ML23151A388

PR-002 - 55FR42944 - Interim Procedures for Agency Appellate Review

ML23151A388
Person / Time
Issue date:	10/24/1990
From:	Chilk S NRC/SECY
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PR-002, 55FR42944
Download: ML23151A388 (1)

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I DOCUMENT DATE:

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CASE

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ADAMS Template: SECY-067 10/24/1990 PR-002 - 55FR42944 - INTERIM PROCEDURES FOR AGENCY APPELLATE REVIEW PR-002 55FR42944 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMAKING PROPOSED RULE:

PR-002 OPEN ITEM (Y/N) N RULE NAME:

INTERIM PROCEDURES FOR AGENCY APPELLATE REVIEW PROPOSED RULE FED REG CITE:

55FR42944 PROPOSED RULE PUBLICATION DATE:

10/24/90 ORIGINAL~DATE FOR COMMENTS: 10/25/90 NUMBER OF COMMENTS:

EXTENSION DATE:

I I

0 FINAL RULE FED. REG. CITE: 56FR29403 FINAL RULE PUBLICAT~ON DATE: 06/27/91 OTES ON FILE LOCATED ON P-1.

TATUS OF RULE TO FIND THE STAFF CONTACT OR VIEW THE RULEMAKING HISTORY PRESS PAGE DOWN KEY HISTORY OF THE RULE PART AFFECTED: PR-002 RULE TITLE:

INTERIM PROCEDURES FOR AGENCY APPELLATE REVIEW PROPOSED RULE SECY PAPER: 90-03 FINAL RULE SECY PAPER:

PROPOSED RULE SRM DATE:

FINAL RULE SRM DATE:

DATE PROPOSED RULE I

I SIGNED BY SECRETARY:

10/18/90 DATE FINAL RULE 10/24/90 SIGNED BY SECRETARY:

06/19/91 STAFF CONTACTS ON THE RULE CONTACTl: E. NEIL JENSEN CONTACT2:

MAIL STOP: 15-B-18 PHONE: 492-1634 MAIL STOP:

PHONE:

DOCKET NO. PR-002 (55FR42944)

DATE DATE OF DOCKETED DOCUMENT 10/22/90 10/22/90 06/19/91 10/18/90 10/18/90 06/27/91 In the Matter of INTERIM PROCEDURES FOR AGENCY APPELLATE REVIEW TITLE OR DESCRIPTION.OF DOCUMENT INTERIM PROCEDURES FOR AGENCY APPELLATE REVIEW FEDERAL REGISTER NOTICE - FINAL RULE FEDERAL REGISTER NOTICE - FINAL RULE PUBLISHED 6/27/91 AT 56FR29403

.*l Federal Register / Vol 68; No. 124 /- Thursday, June 'l:7, 1991 / Rules and Regulations 29403.

sod/or O"'!,er(s), who are not the operator(s~ of farm or ranch property, are n considered l~asebaclc/

buybaclc prop

)

~*.

§ 1955.68 f 1955. 103. Da1Plnllinn-.

uyback Property. Real farm and ranc property and any off the farm principal sidence{s) of the operator(s) w ch secured a Farmer Programs 11 Any off farm principal residence(s) o the fc;irmer borrower(s)

(h) Lease* of fi property with option and/ or owner ), who are not the to purchase. Ex t for property that...

operator(s) of e farm or ranch was pledged to ecure a loan to an * '.

property, are n t considered leaseback/

organization (as eflned In§ 1955.53 of buyback prope this subpart), a ssee may be given the

• r " "n '.) i:;urch e farm property., -

1s of the

• tlon will be set forth* '

,,,rt of the le as a special

":.pulation in a rdance.with the FMI for form F * ' \ 1955-20.

(l).

• e j

~ payments will not be. _

appl, *L o.ard the purchase price.

(2) T\e purer ase price (option price)_,

. (cj Price. Prop rty will be offered or will bP 1

• n ** npr~ed market value of_ :.

listed for its app ised market value tJ-,

0

?a, farm property, the based on the co tlon of the property at p,

-:e

' (option price) will be the.

the time it is ma available for sale.

• the property, as.of the..

• For farm prop

, the market value~

is exercised, as set forth.

be determined b an appraisal made in

.. ii. ~ '. ' ~

1809 of this chapter-accordance with part A of part 1809

-*.

• i ' *\ ! -

• 422.1).

of this chapter-Instruction 422.1).

