ML20155E316
Text
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i DE 41930 For:
The Commissioners l
2 From:
William J. Dircks Executive Director for Operations Suoiect:
STEVEN SH0LLY, ET AL. V. NRC, ET AL., U.S.C.A., D.C.
CIR., NO. 80-1691 - RECOMf'. ENDED FINAL AMENDMENTS TO
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10 CFR PART 2, RULES OF PRACTICE TO IMPLEMENT THE 6
DECISION IN SH0LLY ON HEARING RIGHTS UNDER SECTION 189a.
0F THE ATOMIC ENERGY ACT FOR NO SIGNIFICANT HAZARDS CONSIDERATION AMENDMENTS.
Purpose:
To obtain Commission approval of a Federal Register notice proculgating a final rule.
Discussion:
On November 26, 1980, the General Counsel and the Execu-tive legal Director provided the Commission (SECY-A-80-183A) with the Staff's preliminary views on the impact of the Court's decision in the Sholly case on agency licensing functions and on the TMI-2 cleanup operation. Sholly held, among other things, that even where a license amendment involves no significant hazards consideration, an interested person who requests a hearing is entitled to a hearing by section 189a. of the Atomic Energy Act before the amendment becomes effective.
The Sholly decision has no effect upon the Commission's suthority to i; sue immediately effective amendments when the pubhc health, safety, or interest, or the common defense and see:rity so requires.
Nor does Sholly alter existing law witn regard to the Commission's pleading requirements which enabic the Commission to detemine whether a person requesting a hearing is, in fact, an " interested person" within the meaning of section 189a. of the Act, that is whether the person has demonstrated " standing,"
indicated the specific aspect or aspects of the subject matter of the proceeding ts to which intervention is sought, and identified one or more issues to be liti-gated.
(See 10 CFR 2.714.)
In SECY-A-80-183A (see p. 9) the Commission was infonted that 0 ELD was reviewing NRC's Rules of Practice to deter-mine whether any changes might be needed to accommodate the Court's interpretation of hearing rights under section 189a.
for amendments involving no significant hazards consideration.
Although the Commission has decided to seek judicial review
Contact:
Howard K. Shapar Executive Legal Director 492-7308 8604170562 060327 h5F 0491 PDR
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s of' the Sholly decision, procedures need to be estab-
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lished to enable the Commission to respond promptly to requests for hearing while the issues presented in u
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,Stiolly are being resolved by the courts. On the basis
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ioK the OELD review, now completed, the Staff has con-eI ?!
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1cluded that, with some minor modifications, the proce-d0res in 10 CFR Part 2 are adequate to deal with the
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interpretation of section 189a. in Sholly. Although OELD
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, and OCC will examine, once again, whether section 189a.
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the recommended rule need not be held up pending comple-M M
~ tion of this review. Accordingly, the Staff is transmitting l
f' for Commission review and approval the attached Federal i
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h Register Notice of Rulemaking (Enclosure A) containing
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' six minor procedural amendments to il.2.700, 2.701(b),
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j 2.704(a), 2.714(a)(1), 2.717(a) and 2.780 in final fonn.
- W ibe amendments are presented in comparative text. New 4
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material is underlined. No deletions were made in the
. Commission's existing regulations.
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The purpose of the amendments is to provide procedures s
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. process of written requests for a hearing (including any h-
' written expressions of interest which can reasonably be r
construed to be requests for a hearing) on proposed
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m amendments to reactor construction permits and operating g
1" licenses involving no significant hazards consideration.
The procedures are not applicable to generalized recuests dealing with continued or future construction or opera-tion of a particular facility; requests of this type will be considered under other provisions of the Commis-sion's regulations such as 10 CFR 2.206.
In addition.
m the Director of the Office of Nuclear Reactor Regulation I
will infonn the requester that, upon written request, 4'I the requester's name will be placed upon a mailing list to receive automatic notification of requested amendments ky
,,,y relating to that facility.
