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Title 10Chapter IPart 2 → Subpart O


Title 10: Energy
PART 2—AGENCY RULES OF PRACTICE AND PROCEDURE


Subpart O—Legislative Hearings


Contents
§2.1500   Purpose and scope.
§2.1501   Definitions.
§2.1502   Commission decision to hold legislative hearing.
§2.1503   Authority of presiding officer.
§2.1504   Request to participate in legislative hearing.
§2.1505   Role of the NRC staff.
§2.1506   Written statements and submission of information.
§2.1507   Oral hearing.
§2.1508   Recommendation of presiding officer.
§2.1509   Ex parte communications and separation of functions.
Appendix A to Part 2 [Reserved]
Appendix B to 10 CFR Part 2—Model Milestones To Be Used By a Presiding Officer as a Guideline in Developing a Hearing Schedule for the Conduct of an Adjudicatory Proceeding in Accordance With 10 CFR 2.332.
Appendix C to Part 2 [Reserved]
Appendix D to Part 2—Schedule for the Proceeding on Consideration of Construction Authorization for a High-Level Waste Geologic Repository.

Source: 69 FR 2273, Jan. 14, 2004, unless otherwise noted.

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§2.1500   Purpose and scope.

The purpose of this subpart is to provide for simplified, legislative hearing procedures to be used, at the Commission's sole discretion, in:

(a) Any design certification rulemaking hearings under subpart B of part 52 of this chapter that the Commission may choose to conduct; and

(b) Developing a record to assist the Commission in resolving, under §2.335(d), a petition filed under §2.335(b).

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§2.1501   Definitions.

Demonstrative information means physical things, not constituting documentary information.

Documentary information means information, ordinarily contained in documents or electronic files, but may also include photographs and digital audio files.

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§2.1502   Commission decision to hold legislative hearing.

(a) The Commission may, in its discretion, hold a legislative hearing in either a design certification rulemaking under §52.51(b) of this chapter, or a proceeding where a question has been certified to it under §2.335(d).

(b) Notice of Commission decision—(1) Hearing in design certification rulemakings. If, at the time a proposed design certification rule is published in the Federal Register under §52.51(a) of this chapter, the Commission decides that a legislative hearing should be held, the information required by paragraph (c) of this section must be included in the Federal Register notice for the proposed design certification rule. If, following the submission of written public comments submitted on the proposed design certification rule which are submitted in accordance with §52.51(a) of this chapter, the Commission decides to conduct a legislative hearing, the Commission shall publish a notice in the Federal Register and on the NRC Web site indicating its determination to conduct a legislative hearing. The notice shall contain the information specified in paragraph (c) of this section, and specify whether the Commission or a presiding officer will conduct the legislative hearing.

(2) Hearings under §2.335(d). If, following a certification of a question to the Commission by a Licensing Board under §2.335(d), the Commission decides to hold a legislative hearing to assist it in resolving the certified question, the Commission shall issue an order containing the information required by paragraph (c) of this section. The Commission shall serve the order on all parties in the proceeding. In addition, if the Commission decides that persons and entities other than those identified in paragraph (c)(2) may request to participate in the legislative hearing, the Commission shall publish a notice of its determination to hold a legislative hearing in the Federal Register and on the NRC Web site. The notice shall contain the information specified in paragraph (c) of this section, and refer to the criteria in §2.1504 which will be used in determining requests to participate in the legislative hearing.

(c) If the Commission decides to hold a legislative hearing, it shall, in accordance with paragraph (b) of this section:

(1) Identify with specificity the issues on which it wishes to compile a record;

(2) Identify, in a hearing associated with a question certified to the Commission under §2.335(d), the parties and interested State(s), governmental bodies, and Federally-recognized Indian Tribe under §2.315(c), who may participate in the legislative hearing;

(3) Identify persons and entities that may, in the discretion of the Commission, be invited to participate in the legislative hearing;

(4) Indicate whether other persons and entities may request, in accordance with §2.1504, to participate in the legislative hearing, and the criteria that the Commission or presiding officer will use in determining whether to permit such participation;

(5) Indicate whether the Commission or a presiding officer will conduct the legislative hearing;

(6) Specify any special procedures to be used in the legislative hearing;

(7) Set the dates for submission of requests to participate in the legislative hearing, submission of written statements and demonstrative and documentary information, and commencement of the oral hearing; and

(8) Specify the location where the oral hearing is to be held. Ordinarily, oral hearings will be held in the Washington, DC metropolitan area.