,se ptlon to purchase.to

...-ds

• aseback/buyback Jrt5 1*. *:

term not to exceed 5

• rvation Loan Service *:

subpart S of part 1951 or those individuals.*

• 1*, : Jo,:

leaseback/buyback. *_- *

• J Jr:tc, il :

th option to purchase. '

f d rm notmalijr' not exceed, '

1 yen, "may e, in justifiable ca&ejl,.

for a.,driod no longer than 3 years.

( ir there is ore than one pro* 9ective les ee that wishes to lease, NUCLEAR REGULATORY COMMISSION the, roperty wi an option to purchase, 10 CfR Part8 o, 1 and 2 the C. 1unty Co ttee will select the.'

19ssel 'purcha in accordance with.*.:,

R1N 11~73~* _. *.., *.

§ 10*, 17 ofsu part C of part 1~ of -!

t!,, :.

plf r.

Procedures for Direct Commlalon.

Review of~

of Presiding Offlcera

, ~;, 'ia ' tri, 8 or tribal coriiora~~

which uttlLie th Indian Land Acquisition Pro am will be allowed to D'Jrchase the rty for its lll8liqit -

MJIINCY: ~cle~ !{egulatory.

• , I** -dess the c tributary value of the *

• Commission. -

.. 1gs. in aCCC11MEmce with subpart N

'ACTION: Final rule.

uf r :t 1823 of s chapter (FmHA

!n,.uctlon442.1 ).

' ) Deniala of pplications for or --... ::--, :

ties over te and conditions of a*

.,.1

, 'are appeal ble, pursuant to rt B of 1900 of this chapter.,._..

SUYIIARY: The Nuclear Regulatory Commission (NRC) is amending its rules of procedure to establish a new system fQl' agency appellate review of decisions and actions of p~siding officers in all **

forgutl and informal agency adjudicatlons. 1 The Commission's prior

• decision to abolish the Atomic Safety *

• and Llcensing Appeal Panel which had provided mandatory administrative appellate review of initial decisions of presiding officers in agency adjudications necesa:ltates the establishment of a new system. The DPW system provides for discretionary review by the Commissioners of the NRC of most partial and final initial decisions, referred rulings and certifications of'questlons.

&PECTIVI! DAT&: July 29, 1991.

FOR FURTHER INFORMATION CONTACT:

E. Neil Jensen, Senior Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington.

DC 20555; Telephone (301) 492-1634.

IUPPUIIENTARY INl=ORMATION: This final rule (1) sets forth procedures for petitioning for Commission review of decisions and actions for which review is permitted; (2) establishes a standard which the Commission will employ in determining whether to ~

review; (3) codifies the existing case law £1tandard for interlocutory review in revised * *r

§ 2.786(g) and provides that thu; standard must be met for interlo:mtocy appeals under H 2.718{1) and 2.7.JO(f): (4}

retains the Commission's current immediate effectiveneSB review procedure whereby designated licensing board decisions do not become effective until the Commission so determines; (5) makes clear that for all orders subject to judicial review a petition for Commission review is an available

,remedy for a disappointed party; and (6) incorporates the provisions of present

§ 2.762 into § 2.1015(c) (relating to licensing of a high.level waste repository) which is otherwise unaltered by this rulemaldng. In addition. this final rule deletes reference to the Appeal Panel or to appeal boards from NRC regulations. Finally, the ~C's regulations describing interrial agency organization are amended to reflect the creation of a new Office of Commission Appellate Adjudication whose function

. is to assist the Commission in exercising its adjudicatory responsibilities.

I

. This rule includes an additional amendment to 10 CPR part 2. This amendment adds a new I 2.8 entitled, *,

"Information collection requirements:

' 0MB approval." This section provides the 0MB clearance approval authority for the existing information collection requirements in 10 CPR part 2, appendix R nie new § 2.8 is included in 10 CPR part 2 solely.to correct' a teclmical oversight in~ ~lions..-.

. \

29484

&.clg,oaad...,,

commenter. wbileiuppo~ti,e*ar.. - * :; -.*._.-* anci thus the exfstfllgright of the parties 0n October za: I990f55 FR ~the discretionary revtew 1n most cues., * -- ' * *to.a mertta.mv1ew of an, initial decision CommJ slon pubhshed a notrce or *, *.. urged that review be~

in tboae would not be effected. (Potober 24. 1990; proposed ndemal:fng annowichis lb. ** * -*. case where a licensing~ and the,, : 65.FR_ 42944). Given th~ fa~ :lhe

• _

proposal to establish a new system hr.

