[Federal Register Volume 63, Number 176 (Friday, September 11, 1998)]
[Proposed Rules]
[Pages 48644-48653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24456]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 63, No. 176 / Friday, September 11, 1998 /
Proposed Rules
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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: Proposed rule.
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SUMMARY: The Nuclear Regulatory Commission is proposing an amendment to
its regulations that would provide specific uniform procedures and
rules of practice for handling requests for hearings associated with
license transfer applications involving both material and reactor
licensees. Conforming amendments are also made to certain other parts
of the Commission's regulations. These new provisions would 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 would also add a
categorical exclusion that would permit processing of transfer
applications without preparation of Environmental Assessments.
DATES: The comment period expires October 13, 1998. Comments received
after this date will be considered if it is practical to do so, but the
Commission is able to assure consideration only for comments received
on or before this date. Comments may be submitted either electronically
or in written form.
ADDRESSES: Written comments should be sent to: Secretary of the
Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, Attention: Rulemaking and Adjudications Staff.
You may also provide comments via the NRC's interactive rulemaking
web site through the NRC home page (http://www.nrc.gov). From the home
page, select ``Rulemaking'' from the tool bar. The interactive
rulemaking web site can then be accessed by selecting ``Rulemaking
Forum.'' This site provides the ability to upload comments as files
(any format), if your web browser supports that function. For
information about the interactive rulemaking web site, contact Ms.
Carol Gallagher, (301) 415-5905; e-mail [email protected]
Comments received on this rulemaking may be examined at the NRC
Public Document Room, 2120 L Street NW (Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: Joseph R. Gray, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
telephone (301) 415-1740, E-mail [email protected]
SUPPLEMENTARY INFORMATION:
Introduction and Purpose
As part of broader efforts to improve the effectiveness of the
agency's programs and processes, the Commission has begun an
examination of its practices and procedures for considering proposed
licensing and regulatory actions before it. The Commission recently
issued a ``Statement of Policy on Conduct of Adjudicatory Proceedings''
directing its hearing boards and presiding officers to employ certain
measures to ensure efficient conduct of proceedings within the
framework of 10 CFR Part 2, Subpart G, the agency's formal adjudicatory
hearing procedures. (See 63 FR 41872; August 5, 1998).
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, we expect this
high rate of requests for approval of license transfers to continue.
Because of the need for expeditious decision making from all agencies,
including the Commission, for these kinds of transactions, timely and
effectively resolution of requests for transfers on the part of the
Commission is essential.
In general, license transfers do not involve any changes to plant
operations or significant changes in personnel of consequence to the
continued reasonable assurance of public health and safety, but rather
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 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.)
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 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 give consent to a license transfer, past
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Commission practice has generally used formal hearing procedures in
accordance with the provisions of 10 CFR Part 2, Subpart G, for reactor
license transfers or informal hearing procedures as provided by 10 CFR
Part 2, Subpart L, in connection with materials licenses. As explained
above, however, such transfers do not, as a general proposition,
involve the type of technical issues with immediate impact on the
actual operation of the facilities that could 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
issuing amendments to licenses that substantially affect the technical
operations of a licensed reactor facility. 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 would be more
effectively handled by a separate Subpart of 10 CFR Part 2 which
establishes an efficient and appropriate 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(a)(1).)
The Commission believes 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 hearing on a
materials license amendment was held not to be required by statute,
i.e. (Sec. 189.a of the Atomic Energy Act, to 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 ``on-the-record'' 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 since
stated that it interprets section 189.a as not requiring 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).
During the past several years, the Commission has, on several
occasions, undertaken to tailor procedures appropriate to reaching
decisions on particular types of proposed actions. These approaches
have been upheld by the courts using the principles set forth in
Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-
844 (1984). In Nuclear Information Resource Service v. Nuclear
Regulatory Commission, 969 F.2d 1169, 1173 (D.C. Cir. 1992), upholding
the Commission's new procedures for issuance of a combined license for
standardized reactor designs, the Court noted that
While this section [189.a] plainly requires a ``hearing upon
request'' before the ``granting'' of a license, it provides no
unambiguous instruction as to how the ``hearing'' is to be held; nor
does it speak in any direct fashion to the question of whether the
Commission must rehear issues already resolved at earlier stages in
the licensing process. As we noted in Union of Concerned Scientists
v. NRC, 920 F.2d 50, 53-54 (D.C. Cir. 1990) ( ``UCS II''):
[T]he [Atomic Energy] Act itself nowhere describes the content
of a hearing or prescribes the manner in which this ``hearing'' is
to be run. * * * We are, of course, obliged to defer to the
operating procedures employed by the agency [i.e., move to a Chevron
step II analysis] when the governing statute requires only that a
``hearing'' be held. (emphasis in original).
In Kelley v. Selin, 42 F.3d 1501, 1511 (6th Cir. 1995), the court
followed a similar line of reasoning in concluding that the procedures
adopted by the Commission to approve casks for spent nuclear fuel
storage were acceptable. These decisions give the Commission confidence
that an interpretation of section 189.a to permit the kind of
procedures we propose here will find judicial support.1
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\1\ Further, the Commission has specifically found that the
statute does not mandate pre-effectiveness hearings for transfers of
NRC licenses, an action which the Commission has noted is not a
licensing action under Section 189.a(1) of the AEA. Long Island
Lighting Company (Shoreham Nuclear Power Station, Unit 1), CLI-92-4,
35 NRC 69, 77 (1992). In this decision, the Commission determined
that the consent called for by Section 184 of the AEA was to be
granted by order, not by license amendment, though it was recognized
that conforming license amendments, of an administrative nature,
might also be required to reflect a change in the name of the
licensee. 35 NRC at 76-77 and n.6.
