 Authority and role of NRC staff.
(a) During the pendency of any hearing under this subpart,
consistent with the NRC staff's findings in its Safety Evaluation
Report (SER), the staff is expected to promptly issue approval or
denial of license transfer requests. Notice of such action shall be
promptly transmitted to the Presiding Officer and parties to the
proceeding.
(b) Except as otherwise directed in accordance with
Sec. 2.1309(a)(7), the NRC staff is not required to be a party to
proceedings under this subpart but will offer into evidence its SER
associated with the transfer application and provide one or more
sponsoring witnesses.
(c) If the NRC staff desires to participate as a party, the staff
shall notify the Presiding Officer and the parties and shall thereupon
be deemed to be a party with all the rights and responsibilities of a
party.
Sec. 2.1317 Hearing docket.
For each hearing, the Secretary will maintain a docket which will
include the hearing transcript, exhibits and all papers filed or issued
in connection with the hearing. This file will be made available to all
parties in accordance with the provisions of Sec. 2.1303 and will
constitute the only discovery in proceedings under this subpart.
Sec. 2.1318 Acceptance of hearing documents.
(a) Each document filed or issued must be clearly legible and bear
the docket number, license application number, and hearing title.
(b) Each document shall be filed in one original and signed by the
participant or its authorized representative, with the address and date
of signature indicated. The signature is a representation that the
document is submitted with full authority, the person signing knows its
contents and that, to the best of their knowledge, the statements made
in it are true.
(c) A document not meeting the requirements of this section may be
returned with an explanation for nonacceptance and, if so, will not be
docketed.
Sec. 2.1319 Presiding Officer.
(a) The Commission will ordinarily be the Presiding Officer at a
hearing under this part. However, the Commission may provide in a
hearing notice that one or more Commissioners, or any other person
permitted by law, will preside.
(b) A participant may submit a written motion for the
disqualification of any person presiding. The motion shall be supported
by an affidavit setting forth the alleged grounds for disqualification.
If the Presiding Officer does not grant the motion or the person does
not disqualify himself and the Presiding Officer or such other person
is not the Commission or a Commissioner, the Commission will decide the
matter.
(c) If any person presiding deems himself or herself disqualified,
he or she shall withdraw by notice on the record after notifying the
Commission.
(d) If a Presiding Officer becomes unavailable, the Commission will
designate a replacement.
(e) Any motion concerning the designation of a replacement
Presiding Officer shall be made within 5 days after the designation.
(f) Unless otherwise ordered by the Commission, the jurisdiction of
a Presiding Officer other than the Commission commences as designated
in the hearing notice and terminates upon certification of the hearing
record to the Commission, or when the Presiding Officer is
disqualified.
Sec. 2.1320 Responsibility and power of the Presiding Officer in an
oral hearing.
(a) The Presiding Officer in any oral hearing shall conduct a fair
hearing, develop a record that will contribute to informed
decisionmaking, and, within the framework of the Commission's orders,
have the power necessary to achieve these ends, including the power to:
(1) Take action to avoid unnecessary delay and maintain order;
(2) Dispose of procedural requests;
(3) Question participants and witnesses, and entertain suggestions
as to questions which may be asked of participants and witnesses.
(4) Order consolidation of participants;
(5) Establish the order of presentation;
(6) Hold conferences before or during the hearing;
(7) Establish time limits;
(8) Limit the number of witnesses; and
(9) Strike or reject duplicative, unreliable, immaterial, or
irrelevant presentations.
(b) Where the Commission itself does not preside:
(1) The Presiding Officer may certify questions or refer rulings to
the Commission for decision;
(2) Any hearing order may be modified by the Commission; and
(3) The Presiding Officer will certify the completed hearing record
to the Commission, which may then issue its decision on the hearing or
provide that additional testimony be presented.
Sec. 2.1321 Participation and schedule for submission in a hearing
consisting of written comments.
Unless otherwise limited by this subpart or by the Commission,
participants in a hearing consisting of written comments may submit:
(a) Initial written statements of position and written testimony
with supporting affidavits on the issues. These materials shall be
filed within 30 days of the date of the Commission's Notice granting a
hearing pursuant to Sec. 2.1308(d)(1), unless the Commission or
Presiding Officer directs otherwise.
(b) Written responses, rebuttal testimony with supporting
affidavits directed to the initial statements and testimony of other
participants, and proposed written questions for the Presiding Officer
to consider for
[[Page 66734]]
submittal to persons sponsoring testimony submitted under paragraph (a)
of this section. These materials shall to filed within 20 days of the
filing of the materials submitted under paragraph (a) of this section,
unless the Commission or Presiding Officer directs otherwise. Proposed
written questions directed to rebuttal testimony for the Presiding
Officer to consider for submittal to persons offering such testimony
shall be filed within 7 days of the filing of the rebuttal testimony.