NRC Staff hold confllotfng views with... Cmnrolssion was under no _legal duty to -

providing agency appellate review of. -.respect to the Issuance~~ types_ - provide BOflce and ~unity for-fnltlal decfsiom*tn aB formal and *,.,: ~ " *= of authortntrona because an internal *.. public comment tvitla ~

to lb,. :

. Informal agency-adjudfcatiofts fe replace*

conflJct. in lhe-riew of dtA cernmeater. **

~on *to abolish the Appeal Panel. * -

the 8J9tem of mandak>ry rimew-of requires resolution by the Commfnion.

• See~ U.S.C. 553{b){A). In any event. we inJtw declstoas by appeal boards,

'. ~..

Thia i:ommenter alao suggested that tile have considered OCRR'~ vie.w and do followed by dlscretlouary review of.

L _:CommissioD'l llmnediate.~ _

not_ fin~ it persuasive. : * --i *.

appeal boani deduons b:, 'tba '.. - *C

• l'.Ule be~

wftb~ dMemJl _*. '.... 'The present rulema1dng proceeding.

Commlasloa. The Cnmmiesfcm'" aeed to procedure which would preride 8

• whlcl\. 8ubsfltulet a discretionary system

. 'formulate a DeW ay&lem WM created by : - defimte time lfmlt le the etomatic my.,. of re.view for a mandatory BfSlem and.

its.ead1er decision to abolish the' Appeal

• now provided for licenfng board

~

certain procedures by which.

Panel The Omm:ds~Ion proposed fo

• decisions affected by thla role to help '

review is conducted. doea affect the '

adopt a system provtdrn$1 far direct

_ 8f1'eamlloe tha licenalng proceas. OCRE procedural rfghts-of prospedive di9Cretionary review of licensfng_ boatd.

objected to tha Commiaaion'a decia£,;,n. ~ _ appellants and.. for this reaeon. bas~. * -*

• decisions by the-Commfaafon and * *..

to abolish the Appeal Panel and. absent made the subject of a noftce and -

further proposed lo adopt a broad - -.

reconslder:ation of that decision. favored. ~

~emekina pNK'-8:f'dlng In _ :* ~ _.

review standard like ~at which applied*., mandatory miew ti.,.1be Commfs8'ea.

• iespnnse:to. OCRE"s comments *,. : *

. ~

&be Alomic. Safety and Ucemmg In QCRE's view, a mandatory nview _ ~

NRC's obligations to ',. * *.....

la Board wu eMablished ID 19&2. ratt.t.er.... system _would be ~e best i:n:eens of. -.

• Congress; we note lhar Congress was.-.,

-~ than the more narrow~ that Iha

. ~

ctirect Commles1oD hwolvement, notified of the-Commfsskm's plan to- '..

-.-1 Commteslon bes applied m de~

• in agency~ and would a1ao - abolish-the Appeal Panel by letters f ft *, wltetber to take review oi appeal c _

• be.more fair te potential appellama ~--. * * *datedJnly s. ~

from the Chairman of * *

-~.

decislona.

. _,._._. *. thatall/partte.~witb ---~:-*

• ttie-'Commlssi'ontothePresldeotoftfae

-. r---t-.d' 1;,..~ed_ -t.12-licell8ffl8 board_deciaionawouldN *. -

'O~- -'-I fhe C..,.-L-fol.-,u, ___._

&ne.~on.wn<u pw.n&i..,.. _..

-:--.,.:, *otnJ<Ut::tuW uy,,r:uw.i-p µm:ouuotJ.,...

comment onltachok:asandon_. -: -... -.. ~an.equal.degreee!,~->.:. ~toOCRE'looncem that the",-, -

~

or de¢ra~fe'procedum-

,. aweJia~e,review. *,.: *--..,_ :. : :-: 'J' _ Commfssfon will be subject to_acomltcl ch8Dg$ Incident ta eftber ~

as a **--a.-ctmun!ssfon Responsss "'~

-- ' - of interest in conducting appel!a.ta*,

wellasouwfi~theCommlmpn,. _

Comments

.**---= _ :c ** _. *

• .-nmew.wenotetfiatOCRE'I*~..

shou!dmabuseofane,dsttng.

