
[Code of Federal Regulations]
[Title 10, Volume 1]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 10CFR2]

[Page 48-85]
 
                            TITLE 10--ENERGY
 
                CHAPTER I--NUCLEAR REGULATORY COMMISSION
 
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF OR
DERS--Table of Contents
 
Subpart G--Rules of General Applicability

Sec. 2.700  Scope of subpart.

    The general rules in this subpart govern procedure in all 
adjudications initiated by the issuance of an order pursuant to 
Sec. 2.202, an order pursuant to Sec. 2.205(e), a notice of hearing, a 
notice of proposed action issued pursuant to Sec. 2.105, or a notice 
issued pursuant to Sec. 2.102(d)(3). The procedures applicable to the 
proceeding on an application for a license to receive and possess high-
level radioactive waste at a geologic repository operations area are set 
forth in subpart J.

[56 FR 40685, Aug. 15, 1991]

Sec. 2.700a  Exceptions.

    (a) Consistent with 5 U.S.C. 554(a)(4) of the Administrative 
Procedure Act, the Commission may provide alternative procedures in 
adjudications to the extent that there is involved the conduct of 
military or foreign affairs functions.
    (b) This rule shall apply to proceedings in progress where hearings 
have already been requested or ordered as well as to future proceedings.

[47 FR 4493, Feb. 1, 1982]

Sec. 2.701  Filing of documents.

    (a) Documents shall be filed with the Commission in adjudications 
subject to this part either:
    (1) By delivery to the NRC Public Document Room at 2120 L Street, 
NW., Washington, DC, or

[[Page 49]]

    (2) By mail or addressed to the Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemakings and 
Adjudications Staff.
    (b) All documents offered for filing shall be accompanied by proof 
of service upon all parties to the proceeding or their attorneys of 
record as required by law or by rule or order of the Commission. The 
staff of the Commission shall be deemed to be a party.
    (c) Filing by mail, telegram, or facsimile will be deemed to be 
complete as of the time of deposit in the mail or with a telegraph 
company or upon facsimile transmission.

[27 FR 377, Jan. 13, 1962, as amended at 29 FR 12830, Sept. 11, 1964; 33 
FR 6708, May 2, 1968; 39 FR 35332, Oct. 1, 1974; 53 FR 43419, Oct. 27, 
1988; 62 FR 27495, May 20, 1997; 64 FR 48948, Sept. 9, 1999]

Sec. 2.702  Docket.

    The Secretary shall maintain a docket for each proceeding subject to 
this part, commencing with the issuance of the initial notice of 
hearing, notice of consideration of issuance of facility operating 
license or other proposed action specified in Sec. 2.105, or order. The 
Secretary shall maintain all files and records, including the 
transcripts of testimony and exhibits and all papers, correspondence, 
decisions and orders filed or issued.

[57 FR 4153, Feb. 4, 1992]

Sec. 2.703  Notice of hearing.

    (a) In a proceeding in which the terms of a notice of hearing are 
not otherwise prescribed by this part, the order or notice of hearing 
will state:
    (1) The nature of the hearing, and its time and place, or a 
statement that the time and place will be fixed by subsequent order;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law asserted or to be considered; and
    (4) The time within which an answer shall be filed.
    (b) The time and place of hearing will be fixed with due regard for 
the convenience of the parties or their representatives, the nature of 
the proceeding, and the public interest.

Sec. 2.704  Designation of presiding officer, disqualification, 
          unavailability.

    (a) The Commission may provide in the notice of hearing that one or 
more members of the Commission, or an atomic safety and licensing board, 
or a named officer who has been delegated final authority in the matter, 
shall preside. If the Commission does not so provide, the Chairman of 
the Atomic Safety and Licensing Board Panel will issue an order 
designating an atomic safety and licensing board appointed pursuant to 
section 191 of the Atomic Energy Act of 1954, as amended, or, if the 
Commission has not provided for the hearing to be conducted by an atomic 
safety and licensing board, the Chief Administrative Law Judge will 
issue an order designating an administrative law judge appointed 
pursuant to section 3105 of title 5 of the United States Code.
    (b) If a designated presiding officer or a designated member of an 
atomic safety and licensing board deems himself disqualified to preside 
or to participate as a board member in the hearing, he shall withdraw by 
notice on the record and shall notify the Commission or the Chairman of 
the Atomic Safety and Licensing Board Panel, as appropriate, of his 
withdrawal.
    (c) If a party deems the presiding officer or a designated member of 
an atomic safety and licensing board to be disqualified, he may move 
that the presiding officer or the board member disqualify himself. The 
motion shall be supported by affidavits setting forth the alleged 
grounds for disqualification. If the presiding officer does not grant 
the motion or the board member does not disqualify himself, the motion 
shall be referred to the Commission which will determine the sufficiency 
of the grounds alleged.
    (d) If a presiding officer or a designated member of an atomic 
safety and licensing board becomes unavailable during the course of a 
hearing, the Commission or the Chairman of the Atomic Safety and 
Licensing Board Panel, as appropriate, will designate another presiding 
officer or atomic safety and licensing board member. If he becomes 
unavailable after the hearing has been concluded:

[[Page 50]]

    (1)(i) The Commission may designate another presiding officer to 
make the decision; or
    (ii) The Chairman of the Atomic Safety and Licensing Board Panel or 
the Commission, as appropriate, may designate another atomic safety and 
licensing board member to participate in the decision;
    (2) The Commission may direct that the record be certified to it for 
decision; or
    (3) The Commission may designate another presiding officer.
    (e) In the event of substitution of a presiding officer or a 
designated member of an atomic safety and licensing board for the one 
originally designated, any motion predicated upon the substitution shall 
be made within five (5) days thereafter.

[27 FR 377, Jan. 13, 1962, as amended at 31 FR 16310, Dec. 21, 1966; 35 
FR 11459, July 17, 1970; 35 FR 12649, Aug. 8, 1970; 40 FR 51996, Nov. 7, 
1975; 40 FR 53379, Nov. 18, 1975; 56 FR 29408, June 27, 1991]

Sec. 2.705  Answer.

    (a) Within twenty (20) days after service of the notice of hearing, 
or such other time as may be specified in the notice of hearing, a party 
may file an answer which shall concisely state:
    (1) The nature of his defense or other position;
    (2) The items of the specification of issues he controverts and 
those he does not controvert; and
    (3) Whether he proposes to appear and present evidence.
    (b) If facts are alleged in the specification of issues, the answer 
shall admit or deny specifically each material allegation of fact; or, 
where the party has no knowledge or information sufficient to form a 
belief, the answer may so state and the statement shall have the effect 
of a denial. Material allegations of fact not denied shall be deemed to 
be admitted. Matters alleged as affirmative defenses or positions shall 
be separately stated and identified and, in the absence of a reply, 
shall be deemed to be controverted.
    (c) If a party does not oppose an order or proposed action embodied 
in or accompanying the notice of hearing, or does not wish to appear and 
present evidence at the hearing, the answer shall so state. In lieu of 
appearing at the hearing, a party may request leave to file a statement 
under oath or affirmation of reasons why the proposed order or action 
should not be issued or should differ from that proposed. Such a 
statement, if accepted, will be accorded whatever weight is deemed 
proper.

Sec. 2.706  Reply.

    A party may file a reply to an answer within ten (10) days after it 
is served.

[27 FR 377, Jan. 13, 1962, as amended at 43 FR 17801, Apr. 26, 1978]

Sec. 2.707  Default.

    On failure of a party to file an answer or pleading within the time 
prescribed in this part or as specified in the notice of hearing or 
pleading; to appear at a hearing or prehearing conference, to comply 
with any prehearing order entered pursuant to Sec. 2.751a or Sec. 2.752, 
or to comply with any discovery order entered by the presiding officer 
pursuant to Sec. 2.740, the Commission or the presiding officer \4\ may 
make such orders in regard to the failure as are just, including, among 
others, the following:
---------------------------------------------------------------------------

    \4\ When a reference is made to the Commission or the presiding 
officer in this subpart and a presiding officer has been designated, the 
specified action will be taken by the presiding officer, unless 
otherwise provided.
---------------------------------------------------------------------------

    (a) Without further notice, find the facts as to the matters 
regarding which the order was made in accordance with the claim of the 
party obtaining the order, and enter such order as may be appropriate; 
or
    (b) Proceed without further notice to take proof on the issues 
specified.

[37 FR 15131, July 28, 1972]

Sec. 2.708  Formal requirements for documents.

    (a) Each document filed in an adjudication subject to this part to 
which a docket number has been assigned shall bear the docket number and 
title of the proceeding.
    (b) Each document shall be bound on the left side and typewritten, 
printed or otherwise reproduced in permanent form on good unglazed paper 
of standard letterhead size. Each page shall begin not less than one and 
one-quarter

[[Page 51]]

inches from the top, with side and bottom margins of not less than one 
and one-quarter inches. Text shall be double-spaced, except that 
quotations may be single-spaced and indented. The requirements of this 
paragraph do not apply to original documents or admissible copies 
offered as exhibits, or to specially prepared exhibits.
    (c) The original of each document shall be signed in ink by the 
party or his authorized representative, or by an attorney having 
authority with respect to it. The capacity of the person signing, his 
address, and the date shall be stated. The signature of a person signing 
in a representative capacity is a representation that the document has 
been subscribed in the capacity specified with full authority, that he 
has read it and knows the contents, that to the best of his knowledge, 
information, and belief the statements made in it are true, and that it 
is not interposed for delay. If a document is not signed, or is signed 
with intent to defeat the purpose of this section, it may be stricken.
    (d) Except as otherwise provided by this part or by order, a 
pleading (or other document) other than correspondence shall be filed in 
an original and two conformed copies.
    (e) The first document filed by any person in a proceeding shall 
designate the name and address of a person on whom service may be made.
    (f) A document filed by telegraph need not comply with the formal 
requirements of paragraphs (b), (c), and (d) of this section if an 
original and copies otherwise complying with all of the requirements of 
this section are mailed within two (2) days thereafter to the Secretary, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
Attention: Rulemakings and Adjudications Staff.

[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10153, Sept. 17, 1963; 33 
FR 6708, May 5, 1968; 39 FR 35332, Oct. 1, 1974; 45 FR 49537, July 25, 
1980; 62 FR 27495, May 20, 1997]

Sec. 2.709  Acceptance for filing.

    A document which fails to conform to the requirements of Sec. 2.708 
may be refused acceptance for filing and may be returned with an 
indication of the reason for nonacceptance. Any matter so tendered but 
not accepted for filing shall not be entered on the Commission's docket.

Sec. 2.710  Computation of time.

    In computing any period of time, the day of the act, event, or 
default after which the designated period of time begins to run is not 
included. The last day of the period so computed is included unless it 
is a Saturday, Sunday, or legal holiday at the place where the action or 
event is to occur, in which event the period runs until the end of the 
next day which is neither a Saturday, Sunday, nor holiday. Whenever a 
party has the right or is required to do some act within a prescribed 
period after the service of a notice or other paper upon him or her and 
the notice or paper is served upon by mail, five (5) days shall be added 
to the prescribed period. Only two (2) days shall be added when a 
document is served by express mail.

[46 FR 58281, Dec. 1, 1981]

Sec. 2.711  Extension and reduction of time limits.

    (a) Except as otherwise provided by law, whenever an act is required 
or allowed to be done at or within a specified time, the time fixed or 
the period of time prescribed may for good cause be extended or 
shortened by the Commission or the presiding officer, or by stipulation 
approved by the Commission or the presiding officer.
    (b) In any instance in which this part does not prescribe a time 
limit for an action to be taken in the proceeding, the Commission or the 
presiding officer may set a time limit for that action.

[37 FR 15131, July 28, 1972]

Sec. 2.712  Service of papers, methods, proof.

    (a) Service of papers by the Commission. Except for subpoenas, the 
Commission will serve all orders, decisions, notices, and other papers 
issued by it upon all parties.
    (b) Who may be served. Any paper required to be served upon a party 
shall be served upon him or upon the representative designated by him or 
by law to receive service of papers. When

[[Page 52]]

a party has appeared by attorney, service must be made upon the attorney 
of record.
    (c) How service may be made. Service may be made by personal 
delivery, by first class, certified or registered mail including air 
mail, by telegraph, or as otherwise authorized by law. Where there are 
numerous parties to a proceeding, the Commission may make special 
provision regarding the service of papers. The presiding officer may 
require service by express mail upon some or all parties and the 
presiding officer.
    (d) Service on the Secretary. (1) All pleadings must be served on 
the Secretary of the Commission in the same or equivalent manner, i.e., 
telefax, express mail, personal delivery, or courier, that they are 
served upon the adjudicatory tribunals and the parties to the 
proceedings so that the Secretary will receive the pleading at 
approximately the same time that it is received by the tribunal to which 
the pleading is directed.
    (2) When pleadings are personally delivered to tribunals while they 
are conducting proceedings outside the Washington, DC area, service on 
the Secretary may be accomplished by overnight mail.
    (3) Service of pre-filed testimony and demonstrative evidence (e.g., 
maps and other physical exhibits) on the Secretary may be made by first-
class mail in all cases.
    (4) The addresses for the Secretary are:
    (i) First class mail: Office of the Secretary, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings 
and Adjudications Staff.
    (ii) Express mail: Office of the Secretary, Sixteenth Floor, One 
White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, 
Attention: Rulemakings and Adjudications Staff.
    (iii) Facsimile: (301) 415-1101, verification number is (301) 415-
1966; and e-mail: SECY@NRC.gov.
    (e) When service complete. Service upon a party is complete:
    (1) By personal delivery, on handing the paper to the individual, or 
leaving it at his office with his clerk or other person in charge or, if 
there is no one in charge, leaving it in a conspicuous place therein or, 
if the office is closed or the person to be served has no office, 
leaving it at his usual place of residence with some person of suitable 
age and discretion then residing there;
    (2) By telegraph, when deposited with a telegraph company, properly 
addressed and with charges prepaid;
    (3) By mail, on deposit in the United States mail, properly stamped 
and addressed; or
    (4) When service cannot be effected in a manner provided by 
paragraphs (d) (1) to (3) inclusive of this section in any other manner 
authorized by law.
    (f) Proof of service. Proof of service, stating the name and address 
of the person on whom served and the manner and date of service, shall 
be shown for each document filed, and may be made by:
    (1) Written acknowledgment of the party served or his counsel;
    (2) The certificate of counsel if he has made the service; or
    (3) The affidavit of the person making the service.
    (g) Free copying and service. Except in an antitrust proceeding, in 
any adjudicatory proceeding on an application for a license or an 
amendment thereto, the Commission, upon request by a party other than 
the applicant, will copy and serve without cost to that party that 
party's testimony (including attachments), proposed findings of fact and 
conclusions of law, and responses to discovery requests. These documents 
should be filed with Docketing and Service not less than five days 
before they are due to be submitted to an adjudicatory board, unless the 
presiding officer provides otherwise. \1\
---------------------------------------------------------------------------

    \1\ This paragraph is suspended until further action of the 
Commission. (See 46 FR 13681, Feb. 24, 1981)

[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10153, Sept. 17, 1963; 31 
FR 4390, Mar. 15, 1966; 45 FR 49537, July 25, 1980; 46 FR 13681, Feb. 
24, 1981; 46 FR 58281, Dec. 1, 1981; 54 FR 26731, June 26, 1989; 54 FR 
29008, July 11, 1989; 60 FR 24551, May 9, 1995; 62 FR 27495, May 20, 
1997]

[[Page 53]]

Sec. 2.713  Appearance and practice before the Commission in 
          adjudicatory proceedings.