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To promote uniformity, the proposed hearing procedures for license
transfers will apply to both materials and reactor licenses. 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.
The proposed procedures would cover any direct or indirect 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 would include 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 proposed procedures, similar to those used by the Commission in
cases involving export and import licensing hearings under 10 CFR Part
110, provide for a legislative type hearing for license transfers.
These procedures will 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
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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 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 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 proposed 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 under 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,2 intervenors can
and do introduce the issue of whether to have oral presentations in
individual proceedings. Rather than allow the issue of oral
presentations to become a point of contention in individual proceedings
(which could introduce unnecessary delays in completing the record) the
proposed rule would resolve this concern by ensuring that all parties
have the opportunity to present oral arguments and evidence. The
question of whether cross examination of witnesses should be allowed
has also introduced an area for argument in Subpart L
proceedings.3 The Commission has addressed this area of
potential dispute in the proposed rules by providing for questioning of
witnesses only by the Presiding Officer. Although only the Presiding
Officer may question witnesses, the proposed rules specifically provide
parties the opportunity to present recommended questions to the
Presiding Officer.
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\2\ Curators of the University of Missouri, CLI-95-1, 41 NRC 71,
120 (1995)
\3\ Id.
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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 (63 FR 41872; August 5, 1998).
Finally, to improve the efficiency of the adjudicatory process, the
proposed rules would impose 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 proposed procedures would 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, and the hearing would 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 reference 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 transfer itself may only be considered using the
procedures in this proposed 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 proposed regulations provide that conforming
amendments to the license may be issued by the 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, 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,
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'' 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 staff has completed numerous 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.4 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 staff to
continue to conduct
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individual Environmental Assessments in each transfer case.
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\4\ Long Island Lighting Company, supra, 35 NRC at 77, n. 6.
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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 which 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, including the requirement for
individualized findings under 10 CFR 50.58, 50.91 and 50.92 that
address the necessity for pre-effectiveness hearings.
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, if adopted, 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 proposes to find that
the approval of a direct or indirect license transfer, as well as any
required administrative license amendments to reflect the approved
transfer, comprise 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.
Environmental 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 proposed regulations do 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, Subparts G or L, as appropriate and
applicable environmental review requirements of 10 CFR Part 51.
Paperwork Reduction Act Statement
The proposed 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 proposed 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
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 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.
Where, as in the proposed rule, the Commission is concerned with
only one type of approval, the Commission has the ability to resolve
through
[[Page 48648]]
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 proposed 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 proposed 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 proposed 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 proposed 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 decisionmaking or the rights of all parties to a
full and fair hearing since all parties will be allowed 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.
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, if
promulgated, have a significant economic impact on a substantial number
of small entities. This proposed 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.
Backfit Analysis
The NRC has determined that the backfit rule, 10 CFR 50.109, 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 10 CFR 50.109. The rule does not
constitute a backfit under 10 CFR 50.109, 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.
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. 553, the NRC is proposing to
adopt 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. 10134(f)); sec. 102,
Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301,
88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105,
2.721 also issued under secs. 102, 103, 104, 105, 183i 189, 68 Stat.
936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,
2135, 2233, 2239). 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. 890, as amended by section
31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).
Sections 2.600-2,606 also issued under sec. 102, Pub. L. 91-190, 83
Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also
issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also
issued under 5 U.S.C. 557. Section 2.764 also issued under secs.
135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155,
10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as
amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808
also issued under 5 U. S. C. 553, Section 2.809 also issued under 5
U.S.C. 553 and sec.29, Pub. L. 85-256, 71 Stat. 579, as amended (42
U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42
U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C.
10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42
U.S.C. 2239). Subpart M also issued under sec. 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 staff prior to the filing of an application.
* * * * *
3. 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 license amendments related to an
application to transfer a license; or
* * * * *
4. 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
[[Page 48649]]
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.
* * * * *
5. 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 transfer.
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.
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 Licensed
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 and major fuel cycle
facility licenses issued under 10 CFR part 70. 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.
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
[[Page 48650]]
(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;
(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
petitioners' 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.
[[Page 48651]]
(b) All filings must be served upon the applicant; the General
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555; the
Secretary of the Commission, U.S. Nuclear Regulatory Commission,
Washington, DC 20555, 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
(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 by a
paper served pursuant to Sec. 2.1307, 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
utilization facility license amendment conforming the license to
reflect the transfer action is administrative in nature and involves no
significant hazards considerations.
(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 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 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.
[[Page 48652]]
(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 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 submittal to persons sponsoring testimony submitted
under paragraph (a) of this section. These materials shall be filed
within 20 days of the filing of the materials submitted under paragraph
(a) of this section, unless the Commission or Presiding Officer directs
otherwise.
(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 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 hearing:
(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.
(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 10 CFR part 2 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.
[[Page 48653]]
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;
(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
under 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, D.C. 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 the application following the hearing will be
based on the record developed at hearing.
PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC
LICENSING AND RELATED REGULATORY FUNCTIONS
6. 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 ll, 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. 2021) and under Nuclear Waste
Policy Act of 1982, sec 121, 96 Stat. 2228 (42 U.S.C. 10141).
Sections 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).
7. 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 4th day of September 1998.
For Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 98-24456 Filed 9-10-98; 8:45 am]
BILLING CODE 7590-01-P