In general, the new procedures are designed to assure y
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that:
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(1)
If a request for a hearing or an expression of
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interest in a pending proposed amendment involving
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no significant hazards consideration is received, it will be expeditiously processed before action is p ) 'q ~
taken on the proposed amendment. Under the new 4
procedures, except where the public health, safety, r/
or interest or common defense and security requires I
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i in The Commissioners I an effective amendment to be issued immediately, issuance of the amendment will be stayed until it is detemined whether a hearing will be held. -If a hearing is to be held, action will not be taken on the proposed amendment until after the conclusion of the hearing process and final disposition of the matter.
(2) An expression of interest which simply seeks infomation or offers coment on a proposed Comis-sion action is separated from an expression of interest which can reasonably be construed as a request for a hearing.
(3) When a request for a hearing or an expression of interest which constitutes a request for a hearing is received, unless the Commission wishes to preside, an administrative law judge or an atomic safety and licensing board appointed by the Chaiman of the Atomic Safety and Licensing Board Panel, as appro-priate, will promptly rele on essential preliminary matters such as " standing" and identification of the aspect or aspects of the proposed amendment to be litigated.
(4)
If a hearing is to be held an atomic safety and licensing board will preside, unless the Comis-sion directs otherwise.
(5) All aspects of the proceeding will be conducted expeditiously, without infringement of the rights of any party.
Thus, the amendments provide that where there is a 4
e request for a hearing or an appropriate expression of interest in the subject matter of a pending proposed license amendment as to which prior notice of hearing or -
opportunity for hearing has not been published, an adjudicatory hearing will be ordered and the requester admitted as a party if the requester satisfies the Commission's ' intervention requirements in 10 CFR 2.714.
Recomendation:
That the Comission:
1.
A 3 prove publication of the Federal Register notice
( Enclosed) promulgating amendments to 10 CFR Part 2, " Rules of Practice for Domestic Licensing Proceedings," in final fom.
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The Concissioners..
2.
Note that:
(a) The anendnents will be effective imediately upon publication in the Federal Register, although connent will be sought with a view to whether further anendaent is appropriate.
(b) The anendnents relate solely to agency proce-dure and practice and are insignificant from the standpoint of 2nvironnental impact.
Therefore, pursuant to 10 CFR 51.5(d)(2), an environnental impact statencnt, negative declaration, or environnental inpact appraisal need not be prepared.
(c) The appropriate Congrer,sional Corr.ittees will be infomed.
(d) A public announcenent, will be, prepared by the Office of Public Affairs and issued when li the Federal Register r.-
e is filed with the Office of the Federal.wister.
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The Chaiman of the Atonic Safety and Licensing Appeal Coordination:
Panel, the Chaiman of the Atonic Safety and Licensing Board Panel and the General Counsel concur in the issu-ance of the proposed final anendnents.
William J. Dircks Executive Director for Operations
Enclosures:
Federal Register Notice of Rulemaking
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Nuclear Regulatory Commission 10 CFR Part 2 Requests for Hearings on Amendments Involving No Significant Hazards Consideration AGENCY:
U.S. Nuclear Regulatory Commission (NRC).
ACTION: Final Rule.
SUMMARY
In order to implement a recent court ruling, NRC is amending its regulations with respect to participation in proceedings relating to appli-cations for nuclear facility construction permit and operating license amendments involving no significant hazards consideration. The amendments specify procedures that the NRC will use when acting on requests for a hear-ing on a pendir.g proposed application for amendment, including expressions of interest in the subject matter of the proposed amendment, where the proposed amendment involves no significant hazards consideration and with respect to which there has been no prior publication of notice of intent to issue the amendment. The amendments are immediately effective because they
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However, public comments are invited on the new regulations, which ar, subject to modification in response to these comments.
DATE: The amendments are effective [Upon publication in FR].