    (a) Standards of practice. In the exercise of their functions under 
this subpart, the Commission, the Atomic Safety and Licensing Boards, 
and Administrative Law Judges function in a quasijudicial capacity. 
Accordingly, parties and their representatives in proceedings subject to 
this subpart are expected to conduct themselves with honor, dignity, and 
decorum as they should before a court of law.
    (b) Representation. A person may appear in an adjudication on his or 
her own behalf or by an attorney-at-law. A partnership, corporation or 
unincorporated association may be represented by a duly authorized 
member or officer, or by an attorney-at-law. A party may be represented 
by an attorney-at-law provided the attorney is in good standing and has 
been admitted to practice before any Court of the United States, the 
District of Columbia, or the highest court of any State, territory, or 
possession of the United States. Any person appearing in a 
representative capacity shall file with the Commission a written notice 
of appearance which shall state his or her name, address, and telephone 
number; the name and address of the person on whose behalf he or she 
appears; and, in the case of an attorney-at-law, the basis of his or her 
eligibility as a representative or, in the case of another 
representative, the basis of his or her authority to act on behalf of 
the party.
    (c) Reprimand, censure or suspension from the proceeding. (1) A 
presiding officer or the Commission may, if necessary for the orderly 
conduct of a proceeding, reprimand, censure or suspend from 
participation in the particular proceeding pending before it any party 
or representative of a party who shall refuse to comply with its 
directions, or who shall be guilty of disorderly, disruptive, or 
contemptuous conduct.
    (2) A reprimand, a censure or a suspension which is ordered to run 
for one day or less shall be ordered with grounds stated on the record 
of the proceeding and shall advise the person disciplined of the right 
to appeal pursuant to paragraph (c)(3) of this section. A suspension 
which is ordered for a longer period shall be in writing, shall state 
the grounds on which it is based, and shall advise the person suspended 
of the right to appeal and to request a stay pursuant to paragraphs 
(c)(3) and (c)(4) of this section. A proceeding may be stayed for a 
reasonable time in order for an affected party to obtain other 
representation if this would be necessary to prevent injustice.
    (3) Anyone disciplined pursuant to this section may within ten (10) 
days after issuance of the order file an appeal with the Commission. The 
appeal shall be in writing and state concisely, with supporting 
argument, why the appellant believes the order was erroneous, either as 
a matter of fact or law. The Commission shall consider each appeal on 
the merits, including appeals in cases in which the suspension period 
has already run. If necessary for a full and fair consideration of the 
facts, the Commission may conduct further evidentiary hearings, or may 
refer the matter to another presiding officer for development of a 
record. In the latter event, unless the Commission provides specific 
directions to the presiding officer, that officer shall determine the 
procedure to be followed and who shall present evidence, subject to 
applicable provisions of law. Such hearing shall commence as soon as 
possible. In the case of an attorney, if no appeal is taken of a 
suspension, or, if the suspension is upheld at the conclusion of the 
appeal, the presiding officer, or the Commission, as appropriate, shall 
notify the state bar(s) to which the attorney is admitted. Such 
notification shall include copies of the order of suspension, and, if an 
appeal was taken, briefs of the parties, and the decision of the 
Commission.
    (4) A suspension exceeding 1 day shall not be effective for 72 hours 
from the date the suspension order is issued. Within this time a 
suspended individual may request a stay of the sanction from the 
appropriate reviewing tribunal pending appeal. No responses to the stay 
request from other parties will be entertained. If a timely stay request 
is filed, the suspension shall be stayed until the reviewing tribunal 
rules on the motion. The stay request shall be in writing and contain 
the information specified in Sec. 2.788(b) (1), (2)

[[Page 54]]

and (3) of this part. The Commission shall rule on the stay request 
within 10 days after the filing of the motion. The Commission shall 
consider the factors specified in Sec. 2.788(e) (1) and (2) of this part 
is determining whether to grant or deny a stay application.

[45 FR 69878, Oct. 22, 1980, as amended at 56 FR 29408, June 27, 1991]

Sec. 2.714  Intervention.

    (a)(1) Any person whose interest may be affected by a proceeding and 
who desires to participate as a party shall file a written petition for 
leave to intervene. In a proceeding noticed pursuant to Sec. 2.105, any 
person whose interest may be affected may also request a hearing. The 
petition and/or request shall be filed not later than the time specified 
in the notice of hearing, or as provided by the Commission, the 
presiding officer or the Atomic Safety and Licensing Board designated to 
rule on the petition and/or request, or as provided in Sec. 2.102(d)(3). 
Nontimely filings will not be entertained absent a determination by the 
Commission, the presiding officer or the Atomic Safety and Licensing 
Board designated to rule on the petition and/or request, that the 
petition and/or request should be granted based upon a balancing of the 
following factors in addition to those set out in paragraph (d)(1) of 
this section:
    (i) Good cause, if any, for failure to file on time.
    (ii) The availability of other means whereby the petitioner's 
interest will be protected.
    (iii) The extent to which the petitioner's participation may 
reasonably be expected to assist in developing a sound record.
    (iv) The extent to which the petitioner's interest will be 
represented by existing parties.
    (v) The extent to which the petitioner's participation will broaden 
the issues or delay the proceeding.
    (2) The petition shall set forth with particularity the interest of 
the petitioner in the proceeding, how that interest may be affected by 
the results of the proceeding, including the reasons why petitioner 
should be permitted to intervene, with particular reference to the 
factors in paragraph (d)(1) of this section, and the specific aspect or 
aspects of the subject matter of the proceeding as to which petitioner 
wishes to intervene.
    (3) Any person who has filed a petition for leave to intervene or 
who has been admitted as a party pursuant to this section may amend his 
petition for leave to intervene. A petition may be amended without prior 
approval of the presiding officer at any time up to fifteen (15) days 
prior to the holding of the special prehearing conference pursuant to 
Sec. 2.751a, or where no special prehearing conference is held, fifteen 
(15) days prior to the holding of the first prehearing conference. After 
this time a petition may be amended only with approval of the presiding 
officer, based on a balancing of the factors specified in paragraph 
(a)(1) of this section. Such an amended petition for leave to intervene 
must satisfy the requirements of this paragraph (a) of this section 
pertaining to specificity.
    (b)(1) Not later than fifteen (15) days prior to the holding of the 
special prehearing conference pursuant to Sec. 2.751a, or if no special 
prehearing conference is held, fifteen (15) days prior to the holding of 
the first prehearing conference, the petitioner shall file a supplement 
to his or her petition to intervene that must include a list of the 
contentions which petitioner seeks to have litigated in the hearing. A 
petitioner who fails to file a supplement that satisfies the 
requirements of paragraph (b)(2) of this section with respect to at 
least one contention will not be permitted to participate as a party. 
Additional time for filing the supplement may be granted based upon a 
balancing of the factors in paragraph (a)(1) of this section.
    (2) Each contention must consist of a specific statement of the 
issue of law or fact to be raised or controverted. In addition, the 
petitioner shall provide the following information with respect to each 
contention:
    (i) A brief explanation of the bases of the contention.
    (ii) A concise statement of the alleged facts or expert opinion 
which support the contention and on which the petitioner intends to rely 
in proving the contention at the hearing, together with references to 
those specific

[[Page 55]]

sources and documents of which the petitioner is aware and on which the 
petitioner intends to rely to establish those facts or expert opinion.
    (iii) Sufficient information (which may include information pursuant 
to paragraphs (b)(2) (i) and (ii) of this section) to show that a 
genuine dispute exists with the applicant on a material issue of law or 
fact. This showing must include references to the specific portions of 
the application (including the applicant's environmental report and 
safety report) that the petitioner disputes and the supporting reasons 
for each dispute, or, if the petitioner believes that the application 
fails to contain information on a relevant matter as required by law, 
the identification of each failure and the supporting reasons for the 
petitioner's belief. On issues arising under the National Environmental 
Policy Act, the petitioner shall file contentions based on the 
applicant's environmental report. The petitioner can amend those 
contentions or file new contentions if there are data or conclusions in 
the NRC draft or final environmental impact statement, environmental 
assessment, or any supplements relating thereto, that differ 
significantly from the data or conclusions in the applicant's document.
    (c) Any party to a proceeding may file an answer to a petition for 
leave to intervene or a supplement thereto within ten (10) days after 
service of the petition or supplement, with particular attention to the 
factors set forth in paragraph (d)(1) of this section. The staff may 
file such an answer within fifteen (15) days after service of the 
petition or supplement.
    (d) The Commission, the presiding officer, or the Atomic Safety and 
Licensing Board designated to rule on petitions to intervene and/or 
requests for hearing shall permit intervention, in any hearing on an 
application for a license to receive and possess high-level radioactive 
waste at a geologic repository operations area, by the State in which 
such area is located and by any affected Indian Tribe as defined in part 
60 or 63 of this chapter.
    (e) If the Commission or the presiding officer determines that any 
of the admitted contentions constitute pure issues of law, those 
contentions must be decided on the basis of briefs or oral argument 
according to a schedule determined by the Commission or presiding 
officer.
    (f) An order permitting intervention and/or directing a hearing may 
be conditioned on such terms as the Commission, presiding officer or the 
designated atomic safety and licensing board may direct in the interests 
of:
    (1) Restricting irrelevant, duplicative, or repetitive evidence and 
argument,
    (2) Having common interests represented by a spokesman, and
    (3) Retaining authority to determine priorities and control the 
compass of the hearing.
    (g) In any case in which, after consideration of the factors set 
forth in paragraph (d)(1) of this section, the Commission or the 
presiding officer finds that the petitioner's interest is limited to one 
or more of the issues involved in the proceeding, any order allowing 
intervention shall limit his participation accordingly.
    (h) A person permitted to intervene becomes a party to the 
proceeding, subject to any limitations imposed pursuant to paragraph (f) 
of this section.
    (i) Unless otherwise expressly provided in the order allowing 
intervention, the granting of a petition for leave to intervene does not 
change or enlarge the issues specified in the notice of hearing.
    (j) The provisions of this section do not apply to license 
applications docketed under subpart J of this part.

[37 FR 15132, July 28, 1972, as amended at 37 FR 28711, Dec. 29, 1972; 
39 FR 17972, May 22, 1974; 43 FR 17801, Apr. 26, 1978; 44 FR 4459, Jan. 
22, 1979; 51 FR 27162, July 30, 1986; 54 FR 14944, Apr. 14, 1989; 54 FR 
23740, June 2, 1989; 54 FR 33180, Aug. 11, 1989; 54 FR 39728, Sept. 28, 
1989; 66 FR 55788, Nov. 2, 2001]

Sec. 2.714a  Petitions for review of certain rulings on petitions for 
          leave to intervene and/or requests for hearing.

    (a) Notwithstanding the provisions of Sec. 2.730(f), an order of the 
presiding officer or the atomic safety and licensing board designated to 
rule on petitions for leave to intervene and/or requests for hearing may 
be appealed, in accordance with the provisions of this section, to the 
Commission within ten (10)

[[Page 56]]

days after service of the order. The appeal shall be asserted by the 
filing of a notice of appeal and accompanying supporting brief. Any 
other party may file a brief in support of or in opposition to the 
appeal within ten (10) days after service of the appeal. No other 
appeals from rulings on petitions and/or requests for hearing shall be 
allowed.
    (b) An order wholly denying a petition for leave to intervene and/or 
request for a hearing is appealable by the petitioner on the question 
whether the petition and/or hearing request should have been granted in 
whole or in part.
    (c) An order granting a petition for leave to intervene and/or 
request for a hearing is appealable by a party other than the petitioner 
on the question whether the petition and/or the request for a hearing 
should have been wholly denied.

[37 FR 28711, Dec. 29, 1972, as amended at 43 FR 17802, Apr. 26, 1978; 
56 FR 29408, June 27, 1991]

Sec. 2.715  Participation by a person not a party.

    (a) A person who is not a party may, in the discretion of the 
presiding officer, be permitted to make a limited appearance by making 
oral or written statement of his position on the issues at any session 
of the hearing or any prehearing conference within such limits and on 
such conditions as may be fixed by the presiding officer, but he may not 
otherwise participate in the proceeding.
    (b) The Secretary will give notice of a hearing to any person who 
requests it prior to the issuance of the notice of hearing, and will 
furnish a copy of the notice of hearing to any person who requests it 
thereafter. When a communication bears more than one signature, the 
Commission will give the notice to the person first signing unless the 
communication clearly indicates otherwise.
    (c) The presiding officer will afford representatives of an 
interested State, county, municipality, Federally-recognized Indian 
Tribe, and/or agencies thereof, a reasonable opportunity to participate 
and to introduce evidence, interrogate witnesses, and advise the 
Commission without requiring the representative to take a position with 
respect to the issue. Such participants may also file proposed findings 
and exceptions pursuant to Secs. 2.754 and 2.762 and petitions for 
review by the Commission pursuant to Sec. 2.786. The presiding officer 
may require such representative to indicate with reasonable specificity, 
in advance of the hearing, the subject matters on which he desires to 
participate.
    (d) If a matter is taken up by the Commission pursuant to 
Sec. 2.786, a person who is not a party may, in the discretion of the 
Commission, respectively, be permitted to file a brief ``amicus 
curiae''. A person who is not a party and desires to file a brief must 
submit a motion for leave to do so which identifies the interest of the 
person and states the reasons why a brief is desirable. Except as 
otherwise provided by the Commission, such brief must be filed within 
the time allowed to the party whose position the brief will support. A 
motion of a person who is not a party to participate in oral argument 
before the Commission will be granted at the discretion of the 
Commission.

[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10153, Sept. 17, 1963; 43 
FR 17802, Apr. 26, 1978; 56 FR 29408, June 27, 1991; 64 FR 29213, June 
1, 1999]

Sec. 2.715a  Consolidation of parties in construction permit or 
          operating license proceedings.

    On motion or on its or his own initiative, the Commission or the 
presiding officer may order any parties in a proceeding for the issuance 
of a construction permit or an operating license for a production or 
utilization facility who have substantially the same interest that may 
be affected by the proceeding and who raise substantially the same 
questions, to consolidate their presentation of evidence, cross-
examination, briefs, proposed findings of fact, and conclusions of law 
and argument. However, it may not order any consolidation that would 
prejudice the rights of any party. A consolidation under this section 
may be for all purposes of the proceeding, all of the issues of the 
proceeding, or with respect to any one or more issues thereof.

[37 FR 15132, July 28, 1972]

[[Page 57]]

Sec. 2.716  Consolidation of proceedings.

    On motion and for good cause shown or on its own initiative, the 
Commission or the presiding officers of each affected proceeding may 
consolidate for hearing or for other purposes two or more proceedings, 
or may hold joint hearings with interested States and/or other federal 
agencies on matters of concurrent jurisdiction, if it is found that such 
action will be conducive to the proper dispatch of its business and to 
the ends of justice and will be conducted in accordance with the other 
provisions of this subpart.

[43 FR 17802, Apr. 26, 1978]

Sec. 2.717  Commencement and termination of jurisdiction of presiding 
          officer.

    (a) Unless otherwise ordered by the Commission, the jurisdiction of 
the presiding officer designated to conduct a hearing over the 
proceeding, including motions and procedural matters, commences when the 
proceeding commences. If no presiding officer has been designated, the 
Chief Administrative Law Judge has such jurisdiction or, if he is 
unavailable, another administrative law judge has such jurisdiction. A 
proceeding is deemed to commence when a notice of hearing or a notice of 
proposed action pursuant to Sec. 2.105 is issued. When a notice of 
hearing provides that the presiding officer is to be an administrative 
law judge, the Chief Administrative Law Judge will designate by order 
the administrative law judge who is to preside. The presiding officer's 
jurisdiction in each proceeding will terminate upon the expiration of 
the period within which the Commission may direct that the record be 
certified to it for final decision, or when the Commission renders a 
final decision, or when the presiding officer shall have withdrawn 
himself from the case upon considering himself disqualified, whichever 
is earliest.
    (b) The Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate, may issue an 
order and take any otherwise proper administrative action with respect 
to a licensee who is a party to a pending proceeding. Any order related 
to the subject matter of the pending proceeding may be modified by the 
presiding officer as appropriate for the purpose of the proceeding.