-

-: **.. _.. ia~h:raHagencfeswidiboth *,

organfzatfon or-estaMisfta~,.* ~-~tlon of the AppealPaneL.. : _., ', &djudicatory and staff supervisory Dffic8 to aeslBt ii In performing ft8. * *

• - OCRE objects to the Commissian~s * * *

• functions and is not ground far retaining *.

~ory ~

The CAB*ment.

• decision to aboftsh the Appeal Panel-.

_

• the~ Panel. Moreover the * ~ *,.* -

period expired December 10. mn Snen and ~sserte that this deciaion houldnot Commiaaion'>> ndes' governing ex parte

• comments were recemtd:. f_our'hm.

have been made wUliout advance notice - commmrlcatian and separation of

. electric u~tiet or their coumel. ODe" *.

ana solicitation of publfc-commenta. lir

-functtons ('JO CFR 2.780 and V8Il have.,

from an btduatrr o~tion (Nucleal'.* -* addition.. OCRE n.otu that Cooaresa. m.

long and successfuDy proteeted tfie.

Managemem 8Rd ~

Council :,.. :_ 'transferring the functions of the Appeal

, integrity of 11djndlcatory ~

{NUMARC)}. one. from I public interest. Panel to the Cornuiiul!XI at Iha time it*

• from potenthd confflcts of the IOl'f. - * *

~Ill> l~ ~

(Qr Responsibla

• enacted the Energy Reo~Act._.. **complained af&ere-. '11tere fa-no-reason A ~~of-aad:one~-~~: _-:.. of1974.requiredtheCommissionto0 -.

-~.to*-9t1ppOeetbattheseregul11tfonswitf

~-

F.nergy. Copfee - -, - -

n"tify Congress bl ad.vano of ll!lJ : :

• _ *

• DOI amtfnue to serve -fm!ir fuBotion or --

• comments ~Yed are ~

far. -

deciaion to abolish the Appeal Panel * *. --.. &B8Utirlgthe fmparfialtty of tb public lnspectien., and copying,w

• f.ee..

OCRE believes that the Appeal Panel -

• Commtssfon and its adjttdicatory at the NRC Public Doeument. ~

at served an important "separation of

• employeea in agency adjmficatrons.

2120 L Slraet. NW. (lower leveij. *_ *',

power&"' functkm &ecaeu It did not '* ::-: ".. Finally. the availability of 01'BI argument Washington. DC..

have Ute potential coofflcf of intere9t., --* hi agency appellate review haa always.

• Summary of Publk Comrnenfw inherent in the Commission's dual * * * *

• been. ~

will conttnne to be, 11 matter *

• A Geriera/ *., -

. :. :. -. -~,,.

function of being both an adfudicatary.

of agencr ~~

~

~ CfR Z.768.

body and the supenfsor of the NRC

• 2. Ma1:1datn..u va. ni~a

... Review

• All iwlustcy com~~ and tbe Staff which is frequently s party In * * -. *

, --~. an-... ~

Department of Energy suppolted the adjudications before the rnmmtamoe.*..

As noted above. aU CODDD8IJteN Commission'a proposala ta adopt a OCRE states that tt prefers tbe system of *except OCRE 9apporled aduptto.u of' a*

discretfonacy review ayatem and a review.by appeal boards wtaer.-. * -* - _ discretionary review 8)'Stem. Reasons broad standard of review. l'hese *. _.

• opportanitJ fonral arpmmt ~ *...," - -

• sfven*emphash,ed the admh,lh:afive,

commenters noted that this system

- *,* available to lhe parties. : * * * - * ~

efflclencJ whlch wiH result from the would give the CommlsafoD the. *

-

• 11uJ Commt-sJn,i1 cfeciMOD to-aW&lt Commieehm haring the flexibfflty to

• flexibility to fnvom Itself orrly In. cases the Appeal Panel wu an lnlemal *. - :,-..

.invomitself' only in appeal& wananMng requirfng special Commission attention.. - management-tieclstort cmcemilJS wMch -:Commission attention. such as casea *' *,

suclt es auiee irrrohing novel. complex. :

• agency orgamzatton would CODdwm *.