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§2.1503   Authority of presiding officer.

If the Commission appoints a presiding officer to conduct the legislative hearing, the presiding officer shall be responsible for expeditious development of a sufficient record on the Commission-identified issues, consistent with the direction provided by the Commission under §2.1502(c). The presiding officer has the authority otherwise accorded to it under §§2.319(a), (c), (e), (g), (h), and (i), 2.324, and 2.333 to control the course of the proceeding, and may exercise any other authority granted to it by the Commission in accordance with §2.1502(c)(6).

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§2.1504   Request to participate in legislative hearing.

(a) Any person or entity who wishes to participate in a legislative hearing noticed under either §2.1502(b)(1) or (b)(2) shall submit a request to participate by the date specified in the notice. The request must address:

(1) A summary of the person's position on the subject matter of the legislative hearing; and

(2) The specific information, expertise or experience that the person possesses with respect to the subject matter of the legislative hearing.

(b) The Commission or presiding officer shall, within ten (10) days of the date specified for submission of requests to participate, determine whether the person or entity has met the criteria specified by the Commission under §2.1502(c)(4) for determining requests to participate in the legislative hearing, and issue an order to that person or entity informing them of the presiding officer's decision. A presiding officer's determinations in this regard are final and not subject to any motion for reconsideration or appeal to the Commission; and the Commission's determination in this regard are final and are not subject to a motion for reconsideration.

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§2.1505   Role of the NRC staff.

The NRC staff shall be available to answer any Commission or presiding officer's questions on staff-prepared documents, provide additional information or documentation that may be available to the staff, and provide other assistance that the Commission or presiding officer may request without requiring the NRC staff to assume the role of an advocate. The NRC staff may request to participate in the legislative hearing by providing notice to the Commission or presiding officer, as applicable, within the time period established for submitting a request to participate; or if no notice is provided under §2.1502(b)(2), within ten (10) days of the Commission's order announcing its determination to conduct a legislative hearing.

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§2.1506   Written statements and submission of information.

All participants shall file written statements on the Commission-identified issues, and may submit documentary and demonstrative information. Written statements, copies of documentary information, and a list and short description of any demonstrative information to be submitted must be received by the NRC (and in a hearing on issues stemming from a §2.335(b) petition, by the parties in the proceeding in which the petition was filed) no later than ten (10) days before the commencement of the oral hearing.

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§2.1507   Oral hearing.

(a) Not less than five (5) days before the commencement of the oral hearing, the presiding officer shall issue an order setting forth the grouping and order of appearance of the witnesses at the oral hearing. The order shall be filed upon all participants by email or facsimile transmission if possible, otherwise by overnight mail.

(b) The Commission or presiding officer may question witnesses. Neither the Commission nor the presiding officer will ordinarily permit participants to submit recommended questions for the Commission or presiding officer to propound to witnesses. However, if the Commission or presiding officer believe that the conduct of the oral hearing will be expedited and that consideration of such proposed questions will assist in developing a more focused hearing record, the Commission or presiding officer may, in its discretion, permit the participants to submit recommended questions for the Commission or presiding officer's consideration.

(c) The Commission or presiding officer may request, or upon request of a participant may, in the presiding officer's discretion, permit the submission of additional information following the close of the oral hearing. Such information must be submitted no later than five (5) days after the close of the oral hearing and must be served at the same time upon all participants at the oral hearing.

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§2.1508   Recommendation of presiding officer.

(a) If the Commission is not acting as a presiding officer, the presiding officer shall, within thirty (30) days following the close of the legislative hearing record, certify the record to the Commission on each of the issues identified by the Commission.

(b) The presiding officer's certification for each Commission-identified issue shall contain:

(1) A transcript of the oral phase of the legislative hearing;

(2) A list of all participants;

(3) A list of all witnesses at the oral hearing, and their affiliation with a participant;

(4) A list, and copies of, all documentary information submitted by the participants with ADAMS accession numbers;

(5) All demonstrative information submitted by the participants;

(6) Any written answers submitted by the NRC staff in response to questions posed by the presiding officer with ADAMS accession numbers;

(7) A certification that all documentary information has been entered into ADAMS, and have been placed on the NRC Web site unless otherwise protected from public disclosure;

(8) A certification by the presiding officer that the record contains sufficient information for the Commission to make a reasoned determination on the Commission-identified issue; and

(9) At the option of the presiding officer, a summary of the information in the record and a proposed resolution of the Commission-identified issue with a supporting basis.