[28 FR 10153, Sept. 17, 1963; 31 FR 12776, Sept. 30, 1966, as amended at 
37 FR 28711, Dec. 29, 1972]

Sec. 2.718  Power of presiding officer.

    A presiding officer has the duty to conduct a fair and impartial 
hearing according to law, to take appropriate action to avoid delay, and 
to maintain order. He has all powers necessary to those ends, including 
the powers to:
    (a) Administer oaths and affirmations.
    (b) Issue subpoenas authorized by law.
    (c) Rule on offers of proof, and receive evidence.
    (d) Order depositions to be taken.
    (e) Regulate the course of the hearing and the conduct of the 
participants.
    (f) Dispose of procedural requests or similar matters.
    (g) Examine witnesses.
    (h) Hold conferences before or during the hearing for settlement, 
simplification of the issues, or any other proper purpose.
    (i) Certify questions to the Commission for its determination, 
either in his discretion or on direction of the Commission.
    (j) Reopen a proceeding for the reception of further evidence at any 
time prior to initial decision.
    (k) Appoint special assistants from the Atomic Safety and Licensing 
Board Panel pursuant to Sec. 2.722;
    (l) Issue initial decisions; and
    (m) Take any other action consistent with the Act, this chapter, and 
sections 551-558 of title 5 of the United States Code.

[27 FR 377, Jan. 13, 1962, as amended at 45 FR 62028, Sept. 18, 1980]

Sec. 2.719  [Reserved]

Sec. 2.720  Subpoenas.

    (a) On application by any party, the designated presiding officer 
or, if he is not available, the Chairman of the Atomic Safety and 
Licensing Board Panel, the Chief Administrative Law Judge, or other 
designated officer will

[[Page 58]]

issue subpoenas requiring the attendance and testimony of witnesses or 
the production of evidence. The officer to whom application is made may 
require a showing of general relevance of the testimony or evidence 
sought, and may withhold the subpoena if such a showing is not made, but 
he shall not attempt to determine the admissibility of evidence.
    (b) Every subpoena will bear the name of the Commission, the name 
and office of the issuing officer and the title of the hearing, and will 
command the person to whom it is directed to attend and give testimony 
or produce specified documents or other things at a designated time and 
place. The subpoena will also advise of the quashing procedure provided 
in paragraph (f) of this section.
    (c) Unless the service of a subpoena is acknowledged on its face by 
the witness or is served by an officer or employee of the Commission, it 
shall be served by a person who is not a party to the hearing and is not 
less than eighteen (18) years of age. Service of a subpoena shall be 
made by delivery of a copy of the subpoena to the person named in it and 
tendering him the fees for one day's attendance and the mileage allowed 
by law. When the subpoena is issued on behalf of the Commission, fees 
and mileage need not be tendered, and the subpoena may be served by 
registered mail.
    (d) Witnesses summoned by subpoena shall be paid, by the party at 
whose instance they appear, the fees and mileage paid to witnesses in 
the district courts of the United States.
    (e) The person serving the subpoena shall make proof of service by 
filing the subpoena and affidavit or acknowledgment of service with the 
officer before whom the witness is required to testify or produce 
evidence or with the Secretary. Failure to make proof of service shall 
not affect the validity of the service.
    (f) On motion made promptly, and in any event at or before the time 
specified in the subpoena for compliance by the person to whom the 
subpoena is directed, and on notice to the party at whose instance the 
subpoena was issued, the presiding officer or, if he is unavailable, the 
Commission may: (1) Quash or modify the subpoena if it is unreasonable 
or requires evidence not relevant to any matter in issue, or (2) 
condition denial of the motion on just and reasonable terms.
    (g) On application and for good cause shown, the Commission will 
seek judicial enforcement of a subpoena issued to a party and which has 
not been quashed.
    (h)(1) The provisions of paragraphs (a) through (g) of this section 
are not applicable to the attendance and testimony of the Commissioners 
or NRC personnel, or to the production of records or documents in the 
custody thereof.
    (2)(i) In a proceeding in which the NRC is a party, the NRC staff 
will make available one or more witnesses designated by the Executive 
Director for Operations, for oral examination at the hearing or on 
deposition regarding any matter, not privileged, which is relevant to 
the issues in the proceeding. The attendance and testimony of the 
Commissioners and named NRC personnel at a hearing or on deposition may 
not be required by the presiding officer, by subpoena or otherwise: 
Provided, That the presiding officer may, upon a showing of exceptional 
circumstances, such as a case in which a particular named NRC employee 
has direct personal knowledge of a material fact not known to the 
witnesses made available by the Executive Director for Operations 
require the attendance and testimony of named NRC personnel.
    (ii) In addition, a party may file with the presiding officer 
written interrogatories to be answered by NRC personnel with knowledge 
of the facts designated by the Executive Director for Operations. Upon a 
finding by the presiding officer that answers to the interrogatories are 
necessary to a proper decision in the proceeding and that answers to the 
interrogatories are not reasonably obtainable from any other source, the 
presiding officer may require that the staff answer the interrogatories.
    (iii) No deposition of a particular named NRC employee or answer to 
interrogatories by NRC personnel pursuant to paragraphs (h)(2) (i) and 
(ii) of this section shall be required before the

[[Page 59]]

matters in controversy in the proceeding have been identified by order 
of the Commission or the presiding officer, pursuant to Sec. 2.751a, or 
after the beginning of the prehearing conference held pursuant to 
Sec. 2.752 except upon leave of the presiding officer for good cause 
shown.
    (iv) The provisions of Sec. 2.740 (c) and (e) shall apply to 
interrogatories served pursuant to this paragraph.
    (3) Records or documents in the custody of the Commissioners and NRC 
personnel are available for inspection and copying or photographing 
pursuant to Secs. 2.744 and 2.790.

[27 FR 377, Jan. 13, 1962, as amended at 31 FR 16310, Dec. 21, 1966; 35 
FR 19501, Dec. 23, 1970; 37 FR 15132, July 28, 1972; 40 FR 2973, Jan. 
17, 1975]

Sec. 2.721  Atomic safety and licensing boards.

    (a) The Commission or the Chairman of the Atomic Safety and 
Licensing Board Panel may from time to time establish one or more atomic 
safety and licensing boards, each comprised of three members, one of 
whom will be qualified in the conduct of administrative proceedings and 
two of whom shall have such technical or other qualifications as the 
Commission or the Chairman of the Atomic Safety and Licensing Board 
Panel deems appropriate to the issues to be decided, to preside in such 
proceedings for granting, suspending, revoking, or amending licenses or 
authorizations as the Commission may designate, and to perform such 
other adjudicatory functions as the Commission deems appropriate. The 
members of an atomic safety and licensing board shall be designated from 
the Atomic Safety and Licensing Board Panel established by the 
Commission.
    (b) The Commission or the Chairman of the Atomic Safety and 
Licensing Board Panel may designate an alternate qualified in the 
conduct of administrative proceedings, or an alternate having technical 
or other qualifications, or both, for an atomic safety and licensing 
board established pursuant to paragraph (a) of this section. If a member 
of a board becomes unavailable, the Commission or the Chairman of the 
Atomic Safety and Licensing Board Panel may constitute the alternate 
qualified in the conduct of administrative proceedings, or the alternate 
having technical or other qualifications, as appropriate, as a member of 
the board by notifying the alternate who will, as of the date of such 
notification, serve as member of the board. In the event that an 
alternate is unavailable or no alternates have been designated, and a 
member of a board becomes unavailable, the Commission or the Chairman of 
the Atomic Safety and Licensing Board Panel may appoint a member of the 
Atomic Safety and Licensing Board Panel who is qualified in the conduct 
of administrative proceedings or a member having technical or other 
qualifications, as appropriate, as a member of the atomic safety and 
licensing board by notifying the appointee who will, as of the date of 
such notification, serve as a member of the Board.
    (c) An atomic safety and licensing board shall have the duties and 
may exercise the powers of a presiding officer as granted by Sec. 2.718 
and otherwise in this part. At any time when such a board is in 
existence but is not actually in session, any powers which could be 
exercised by a presiding officer or by the Chief Administrative Law 
Judge may be exercised with respect to such a proceeding by the chairman 
of the board having jurisdiction over it. Two members of an atomic 
safety and licensing board constitute a quorum, if one of those members 
is the member qualified in the conduct of administrative proceedings.

[31 FR 12776, Sept. 30, 1966, as amended at 33 FR 8588, June 12, 1968; 
34 FR 13361, Aug. 19, 1969; 35 FR 11459, July 17, 1970; 35 FR 19658, 
Dec. 29, 1970; 37 FR 15132, July 28, 1972; 37 FR 28711, Dec. 29, 1972; 
40 FR 51996, Nov. 7, 1975; 48 FR 52285, Nov. 17, 1983; 56 FR 29408, June 
27, 1991]

Sec. 2.722  Special assistants to the presiding officer.

    (a) In consultation with the Panel Chairman, the presiding officer 
may, at his discretion, appoint from the Atomic Safety and Licensing 
Board Panel established by the Commission, personnel to assist the 
presiding officer in

[[Page 60]]

taking evidence and preparing a suitable record for review. Such 
appointment may occur at any appropriate time during the proceeding but 
shall, at the time of the appointment, be subject to the notice and 
disqualification provisions as described in Sec. 2.704. Such special 
assistants may function as:
    (1) Technical interrogators in their individual fields of expertise. 
Such interrogators shall be required to study the written testimony and 
sit with the presiding officer to hear the presentation and cross-
examination by the parties of all witnesses on the issues of the 
interrogators' expertise, taking a leading role in examining such 
witnesses to ensure that the record is as complete as possible;
    (2) Upon consent of all the parties, Special Masters to hear 
evidentiary presentations by the parties on specific technical matters, 
and, upon completion of the presentation of evidence, to prepare a 
report that would become part of the record. Special Masters may rule on 
evidentiary issues brought before them, in accordance with Secs. 2.743 
and 2.757. Appeals from such rulings may be taken to the presiding 
officer in accordance with procedures which shall be established in the 
presiding officer's order appointing the Special Master. Special 
Masters' reports are advisory only; the presiding officer shall retain 
final authority with respect to the issues heard by the Special Master; 
or
    (3) Alternate Atomic Safety and Licensing Board members to sit with 
the presiding officer, to participate in the evidentiary sessions on the 
issue for which the alternate members were designated by examining 
witnesses, and to advise the presiding officer of their conclusions 
through an on-the-record report. This report is advisory only; the 
presiding officer shall retain final authority on the issue for which 
the alternate member was designated.
    (4) Discovery Master to rule on the matters specified in 
Sec. 2.1018(a)(2) of this part.
    (b) The presiding officer may, as a matter of discretion, informally 
seek the assistance of Members of the Atomic Safety and Licensing Board 
Panel to brief the presiding officer on the general technical background 
of subjects involving complex issues which the presiding officer might 
otherwise have difficulty in quickly grasping. Such informal briefings 
shall take place prior to the hearing on the subject involved and shall 
supplement the reading and study undertaken by the presiding officer. 
They are not subject to the procedures described in Sec. 2.704.

[45 FR 62028, Sept. 18, 1980, as amended at 54 FR 14944, Apr. 14, 1989]

                                 Motions

Sec. 2.730  Motions.

    (a) Presentation and disposition. All motions shall be addressed to 
the Commission or, when a proceeding is pending before a presiding 
officer, to the presiding officer. All written motions shall be filed 
with the Secretary, and served on all parties to the proceeding.
    (b) Form and content. Unless made orally on the record during a 
hearing, or the presiding officer directs otherwise, a motion shall be 
in writing, shall state with particularity the grounds and the relief 
sought, and shall be accompanied by any affidavits or other evidence 
relied on, and, as appropriate, a proposed form of order.
    (c) Answers to motions. Within ten (10) days after service of a 
written motion, or such other period as the Secretary or the Assistant 
Secretary or presiding officer may prescribe, a party may file an answer 
in support of or in opposition to the motion, accompanied by affidavits 
or other evidence. However, the staff may file such an answer within 
fifteen (15) days after service of a written motion. The moving party 
shall have no right to reply, except as permitted by the presiding 
officer or the Secretary or the Assistant Secretary.
    (d) Oral arguments; briefs. No oral argument will be heard on a 
motion unless the presiding officer or the Commission directs otherwise. 
A written brief may be filed with a motion or an answer to a motion, 
stating the arguments and authorities relied on.
    (e) The Board may dispose of written motions either by written order 
or by ruling orally during the course of a prehearing conference or 
hearing. The Board should ensure that parties not

[[Page 61]]

present for the oral ruling are notified promptly of the order.
    (f) Interlocutory appeals to the Commission. No interlocutory appeal 
may be taken to the Commission from a ruling of the presiding officer. 
When in the judgment of the presiding officer prompt decision is 
necessary to prevent detriment to the public interest or unusual delay 
or expense, the presiding officer may refer the ruling promptly to the 
Commission, and notify the parties either by announcement on the record 
or by written notice if the hearing is not in session.
    (g) Effect of filing a motion or certification of question to the 
Commission. Unless otherwise ordered, neither the filing of a motion nor 
the certification of a question to the Commission shall stay the 
proceeding or extend the time for the performance of any act.
    (h) Where the motion in question is a motion to compel discovery 
under Sec. 2.720(h)(2) or Sec. 2.740(f), parties may file answers to the 
motion pursuant to paragraph (c) of this section. The presiding officer 
in his or her discretion, may order that the answer be given orally 
during a telephone conference or other prehearing conference, rather 
than in writing. If responses are given over the telephone the presiding 
officer shall issue a written order on the motion which summarizes the 
views presented by the parties. This does not preclude the presiding 
officer from issuing a prior oral ruling on the matter which is 
effective at the time of such ruling, provided that the terms of the 
ruling are incorporated in the subsequent written order.

[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10154, Sept. 17, 1963; 37 
FR 15132, July 28, 1972; 39 FR 24219, July 1, 1974; 43 FR 17802, Apr. 
26, 1978; 46 FR 30331, June 8, 1981; 46 FR 58281, Dec. 1, 1981]

Sec. 2.731  Order of procedure.

    The presiding officer or the Commission will designate the order of 
procedure at a hearing. The proponent of an order will ordinarily open 
and close.

Sec. 2.732  Burden of proof.

    Unless otherwise ordered by the presiding officer, the applicant or 
the proponent of an order has the burden of proof.

Sec. 2.733  Examination by experts.

    A party may request the presiding officer to permit a qualified 
individual who has scientific or technical training or experience to 
participate on behalf of that party in the examination and cross-
examination of expert witnesses. The presiding officer may permit such 
individual to participate on behalf of the party in the examination and 
cross-examination of expert witnesses, where it would serve the purpose 
of furthering the conduct of the proceeding, upon finding: (a) That the 
individual is qualified by scientific or technical training or 
experience to contribute to the development of an adequate decisional 
record in the proceeding by the conduct of such examination or cross-
examination, (b) that the individual has read any written testimony on 
which he intends to examine or cross-examine and any documents to be 
used or referred to in the course of the examination or cross-
examination, and (c) that the individual has prepared himself to conduct 
a meaningful and expeditious examination or cross-examination. 
Examination or cross-examination conducted pursuant to this section 
shall be limited to areas within the expertise of the individual 
conducting the examination or cross-examination. The party on behalf of 
whom such examination or cross-examination is conducted and his attorney 
shall be responsible for the conduct of examination or cross-examination 
by such individuals.

[37 FR 15132, July 28, 1972]

Sec. 2.734  Motions to reopen.