Comments must be received on or before [30 days after publication in FR].
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. FOR FURTHER INFORMATION CONTACT: Guy H. Cunningham III, Esquire, Office of the Executive Legal Director, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (Telephone (301) 492-7203).
SUPPLEMENTARY INFORMATION:
Background
Section 189a. of the Atomic Energy Act of 1954, at amended (the Act), pro-vides that upon thirty days' notice published in the FEDERAL REGISTER, the Commission may issue an operating license, or an amendment to an operating license, or an amendment to a construction permit, for a facility licensed under section 103 or 104b. of the Act, or a testing facility licensed under section 104c., without a public hearing if no hearing is requested by any interested person.
Section 189a. also permits the Commission to dispense with such thirty days' notice and FEDERAL REGISTER publication with respect to the issuance of an amendment to a construction permit or an amendment to an operating license upon a determination by the Commission that the amend-ment invo'ves no significant hazards consideration.
Prior to the November 19, 1980, decision of the United States Court of Appeals for the District of Columbia Circuit in Sholly v. NRC (Nos. 80-1691 and 80-1783) (hereinafter Sholly), the Commission's practice with regard to license amendments involving no significant hazards consideration (unless discretionary prior notice was given) was to issue the amendment and then
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3-publish a notice in the FEDERAL REGISTER.
In such cases, interested members of the public who wished to object to the amendrent and request a hearing could do so, but a request for hearing did not, by itself, suspend the effectiveness of the amendment.
The Court of Appeals in Sholly held that, under section 189a. of the Act, r
even when NRC has made a finding that a proposed amendment to a construction
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pennit or operating license for a utilization or testing facility involves no significant hazards consideration and has determined to dispense with prior publication in the FEDERAL REGISTER, the NRC must nevertheless hold a prior hearing before the amendment can become effective if there has been a request for hearing or an expression of interest in the subject matter of the proposed amendment which is sufficient to constitute a request for a hearing. See also, Brooks v. AEC, 476 F.2d 924 (D.C. Cir.1973).
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The Commission believes that the Court's decision has no effect upon the Commission's authority to order immediately effective amendments when the
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public health, safety, or interest, or the common defense and security so
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requi res.
See, Administrative Procedure Act, 6 9(b), 5 U.S.C. 9 558(c), and section 161 of the Atomic Energy Act, as amended, 42 U.S.C. 2201.
Similarly, the Court did not alter existing law with regard to the Commission's pleading requirements which are designed to enable the Commission to determine whether a person requesting a hearing is, in fact, an " interested person" within the l
meaning of t.ection 189a.; that is, whether the person has demonstrated l
standing and identified one or more issues to be litigated.
See, BPI v.
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' Atomic Energy Commission, _502 F.2d 424, 428 (D.C. Cir.1974), where the Court stated that, "Under its procedural regulations it is not unreasonable for the Commission to require that the prospective intervenor first specify the basis for his request for a hearing."
- The amendments to 10 CFR Part 2 and the new procedures The purpose of these amendments is to implement the Court',s decision in the Sholly case, though the Commission has decided to seek judicial review of the decision and the decision has not been finally disposed of by the courts and though the amendments may have to be modified at a later date.
The amendments will assure that if, before issuance of a proposed amendment involving no significant hazards consideration, a request for a hearing is received, the Commission's " Rules of Practice for Domestic Licensing Pro-ceedings" in 10 CFR Part 2 provide procedures for expeditious treatment of such a request.
In addition, the amendments will assure that an expression of interest in the subject matter of the pending amendment which is reason-ably construed as a request for a hearing (hereafter referred to as "an appropriate expression of interest") will be treated in the same way as such a request. The Commission believes that, with some minor modifications, its Rules in Part 2 are adequate to deal with the Court's interpretation of hearing rights under section 189a. for amendments involving no significant hazards consideration. (The Commission recognizes that there may be cases where such requests for hearing or expressions of interest may be received even before a determination has been made as to whether a requested amendment
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. involves a significant hazards consideration. These amendments apply to such cases, but nothing in these amendments prohibits the presiding officer, either upon his or her own motion or upon motion of a participant, from deferring the decision on a request for hearing until the determination on significant hazards consideration has been made.)