• . involving particularly DQVel., complex. or or precedent..eett isBOeS. This would *, adminiatrattve appellate revlew~ln. *.. ~ * *-precedent-letflng Issues w important,

enhance the Commissien.., al,Wty to

• adoptmginterlm ~- * -,,

legal. policy. or pubJic health and safefy determbt bow best toallocalltk9- * *t *., cowlnctiog appeUat. nmew ftaelf. lhe *

-.questionL In tha view ol oae iDdutry

• resources.to carry out Its pubic-hea1lh *

• Cemmlssmn explicltfy stated that ft.**..

commenter.: a discratloaary.,atem. by - *

• and safety functions. One industry* ~ *

• intended to follow existing ~

• glvtng1he Commi*eion the opportunity "

J r

,,., -J

~* - ~ Tf f:.*_ -~

r

~>~':.-

4

_,},:

),*

. ~

., "f I:

\

-Federal Register -/.Vol 50.- No.- 124 / Thursday, June: 21,* 1991 f Rules-**ana *Regulations

~29405*

to focua Its attention only on the truly* ;

significant caes, will provide more, :*

- meaningful ~CCB!IS to the Commission ~

than would a mandatory system _. * : ~: :

requiring that all cases, Including the routine or ~lgnificant, come before the Commission for review. OCRE, on the other hand, favors a mandatory review.*

system. OCRE believes that a mandatory system will serve to increase the Commission's direct Involvement In agency adjudications which was one of the reasons given for the decision 19 abolish the Appeal paneL Further, In OCRE's view, mandatory review will be more fair to all parties In NRC adjudicatory proceedlnge because all parties will be assured of a thorough -

agency review of licensing board. -

decisions without the need to Incur the expense and delay of juditjal review.

OCRE mentions the filing fee, the costs of printing and binding the briefs and appendix, and the need for legal counsel as ~penees neceesitated by a decision' to seek judicial review of an initial,

decision.

The Commission believes* that a discretionary review system will be - ** :

administratively more efficient than a mandatory system for the reasons suggested by the commenters and will also achieve appropriate Involvement of the.Commission In agency adjudications. While OCRE is teohnically correct that a mandatory system would bring greater direct Involvement of the Commission. the desirability of direct Involvement must be balanced against a sensible use.of the Commission's time and*resources.

Even In a discretionary system, the Commission will examine all licensing

• board decisions to determine whether to talce review sua sponte. Where reviJnV ls not taken, a discretionary system will have the benefit of expeditiously.

bringing the adjudication to an end and enabling a disappointed party to seek

...judicial review at an earlier point. The direct Involvement of the Commission In those cases where review is taken will be more meaningful because the significance of the case will be highlighted by the very fact that the Commission has taken review.

The Commission does not agree with OCRE that ls somehow inequitable to provide review of licensing board decisions In some cases but to deny review In others and thus leave some parties with the sole recourse of seeldng an Initial merits review in the courts.

Many disappointed litigants may lose again on appeal Thus such a party would be aaddled With the expense and.

delay of an appeal before the

. Cororoiqi~ ea well as an*_appeal in * ' -_

court. Moreover, the expenses of an-

~,J _

. (1) A finding of a material laat II cJeArly*,

appealtotheCommiBSionandenappeal erroneoua; -~*,.i; ~-*:**,

to a court would be much the same,*: * **. (2) A necenary legal conclusion ta without unless, as ~plated by OCRE. the,, ; governing precedent or 111 a departure from or II -

be~

the - * -

_ contrary to established law; * -

appe ants ~

pro 88

,ore 1/2. " ',

(3) A irubstantlal and Important question of Commission but retain counsel In court. -

law, policy or discretion hu been raised:

Even in auch an unusual case, however, : * (4) The oonduot of the proceeding Involved it may be possible for the appellants"1o a prejudicial procedural error; or argue pro se in court aa welt In short;a (Ii) Any other conalderatlon which the potential appellant of an initial decision Commission may deem to be in the publii; is at least as lilcely to save on ~. Interest. Oanuary 13. 1962; 27 FR 377) by being able to go to court if a petiticm. _ -

-An industry commenter urged _,. *.

for Commissl~ review is rejected as by

-adoption of an additional factor:

• having to incur the expenses of an,,

- appeal before the Com.mission before,;-

A conflict in llcenalng board decisions on a judicial review becomes available.

controlling question of law or matter ?f fact neceuary for decision.

s. Mandatory R~w of Ucens~ :. ~';:

Conmtlesion ~ew of conflicting *

~NRC StaffConfli~ _..,.

interpretations of law by different _, --~

One industry commenter, ~bile*, -. -_:

1fcensing boards and reconciliation of.