    (a) A motion to reopen a closed record to consider additional 
evidence will not be granted unless the following criteria are 
satisfied:
    (1) The motion must be timely, except that an exceptionally grave 
issue may be considered in the discretion of the presiding officer even 
if untimely presented.
    (2) The motion must address a significant safety or environmental 
issue.
    (3) The motion must demonstrate that a materially different result 
would be or would have been likely had the newly proffered evidence been 
considered initially.

[[Page 62]]

    (b) The motion must be accompanied by one or more affidavits which 
set forth the factual and/or technical bases for the movant's claim that 
the criteria of paragraph (a) of this section have been satisfied. 
Affidavits must be given by competent individuals with knowledge of the 
facts alleged, or by experts in the disciplines appropriate to the 
issues raised. Evidence contained in affidavits must meet the 
admissibility standards set forth in Sec. 2.743(c). Each of the criteria 
must be separately addressed, with a specific explanation of why it has 
been met. Where multiple allegations are involved, the movant must 
identify with particularity each issue it seeks to litigate and specify 
the factual and/or technical bases which it believes support the claim 
that this issue meets the criteria in paragraph (a) of this section.
    (c) A motion predicated in whole or in part on the allegations of a 
confidential informant must identify to the presiding officer the source 
of the allegations and must request the issuance of an appropriate 
protective order.
    (d) A motion to reopen which relates to a contention not previously 
in controversy among the parties must also satisfy the requirements for 
nontimely contentions in Sec. 2.714(a)(1) (i) through (v).

[51 FR 19539, May 30, 1986; 51 FR 23523, June 30, 1986]

 Depositions and Written Interrogatories; Discovery; Admission; Evidence

Sec. 2.740  General provisions governing discovery.

    (a) Discovery methods. Parties may obtain discovery by one or more 
of the following methods: Depositions upon oral examination or written 
interrogatories (Sec. 2.740a); written interrogatories (Sec. 2.740b); 
production of documents or things or permission to enter upon land or 
other property, for inspection and other purposes (Sec. 2.741); and 
requests for admission (Sec. 2.742).
    (b) Scope of discovery. Unless otherwise limited by order of the 
presiding officer in accordance with this section, the scope of 
discovery is as follows:
    (1) In general. Parties may obtain discovery regarding any matter, 
not privileged, which is relevant to the subject matter involved in the 
proceeding, whether it relates to the claim or defense of any other 
party, including the existence, description, nature, custody, condition, 
and location of any books, documents, or other tangible things and the 
identity and location of persons having knowledge of any discoverable 
matter. When any book, document or other tangible thing sought is 
reasonably available from another source, such as at the NRC Web site, 
http://www.nrc.gov, and/or the NRC Public Document Room, sufficient 
response to an interrogatory involving such materials would be the 
location, the title and a page reference to the relevant book, document 
or tangible thing. In a proceeding on an application for a construction 
permit or an operating license for a production or utilization facility, 
discovery begins only after the prehearing conference provided for in 
Sec. 2.751a and relates only to those matters in controversy which have 
been identified by the Commission or the presiding officer in the 
prehearing order entered at the conclusion of that prehearing 
conference. In such a proceeding, no discovery may take place after the 
beginning of the prehearing conference held pursuant to Sec. 2.752 
except upon leave of the presiding officer upon good cause shown. It is 
not ground for objection that the information sought will be 
inadmissible at the hearing if the information sought appears reasonably 
calculated to lead to the discovery of admissible evidence.
    (2) Trial preparation materials. A party may obtain discovery of 
documents and tangible things otherwise discoverable under paragraph 
(b)(1) of this section and prepared in anticipation of or for the 
hearing by or for another party's representative (including his 
attorney, consultant, surety, indemnitor, insurer, or agent) only upon a 
showing that the party seeking discovery has substantial need of the 
materials in the preparation of this case and that he is unable without 
undue hardship to obtain the substantial equivalent of the materials by 
other means. In ordering discovery of such materials when the required 
showing has been made, the

[[Page 63]]

presiding officer shall protect against disclosure of the mental 
impressions, conclusions, opinions, or legal theories of an attorney or 
other representative of a party concerning the proceeding.
    (3) While interrogatories may seek to elicit factual information 
reasonably related to a party's position in the proceeding, including 
data used, assumptions made, and analyses performed by the party, such 
interrogatories may not be addressed to, or be construed to require:
    (A) Reasons for not using alternative data, assumptions, and 
analyses where the alternative data, assumptions, and analyses were not 
relied on in developing the party's position; or
    (B) Performance of additional research or analytical work beyond 
that which is needed to support the party's position on any particular 
matter.
    (c) Protective order. Upon motion by a party or the person from whom 
discovery is sought, and for good cause shown, the presiding officer may 
make any order which justice requires to protect a party or person from 
annoyance, embarrassment, oppression, or undue burden or expense, 
including one or more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only by a method of discovery 
other than that selected by the party seeking discovery;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the presiding officer;
    (6) That, subject to the provisions of Secs. 2.744 and 2.790, a 
trade secret or other confidential research, development, or commercial 
information not be disclosed or be disclosed only in a designated way;
    (7) That studies and evaluations not be prepared.


If the motion for a protective order is denied in whole or in part, the 
presiding officer may, on such terms and conditions as are just, order 
that any party or person provide or permit discovery.
    (d) Sequence and timing of discovery. Unless the presiding officer 
upon motion, for the convenience of parties and witnesses and in the 
interests of justice, orders otherwise, methods of discovery may be used 
in any sequence and the fact that a party is conducting discovery, 
whether by deposition or otherwise, shall not operate to delay any other 
party's discovery.
    (e) Supplementation of responses. A party who has responded to a 
request for discovery with a response that was complete when made is 
under no duty to supplement his response to include information 
thereafter acquired, except as follows:
    (1) A party is under a duty seasonably to supplement his response 
with respect to any question directly addressed to (i) the identity and 
location of persons having knowledge of discoverable matters, and (ii) 
the identity of each person expected to be called as an expert witness 
at the hearing, the subject matter on which he is expected to testify, 
and the substance of his testimony.
    (2) A party is under a duty seasonably to amend a prior response if 
he obtains information upon the basis of which (i) he knows that the 
response was incorrect when made, or (ii) he knows that the response 
though correct when made is no longer true and the circumstances are 
such that a failure to amend the response is in substance a knowing 
concealment.
    (3) A duty to supplement responses may be imposed by order of the 
presiding officer or agreement of the parties.
    (f) Motion to compel discovery. (1) If a deponent or party upon whom 
a request for production of documents or answers to interrogatories is 
served fails to respond or objects to the request, or any part thereof, 
or fails to permit inspection as requested, the deposing party or the 
party submitting the request may move the presiding officer, within ten 
(10) days after the date of the response or after failure of a party to 
respond to the request for an order compelling a response or inspection 
in accordance with the request. The motion shall set forth the nature

[[Page 64]]

of the questions or the request, the response or objection of the party 
upon whom the request was served, and arguments in support of the 
motion. For purposes of this paragraph, an evasive or incomplete answer 
or response shall be treated as a failure to answer or respond. Failure 
to answer or respond shall not be excused on the ground that the 
discovery sought is objectionable unless the person or party failing to 
answer or respond has applied for a protective order pursuant to 
paragraph (c) of this section.
    (2) In ruling on a motion made pursuant to this section, the 
presiding officer may make such a protective order as he is authorized 
to make on a motion made pursuant to paragraph (c) of this section.
    (3) This section does not preclude an independent request for 
issuance of a subpena directed to a person not a party for production of 
documents and things. This section does not apply to requests for the 
testimony or interrogatories of the regulatory staff pursuant to 
Sec. 2.720(h)(2) or production of NRC documents pursuant to Sec. 2.744 
or Sec. 2.790, except for paragraphs (c) and (e) of this section.

[37 FR 15133, July 28, 1972, as amended at 43 FR 17802, Apr. 26, 1978; 
54 FR 33181, Aug. 11, 1989; 64 FR 48948, Sept. 9, 1999]

Sec. 2.740a  Depositions upon oral examination and upon written 
          interrogatories.

    (a) Any party desiring to take the testimony of any party or other 
person by deposition on oral examination or written interrogatories 
shall, without leave of the Commission or the presiding officer, give 
reasonable notice in writing to every other party, to the person to be 
examined and to the presiding officer of the proposed time and place of 
taking the deposition; the name and address of each person to be 
examined, if known, or if, the name is not known, a general description 
sufficient to identify him or the class or group to which he belongs; 
the matters upon which each person will be examined and the name or 
descriptive title and address of the officer before whom the deposition 
is to be taken.
    (b) [Reserved]
    (c) Within the United States, a deposition may be taken before any 
officer authorized to administer oaths by the laws of the United States 
or of the place where the examination is held. Outside of the United 
States, a deposition may be taken before a secretary of an embassy or 
legation, a consul general, vice consul or consular agent of the United 
States, or a person authorized to administer oaths designated by the 
Commission.
    (d) The deponent shall be sworn or shall affirm before any questions 
are put to him. Examination and cross-examination shall proceed as at a 
hearing. Each question propounded shall be recorded and the answer taken 
down in the words of the witness. Objections on questions of evidence 
shall be noted in short form without the arguments. The officer shall 
not decide on the competency, materiality, or relevancy of evidence but 
shall record the evidence subject to objection. Objections on questions 
of evidence not made before the officer shall not be deemed waived 
unless the ground of the objection is one which might have been obviated 
or removed if presented at that time.
    (e) When the testimony is fully transcribed, the deposition shall be 
submitted to the deponent for examination and signature unless he is ill 
or cannot be found or refuses to sign. The officer shall certify the 
deposition or, if the deposition is not signed by the deponent, shall 
certify the reasons for the failure to sign, and shall promptly forward 
the deposition by registered mail to the Commission.
    (f) Where the deposition is to be taken on written interrogatories, 
the party taking the deposition shall serve a copy of the 
interrogatories, showing each interrogatory separately and consecutively 
numbered, on every other party with a notice stating the name and 
address of the person who is to answer them, and the name, description, 
title, and address of the officer before whom they are to be taken. 
Within ten (10) days after service, any other party may serve cross-
interrogatories. The interrogatories, cross-interrogatories, and answers 
shall be recorded and signed, and the deposition certified, returned, 
and filed as in the case of a deposition on oral examination.

[[Page 65]]

    (g) A deposition will not become a part of the record in the hearing 
unless received in evidence. If only part of a deposition is offered in 
evidence by a party, any other party may introduce any other parts. A 
party shall not be deemed to make a person his own witness for any 
purpose by taking his deposition.
    (h) A deponent whose deposition is taken and the officer taking a 
deposition shall be entitled to the same fees as are paid for like 
services in the district courts of the United States, to be paid by the 
party at whose instance the deposition is taken.
    (i) The witness may be accompanied, represented, and advised by 
legal counsel.
    (j) The provisions of paragraphs (a) through (i) of this section are 
not applicable to NRC personnel. Testimony of NRC personnel by oral 
examination and written interrogatories addressed to NRC personnel are 
subject to the provisions of Sec. 2.720(h).

[27 FR 377, Jan. 13, 1962, as amended at 35 FR 19501, Dec. 23, 1970. 
Redesignated at 37 FR 15133, July 28, 1972, and amended at 43 FR 17802, 
Apr. 26, 1978]

Sec. 2.740b  Interrogatories to parties.

    (a) Any party may serve upon any other party (other than the staff) 
\4\ written interrogatories to be answered in writing by the party 
served, or if the party served is a public or private corporation or a 
partnership or association, by any officer or agent, who shall furnish 
such information as is available to the party. A copy of the 
interrogatories, answers, and all related pleadings shall be filed with 
the Secretary of the Commission and shall be served on the presiding 
officer and upon all parties to the proceeding.
---------------------------------------------------------------------------

    \4\ Interrogatories addressed to the staff are subject to 
Sec. 2.720(h)(2)(ii).
---------------------------------------------------------------------------

    (b) Each interrogatory shall be answered separately and fully in 
writing under oath or affirmation, unless it is objected to, in which 
event the reasons for objection shall be stated in lieu of an answer. 
The answers shall be signed by the person making them, and the 
objections by the attorney making them. The party upon whom the 
interrogatories were served shall serve a copy of the answers and 
objections upon all parties to the proceeding within 14 days after 
service of the interrogatories, or within such shorter or longer period 
as the presiding officer may allow. Answers may be used in the same 
manner as depositions (see Sec. 2.740a(g)).

[37 FR 15134, July 28, 1972]

Sec. 2.741  Production of documents and things and entry upon land for 
          inspection and other purposes.

    (a) Request for discovery. Any party may serve on any other party a 
request to:
    (1) Produce and permit the party making the request, or a person 
acting on his behalf, to inspect and copy any designated documents, or 
to inspect and copy, test, or sample any tangible things which are 
within the scope of Sec. 2.740 and which are in the possession, custody, 
or control of the party upon whom the request is served; or
    (2) Permit entry upon designated land or other property in the 
possession or control of the party upon whom the request is served for 
the purpose of inspection and measuring, surveying, photographing, 
testing, or sampling the property or any designated object or operation 
thereon, within the scope of Sec. 2.740.
    (b) Service. The request may be served on any party without leave of 
the Commission or the presiding officer. Except as otherwise provided in 
Sec. 2.740, the request may be served after the proceeding is set for 
hearing.
    (c) Contents. The request shall set forth the items to be inspected 
either by individual item or by category, and describe each item and 
category with reasonable particularity. The request shall specify a 
reasonable time, place, and manner of making the inspection and 
performing the related acts.
    (d) Response. The party upon whom the request is served shall serve 
on the party submitting the request a written response within thirty 
(30) days after the service of the request. The response shall state, 
with respect to each item or category, that inspection and related 
activities will be permitted as requested, unless the request is 
objected to, in which case the reasons for objection shall be stated. If 
objection is

[[Page 66]]

made to part of an item or category, the part shall be specified.
    (e) NRC records and documents. The provisions of paragraphs (a) 
through (d) of this section do not apply to the production for 
inspection and copying or photographing of NRC records or documents. 
Production of such records or documents is subject to the provisions of 
Secs. 2.744 and 2.790.

[37 FR 15134, July 28, 1972]

Sec. 2.742  Admissions.

    (a) Apart from any admissions made during or as a result of a 
prehearing conference, at any time after his answer has been filed, a 
party may file a written request for the admission of the genuineness 
and authenticity of any relevant document described in or attached to 
the request, or for the admission of the truth of any specified relevant 
matter of fact. A copy of the document shall be delivered with the 
request unless a copy has already been furnished.
    (b) Each requested admission shall be deemed made unless, within a 
time designated by the presiding officer or the Commission, and not less 
than ten (10) days after service of the request or such further time as 
may be allowed on motion, the party to whom the request is directed 
serves on the requesting party either (1) a sworn statement denying 
specifically the relevant matters of which an admission is requested or 
setting forth in detail the reasons why he can neither truthfully admit 
nor deny them, or (2) written objections on the ground that some or all 
of the matters involved are privileged or irrelevant or that the request 
is otherwise improper in whole or in part. Answers on matters to which 
such objections are made may be deferred until the objections are 
determined. If written objections are made to only a part of a request, 
the remainder of the request shall be answered within the time 
designated.
    (c) Admissions obtained pursuant to the procedure in this section 
may be used in evidence to the same extent and subject to the same 
objections as other admissions.

[27 FR 377, Jan. 13, 1962, as amended at 37 FR 15134, July 28, 1972]

Sec. 2.743  Evidence.