(c) Written concluding statements of position on the issues. These
materials shall be filed within 20 days of the filing of the materials
submitted under paragraph (b) of this section, unless the Commission or
the Presiding Officer directs otherwise.
Sec. 2.1322 Participation and schedule for submissions in an oral
hearing.
(a) Unless otherwise limited by this subpart or by the Commission,
participants in an oral hearing may submit and sponsor in the hearings:
(1) Initial written statements of position and written testimony
with supporting affidavits on the issues. These materials shall be
filed within 30 days of the date of the Commission's notice granting a
hearing pursuant to Sec. 2.1308(d)(1), unless the Commission or
Presiding Officer directs otherwise.
(2)(i) Written responses and rebuttal testimony with supporting
affidavits directed to the initial statements and testimony of other
participants;
(ii) Proposed questions for the Presiding Officer to consider for
propounding to persons sponsoring testimony.
(3) These materials must be filed within 20 days of the filing of
the materials submitted under paragraph (a)(1) of this section, unless
the Commission or Presiding Officer directs otherwise.
(4) Proposed questions directed to rebuttal testimony for the
Presiding Officer to consider for propounding to persons offering such
testimony shall be filed within 7 days of the filing of the rebuttal
testimony.
(b) The oral hearing should commence within 65 days of the date of
the Commission's notice granting a hearing unless the Commission or
Presiding Officer directs otherwise. Ordinarily, questioning in the
oral hearing will be conducted by the Presiding Officer, using either
the Presiding Officer's questions or questions submitted by the
participants or a combination of both.
(c) Written post-hearing statements of position on the issues
addressed in the oral hearing may be submitted within 20 days of the
close of the oral hearing.
(d) The Commission, on its own motion, or in response to a request
from a Presiding Officer other than the Commission, may use additional
procedures, such as direct and cross-examination, or may convene a
formal hearing under subpart G of this part on specific and substantial
disputes of fact, necessary for the Commission's decision, that cannot
be resolved with sufficient accuracy except in a formal hearing. The
staff will be a party in any such formal hearing. Neither the
Commission nor the Presiding Officer will entertain motions from the
parties that request such special procedures or formal hearings.
Sec. 2.1323 Presentation of testimony in an oral hearing.
(a) All direct testimony in an oral hearing shall be filed no later
than 15 days before the hearing or as otherwise ordered or allowed
pursuant to the provisions of Sec. 2.1322.
(b) Written testimony will be received into evidence in exhibit
form.
(c) Participants may designate and present their own witnesses to
the Presiding Officer.
(d) Testimony for the NRC staff will be presented only by persons
designated by the Executive Director for Operations for that purpose.
(e) Participants and witnesses will be questioned orally or in
writing and only by the Presiding Officer. Questions may be addressed
to individuals or to panels of participants or witnesses.
(f) The Presiding Officer may accept written testimony from a
person unable to appear at the hearing, and may request him or her to
respond to questions.
(g) No subpoenas will be granted at the request of participants for
attendance and testimony of participants or witnesses or the production
of evidence.
Sec. 2.1324 Appearance in an oral hearing.
(a) A participant may appear in a hearing on her or his own behalf
or be represented by an authorized representative.
(b) A person appearing shall file a written notice stating her or
his name, address and telephone number, and if an authorized
representative, the basis of her or his eligibility and the name and
address of the participant on whose behalf she or he appears.
(c) A person may be excluded from a hearing for disorderly,
dilatory or contemptuous conduct, provided he or she is informed of the
grounds and given an opportunity to respond.
Sec. 2.1325 Motions and requests.
(a) Motions and requests shall be addressed to the Presiding
Officer, and, if written, also filed with the Secretary and served on
other participants.
(b) Other participants may respond to the motion or request.
Responses to written motions or requests shall be filed within 5 days
after service unless the Commission or Presiding Officer directs
otherwise.
(c) The Presiding Officer may entertain motions for extension of
time and changes in schedule in accordance with paragraphs (a) and (b)
of this section.
(d) When the Commission does not preside, in response to a motion
or request, the Presiding Officer may refer a ruling or certify a
question to the Commission for decision and notify the participants.
(e) Unless otherwise ordered by the Commission, a motion or
request, or the certification of a question or referral of a ruling,
shall not stay or extend any aspect of the hearing.
Sec. 2.1326 Burden of proof.
The applicant or the proponent of an order has the burden of proof.