agreeing that the discretionary review*-

those Interpretations, it is argued, would system ls appropriate for J!losl cases;*

• contribute to a-more cons~tent body of suggested that the Commission provide NRC_ precedent. Similarly, the. -

for mandatory_ review µi* a proceeding

• commenter contends that review where where the licensing board disagrees there are conflicts in material factual,

with the staff's findings and r

findings (such as the adequacy of a recommendations as to* issuance of it *--:

particular design used at different. -

site permit, design approval,. -_ *. _-:'

reactors) _wmi!d en_able the Coinmissiqn construction authorization, operating to reconcile differences between license, combined license, or license licensing boards an4 would also carry amendment. This ls because such a

' J over the policy embodied in present 10 -

situation would create an intra-agency CFR 2.786{b)(4)(ii). wherein the conflict that the commenter believes,

Commission may take review of an would warrant mandatory Commission appeal board decision if it appears that.

review.

the appeal board has resolved a factual The Commission ~

that th*e

• issue-necessary for decision in a clearly circumstance envisioned is one that - ~

erroneous manner contrary to resolution might likely merit Commissioµ review.

of that same issue by ~e licensing However, to make review mandatory in ~

such a situation might create the The Commis,sion adopts this appearance that the staff is 8 party more suggestion in part.*The potential conflict equal than others in the adjudicatory between licensing boards as to issues of proceeding before the licensing board material fact is not explicitly comprised.

and might tend to unduly focus the within the review standard but it.ls

-~

proceeding on the findings and_.*.

clearly a reason for the Commission to.

recommendations of the staff 88-take review. Thus the Commission has -

-opposed to those of the applicant on. :

• incorporated this part of the *-,,

• _ -

whom the burden of proof has commenter's suggestion into traditionally rested at least in Initial

§ 2.786(b)(4) of the final rule.°? th~

licensing cases. Thus the Commission other hand,_a potential conflicting believes that an exception to the ln~retation of law between licensing discretionary review system need not be boards ls already a matter comprised carved out to deal with this potential wi_thin the second or third factor of the circumstance.

January 13, 1962 (27 FR 377) rule. Thus the Commission believes that adding

4. Standard for Granting Review -,

another factor to address this All commenters addressing the ~ue. c~tance would be redundant. -

supported the Commission's proposed The same commenter also suggested adoption oh standard of review similar that the language of the Commission's to that employed by the CommiBBion at present standard for taldng review of the time the Atomic Safety and appeal board decisions be added, Licensing Board was established in 1962.

perhaps as a footnote, to the-standard of That standard states:

review to emphasize that issues

, The petition for review inay be granted 1n-.

presented for review must be significant the diacretlon of the Commlulon. giving due and thus discourage frivolous appeals.

weight to the exiltence of a nbatantial

'.That regulation states:'. - ' *

• question with respect to such oonsideratlona * :. A petition for review of mattera of law or u the following:_. ; *:" '. "

policy will not ordinarily be granted_ unleas It

• %94D8 1mitertant

• be..u_ to -,nest a-.. of tbs declslon CDLA:!41 and Turley'Pt>Int (OIA-6}.* *1 appean tM CHe i-olYes 1m' affect In!.'\