    (a) General. Every party to a proceeding shall have the right to 
present such oral or documentary evidence and rebuttal evidence and to 
conduct, in accordance with an approved cross-examination plan that 
contains the information specified in paragraph (b)(2) of this section 
if so directed by the presiding officer, such cross-examination as may 
be required for full and true disclosure of the facts.
    (b)(1) Testimony and cross-examination. The parties shall submit 
direct testimony of witnesses in written form, unless otherwise ordered 
by the presiding officer on the basis of objections presented. In any 
proceeding in which advance written testimony is to be used, each party 
shall serve copies of its proposed written testimony on each other party 
at least fifteen (15) days in advance of the session of the hearing at 
which its testimony is to be presented. The presiding officer may permit 
the introduction of written testimony not so served, either with the 
consent of all parties present or after they have had a reasonable 
opportunity to examine it. Written testimony must be incorporated into 
the transcript of the record as if read or, in the discretion of the 
presiding officer, may be offered and admitted in evidence as an 
exhibit.
    (2) The presiding officer may require a party seeking an opportunity 
to cross-examine to request permission to do so in accordance with a 
schedule established by the presiding officer. A request to conduct 
cross-examination shall be accompanied by a cross-examination plan that 
contains the following information:
    (i) A brief description of the issue or issues on which cross-
examination will be conducted;
    (ii) The objective to be achieved by cross-examination; and
    (iii) The proposed line of questions that may logically lead to 
achieving the objective of the cross-examination.

The cross-examination plan may be submitted only to the presiding 
officer and must be kept by the presiding officer in confidence until 
issuance of the initial decision on the issue being litigated. The 
presiding officer shall then provide each cross-examination plan to

[[Page 67]]

the Commission's Secretary for inclusion in the official record of the 
proceeding.
    (3) Paragraphs (b) (1) and (2) of this section do not apply to 
proceedings under subpart B of this part for modification, suspension, 
or revocation of a license or to proceedings for imposition of a civil 
penalty.
    (c) Admissibility. Only relevant, material, and reliable evidence 
which is not unduly repetitious will be admitted. Immaterial or 
irrelevant parts of an admissible document will be segregated and 
excluded so far as is practicable.
    (d) Objections. An objection to evidence shall briefly state the 
grounds of objection. The transcript shall include the objection, the 
grounds, and the ruling. Exception to an adverse ruling is preserved 
without notation on the record.
    (e) Offer of proof. An offer of proof made in connection with an 
objection to a ruling of the presiding officer excluding or rejecting 
proffered oral testimony shall consist of a statement of the substance 
of the proffered evidence. If the excluded evidence is written, a copy 
shall be marked for identification. Rejected exhibits, adequately marked 
for identification, shall be retained in the record.
    (f) Exhibits. A written exhibit will not be received in evidence 
unless the original and two copies are offered and a copy is furnished 
to each party, or the parties have been previously furnished with copies 
or the presiding officer directs otherwise. The presiding officer may 
permit a party to replace with a true copy an original document admitted 
in evidence. Exhibits in the proceeding on an application for a license 
to receive and possess high-level radioactive waste at a geologic 
repository operations area are governed by Sec. 2.1013 of this part.
    (g) Proceedings involving applications. In any proceeding involving 
an application, there shall be offered in evidence by the staff any 
report submitted by the ACRS in the proceeding in compliance with 
section 182b. of the Act, any safety evaluation prepared by the staff 
and any environmental impact statement prepared by the Director of 
Nuclear Reactor Regulation or Director of Nuclear Material Safety and 
Safeguards, as appropriate, or his designee in the proceeding pursuant 
to subpart A of part 51 of this chapter.
    (h) Official record. An official record of a government agency or 
entry in an official record may be evidenced by an official publication 
or by a copy attested by the officer having legal custody of the record 
and accompanied by a certificate of his custody.
    (i) Official notice. (1) The Commission or the presiding officer may 
take official notice of any fact of which a court of the United States 
may take judicial notice or of any technical or scientific fact within 
the knowledge of the Commission as an expert body. Each fact officially 
noticed under this subparagraph shall be specified in the record with 
sufficient particularity to advise the parties of the matters which have 
been noticed or brought to the attention of the parties before final 
decision and each party adversely affected by the decision shall be 
given opportunity to controvert the fact.
    (2) If a decision is stated to rest in whole or in part on official 
notice of a fact which the parties have not had a prior opportunity to 
controvert, a party may controvert the fact by filing an appeal from an 
initial decision or a petition for reconsideration of a final decision 
clearly and concisely setting forth the information relied upon to show 
the contrary.

[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10154, Sept. 17, 1963; 31 
FR 4339, Mar. 12, 1966; 37 FR 15134, July 28, 1972; 43 FR 17802, Apr. 
26, 1978; 48 FR 52285, Nov. 17, 1983; 49 FR 9401, Mar. 12, 1984; 54 FR 
14944, Apr. 14, 1989; 54 FR 33181, Aug. 11, 1989]

Sec. 2.744  Production of NRC records and documents.

    (a) A request for the production of an NRC record or document not 
available pursuant to Sec. 2.790 by a party to an initial licensing 
proceeding may be served on the Executive Director for Operations, 
without leave of the Commission or the presiding officer. The request 
shall set forth the records or documents requested, either by individual 
item or by category, and shall describe each item or category with 
reasonable particularity and shall state why that record or document is 
relevant to the proceeding.

[[Page 68]]

    (b) If the Executive Director for Operations objects to producing a 
requested record or document on the ground that (1) it is not relevant 
or (2) it is exempted from disclosure under Sec. 2.790 and the 
disclosure is not necessary to a proper decision in the proceeding or 
the document or the information therein is reasonably obtainable from 
another source, he shall so advise the requesting party.
    (c) If the Executive Director for Operations objects to producing a 
record or document, the requesting party may apply to the presiding 
officer, in writing, to compel production of that record or document. 
The application shall set forth the relevancy of the record or document 
to the issues in the proceeding. The application shall be processed as a 
motion in accordance with Sec. 2.730 (a) through (d). The record or 
document covered by the application shall be produced for the ``in 
camera'' inspection of the presiding officer, exclusively, if requested 
by the presiding officer and only to the extent necessary to determine:
    (1) The relevancy of that record or document;
    (2) Whether the document is exempt from disclosure under Sec. 2.790;
    (3) Whether the disclosure is necessary to a proper decision in the 
proceeding;
    (4) Whether the document or the information therein is reasonably 
obtainable from another source.
    (d) Upon a determination by the presiding officer that the 
requesting party has demonstrated the relevancy of the record or 
document and that its production is not exempt from disclosure under 
Sec. 2.790 or that, if exempt, its disclosure is necessary to a proper 
decision in the proceeding, and the document or the information therein 
is not reasonably obtainable from another source, he shall order the 
Executive Director for Operations, to produce the document.
    (e) In the case of requested documents and records (including 
Safeguards Information referred to in sections 147 and 181 of the Atomic 
Energy Act, as amended) exempt from disclosure under Sec. 2.790, but 
whose disclosure is found by the presiding officer to be necessary to a 
proper decision in the proceeding, any order to the Executive Director 
for Operations to produce the document or records (or any other order 
issued ordering production of the document or records) may contain such 
protective terms and conditions (including affidavits of non-disclosure) 
as may be necessary and appropriate to limit the disclosure to parties 
in the proceeding, to interested States and other governmental entities 
participating pursuant to Sec. 2.715(c), and to their qualified 
witnesses and counsel. When Safeguards Information protected from 
disclosure under section 147 of the Atomic Energy Act, as amended, is 
received and possessed by a party other than the Commission staff, it 
shall also be protected according to the requirements of Sec. 73.21 of 
this chapter. The presiding officer may also prescribe such additional 
procedures as will effectively safeguard and prevent disclosure of 
Safeguards Information to unauthorized persons with minimum impairment 
of the procedural rights which would be available if Safeguards 
Information were not involved. In addition to any other sanction that 
may be imposed by the presiding officer for violation of an order issued 
pursuant to this paragraph, violation of an order pertaining to the 
disclosure of Safeguards Information protected from disclosure under 
section 147 of the Atomic Energy Act, as amended, may be subject to a 
civil penalty imposed pursuant to Sec. 2.205. For the purpose of 
imposing the criminal penalties contained in section 223 of the Atomic 
Energy Act, as amended, any order issued pursuant to this paragraph with 
respect to Safeguards Information shall be deemed an order issued under 
section 161b of the Atomic Energy Act.
    (f) A ruling by the presiding officer or the Commission for the 
production of a record or document will specify the time, place, and 
manner of production.
    (g) No request pursuant to this section shall be made or entertained 
before the matters in controversy have been identified by the Commission 
or the presiding officer, or after the beginning of the prehearing 
conference held pursuant to Sec. 2.752 except upon leave of the 
presiding officer for good cause shown.

[[Page 69]]

    (h) The provisions of Sec. 2.740 (c) and (e) shall apply to 
production of NRC records and documents pursuant to this section.

[37 FR 15135, July 28, 1972, as amended at 40 FR 2973, Jan. 17, 1975; 46 
FR 51723, Oct. 22, 1981]

                    Summary Disposition on Pleadings

Sec. 2.749  Authority of presiding officer to dispose of certain issues 
          on the pleadings.

    (a) Any party to a proceeding may move, with or without supporting 
affidavits, for a decision by the presiding officer in that party's 
favor as to all or any part of the matters involved in the proceeding. 
The moving party shall annex to the motion a separate, short, and 
concise statement of the material facts as to which the moving party 
contends that there is no genuine issue to be heard. Motions may be 
filed at any time. Any other party may serve an answer supporting or 
opposing the motion, with or without affidavits, within twenty (20) days 
after service of the motion. The party shall annex to any answer 
opposing the motion a separate, short, and concise statement of the 
material facts as to which it is contended there exists a genuine issue 
to be heard. All material facts set forth in the statement required to 
be served by the moving party will be deemed to be admitted unless 
controverted by the statement required to be served by the opposing 
party. The opposing party may, within ten (10) days after service, 
respond in writing to new facts and arguments presented in any statement 
filed in support of the motion. No further supporting statements or 
responses thereto may be entertained. The presiding officer may dismiss 
summarily or hold in abeyance motions filed shortly before the hearing 
commences or during the hearing if the other parties or the presiding 
officer would be required to divert substantial resources from the 
hearing in order to respond adequately to the motion and thereby extend 
the proceeding.
    (b) Affidavits shall set forth such facts as would be admissible in 
evidence and shall show affirmatively that the affiant is competent to 
testify to the matters stated therein. The presiding officer may permit 
affidavits to be supplemented or opposed by depositions, answers to 
interrogatories or further affidavits. When a motion for summary 
decision is made and supported as provided in this section, a party 
opposing the motion may not rest upon the mere allegations or denials of 
his answer; his answer by affidavits or as otherwise provided in this 
section must set forth specific facts showing that there is a genuine 
issue of fact. If no such answer is filed, the decision sought, if 
appropriate, shall be rendered.
    (c) Should it appear from the affidavits of a party opposing the 
motion that he cannot, for reasons stated, present by affidavit facts 
essential to justify his opposition, the presiding officer may refuse 
the application for summary decision or may order a continuance to 
permit affidavits to be obtained or make such other order as is 
appropriate and a determination to that effect shall be made a matter of 
record.
    (d) The presiding officer shall render the decision sought if the 
filings in the proceeding, depositions, answers to interrogatories, and 
admissions on file, together with the statements of the parties and the 
affidavits, if any, show that there is no genuine issue as to any 
material fact and that the moving party is entitled to a decision as a 
matter of law. However, in any proceeding involving a construction 
permit for a production or utilization facility, the procedure described 
in this section may be used only for the determination of specific 
subordinate issues and may not be used to determine the ultimate issue 
as to whether the permit shall be issued.

[37 FR 15135, July 28, 1972, as amended at 46 FR 30331, June 8, 1981; 54 
FR 33181, Aug. 11, 1989]

                                Hearings

Sec. 2.750  Official reporter; transcript.

    (a) A hearing will be reported under the supervision of the 
presiding officer, stenographically or by other means, by an official 
reporter who may be designated by the Commission or may be a regular 
employee of the Commission. The transcript prepared by the reporter

[[Page 70]]

is the sole official transcript of the proceeding. Except as limited 
pursuant to Sec. 181 of the Act or order of the Commission, the 
transcript will be available for inspection at the NRC Web site, http://
www.nrc.gov, and/or at the NRC Public Document Room. Copies of 
transcripts are available to parties and to the public from the official 
reporter on payment of the specified charges.
    (b) Transcript corrections. Corrections of the official transcript 
may be made only in the manner provided by this paragraph. Corrections 
ordered or approved by the presiding officer shall be included in the 
record as an appendix, and when so incorporated the Secretary shall make 
the necessary physical corrections in the official transcript so that it 
will incorporate the changes ordered. In making corrections there shall 
be no substitution of pages but, to the extent practicable, corrections 
shall be made by running a line through the matter to be changed without 
obliteration and writing the matter as changed immediately above. Where 
the correction consists of an insertion, it shall be added by rider or 
interlineation as near as possible to the text which is intended to 
precede and follow it.
    (c) Free transcript. Except in an antitrust proceeding, in any 
adjudicatory proceeding on an application for a license or an amendment 
thereto, the presiding officer may arrange for provision of one free 
transcript to a party, other than the applicant, upon request by that 
party. The transcript will be made available to a party at the same time 
and location as it is made available to the NRC staff. If a transcript 
is mailed to the staff, it will also be mailed to the requesting party. 
A presiding officer has the discretion to control the distribution of 
transcripts to parties.\1\
---------------------------------------------------------------------------

    \1\ This paragraph is suspended until further action of the 
Commission. (See 46 FR 13681, Feb. 24, 1981)

[27 FR 377, Jan. 13, 1962, as amended at 45 FR 49537, July 25, 1980; 45 
FR 54725, Aug. 18, 1980; 46 FR 13681, Feb. 2, 1981; 64 FR 48948, Sept. 
9, 1999]

Sec. 2.751  Hearings to be public.

    Except as may be requested pursuant to section 181 of the Act, all 
hearings will be public unless otherwise ordered by the Commission.

Sec. 2.751a  Special prehearing conference in construction permit and 
          operating license proceedings.

    (a) In any proceeding involving an application for a construction 
permit or an operating license for a production or utilization facility, 
the Commission or the presiding officer will direct the parties and any 
petitioners for intervention, or their counsel, to appear at a specified 
time and place, within ninety (90) days after the notice of hearing is 
published, or such other time as the Commission or the presiding officer 
may deem appropriate, for a conference \1a\ to:
---------------------------------------------------------------------------

    \1a\ This conference may be omitted in proceedings other than 
contested proceedings.
---------------------------------------------------------------------------

    (1) Permit identification of the key issues in the proceeding;
    (2) Take any steps necessary for further identification of the 
issues;
    (3) Consider all intervention petitions to allow the presiding 
officer to make such preliminary or final determination as to the 
parties to the proceeding, as may be appropriate; and
    (4) Establish a schedule for further actions in the proceeding.
    (b) The presiding officer may order any further informal conferences 
among the parties, including telephone conferences, to the extent that 
he considers that such a conference would expedite the proceeding.
    (c) A prehearing conference held pursuant to this section may be 
stenographically reported.
    (d) The presiding officer shall enter an order which recites the 
action taken at the conference, the schedule for further actions in the 
proceeding, any agreements by the parties, and which identifies the key 
issues in the proceeding, makes a preliminary or final determination as 
to the parties in the proceeding, and provides for the submission of 
status reports on discovery. The order shall be served upon all parties 
to the proceeding. Objections to the order may be filed by a party 
within five (5) days after service of the

[[Page 71]]

order, except that the staff may file objections to such order within 
ten (10) days after service. Parties may not file replies to the 
objections unless the Board so directs. The filing of objections shall 
not stay the decision unless the presiding officer so orders. The board 
may revise the order in consideration of the objections presented and, 
as permitted by Sec. 2.718(i), may certify for determination to the 
Commission such matters raised in the objections as it deems 
appropriate. The order shall control the subsequent course of the 
proceeding unless modified for good cause.

[37 FR 15135, July 28, 1972, as amended at 43 FR 17802, Apr. 26, 1978; 
46 FR 30331, June 8, 1981]

Sec. 2.752  Prehearing conference.