Generally, the objective of the new rule and new procedures is to assure that if a request for a hearing or an expression of interest in a proposed amendment involving no significant hazards consideration is received, it will be expeditiously processed before action is taken on the proposed amendment. The new procedures are designed to assure that an expression of interest which simply seeks information or offers comment on a proposed Commission action will be separated from an appropriate expression of inter-est; and, where a request for a hearing or an appropriate expression of interest has been received, a presiding officer will promptly rule on essen-tial preliminary matters such as standing and identification of the aspect or aspects of the proposed amendments to be litigated.
Finally, it cannot be overemphasized that the Commission expects presiding officers to conduct t
t the proceeding expeditiously, without, of course, infringing on the rights of any party. Thus, the amendrents provide that where there is a request for a hearing or an appropriate expression of interest in a pending proposed license amendment as to which prior notice of hearing or opportunity for hearing has not been published, an adjudicatory hearing will be ordered and the requester admitted as a party if the requester satisfies the Commission's intervention requirements in 10 CFR 2.714.
It should be noted that only
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. written requests or expressions of interest will be considered within these new procedures.
Section 189a. of the Act requires the Commission to ' grant a hearing only upon the request of a person "whose interest may be affected by the pro-ceeding." In many cases, a request for a hearing without accompanying information as to the requester's affected interest (s) may leave the Com-mission unable to judge whether the request should be granted; similarly, an expression of interest in a Commission action, without more, may leave the Commission _ unable to decide whether the person is requesting a hearing, wishes to participate in it, and is legally entitled to participate. Accord-ingly, the Commission believes it necessary that the information called for by the provisions of its intervention rule in 10 CFR 2.714 must be provided before the Commission can formally determine whether or not to grant a hearing. Section 2.714 requires, in essence, that persons requesting a hearing and intervention set forth with particularity their interest in the proceeding, how that interest might be affected by the results of the pro-ceeding, and the specific aspect or aspects of the subject matter of the proceeding as to which they seek intervention. Subsequent identification of specific contentions, and the bases therefor, is also required.
Conten-tions shall be limited to matters within the scope of the amendment under consideration.
Requests for a hearing, including appropriate expressions of interest, must comply with the Commission's " Rules of Practice for Domestic Licensing
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Proceedings" in 10 CFR Part 2.
Among other things, this means that under 9
l 10 CFR 2.701(a), they shall be filed by mail or telegram addressed to the f
Secretary of the Commission, United States Nuclear Regulatory Commission, Washington, D.C. 20555, Attention: Chief, Docketing and Service Section, or 2'
may be delivered to the Commission's Public Docume'nt Room,1717 H Street.
N.W., Washington, D.C. ; and, as prescribed in 5 2.701(b), all documents offered for filing must be accompanied by proof of service.
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If a request for a hearing or an appropriate expression of interest in a pending proposed amendment (which may involve no significant hazards consid-eration and as to which notice of proposed action pursuant to 10 CFR 2.105 2
has not been published) is filed with the Secretary as required by these amendments, and, on its face, appears to meet the requirements of 10 CFR 2.714, nonnally the Secretary will refer the filing to the Chairman of the Atomic Safety and Licensing Board Panel, who will designate an atomic safety and licensing board to preside.
Alternatively, the Commission may refer the p
request or appropriate expression of interest to an administrative law judge, who will preside.
Either the designited atomic safety and licensing board or administrative law judge will expeditiously make the preliminary determination as to whether the intervention requirements of 6 2.714(a) have been met and a hearing shall be held.