~

...... the license amendment proceedings will btt

~~~~:

udect~: ~ ~~1n!;':ta,.~ woa)d.be gowmed bY ihe-rule& in effect prior to,*

Iha cmnmDQ defense aad leCUdl,r. CG1t1t1.mtea govemoo: by the melon apecified ht 10.

October 2C, "1990. Ucensfng board* *'

• an Important antitrast lil1eatioa. baol¥N aa CFR 2.788(e}. If batla a atay and rerie,r..

dedsloos <<* actions hlsued before 11te

• important~ luue.

• oti2erwise were grantmi. the lk:ensmg IICtioil. -. J date tl&ese amen~ become *:,_:_ * *

• raJsu. importaJ:rt queatloDa of pulilic ~ ethorized by tlle decision would not :*

effective are ggvemed by lhe rme& in.

it,. CFR Z.788{b}{~fi} t1:996J. The. ' 1 become effective imd the declaign 1llDllld effect prior to Ocfober 24. 1990, except Commission does not agree, that this" not l,eccae-final agency acti8Jl. H that the Cllmmission will take the place additional language fs neceas'!g, to review were granted hut a stay deniec:L

• _ *af appeal~ ~!:8 ~

8ftd,...

discourage frlvoroua appeals.

e * -

• _

• lhe liceDams ~

authorised h,- the *

~capt of.

standard already provides that the.

declaion wiould be effective but lbera..

euwtam a petition for nmew ils own

, Commission. in determining wbetbei to would be no final agmacy action~ lo *:

decision." * *

• take review, will give due weight lo 1118 the merits of the licensing board

• *:. \ ~

hnpact: 6.t~. --

existence of a substantial question with deciRon. A court conldnview the Excfmdnn. _..

respect to, among other lhings. a Commisslon'a stay decaioo, but~ Iha substantial and imp6ltant qaestimt of merits of the licensing board decislon.

Tbe NRC bu determined that this law, policy or discretion. This language.

The advantage qf this ahemattve * * - *

• final rule la the type of actton described ahould be s:ufficfent to wam potential

- procedure, In the commenter's vtew;fa

• in categorlcal exclusion 10 CPR appellants that issues presented for that it would help atreamline the

~.22(c)(1). Therefore, neither an * * *,

review must be eignificant Moreover, liceming procesa iD that there would u enYiroomeotal Impact statement DM an

• coupling the more restrictive language of longer be an automatic stay oI Indefinite mnironmenfal a88888Dlent has been_

the standard the Coillllili¢on hes 1188d.

leagth befoie the Ucensk:Jg ~*. :

. prepaec:t for lhis fteal Tegll:lat:ion.

to determine-whether to talce review of decision fe allowed to take effect. - - *:

appeal IJOerd decisions with the more

?tie CommisalQn doee not believe tbt Papenvork Rednctkm Act Rlalfll1:'8Dl

• flexfble language of the Jammry l3. 196Z it would be feaslhla to set a regulatory

• Thle final~ contain& no information (27 FR 377) standard could lead to tlm~ limit.on ils deciafon whether to_ -.

collection requfrementa**and Jberefore la confusion as to what standard is really talce review of a licensing board not subject to the requiremmrts ot lhe befng applied. Thus the Commission baa, decision of the brevity suggested by the Paperwork ltedcction Act of 1980 (<<

not adopted this soggestfon.

commenter due fo fhe wide variety of *

• U.S.C. 3501. et. aeq.).

5. lmmedlate Effectiveness Rm&

cases, including *cases presenting *.

o-*ft..._ a-ftt-t.

multiple complex technical or legal

~

..........., ~-

AmendmaRt issues where the record la volwninom,.

nae CoamtssiM*s prior decWon to The ~n"e-eoffce of propoeed that come before the board. The lime abolish the Appeal Pwlel which had mlemaktng noted ooe potential problem 111Iggested is not adequate for petltlom provided admin.lstratiw appellate with adopting a discretlonary review for review, and resJ)OD8811 thereto, to be

. review of hdtla} dedsfOR5 of pre9idlng system: The possibility that a licensing filed and considered. The Commission's officers in agency adjadicatiom board's decisioa might be appealed to a present rille govemfng petitions for neceasftatea the establishment of a new court without any petition for review review of appeal boerd decisions (which system wherein Iba Commissfon itself -

• having been submitted to the agency will be retained and applied to licenatng will review Initial deciaiom. On October altering the agency to potential board decisioes J provides a thirty-day

24. 1990 (55 fR 42914}, the Commlaaion.,

. problems with the decision and giving period for a decision on whether to tab put in place interim procedmes fer the,agency an opportunity to correct review (10 cm 2.786[b}(5l). The conducfme this nmew. rn this

• these problem.a. How~. tl&e Commission is establtehfng a teparale mlernaking, the Commission adopts a Commiasion e:,qJl'88Sed the Yiew that Office of Commission Appellate *