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§2.1509   Ex parte communications and separation of functions.

Section 2.347 applies in a legislative hearing. Section 2.348 applies in a legislative hearing only where the hearing addresses an issue certified to the Commission under §2.335(d), and then only with respect to the underlying contested matter.

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Appendix A to Part 2 [Reserved]

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Appendix B to 10 CFR Part 2—Model Milestones To Be Used By a Presiding Officer as a Guideline in Developing a Hearing Schedule for the Conduct of an Adjudicatory Proceeding in Accordance With 10 CFR 2.332.

I. Model Milestones for a Hearing on an Enforcement Action Conducted Under 10 CFR Part 2, Subpart G

These model milestones would apply to enforcement proceedings conducted under 10 CFR Part 2, Subpart G. As required by 10 CFR 2.332 and 2.334, the presiding officer establishes, by order, a schedule for the conduct of the proceeding. In establishing a schedule, the presiding officer should use these milestones as a starting point, make appropriate modifications to the milestones, and set detailed schedules (e.g., for filings) based upon all relevant information. Such information would include, but not be limited to, the complexity of the issues, any other relevant consideration that a party brings to the attention of the presiding officer, and the NRC's interest in providing a fair and expeditious resolution of the issues to be adjudicated in the proceeding. The model milestones are based on the Commission's Rules of Practice in 10 CFR Part 2, Subparts B, C, and G.

The model milestones are based upon the following assumptions: (i) the issues to be litigated will involve both disputes over fact and issues of compliance with the Commission's regulations and requirements; and (ii) no petitions to intervene are filed pursuant to 10 CFR 2.309(a)-(b). The model milestones reflect electronic filing and service in accordance with 10 CFR 2.305. In some cases, preparation of direct testimony and motions for summary disposition can proceed once initial mandatory disclosures have been made. The time periods set forth in the model milestones reflect these assumptions.

Model Milestones

[10 CFR Part 2, Subpart G]

  Within 20 days of date of enforcement order:Person subject to order files answer; if order immediately effective, motion to set aside immediate effectiveness due; requests for hearing due.
  Within 100 days of enforcement order:Presiding officer issues order on hearing request by person who is subject of enforcement order.
  Within 25 days of presiding officer decision granting hearing:Presiding officer sets initial schedule for the proceeding.
  Within 145 days of presiding officer decision granting hearing:Discovery complete.
  Within 155 days of presiding officer decision granting hearing:Motions for summary disposition due.
  Within 235 days of presiding officer decision granting hearing:Presiding officer decisions on motions for summary disposition.
  Within 245 days of presiding officer decision granting hearing:Prehearing conference (optional); presiding officer sets schedule for remainder of proceeding.
  Within 275 days of presiding officer decision granting hearing:Written testimony filed.
  Within 90 days of end of evidentiary hearing and closing of record:Presiding officer issues initial decision.

II. Model Milestones for Hearings Conducted Under 10 CFR Part 2, Subpart L

These model milestones would apply to proceedings conducted under 10 CFR Part 2, Subpart L, including those on applications for combined licenses (COLs), renewed licenses, and license amendments. While such proceedings differ insofar as the scope and complexity of the NRC staff reviews for the requested actions may vary, such differences will be reflected in the staff's schedule for issuing its review documents in a particular type of action. Because the milestones are keyed to the staff's review schedule, separate milestones are not identified for proceedings on the different types of actions.

As required by 10 CFR 2.332 and 2.334, the presiding officer establishes, by order, a schedule for the conduct of each proceeding. In establishing a schedule, the presiding officer should use these milestones as a starting point, make appropriate modifications to the milestones, and set detailed schedules (e.g., for filings) based upon all relevant information. Such information would include, but not be limited to, the number of contentions admitted, the complexity of the issues, the NRC staff's schedule for completion of its safety and environmental evaluations, any other relevant consideration that a party brings to the attention of the presiding officer, and the NRC's interest in providing a fair and expeditious resolution of the issues sought to be admitted for adjudication in the proceeding. The model milestones are based on the Commission's Rules of Practice in 10 CFR Part 2, Subparts B, C, and L.