If an atomic safety and licensing board originally presides and deterTnines that a hearing shall be held, it shall continue to preside. However, if an administrative law judge originally presides and deterTnines that a hearing shall be held, the matter may be referred to the Chairman of the Atomic Safety and Licensing Board Panel, who will appoint an atomic safety and licensing board to preside at the hearing.
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Proceedings" in 10 CFR Part 2.
Among other things, this means that under 10 CFR 2.701(a), they shall be filed by mail or telegram addressed to the Secretary of the Commission United States Nuclear Regulatory Commission, u
L Washington, D.C. 20555, Attention: Chief, Docketing and Service Section, or may be delivered to the Commission's Public Docume'nt' Room,1717 H Street, N.W., Washington, D.C. ; and, as prescribed in i 2.701(b), all documents offered for filing must be accompanied by proof of service.
E If a request for a hearing or an appropriate expression of interest in a l
pending proposed amendment (which may involve no significant hazards consid-eration and as to which notice of proposed action pursuant to 10 CFR 2.105 l
has not been published) is filed with the Secretary as required by these j
amendments, and, on its face, appears to meet the requirements of 10 CFR 2.714, nonnally the Secretary will refer the filing to the Chainnan of the Atomic Safety and Licensing Board Panel, who will designate an atomic safety r
b and licensing board to preside.
Alternatively, the Commission may refer the k
request or appropriate expression of interest to an administrative law judge, who will preside.
Either the designated atomic safety and licensing board or administrative law judge will expeditiously make the preliminary l
detennination as to whether the intervention requirements of 6 2.714(a) have been met and a hearing shall be held.
an atomic safety and licensing board originally presides and detennines that a hearing shall be held, it I
shal,1 continue to preside) However, if an administrative law judge originally presides and detennines that a hearing shall be held, the matter may be referred to the Chairman of the Atomic Safety and Licensing Board Panel, who gTi
) int an atomic safety and licensing board to preside at the hearing.
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subject to any limitations in the order granting the hearing, and shall have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
The Commission notes that, independently of whether a request for a hearing or an appropriate expression of interest in a proposed amendment involving no significant hazards consideration is received, it may publish in the FEDERAL REGISTER, in accordance with 10 CFR 2.105(a)(4), a notice of proposed action on the amendment, if it determines that general notice of an opportunity for a public hearing is warranted.
If the request for a hearing or expression of interest in the subject matter of a proposed amendment involving no significent hazards consideration is filed with the Secretary, and it does not meet the requirements in 10 CFR 2.714, or, if the request or expression of interest is not filed with the Secretary, but, rather, sent to a Commissioner or a Commission staff member, the recipient of the request or expression of interest will send it imme-diately to the Director, Office of Nuclear Reactor Regulation (NRR). Upon receipt of such a request or expression of interest, the Director of NRR will send the originator a letter (1) enclosing a copy of the Commission's procedural rules in 10 CFR Part 2; (2) pointing out the requirements in 10 CFR 2.714; and (3) infonning the author that, unless a request for hearing meeting the procedural requirements of 10 CFR 2.714 is filed with the Secre-tary within 15 days from the date of the letter, it will be assumed that the
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requester has detemined not to fomally seet en adjudicatory hearing and I
party status in that hearing and that the proposed amendment may be granted without further notice.
The procedures described in this notice and required by the accompanying amendments will be applied only in cases where the person submitting a request for a hearing or an appropriate expression of interest has identi-fled a particular pending proposed amendment action or a subject matter encompassed within such a proposed amendment action.
They will not be applied to 5,eneralized requests dealing with continued or future construc-tion or ope-ation of a particular facility (although such generalized requests may require consideration under other provisions of the Commission's regula-tions such as 10 CFR 2.206). However, where a request or an expression of interest relates generally to actions affecting a particular facility, rather than to a specific proposed amendment, the Director of NRR will infom the author that, upon request, he or she will be placed upon a mail-ing list to receive automatic notification of amendments requestcd by the facility licensee.