    (a) The Commission or the presiding officer may, and in the case of 
a proceeding on an application for a construction permit or an operating 
license for a facility of a type described in Secs. 50.21(b) or 50.22 of 
this chapter or a testing facility, shall direct the parties or their 
counsel to appear at a specified time and place for a conference to 
consider:
    (1) Simplification, clarification, and specification of the issues;
    (2) The necessity or desirability of amending the pleadings;
    (3) The obtaining of stipulations and admissions of fact and of the 
contents and authenticity of documents to avoid unnecessary proof;
    (4) Identification of witnesses and the limitation of the number of 
expert witnesses, and other steps to expedite the presentation of 
evidence;
    (5) The setting of a hearing schedule; and
    (6) Such other matters as may aid in the orderly disposition of the 
proceeding.

A prehearing conference held under this section in a proceeding 
involving a construction permit or operating license shall be held 
within sixty (60) days after discovery has been completed, \1\ or such 
other time as the Commission or the presiding officer may specify.
---------------------------------------------------------------------------

    \1\ Discovery, as used in this section, does not include the 
production of the ACRS report, the safety evaluation prepared by the 
regulatory staff, or any detailed statement on environmental 
considerations prepared by the Director of Nuclear Reactor Regulation or 
Director of Nuclear Material Safety and Safeguards, as appropriate or 
his designee in the proceeding pursuant to part 51 of this chapter.
---------------------------------------------------------------------------

    (b) Prehearing conferences may be stenographically reported.
    (c) The presiding officer shall enter an order which recites the 
action taken at the conference, the amendments allowed to the pleadings 
and agreements by the parties, and which limits the issues or defines 
the matters in controversy to be determined in the proceeding. 
Objections to the order may be filed by a party within five (5) days 
after service of the order, except that the regulatory staff may file 
objections to such order within ten (10) days after service. Parties may 
not file replies to the objections unless the board so directs. The 
filing of objections shall not stay the decision unless the presiding 
officer so orders. The board may revise the order in the light of the 
objections presented and, as permitted by Sec. 2.718(i) may certify for 
determination to the Commission such matters raised in the objections as 
it deems appropriate. The order shall control the subsequent course of 
the proceeding unless modified for good cause.

[27 FR 377, Jan. 13, 1962, as amended at 37 FR 15136, July 28, 1972; 40 
FR 8777, Mar. 3, 1975; 46 FR 30331, June 8, 1981]

Sec. 2.753  Stipulations.

    Apart from any stipulations made during or as a result of a 
prehearing conference, the parties may stipulate in writing at any stage 
of the proceeding or orally during the hearing, any relevant fact or the 
contents or authenticity of any document. Such a stipulation may be 
received in evidence. The parties may also stipulate as to the procedure 
to be followed in the proceeding. Such stipulations may, on motion of 
all parties, be recognized by the presiding officer to govern the 
conduct of the proceeding.

[37 FR 15136, July 28, 1972]

[[Page 72]]

Sec. 2.754  Proposed findings and conclusions.

    (a) Any party to a proceeding may, or if directed by the presiding 
officer shall, file proposed findings of fact and conclusions of law, 
briefs and a proposed form or order of decision within the time provided 
by the following subparagraphs, except as otherwise ordered by the 
presiding officer:
    (1) The party who has the burden of proof shall, within thirty (30) 
days after the record is closed, file proposed findings of fact and 
conclusions of law and briefs, and a proposed form of order or decision.
    (2) Other parties may file proposed findings, conclusions of law and 
briefs within forty (40) days after the record is closed. However, the 
staff may file such proposed findings, conclusions of law and briefs 
within fifty (50) days after the record is closed.
    (3) A party who has the burden of proof may reply within five (5) 
days after filing of proposed findings and conclusions of law and briefs 
by other parties.
    (b) Failure to file proposed findings of fact, conclusions of law or 
briefs when directed to do so may be deemed a default, and an order or 
initial decision may be entered accordingly.
    (c) Proposed findings of fact must be clearly and concisely set 
forth in numbered paragraphs and must be confined to the material issues 
of fact presented on the record, with exact citations to the transcript 
of record and exhibits in support of each proposed finding. Proposed 
conclusions of law must be set forth in numbered paragraphs as to all 
material issues of law or discretion presented on the record. An 
intervenor's proposed findings of fact and conclusions of law must be 
confined to issues which that party placed in controversy or sought to 
place in controversy in the proceeding.

[27 FR 377, Jan. 13, 1962, as amended at 28 FR 10154, Sept. 17, 1963; 35 
FR 11459, July 17, 1970; 43 FR 17802, Apr. 26, 1978; 46 FR 30331, June 
8, 1981; 54 FR 33182, Aug. 11, 1989]

Sec. 2.755  Oral argument before presiding officer.

    When, in the opinion of the presiding officer, time permits and the 
nature of the proceeding and the public interest warrant, he may allow 
and fix a time for the presentation of oral argument. He will impose 
appropriate limits of time on the argument. The transcript of the 
argument shall be a part of the record.

Sec. 2.756  Informal procedures.

    The Commission encourages the use of informal procedures consistent 
with the Act, sections 551-558 of title 5 of the United States Code, and 
the regulations in this chapter, and with the orderly conduct of the 
proceeding and the necessity for preserving a suitable record for 
review.

[35 FR 11459, July 17, 1970]

Sec. 2.757  Authority of presiding officer to regulate procedure in a 
          hearing.

    To prevent unnecessary delays or an unnecessarily large record, the 
presiding officer may:
    (a) Limit the number of witnesses whose testimony may be cumulative;
    (b) Strike argumentative, repetitious, cumulative, or irrelevant 
evidence;
    (c) Take necessary and proper measures to prevent argumentative, 
repetitious, or cumulative cross-examination; and
    (d) Impose such time limitations on arguments as he determines 
appropriate, having regard for the volume of the evidence and the 
importance and complexity of the issues involved.

[37 FR 15136, July 28, 1972]

Sec. 2.758  Consideration of Commission rules and regulations in 
          adjudicatory proceedings.

    (a) Except as provided in paragraphs (b), (c), and (d) of this 
section, any rule or regulation of the Commission, or any provision 
thereof, issued in its program for the licensing of production and 
utilization facilities, source material, special nuclear material, or 
byproduct material is not subject to attack by way of discovery, proof, 
argument, or other means in any adjudicatory proceeding involving 
initial or renewal licensing subject to this subpart.

[[Page 73]]

    (b) A party to an adjudicatory proceeding involving initial or 
renewal licensing subject to this subpart may petition that the 
application of a specified Commission rule or regulation or any 
provision thereof, of the type described in paragraph (a) of this 
section, be waived or an exception made for the particular proceeding. 
The sole ground for petition for waiver or exception shall be that 
special circumstances with respect to the subject matter of the 
particular proceeding are such that the application of the rule or 
regulation (or provision thereof) would not serve the purposes for which 
the rule or regulation was adopted. The petition shall be accompanied by 
an affidavit that identifies the specific aspect or aspects of the 
subject matter of the proceeding as to which the application of the rule 
or regulation (or provision thereof) would not serve the purposes for 
which the rule or regulation was adopted, and shall set forth with 
particularity the special circumstances alleged to justify the waiver or 
exception requested. Any other party may file a response thereto, by 
counter affidavit or otherwise.
    (c) If, on the basis of the petition, affidavit and any response 
thereto provided for in paragraph (b) of this section, the presiding 
officer determines that the petitioning party has not made a prima facie 
showing that the application of the specific Commission rule or 
regulation or provision thereof to a particular aspect or aspects of the 
subject matter of the proceeding would not serve the purposes for which 
the rule or regulation was adopted and that application of the rule or 
regulation should be waived or an exception granted, no evidence may be 
received on that matter and no discovery, cross-examination or argument 
directed to the matter will be permitted, and the presiding officer may 
not further consider the matter.
    (d) If, on the basis of the petition, affidavit and any response 
provided for in paragraph (b) of this section, the presiding officer 
determines that such a prima facie showing has been made, the presiding 
officer shall, before ruling thereon, certify directly to the Commission 
\7\ for determination the matter of whether the application of the 
Commission rule or regulation or provision thereof to a particular 
aspect or aspects of the subject matter of the proceeding, in the 
context of this section, should be waived or an exception made. The 
Commission may, among other things, on the basis of the petition, 
affidavits, and any response, determine whether the application of the 
specified rule or regulation (or provision thereof) should be waived or 
an exception be made, or the Commission may direct such further 
proceedings as it deems appropriate to aid its determination.
---------------------------------------------------------------------------

    \7\ The matter will be certified to the Commission notwithstanding 
the provisions of Sec. 2.785.
---------------------------------------------------------------------------

    (e) Whether or not the procedure in paragraph (b) of this section is 
available, a party to an initial or renewal licensing proceeding may 
file a petition for rulemaking pursuant to Sec. 2.802.

[37 FR 15136, July 28, 1972, as amended at 56 FR 64975, Dec. 13, 1991; 
60 FR 22491, May 8, 1995]

Sec. 2.759  Settlement in initial licensing proceedings.

    The Commission recognizes that the public interest may be served 
through settlement of particular issues in a proceeding or the entire 
proceeding. Therefore, to the extent that it is not inconsistent with 
hearing requirements in section 189 of the Act (42 U.S.C. 2239), the 
fair and reasonable settlement of contested initial licensing 
proceedings is encouraged. It is expected that the presiding officer and 
all of the parties to those proceedings will take appropriate steps to 
carry out this purpose.

[37 FR 15137, July 28, 1972]

                 Initial Decision and Commission Review

Sec. 2.760  Initial decision and its effect.

    (a) After hearing, the presiding officer will render an initial 
decision which will constitute the final action of the Commission forty 
(40) days after its date unless any party petitions for Commission 
review in accordance with Sec. 2.786 or the Commission takes review

[[Page 74]]

sua sponte or the decision is subject to the provisions of Sec. 2.764.
    (b) Where the public interest so requires, the Commission may direct 
that the presiding officer certify the record to it without an initial 
decision, and may:
    (1) Prepare its own decision which will become final unless the 
Commission grants a petition for reconsideration pursuant to Sec. 2.771; 
or
    (2) Omit an initial decision on a finding that due and timely 
execution of its functions imperatively and unavoidably so requires.
    (c) An initial decision will be in writing and will be based on the 
whole record and supported by reliable, probative, and substantial 
evidence. The initial decision will include:
    (1) Findings, conclusions and rulings, with the reasons or basis for 
them, on all material issues of fact, law, or discretion presented on 
the record;
    (2) All facts officially noticed and relied on in making the 
decision;
    (3) The appropriate ruling, order or denial of relief with the 
effective date;
    (4) The time within which a petition for review of the decision may 
be filed, the time within which answers in support of or in opposition 
to a petition for review filed by another party may be filed and, in the 
case of an initial decision which may become final in accordance with 
paragraph (a) of this section, the date when it may become final.

[27 FR 377, Jan. 13, 1962, as amended at 31 FR 4339, Mar. 12, 1966; 35 
FR 11459, July 17, 1970; 48 FR 52285, Nov. 17, 1983; 56 FR 29408, June 
27, 1991]

Sec. 2.760a  Initial decision in contested proceedings on applications 
          for facility operating licenses.

    In any initial decision in a contested proceeding on an application 
for an operating license for a production or utilization facility, the 
presiding officer shall make findings of fact and conclusions of law on 
the matters put into controversy by the parties to the proceeding and on 
matters which have been determined to be the issues in the proceeding by 
the Commission or the presiding officer. Matters not put into 
controversy by the parties will be examined and decided by the presiding 
officer only where he or she determines that a serious safety, 
environmental, or common defense and security matter exists. Depending 
on the resolution of those matters, the Director of Nuclear Reactor 
Regulation or Director of Nuclear Material Safety and Safeguards, as 
appropriate, after making the requisite findings, will issue, deny, or 
appropriately condition the license.

[44 FR 67088, Nov. 23, 1979]

Sec. 2.761  Expedited decisional procedure.

    (a) The presiding officer may determine a proceeding by an order 
after the conclusion of a hearing without issuing an initial decision, 
when:
    (1) All parties stipulate that the initial decision may be omitted 
and waive their rights to file a petition for review, to request oral 
argument, and to seek judicial review;
    (2) No unresolved substantial issue of fact, law, or discretion 
remains, and the record clearly warrants granting the relief requested; 
and
    (3) The presiding officer finds that dispensing with the issuance of 
the initial decision is in the public interest.
    (b) An order entered pursuant to paragraph (a) of this section shall 
be subject to review by the Commission on its own motion within thirty 
(30) days after its date.
    (c) An initial decision may be made effective immediately, subject 
to review by the Commission on its own motion within thirty (30) days 
after its date, except as otherwise provided in this chapter, when:
    (1) All parties stipulate that the initial decision may be made 
effective immediately and waive their rights to file a petition for 
review, to request oral argument, and to seek judicial review;
    (2) No unresolved substantial issue of fact, law, or discretion 
remains and the record clearly warrants granting the relief requested; 
and
    (3) The presiding officer finds that it is in the public interest to 
make the initial decision effective immediately.
    (d) The provisions of this section do not apply to an initial 
decision directing the issuance or amendment of a construction permit or 
construction

[[Page 75]]

authorization, or the issuance of an operating license or provisional 
operating authorization.

[27 FR 377, Jan. 13, 1962, as amended at 28 FR 7935, Aug. 3, 1963; 28 FR 
10154, Sept. 17, 1963; 35 FR 5318, Mar. 31, 1970; 48 FR 52285, Nov. 17, 
1983; 56 FR 29408, June 27, 1991]

Sec. 2.761a  Separate hearings and decisions.

    In a proceeding on an application for a construction permit for a 
utilization facility which is subject to Sec. 51.20(b) of this chapter, 
and is of the type specified in Sec. 51.21(b) (2) or (3) or Sec. 50.22 
of this chapter or is a testing facility, the presiding officer shall, 
unless the parties agree otherwise or the rights of any party would be 
prejudiced thereby, commence a hearing on issues covered by 
Sec. 50.10(e)(2)(ii) and subpart A of part 51 of this chapter as soon as 
practicable after issuance of the staff of its final environmental 
impact statement, but no later than thirty (30) days after issuance of 
such statement, and complete such a hearing and issue an initial 
decision on such matters. Pehearing procedures regarding issues covered 
by subpart A of part 51 and Sec. 51.10(e)(2)(ii) of this chapter, 
including any discovery and special prehearing conferences and 
prehearing conferences as provided in Secs. 2.740, 2.740a, 2.740b, 
2.741, 2.742, 2.751a, and 2.752, shall be scheduled accordingly. The 
provisions of Secs. 2.754, 2.755, 2.760, 2.762, 2.763, and 2.764(a) 
shall apply to any proceeding conducted and any initial decision 
rendered in accordance with this section. Section 2.764(b) shall not 
apply to any partial initial decision rendered in accordance with this 
section. This section shall not preclude separate hearings and decisions 
on other particular issues.

[49 FR 9402, Mar. 12, 1984]

Sec. 2.763  Oral argument.

    In its discretion the Commission may allow oral argument upon the 
request of a party made in a petition for review or brief on review, or 
upon its own initiative.

[56 FR 29408, June 27, 1991]

Sec. 2.764  Immediate effectiveness of initial decision directing 
          issuance or amendment of construction permit or operating 
          license.