The model milestones include only the most significant events in the proceeding and are based upon the following assumptions: (I) the issues to be litigated will involve both disputes over fact and issues of compliance with the Commission's regulations and requirements; (ii) an oral hearing under 10 CFR 2.1207 will be held rather than a written hearing under 10 CFR 2.1208; and (iii) the final Safety Evaluation Report (SER) and final environmental document will be issued simultaneously. The model milestones reflect electronic filing and service in accordance with 10 CFR 2.305.

Model Milestones

[10 CFR Part 2, Subpart L]

  Within 140 of publication days of notice in Federal Register:Presiding officer decision on intervention petitions and admission of contentions.
  Within 55 days of presiding officer decision granting intervention and admitting contentions:Presiding officer to set initial schedule for proceeding, based on staff schedule for issuing draft and final SERs and any necessary NEPA document.
  Within 30 days of issuance of SER and any necessary NEPA document:Proposed late-filed contentions on SER and necessary NEPA documents filed; motions for summary disposition on previously admitted contentions due.
  Within 85 days of issuance of SER and NEPA document:Presiding officer decision on admission of proposed late-filed contentions and motions for summary disposition; presiding officer sets schedule for remainder of proceeding.
  Within 14 days after presiding officer decision on amended/late-filed contentions:All parties complete updates of mandatory disclosures.
  Within 115 days of issuance of SER and NEPA document:Motions for summary disposition due.
  Within 155 days of issuance of SER and NEPA document:Written direct testimony filed.
  Within 175 days of issuance of SER and NEPA document:Evidentiary hearing begins.
  Within 90 days of end of evidentiary hearing and closing of record:Presiding officer issues initial decision.

III. Model Milestones for a Hearing on a Transfer of a License Conducted Under 10 CFR Part 2, Subpart M

These model milestones would apply to proceedings conducted under 10 CFR Part 2, Subpart M on applications for license transfer. As required by 10 CFR 2.332 and 2.334, the presiding officer establishes, by order, a schedule for the conduct of each proceeding. In establishing a schedule, the presiding officer should use these milestones as a starting point, make appropriate modifications to the milestones, and set detailed schedules (e.g., for filings) based upon all relevant information. Such information would include, but not be limited to, the number of contentions admitted, the complexity of the issues, the NRC staff's schedule for completion of its safety and environmental evaluations, any other relevant consideration that a party brings to the attention of the presiding officer, and the NRC's interest in providing a fair and expeditious resolution of the issues sought to be admitted for adjudication in the proceeding. The model milestones are based on the Commission's Rules of Practice in 10 CFR Part 2, Subparts B, C and M.

The model milestones include only the most significant events in the proceeding, and are based upon the following assumptions: (i) The issues to be litigated will involve both disputes over fact and issues of compliance with the Commission's regulations and requirements; (ii) the parties do not file a joint request under 10 CFR 2.1308 for a hearing consisting of written comments; (iii) the final Safety Evaluation Report (SER) is not necessary to resolve the issues to be litigated; (iv) the Commission itself does not serve as the presiding officer; and (v) the Commission does not order further taking of testimony after the presiding officer certifies the record to the Commission under 10 CFR 2.1319(f). The model milestones reflect electronic filing and service in accordance with 10 CFR 2.305.

Model Milestones

[10 CFR Part 2, Subpart M]

  Within 100 days of publication of Federal Register notice of opportunity for hearing:Presiding officer decision on intervention petitions and admission of contentions.
  Within 30 days of order granting hearing petitions:NRC staff and other parties complete mandatory disclosures.
  Within 12 days of completion of mandatory disclosures:Presiding Officer issues scheduling order to address, inter alia, scheduling of oral hearing, filing of written statements of position, direct testimony, and rebuttal testimony.
  Within 45 days of scheduling order:Oral hearing commences.
  Within 25 days after hearing ends:Presiding officer certifies hearing record to the Commission.