As previously noted, the Court's decision in Sholly has no effect upon the Commission's authority to issue immediately effective amendments when the public health, safety, or interest, or the common defense and security so requires.
Except in those circumstances, however, receipt of a request for a hearing or an appropriate expression of interest in an application for an amendment as to which prior notice of hearing or opportunity for hearing has
not been published shall serve to stay issuance of the amendment until it is determined, irt accordance with the procedures specified in these amendments, whether a hearing shall be held.
If a hearing is to be held, action shall not be taken on the proposed amendment until the matters raised in the request have been detemined.
Finally, although the Commission is not amending 10 CFR 2.718 " Power of presiding officer," it emphasizes that presiding officers are to take expedi-tiously all appropriate actions within the tems of 10 CFR Part 2 to deter-mine whether a hearing is required with respect to any proposed amendment involving no significant hazards consideration.
In addition, the Commission expects presiding officers to deal expeditiously with all aspects of the hearing process using all available appropriate techniques in Part 2, such as, among others, the use of summary disposition, expedited schedules for completion of various hearing phases, appropriate prehearing conferences, expedited discovery, expedited schedules for submission of testimony as well as special care to avoid duplicative testimony, and strict schedules for the submission of findings of fact and conclusions of law.
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Because these amendments relate solely to agency procedure and practice, the Commission has found that good cause exists for omitting notice of proposed rulemaking and public procedure thereon, as unnecessary, and for making the amendments effective upon publication in the FEDERAL REGISTER without the customary 30-day notice. However, public comments are invited on the new regulations, which are subject to modification in response to these comments.
Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorgani-zation Act of 1974, as amended, and sections 552 and 553 of Title 5 of the United States Code, the following _ amendments to Title 10, Chapter 1, Code of Federal Regulations, Part 2, are published as a document subject to codification.
PART 2 - RULES OF PRACTICE FOR D0P.ESTIC LICENSING PROCEEDINGS 1.
Section 2.700 is revised to read as follows:
i 2.700 Scope of subpart.
The general rules in this subpart govern procedure in all adjudications initiated by the issuance of an order to show cause, an order pursuant to i 2.205(e), a notice of hearing, a notice of proposed action issued pursuant to 6 2.105, a notice issued pursuant to i 2.102(d)(3), or a request for a hearing or an expression of interest in a pending proposed amendment to a construction permit or operating license for a utilization i
or testing facility as to which prior notice of hearing or opportur for hearing has not been published.
2.
Section 2.701(b) is revised to read as follows:
1 6 2.701 Filing of documents.
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s (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. Where the document to be filed is a request for a hearing or an expression of interest in the sub-ject matter of a pending proposed amendment as to which prior notice of hearing or opportunity for hearino has not been published, the applicant for the amendment shall also be served.
3.
Section 2.704(a) is revised to read as follows:
6 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.
i If the Commission does not so provide, the Chairman of the Atonic Safety and Licensing Board Panel will issue an order designating an atomic safety and licensing board appointed pursuant to section 191 of the Atomic Er,Srgy 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
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. designating an adninistrative law judge appointed pursuant to src. tion 3105 of title 5 of the t!nited St.ited Code.
ppon receipt by_the Secretary.o_f a request for a hearing, on_ a y. ding, p_roposed anendment to_ a react _o_r construction pernit or opgat,ing _li,r.ense (including an expression of interest is the subject natter of '.'.,: iding enanlient which is reasonably construed as a request for a hnric.g) a_s, s
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_to s hich pri_or notice of hearing or opportunity for hearing has r.at been publish.'d, filed in acc_ordance with the requirements ol' 5 2.714_, tjie_
Comission will nornally direct that the filing be.r_eferred to an adqinistrative law judge or to the Chairman of the Atonic Safety end_
l.icensing_ Board Panel for designation of an atonic safety and licggsing board _to determine expeditiously whether a hearing shall be granted._
If an a.ininistrative law judge deternines_ that a hearing shall be granteh L_ = _ e or she shall refer the nattar M the Chairnan of an tteaic
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safety and licensing board designated by_tNe Chainian_of the Atomic _S_afety and t.icensing Board Panel _ to preside _at the hearing.