    (a) Except as provided in paragraphs (c) through (f) of this 
section, or as otherwise ordered by the Commission in special 
circumstances, an initial decision directing the issuance or amendment 
of a construction permit, a construction authorization, an operating 
license, or a license under 10 CFR part 72 to store spent fuel in an 
independent spent fuel storage installation (ISFSI) at a reactor site 
shall be effective immediately upon issuance unless the presiding 
officer finds that good cause has been shown by a party why the initial 
decision should not become immediately effective, subject to review 
thereof and further decision by the Commission upon petition for review 
filed by any party pursuant to Sec. 2.786 or upon its own motion.
    (b) Except as provided in paragraphs (c) through (f) of this 
section, or as otherwise ordered by the Commission in special 
circumstances, the Director of Nuclear Reactor Regulation or Director of 
Nuclear Material Safety and Safeguards, as appropriate, notwithstanding 
the filing or granting of a petition for review, shall issue a 
construction permit, a construction authorization, an operating license, 
or a license under 10 CFR part 72 to store spent fuel in an independent 
spent fuel storage installation (ISFSI) at a reactor site, or amendments 
thereto, authorized by an initial decision, within ten (10) days from 
the date of issuance of the decision.
    (c) An initial decision directing the issuance of an initial license 
for the construction and operation of an independent spent fuel storage 
installation (ISFSI) located at a site other than a reactor site or a 
monitored retrievable storage installation (MRS) under 10 CFR part 72 
shall become effective only upon order of the Commission. The Director 
of Nuclear Material Safety and Safeguards shall not issue an initial 
license for the construction and operation of an independent spent fuel 
storage installation (ISFSI) located at a site other than a reactor site 
or a monitored retrievable storage installation

[[Page 76]]

(MRS) under 10 CFR part 72 until expressly authorized to do so by the 
Commission.
    (d) [Reserved]
    (e) Nuclear power reactor construction permits--(1) Atomic Safety 
and Licensing Boards. (i) Atomic Safety and Licensing Boards shall hear 
and decide all issues that come before them, indicating in their 
decisions the type of licensing action, if any, which their decision 
would authorize. The Boards' decisions concerning construction permits 
shall not become effective until the Commission actions outlined in 
paragraph (e)(2) of this section have taken place.
    (ii) In reaching their decisions the Boards should interpret 
existing regulations and regulatory policies with due consideration to 
the implications for those regulations and policies of the Three Mile 
Island accident. As provided in paragraph (e)(3) of this section, in 
addition to taking generic rulemaking actions, the Commission will be 
providing case-by-case guidance on changes in regulatory policies in 
conducting its reviews in adjudicatory proceedings. The Boards shall, in 
turn, apply these revised regulations and policies in cases then pending 
before them to the extent that they are applicable. The Commission 
expects the Licensing Boards to pay particular attention in their 
decisions to analyzing the evidence on those safety and environmental 
issues arising under applicable Commission regulations and policies 
which the Boards believe present serious, close questions and which the 
Boards believe may be crucial to whether a license should become 
effective before full appellate review is completed. Furthermore, the 
Boards should identify any apects of the case which in their judgment, 
present issues on which prompt Commission policy guidance is called for. 
The Boards may request the assistance of the parties in identifying such 
policy issues but, absent specific Commission directives, such policy 
issues shall not be the subject of discovery, examination, or cross-
examination.
    (2) Commission. Within sixty days of the service of any Licensing 
Board decision that would otherwise authorize issuance of a construction 
permit, the Commission will seek to issue a decision on any stay motions 
that are timely filed. Such motions shall be filed as provided by 10 CFR 
2.788. For the purpose of this policy, a ``stay'' motion is one that 
seeks to defer the effectiveness of a Licensing Board decision beyond 
the period necessary for the Commission action described herein. If no 
stay papers are filed, the Commission will, within the same time period 
(or earlier if possible), analyze the record and construction permit 
decision below on its own motion and will seek to issue a decision on 
whether a stay is warranted. It shall not, however, decide that a stay 
is warranted without giving the affected parties an opportunity to be 
heard. The initial decision will be considered stayed pending the 
Commission's decision. In deciding these stay questions, the Commission 
shall employ the procedures set out in 10 CFR 2.788.
    (f) Nuclear power reactor operating licenses--(1) Atomic Safety and 
Licensing Boards. (i) Atomic Safety and Licensing Boards shall hear and 
decide all issues that come before them, indicating in their decisions 
the type of licensing action, if any, which their decision would 
authorize. A Board's decision authorizing issuance of an operating 
license may not become effective insofar as it authorizes operating at 
greater than 5 percent of rated power until the Commission actions 
outlined below in paragraph (f)(2) of this section have taken place. 
Insofar as it authorizes operation up to 5 percent, the decision is 
effective and the Director shall issue the appropriate license in 
accordance with paragraph (b) of this section.
    (ii) In reaching their decisions the Boards should interpret 
existing regulations and regulatory policies with due consideration to 
the implications for those regulations and policies of the Three Mile 
Island accident. In this regard it should be understood that as a result 
of analyses still under way the Commission may change its present 
regulations and regulatory policies in important respects and thus 
compliance with existing regulations may turn out to no longer warrant 
approval of a license application. As provided in

[[Page 77]]

paragraph (f)(2) of this section, in addition to taking generic 
rulemaking actions, the Commission will be providing case-by-case 
guidance on changes in regulatory policies in conducting its reviews in 
adjudicatory proceedings. The Boards shall, in turn, apply these revised 
regulations and policies in cases then pending before them to the extent 
that they are applicable. The Commission expects the Licensing Boards to 
pay particular attention in their decisions to analyzing the evidence on 
those safety and environmental issues arising under applicable 
Commission regulations and policies which the Boards believe present 
serious, close questions and which the Boards believe may be crucial to 
whether a license should become effective before full appellate review 
is completed. Furthermore, the Boards should identify any aspects of the 
case which in their judgment, present issues on which prompt Commission 
policy guidance is called for. The Boards may request the assistance of 
the parties in identifying such policy issues but, absent specific 
Commission directive, such policy issues shall not be the subject of 
discovery, examination, or cross-examination.
    (2) Commission. (i) Reserving the power to step in at an earlier 
time, the Commission will, upon receipt of the Licensing Board decision 
authorizing issuance of an operating license, other than a decision 
authorizing only fuel loading and low power (up to 5 percent of rated 
power) testing, review the matter on its own motion to determine whether 
to stay the effectiveness of the decision. An operating license decision 
will be stayed by the Commission, insofar as it authorizes other than 
fuel loading and low power testing, if it determines that it is in the 
public interest to do so, based on a consideration of the gravity of the 
substantive issue, the likelihood that it has been resolved incorrectly 
below, the degree to which correct resolution of the issue would be 
prejudiced by operation pending review, and other relevant public 
interest factors.
    (ii) For operating license decisions other than those authorizing 
only fuel loading and low power testing consistent with the target 
schedule set forth below, the parties may file brief comments with the 
Commission pointing out matters which, in their view, pertain to the 
immediate effectiveness issue. To be considered, such comments must be 
received within 10 days of the Board decision. However, the Commission 
may dispense with comments by so advising the parties. No extensive stay 
shall be issued without giving the affected parties an opportunity to be 
heard.
    (iii) The Commission intends to issue a stay decision within 30 days 
of receipt of the Licensing Board's decision. The Licensing Board's 
initial decision will be considered stayed pending the Commission's 
decision insofar as it may authorize operations other than fuel loading 
and low power (up to 5 percent of rated power) testing.
    (iv) In announcing a stay decision, the Commission may allow the 
proceeding to run its ordinary course or give instructions as to the 
future handling of the proceeding. Furthermore, the Commission may in a 
particular case determine that compliance with existing regulations and 
policies may no longer be sufficient to warrant approval of a license 
application and may alter those regulations and policies.
    (g) The Commission's effectiveness determination is entirely without 
prejudice to proceedings under Sec. 2.786 or Sec. 2.788.

[36 FR 828, Jan. 19, 1971, as amended at 45 FR 74711, Nov. 12, 1980; 46 
FR 13978, Feb. 25, 1981; 46 FR 28628, May 28, 1981; 46 FR 47765, Sept. 
30, 1981; 47 FR 2305, Jan. 15, 1982; 47 FR 40536, Sept. 15, 1982; 48 FR 
52286, Nov. 17, 1983; 54 FR 7757, Feb. 23, 1989; 54 FR 14944, Apr. 14, 
1989; 56 FR 29408, June 27, 1991; 60 FR 20886, Apr. 28, 1995]

Sec. 2.765  Immediate effectiveness of initial decision directing 
          issuance or amendment of licenses under part 61 of this 
          chapter.

    An initial decision directing the issuance of a license under part 
61 of this chapter (relating to land disposal of radioactive waste) or 
any amendment to such a license authorizing actions which may 
significantly affect the health and safety of the public, will become 
effective only upon order of the Commission. The Director of Nuclear 
Material Safety and Safeguards may not issue a license under part 61 of 
this

[[Page 78]]

chapter, or any amendment to such a license which may significantly 
affect the health and safety of the public, until expressly authorized 
to do so by the Commission.

[47 FR 57478, Dec. 27, 1982]

                             Final Decision

Sec. 2.770  Final decision.

    (a) The Commission will ordinarily consider the whole record on 
review, but may limit the issues to be reviewed to those identified in 
an order taking review.
    (b) The Commission may adopt, modify, or set aside the findings, 
conclusions and order in the initial decision, and will state the basis 
of its action. The final decision will be in writing and will include:
    (1) A statement of findings and conclusions, with the basis for them 
on all material issues of fact, law or discretion presented;
    (2) All facts officially noticed;
    (3) The ruling on each material issue; and
    (4) The appropriate ruling, order, or denial of relief, with the 
effective date.

[27 FR 377, Jan. 13, 1962, as amended at 48 FR 52286, Nov. 17, 1983; 56 
FR 29409, June 27, 1991]

Sec. 2.771  Petition for reconsideration.

    (a) A petition for reconsideration of a final decision may be filed 
by a party within ten (10) days after the date of the decision.
    (b) The petition for reconsideration shall state specifically the 
respects in which the final decision is claimed to be erroneous, the 
grounds of the petition, and the relief sought. Within ten (10) days 
after a petition for reconsideration has been filed, any other party may 
file an answer in opposition to or in support of the petition. However, 
the staff may file such an answer within twelve (12) days after a 
petition for reconsideration has been filed.
    (c) Neither the filing nor the granting of the petition shall stay 
the decision unless the Commission orders otherwise.

[27 FR 377, Jan. 13, 1962, as amended at 31 FR 4340, Mar. 12, 1966; 43 
FR 17802, Apr. 26, 1978; 48 FR 52286, Nov. 17, 1983; 56 FR 29409, June 
27, 1991]

Sec. 2.772  Authority of the Secretary to rule on procedural matters.

    When briefs, motions or other papers listed herein are submitted to 
the Commission itself, as opposed to officers who have been delegated 
authority to act for the Commission, the Secretary or the Assistant 
Secretary are authorized to:
    (a) Prescribe schedules for the filing of briefs, motions, or other 
pleadings, where such schedules may differ from those elsewhere 
prescribed in these rules or where these rules do not prescribe a 
schedule;
    (b) Rule on motions for extensions of time;
    (c) Reject motions, briefs, pleadings, and other documents filed 
with the Commission later than the time prescribed by the Secretary or 
the Assistant Secretary or established by an order, rule, or regulation 
of the Commission unless good cause is shown for the late filing;
    (d) Prescribe all procedural arrangements relating to any oral 
argument to be held before the Commission;
    (e) Extend the time for the Commission to rule on a petition for 
review under 10 CFR 2.786(b);
    (f) Extend the time for the Commission to grant review on its own 
motion under 10 CFR 2.786(a);
    (g) Extend time for Commission review on its own motion of a 
Director's denial under 10 CFR 2.206(c);
    (h) Direct pleadings improperly filed before the Commission to the 
appropriate adjudicatory board for action;
    (i) Deny a request for hearings, where the request fails to comply 
with the Commission's pleading requirements set forth in this part, and 
fails to set forth an arguable basis for further proceedings;
    (j) Refer to the Atomic Safety and Licensing Board Panel or an 
Administrative Law Judge, as appropriate, requests for hearings not 
falling under Sec. 2.104 of this part, where the requester is entitled 
to further proceedings; and
    (k) Take action on minor procedural matters.

[39 FR 24219, July 1, 1974, as amended at 43 FR 22346, May 25, 1978; 46 
FR 34794, July 6, 1981; 47 FR 47803, Sept. 28, 1982]

[[Page 79]]

                        Restricted Communications

Sec. 2.780  Ex parte communications.

    In any proceeding under this subpart--
    (a) Interested persons outside the agency may not make or knowingly 
cause to be made to any Commission adjudicatory employee, any ex parte 
communication relevant to the merits of the proceeding.
    (b) Commission adjudicatory employees may not request or entertain 
from any interested person outside the agency or make or knowingly cause 
to be made to any interested person outside the agency, and ex parte 
communication relevant to the merits of the proceeding.
    (c) Any Commission adjudicatory employee who receives, makes, or 
knowingly causes to be made a communication prohibited by this section 
shall ensure that it and any responses to the communication promptly are 
served on the parties and placed in the public record of the proceeding. 
In the case of oral communications, a written summary must be served and 
placed in the public record of the proceeding.
    (d) Upon receipt of a communication knowingly made or knowingly 
caused to be made by a party in violation of this section, the 
Commission or other adjudicatory employee presiding in a proceeding may, 
to the extent consistent with the interests of justice and the policy of 
the underlying statutes, require the party to show cause why its claim 
or interest in the proceeding should not be dismissed, denied, 
disregarded, or otherwise adversely affected on account of the 
violation.
    (e) (1) The prohibitions of this section apply--
    (i) When a notice of hearing or other comparable order is issued in 
accordance with Secs. 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e), 
or 2.703; or
    (ii) Whenever the interested person or Commission adjudicatory 
employee responsible for the communication has knowledge that a notice 
of hearing or other comparable order will be issued in accordance with 
Secs. 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e), or 2.703.
    (2) The prohibitions of this section cease to apply to ex parte 
communications relevant to the merits of a full or partial initial 
decision when, in accordance with Sec. 2.786, the time has expired for 
Commission review of the decision.
    (f) The prohibitions in this section do not apply to--
    (1) Requests for and the provision of status reports;
    (2) Communications specifically permitted by statute or regulation;
    (3) Communications made to or by Commission adjudicatory employees 
in the Office of the General Counsel regarding matters pending before a 
court or another agency; and
    (4) Communications regarding generic issues involving public health 
and safety or other statutory responsibilities of the agency (e.g., 
rulemakings, congressional hearings on legislation, budgetary planning) 
not associated with the resolution of any proceeding under this subpart 
pending before the NRC.

[53 FR 10365, Mar. 31, 1988, as amended at 56 FR 29409, June 27, 1991]

Sec. 2.781  Separation of functions.