IV. Model Milestones for a Hearing on an Enforcement Action Conducted Under 10 CFR Part 2, Subpart N

These model milestones would apply to enforcement proceedings conducted under 10 CFR Part 2, Subpart N. As required by 10 CFR 2.332 and 2.334, the presiding officer establishes, by order, a schedule for the conduct of each proceeding. In establishing a schedule, the presiding officer should use these milestones as a starting point, make appropriate modifications to the milestones, and set detailed schedules based upon all relevant information. The model milestones are based on the Commission's Rules of Practice in 10 CFR Part 2, Subparts B, C, and N.

The model milestones are based upon the following assumptions: (i) The issues to be litigated will involve both disputes over fact and issues of compliance with the Commission's regulations and requirements; and (ii) no petitions to intervene are filed pursuant to 10 CFR 2.309(a)-(b). The model milestones reflect electronic filing and service in accordance with 10 CFR 2.305. The only discovery provided is the mandatory disclosure made by each party pursuant to 10 CFR 2.336.

Model Milestones

[10 CFR Part 2, Subpart N]

  Within 20 of date of enforcement order:Person subject to order files answer; if order immediately effective, motion to set aside immediate effectiveness due; requests for hearing due, including joint motion to use Subpart N procedures.
  Within 50 days of date of enforcement order:Presiding officer decision on requests for hearing and confirms use of Subpart N procedures (note: if presiding officer concludes that Subpart N procedures should not be used, the Model Milestone for Enforcement Actions under Subpart G are applicable).
  Within 30 days of presiding officer decision granting hearing:Mandatory disclosures complete.
  Within 40 days of presiding officer decision granting hearing:Prehearing conference to specify issues for hearing and set schedules for remaining course of proceeding.
  Within 60 days of presiding officer decision granting hearing:Evidentiary hearing begins.
  Within 30 days of end of evidentiary hearing and closing of record:Presiding officer issues initial decision.

[70 FR 20462, Apr. 20, 2005]

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Appendix C to Part 2 [Reserved]

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Appendix D to Part 2—Schedule for the Proceeding on Consideration of Construction Authorization for a High-Level Waste Geologic Repository.

Day Regulation
(10 CFR)
Action
02.101(f)(8), 2.105(a)(5)Federal Register Notice of Hearing.
302.309(b)(2)Petition to intervene/request for hearing, w/contentions.
302.309(b)(2)Petition for status as interested government participant.
552.315(c)Answers to intervention & interested government participant Petitions.
622.309(h)(1)Petitioner's response to answers.
702.1021First Prehearing conference.
1002.309(h)(2)First Prehearing Conference Order identifying participants in proceeding, admitted contentions, and setting discovery and other schedules.
1102.1021Appeals from First Prehearing Conference Order.
120Briefs in opposition to appeals.
1502.1021, 2.329Commission ruling on appeals for First Prehearing Conference Order.
548NRC Staff issues SER.
5782.1022Second Prehearing Conference.
6082.1021, 2.1022Discovery complete; Second Prehearing Conference Order finalizes issues for hearing and sets schedule for prefiled testimony and hearing.
6182.1015(b)Appeals from Second Prehearing Conference Order.
6282.1015(b), c.f. 2.710(a)Briefs in opposition to appeals; last date for filing motions for summary disposition.
648c.f. 2.710(a)Last date for responses to summary disposition motions.
6582.710(a)Commission ruling on appeals from Second Prehearing Conference Order; last date for party opposing summary disposition motion to file response to new facts and arguments in any response supporting summary disposition motion.
6982.1015(b)Decision on summary disposition motions (may be determination to dismiss or to hold in abeyance).
720c.f. 2.710(a)Evidentiary hearing begins.
810Evidentiary hearing ends.
8402.712(a)(1)Applicant's proposed findings.
8502.712(a)(2)Other parties' proposed findings.
8552.712(a)(3)Applicant's reply to other parties' proposed findings.
9552.713Initial decision.
9652.342(a), 2.345(a), 2.1015(c)(1)Stay motion. Petition for reconsideration, notice of appeal.
9752.342(d), 2.345(b)Other parties' responses to stay motion and Petitions for reconsideration.
985Commission ruling on stay motion.
9952.1015(c)(2)Appellant's briefs.
10152.1015(c)(3)Appellee's briefs.
10552.1023 Supp. InfoCompletion of NMSS and Commission supervisory review; issuance of construction authorization; NWPA 3-year period tolled.
1125Commission decision.

[69 FR 2275, Jan. 14, 2004; 69 FR 25997, May 11, 2004]

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