4.
Section 2.714(a)(1) is revised to read as follows:
6 2.714 Intarvention.
(a)(1)
Any person whose interest may ha affaatml by a pn eceding and who
- d. sires to participate as a perty shall file a written petition
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.t-r for leave to intervene.
In a proceeding noticed pursuant to i 2.105, any person whose interest may be affected may also request a hearing.
(The criteria of this section for the granting of a hearing and the admission of a party to that hearing also apply to requests for a hearing, or expressions cf interest reasonably construed as requests for a hearing, concerning c proposed reactor
, construction Demit or operatino license amendment as to which prior notice of hear (no or opportunity for hearing has not been published.)
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 officm or the atomic safety and licensing board designated to rule on the petition and/or request, or as provided in i 2.102(d)(3) "r within ?S days of the date of eny letter, describing the requirer ents in this section, sent to the petitioner / requester by the Director of the Office of Nuclear Reactor Regulation.
Nontimely filings will not be entertained absent a determination by the Com-mission, 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) of this section:
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5.
Section 2.717(a) is revised to read as follows:
4 6 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 procee<l'qg
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commences.
If no presiding officer has been designated, the Chief Administrative Law Judge has such jurisdiction or, if' he or she 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 i 2.105 is issued, or upon referral to a presiding officer, pursuant to 6 2.704(a), of a request for a hear ing on a pending proposed amendment to a reactor construction permit or operating license (including an expression of interest in the subject matter of the pending amendment which is reasonably construed as a request for a hearing) as to which prior notice of a hearing or oppor-tunity for a hearing has not been published. When a notice of hearing
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provides that the presiding officer is to be an administrative law l
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 l
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himself from the case upon considering himself disqualified, whichever
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is earliest.
n 6.
Section 2.780(a) is revised to read as follows:
52.780 Ex parte communications.
l (a) Except as provided in paragraph (c) of this section, neither (1) Com-missioners, members of their immediate staffs, or other NRC officials and employees who advise the Commissioners in the exercise of their quasi-judicial functions will request or entertain off the record except from each other, nor (2) any party to a proceeding for the issuance, denial, amendment, transfer, renewal, modification, suspen-sion, or revocation of a license or pemit, or any officer employee, representative, or any other person directly or indirectly acting in behalf thereof, shall submit off the record to Commissioners or such staff members, officials, and employees, any evidence, explanation, analysis, or advice, whether written or oral, regarding any substantive matter at issue in a proceeding on the record then pending before the NRC for the issuance, denial, amendment, transfer, renewal, modifica-tion, suspension, or revocation of a license or permit. For the purposes of this section, the tem " proceeding on the record then pending before the NRC" shall include any application or matter whi:h has been noticed
h-
. for hearing or concerning which a hearing has been requested pursuant to this part, except that where a request for a hearing on a pending proposed anendment to a reactor construction permit or operating license (including an expression of interest treated as a request for hearing) has been received, the proceeding on the record shall be deemed to commence with referral of the request or expression of interest to an administrative law judge or atomic safety and licensing board.
j (Secs.161,189, Pub. L.83-703, as amended, 68 Stat. 948, 955, (42 U.S.C.
t 2201, 2239); Pub. L. 90-23, 81 Stat. 54 (5 U.S.C. 558(c)); sec. 201, Pub.
I L.93-438, 88 Stat.1242 (42 U.S.C. 5841)).
Dated at Washington, D.C., this day of 198.
FOR THE NUCLEAR REGULATORY COMMISSION I
l Samuel J. Chilk Secretary of the Commission 1
l I
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