    (a) In any proceeding under this subpart, any NRC officer or 
employee engaged in the performance of any investigative or litigating 
function in that proceeding or in a factually related proceeding may not 
participate in or advise a Commission adjudicatory employee about the 
initial or final decision on any disputed issue in that proceeding, 
except--
    (1) As witness or counsel in the proceeding;
    (2) Through a written communication served on all parties and made 
on the record of the proceeding; or
    (3) Through an oral communication made both with reasonable prior 
notice to all parties and with reasonable opportunity for all parties to 
respond.
    (b) The prohibition in paragraph (a) of this section does not apply 
to--
    (1) Communications to or from any Commission adjudicatory employee 
regarding--
    (i) The status of a proceeding;
    (ii) Matters with regard to which the communications specifically 
are permitted by statute or regulation;
    (iii) Agency participation in matters pending before a court or 
another agency; or

[[Page 80]]

    (iv) Generic issues involving public health and safety or other 
statutory responsibilities of the agency (e.g., rulemakings, 
congressional hearings on legislation, budgetary planning) not 
associated with the resolution of any proceeding under this subpart 
pending before the NRC.
    (2) Communications to or from Commissioners, members of their 
personal staffs, Commission adjudicatory employees in the Office of the 
General Counsel, and the Secretary and employees of the Office of the 
Secretary, regarding--
    (i) Initiation or direction of an investigation or initiation of an 
enforcement proceeding;
    (ii) Supervision of agency staff to ensure compliance with the 
general policies and procedures of the agency;
    (iii) Staff priorities and schedules or the allocation of agency 
resources; or
    (iv) General regulatory, scientific, or engineering principles that 
are useful for an understanding of the issues in a proceeding and are 
not contested in the proceeding.
    (3) None of the communications permitted by paragraph (b)(2) (i) 
through (iii) of this section is to be associated by the Commission 
adjudicatory employee or the NRC officer or employee performing 
investigative or litigating functions with the resolution of any 
proceeding under this subpart pending before the NRC.
    (c) Any Commission adjudicatory employee who receives a 
communication prohibited under paragraph (a) of this section shall 
ensure that it and any responses to the communication are placed in the 
public record of the proceeding and served on the parties. In the case 
of oral communications, a written summary must be served and placed in 
the public record of the proceeding.
    (d)(1) The prohibitions in this section apply--
    (i) When a notice of hearing or other comparable order is issued in 
accordance with Secs. 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e), 
or 2.703; or
    (ii) Whenever an NRC officer or employee who is or has reasonable 
cause to believe he or she will be engaged in the performance of an 
investigative or litigating function or a Commission adjudicatory 
employee has knowledge that a notice of hearing or other comparable 
order will be issued in accordance with Secs. 2.104(a), 2.105(e)(2), 
2.202(c), 2.204, 2.205(e), or 2.703.
    (2) The prohibitions of this section will cease to apply to the 
disputed issues pertinent to a full or partial initial decision when, in 
accordance with Sec. 2.786, the time has expired for Commission review 
of the decision.
    (e) Communications to, from, and between Commission adjudicatory 
employees not prohibited by this section may not serve as a conduit for 
a communication that otherwise would be prohibited by this section or 
for an ex parte communication that otherwise would be prohibited by 
Sec. 2.780.
    (f) If an initial or final decision is stated to rest in whole or in 
part on fact or opinion obtained as a result of a communication 
authorized by this section, the substance of the communication must be 
specified in the record of the proceeding and every party must be 
afforded an opportunity to controvert the fact or opinion. If the 
parties have not had an opportunity to controvert the fact or opinion 
prior to the filing of the decision, a party may controvert the fact or 
opinion by filing a petition for review of an initial decision, or a 
petition for reconsideration of a final decision that clearly and 
concisely sets forth the information or argument relied on to show the 
contrary. If appropriate, a party may be afforded the opportunity for 
cross-examination or to present rebuttal evidence.

[53 FR 10366, Mar. 31, 1988, as amended at 56 FR 29409, June 27, 1991]

Sec. 2.786  Review of decisions and actions of a presiding officer.

    (a) Within forty (40) days after the date of a decision or action by 
a presiding officer, or within thirty (30) days after a petition for 
review of the decision or action has been filed under paragraph (b) of 
this section, whichever is greater, the Commission may review the 
decision or action on its own motion, unless the Commission, in its 
discretion, extends the time for its review.
    (b)(1) Within fifteen (15) days after service of a full or partial 
initial decision by a presiding officer, and within

[[Page 81]]

fifteen (15) days after service of any other decision or action by a 
presiding officer with respect to which a petition for review is 
authorized by this part, a party may file a petition for review with the 
Commission on the grounds specified in paragraph (b)(4) of this section. 
The filing of a petition for review is mandatory for a party to exhaust 
its administrative remedies before seeking judicial review.
    (2) A petition for review under this paragraph must be no longer 
than ten (10) pages, and must contain the following:
    (i) A concise summary of the decision or action of which review is 
sought;
    (ii) A statement (including record citation) where the matters of 
fact or law raised in the petition for review were previously raised 
before the presiding officer and, if they were not why they could not 
have been raised;
    (iii) A concise statement why in the petitioner's view the decision 
or action is erroneous; and
    (iv) A concise statement why Commission review should be exercised.
    (3) Any other party to the proceeding may, within ten (10) days 
after service of a petition for review, file an answer supporting or 
opposing Commission review. This answer must be no longer than ten (10) 
pages and should concisely address the matters in paragraph (b)(2) of 
this section to the extent appropriate. The petitioning party shall have 
no right to reply, except as permitted by the Commission.
    (4) The petition for review may be granted in the discretion of the 
Commission, giving due weight to the existence of a substantial question 
with respect to the following considerations:
    (i) A finding of material fact is clearly erroneous or in conflict 
with a finding as to the same fact in a different proceeding;
    (ii) A necessary legal conclusion is without governing precedent or 
is a departure from or contrary to established law;
    (iii) A substantial and important question of law, policy or 
discretion has been raised;
    (iv) The conduct of the proceeding involved a prejudicial procedural 
error; or
    (v) Any other consideration which the Commission may deem to be in 
the public interest.
    (5) A petition for review will not be granted to the extent that it 
relies on matters that could have been but were not raised before the 
presiding officer. A matter raised sua sponte by a presiding officer has 
been raised before the presiding officer for the purpose of this 
section.
    (6) A petition for review will not be granted as to issues raised 
before the presiding officer on a pending motion for reconsideration.
    (c) If within thirty (30) days after the filing of a petition for 
review the Commission does not grant the petition, in whole or in part, 
the petition shall be deemed denied, unless the Commission in its 
discretion extends the time for its consideration of the petition and 
any answers thereto.
    (d) If a petition for review is granted, the Commission will issue 
an order specifying the issues to be reviewed and designating the 
parties to the review proceeding and direct that appropriate briefs be 
filed, oral argument be held, or both.
    (e) Petitions for reconsideration of Commission decisions granting 
or denying review in whole or in part will not be entertained. A 
petition for reconsideration of a Commission decision after review may 
be filed within ten (10) days, but is not necessary for exhaustion of 
administrative remedies. However, if a petition for reconsideration is 
filed, the Commission decision is not final until the petition is 
decided.
    (f) Neither the filing nor the granting of a petition for review 
will stay the effect of the decision or action of the presiding officer, 
unless otherwise ordered by the Commission.
    (g) Certified questions and referred rulings. A question certified 
to the Commission under Sec. 2.718(i) or a ruling referred under 
Sec. 2.730(f) must meet one of the alternative standards in this 
subsection to merit Commission review. A certified question or referred 
ruling will be reviewed if it either--
    (1) Threatens the party adversely affected by it with immediate and 
serious irreparable impact which, as a

[[Page 82]]

practical matter, could not be alleviated through a petition for review 
of the presiding officer's final decision; or
    (2) Affects the basic structure of the proceeding in a pervasive or 
unusual manner.

[56 FR 29409, June 27, 1991]

Sec. 2.788  Stays of decisions of presiding officers pending review.

    (a) Within ten (10) days after service of a decision or action of a 
presiding officer any party to the proceeding may file an application 
for a stay of the effectiveness of the decision or action pending filing 
of and a decision on a petition for review. This application may be 
filed with the Commission or the presiding officer, but not both at the 
same time.
    (b) An application for a stay must be no longer than ten (10) pages, 
exclusive of affidavits, and must contain the following:
    (1) A concise summary of the decision or action which is requested 
to be stayed;
    (2) A concise statement of the grounds for stay, with reference to 
the factors specified in paragraph (e) of this section; and
    (3) To the extent that an application for a stay relies on facts 
subject to dispute, appropriate references to the record or affidavits 
by knowledgeable persons.
    (c) Service of an application for a stay on the other parties shall 
be by the same method, e.g., telecopier message, mail, as the method for 
filing the application with the Commission or the presiding officer.
    (d) Within ten (10) days after service of an application for a stay 
under this section, any party may file an answer supporting or opposing 
the granting of a stay. This answer must be no longer than ten (10) 
pages, exclusive of affidavits, and should concisely address the matters 
in paragraph (b) of this section to the extent appropriate. No further 
replies to answers will be entertained. Filing of and service of an 
answer on the other parties must be by the same method, e.g., telecopier 
message, mail, as the method for filing the application for the stay.
    (e) In determining whether to grant or deny an application for a 
stay, the Commission or presiding officer will consider:
    (1) Whether the moving party has made a strong showing that it is 
likely to prevail on the merits;
    (2) Whether the party will be irreparably injured unless a stay is 
granted;
    (3) Whether the granting of a stay would harm other parties; and
    (4) Where the public interest lies.
    (f) In extraordinary cases, where prompt application is made under 
this section, the Commission or presiding officer may grant a temporary 
stay to preserve the status quo without waiting for filing of any 
answer. The application may be made orally provided the application is 
promptly confirmed by telecopier message. Any party applying under this 
paragraph shall make all reasonable efforts to inform the other parties 
of the application, orally if made orally.

[56 FR 29410, June 27, 1991]

                    Availability of Official Records

Sec. 2.790  Public inspections, exemptions, requests for withholding.

    (a) Subject to the provisions of paragraphs (b), (d), and (e) of 
this section, final NRC records and documents, including but not limited 
to correspondence to and from the NRC regarding the issuance, denial, 
amendment, transfer, renewal, modification, suspension, revocation, or 
violation of a license, permit, or order, or regarding a rulemaking 
proceeding subject to this part shall not, in the absence of a 
compelling reason for nondisclosure after a balancing of the interests 
of the person or agency urging nondisclosure and the public interest in 
disclosure, be exempt from disclosure and will be made available for 
inspection and copying at the NRC Web site, http://www.nrc.gov, and/or 
at the NRC Public Document Room, except for matters that are:
    (1)(i) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and (ii) are in fact properly classified pursuant to such 
Executive order;
    (2) Related solely to the internal personnel rules and practices of 
the Commission;

[[Page 83]]

    (3) Specifically exempted from disclosure by statute (other than 5 
U.S.C.) 552(b), provided that such statute (i) requires that the matters 
be withheld from the public in such a manner as to leave no discretion 
on the issue, or (ii) establishes particular criteria for withholding or 
refers to particular types or matters to be withheld.
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Interagency or intraagency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the Commission;
    (6) Personnel and medical files and similar files, the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information.
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority, or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (b)(1) A person who proposes that a document or a part be withheld 
in whole or part from public disclosure on the ground that it contains 
trade secrets or privileged or confidential commercial or financial 
information shall submit an application for withholding accompanied by 
an affidavit which:
    (i) Identifies the document or part sought to be withheld and the 
position of the person making the affidavit, and
    (ii) Contains a full statement of the reasons on the basis of which 
it is claimed that the information should be withheld from public 
disclosure. Such statement shall address with specificity the 
considerations listed in paragraph (b)(4) of this section. In the case 
of an affidavit submitted by a company, the affidavit shall be executed 
by an officer or upper-level management official who has been 
specifically delegated the function of reviewing the information sought 
to be withheld and authorized to apply for its withholding on behalf of 
the company. The affidavit shall be executed by the owner of the 
information, even though the information sought to be withheld is 
submitted to the Commission by another person. The application and 
affidavit shall be submitted at the time of filing the information 
sought to be withheld. The information sought to be withheld shall be 
incorporated, as far as possible, into a separate paper. The affiant may 
designate with appropriate markings information submitted in the 
affidavit as a trade secret or confidential or privileged commercial or 
financial information within the meaning of Sec. 9.17(a)(4) of this 
chapter and such information shall be subject to disclosure only in 
accordance with the provisions of Sec. 9.19 of this chapter.
    (2) A person who submits commercial or financial information 
believed to be privileged or confidential or a trade secret shall be on 
notice that it is the policy of the Commission to achieve an

[[Page 84]]

effective balance between legitimate concerns for protection of 
competitive positions and the right of the public to be fully apprised 
as to the basis for and effects of licensing or rule making actions, and 
that it is within the discretion of the Commission to withhold such 
information from public disclosure.
    (3) The Commission shall determine whether information sought to be 
withheld from public disclosure pursuant to this paragraph: (i) is a 
trade secret or confidential or privileged commercial or financial 
information; and (ii) if so, should be withheld from public disclosure.
    (4) In making the determination required by paragraph (b)(3)(i) of 
this section, the Commission will consider:
    (i) Whether the information has been held in confidence by its 
owner;
    (ii) Whether the information is of a type customarily held in 
confidence by its owner and whether there is a rational basis therefor;
    (iii) Whether the information was transmitted to and received by the 
Commission in confidence;
    (iv) Whether the information is available in public sources;
    (v) Whether public disclosure of the information sought to be 
withheld is likely to cause substantial harm to the competitive position 
of the owner of the information, taking into account the value of the 
information to the owner; the amount of effort or money, if any, 
expended by the owner in developing the information; and the ease or 
difficulty with which the information could be properly acquired or 
duplicated by others.
    (5) If the Commission determines, pursuant to paragraph (b)(4) of 
this section, that the record or document contains trade secrets or 
privileged or confidential commercial or financial information, the 
Commission will then determine (i) whether the right of the public to be 
fully apprised as to the bases for and effects of the proposed action 
outweighs the demonstrated concern for protection of a competitive 
position and (ii) whether the information should be withheld from public 
disclosure pursuant to this paragraph. If the record or document for 
which withholding is sought is deemed by the Commission to be irrelevant 
or unnecessary to the performance of its functions, it shall be returned 
to the applicant.
    (6) Withholding from public inspection shall not affect the right, 
if any, of persons properly and directly concerned to inspect the 
document. The Commission may require information claimed to be a trade 
secret or privileged or confidential commercial or financial information 
to be subject to inspection: (i) Under a protective agreement, by 
contractor personnel or government officials other than NRC officials; 
(ii) by the presiding officer in a proceeding; and (iii) under 
protective order, by parties to a proceeding, pending a decision of the 
Commission on the matter of whether the information should be made 
publicly available or when a decision has been made that the information 
should be withheld from public disclosure. In camera sessions of 
hearings may be held when the information sought to be withheld is 
produced or offered in evidence. If the Commission subsequently 
determines that the information should be disclosed, the information and 
the transcript of such in camera session will be made publicly 
available.
    (c) If a request for withholding pursuant to paragraph (b) of this 
section is denied, the Commission will notify an applicant for 
withholding of the denial with a statement of reasons. The notice of 
denial will specify a time, not less than thirty (30) days after the 
date of the notice, when the document will be available at the NRC Web 
site, http://www.nrc.gov. If, within the time specified in the notice, 
the applicant requests withdrawal of the document, the document will not 
be available at the NRC Web site, http://www.nrc.gov, and will be 
returned to the applicant: Provided, that information submitted in a 
rule making proceeding which subsequently forms the basis for the final 
rule will not be withheld from public disclosure by the Commission and 
will not be returned to the applicant after denial of any application 
for withholding submitted in connection with that information. If a 
request for withholding pursuant to paragraph (b) of this section is 
granted, the Commission

[[Page 85]]

will notify the applicant of its determination to withhold the 
information from public disclosure.
    (d) The following information shall be deemed to be commercial or 
financial information within the meaning of Sec. 9.17(a)(4) of this 
chapter and shall be subject to disclosure only in accordance with the 
provisions of Sec. 9.19 of this chapter.
    (1) Correspondence and reports to or from the NRC which contain 
information or records concerning a licensee's or applicant's physical 
protection, classified matter protection, or material control and 
accounting program for special nuclear material not otherwise designated 
as Safeguards Information or classified as National Security Information 
or Restricted Data.
    (2) Information submitted in confidence to the Commission by a 
foreign source.
    (e) The presiding officer, if any, or the Commission may, with 
reference to the NRC records and documents made available pursuant to 
this section, issue orders consistent with the provisions of this 
section and Sec. 2.740(c).

[41 FR 11810, Mar. 22, 1976, as amended at 42 FR 12877, Mar. 7, 1977; 52 
FR 49355, Dec. 31, 1987; 53 FR 17688, May 18, 1988; 64 FR 15641, Apr. 1, 
1999; 64 FR 48948, Sept. 9, 1999]