Sec. 2.1327 Application for a stay of the effectiveness of NRC staff
action on license transfer.
(a) Any application for a stay of the effectiveness of the NRC
staff's order on the license transfer application shall be filed with
the Commission within 5 days of the issuance of the notice of staff
action pursuant to Sec. 2.1316(a).
(b) An application for a stay must be no longer than 10 pages,
exclusive of affidavits, and must contain:
(1) A concise summary of the action which is requested to be
stayed; and
(2) A concise statement of the grounds for a stay, with reference
to the factors specified in paragraph (d) of this section.
(c) Within 10 days after service of an application for a stay under
this section, any participant may file an answer supporting or opposing
the granting of a stay. Answers must be no longer than 10 pages,
exclusive of affidavits, and should concisely address the matters in
paragraph (b) of this section, as appropriate. No further replies to
answers will be entertained.
(d) In determining whether to grant or deny an application for a
stay, the Commission will consider:
(1) Whether the requestor will be irreparably injured unless a stay
is granted;
(2) Whether the requestor has made a strong showing that it is
likely to prevail on the merits;
[[Page 66735]]
(3) Whether the granting of a stay would harm other participants;
and
(4) Where the public interest lies.
Sec. 2.1328 Default.
When a participant fails to act within a specified time, the
Presiding Officer may consider that participant in default, issue an
appropriate ruling and proceed without further notice to the defaulting
participant.
Sec. 2.1329 Waiver of a rule or regulation.
(a) A participant may petition that a Commission rule or regulation
be waived with respect to the license transfer application under
consideration.
(b) The sole ground for a waiver shall be that, because of special
circumstances concerning the subject of the hearing, application of a
rule or regulation would not serve the purposes for which it was
adopted.
(c) Waiver petitions shall specify why application of the rule or
regulation would not serve the purposes for which it was adopted and
shall be supported by affidavits to the extent applicable.
(d) Other participants may, within 10 days, file a response to a
waiver petition.
(e) When the Commission does not preside, the Presiding Officer
will certify the waiver petition to the Commission, which, in response,
will grant or deny the waiver or direct any further proceedings.
Sec. 2.1330 Reporter and transcript for an oral hearing.
(a) A reporter designated by the Commission will record an oral
hearing and prepare the official hearing transcript.
(b) Except for any portions that must be protected from disclosure
in accordance with law and policy as reflected in 10 CFR 2.790,
transcripts will be placed in the Public Document Room, and copies may
be purchased from the Secretary, U.S. Nuclear Regulatory Commission,
Washington, DC 20555.
(c) Corrections of the official transcript may be made only as
specified by the Secretary.
Sec. 2.1331 Commission action.
(a) Upon completion of a hearing, the Commission will issue a
written opinion including its decision on the license transfer
application and the reasons for the decision.
(b) The decision on issues designated for hearing pursuant to
Sec. 2.1308 will be based on the record developed at hearing.
PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC
LICENSING AND RELATED REGULATORY FUNCTIONS
7. The authority citation for Part 51 continues to read as follows:
Authority: Sec. 161, 68 Stat. 948, as amended, sec. 1701, 106
Stat. 2951, 2952, 2953 (42 U.S.C. 2201, 2297f); secs. 201, as
amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841,
5842).
Subpart A also issued under National Environmental Policy Act of
1969, secs. 102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C.
4332, 4334, 4335); and Pub. L. 95-604, Title II, 92 Stat. 3033-3041;
and sec. 193, Pub. L. 101-575, 104 Stat. 2835 (42 U.S.C. 2243).
Section 51.20, 51.30, 51.60, 51.80, and 51.97 also issued under
secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241, and sec. 148,
Pub. L. 100-203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161, 10168).
Section 51.22 also issued under sec. 274, 73 Stat. 688, as amended
by 92 Stat. 3036-3038 (42 U.S.C. 10141). Section 51.43, 51.67, and
51.109 also under Nuclear Waste Policy Act of 1982, sec 114(f), 96
Stat. 2216, as amended (42 U.S.C. 10134).
8. In Sec. 51.22, a new paragraph (c)(21) is added to read as
follows:
Sec. 51.22 Criterion for categorical exclusion; identification of
licensing and regulatory actions eligible for categorical exclusion or
otherwise not requiring environmental review.
* * * * *
(c) * * *
(21) Approvals of direct or indirect transfers of any license
issued by NRC and any associated amendments of license required to
reflect the approval of a direct or indirect transfer of an NRC
license.
* * * * *
Dated at Rockville, Maryland, this 27th day of November 1998.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 98-32211 Filed 12-2-98; 8:45 am]
BILLING CODE 7590-01-P