• dm:et1onary review system. mdudlng a' ome way of av0idmg this problem would Adjudication with the fancHon of' standard whereby tbe Commtsaion wm *,

ha to amttmm the C.nrnro'isslon**

assisting the Commission in the mcercfse exercise ita discretion wheiber to tab immedla te effectiveness regtdation (lO of its. appellate nmew fimctlons. The review of a licensing board deciaion.

CPR 2.764) wMch provides an automatia Commission believea that ft will be able Thia aystem replaces Che sys1em.of stay of effectiveness of designated to reach a decision on whether to take mendab-y appellate review formerl1 licensing boani decfafons until Cbe review iD IJll expeditious fashion but provided by appeal boards. The coat of,

Cnmmismn bas reviewed the deciakm that to impoae a severe regulatery time the new discretionary review sys1em '-

to determine whetb.erit ahould be limit for this deciafon could interfme likely to be less iD all cases where allowed to become. effective pending witi its duty to make IMJr8 that no public, review is not taken the Commission Bild any appellate review of the merits of the health or safety problems are the partiea wm not Reed to e,cpend.

decision.

unresolved belore a declsioa it allowed further time and resources before a final Two Industry comm enters addressed to become final Thm the Commission agency dedsion is reached. Thua the this matter. One favored continuation of has not adopted thla SlJgR8&tion.

cost entalted in the pmmn1gatioo and the _present immediate effectiwneea These amendments wilt tab effect application of tha final rule ia neceaaa,y rule; the other mged that the immediate thirty days after publication tu the and appropriate. 'lhe famgoing...

effectiwnea5 mle be replaced with BB.

Federal Register. The 8IIJ!flDdments apply discussion CODStitabss the mguialory alternative prooedme whereby the to any licenaing board declaion or action

'*-'* for thia nde.

Commission would have a. brief time issoed on or after the effective date af,. ana..,-.

limit (10 davs was su,ggestoo) wllbiQ these rulea. Appeals preaenlly pendq * *

• Reguhdory Pl8xlbfDly CerliBcalloa * * * *

• which to decide whether k, review a.

before an appeal board in &he Seabroak

• nirad. bJ' ~

Iegulatmy..

• liceusing hoard decision wtned.zlng _ *,

operatmg licemie proceedillg. Advanced req Act (S U.S.C.105(b}), the.

• issuance of a constnsciion pemdt or Medical Syatems [SuspesslOll 'ltde&i

, Flexibility

.... ~ thia nJe will tin" li f.o ucl.ear D<l

--..I w-~*ftM Laboratorle& enforc:emml Commil8io11 cartifies UMU opera.._ cense r a n power *

=~~and the..... -r....., Pmnt <,. _ not hm

• mgnt:6cu,t ecoaamlc impact read0L During the pariod. a party would

• " """""'"'6'"1

.i w:JI._,,.

r-* '.

r

~

i i l.

1 t

t -

f 1i t

I Federal Register / Vol 150, No. 124 / Thursday; June z,~ 1991 f *Rulea* ancl Regulatfmd upon a substantial number of smell -*, -. 11223, 3& FR M88. I CPR :t96t-- COMP.,,JJ..

• entitles. Many appllcanta. liceaaeea and 806; 5" CPR 735.lOt.

j within 4 d finl of Sections o.736-21. and o.735--29 alto laued.

lntervenors fall we e tlon under 5 U.S.C. 552, 553. Section 0.735-26 also small businesses found in aection 34 m luued under eeca. 501, 502.Pllh. L 96-&31. 112,

the Small Bustness Stze Standarda aet Stat. lBM. 1867, aa amended by 18C1.1, 2, out In regulations issued by the Small Puh.L 9&-28.98Stat. 78,.'l'T, (18 U.S.C.20'}).

• Business Administration at 13 CfR Jml :

2. In 18 CPR.part 0.. aH references to : *, _

121.. or the NRC'a size atandarda * *

"the Atomic Safety and Uoensing publlshedDecemberg, 1986{_50.FR ---~-,

• Appeal Panel" or"ASLAP".areremoved.

502411* In a discretlonafy raview ayatem.

and where the word "or"..,.,.,.,,..tea either the procedural requirements OD.

licensees or lnfervenors may be ~

of these terms. ft ls moved fo tfla because they will not need to fully brief appropriate location fn ~- ~--*,_ :. -.~-

errors of fact or law that the, may * * * : *

• PART 1-sT ATEMENT OF perceiYi! in a presiding of&er's,decision ORGANIZATION AND GENERAL - *

,.prior to seeking judicial review umen INFORMATION the CommJBS!on first determiDea lo tab

. t -

reviaw of th& deciairm. licensees and

3. The authority citaftoe fur part 1.-

• intervenors will. however.. Deed lo file continue& to read aa followa:.

petitions. for discretionary mview with

• Alllaodly: Secs. 23,.181, 1B Stat. 925. IMS. n the Commiasfon if they perceive. errors amended (42 u.s.c. 2033, 2201): aeo. 29, Pab.

in the presfding officer'a deciaion Gd.

L 85--2515.. 71 Stat. 579. Pah.L 96-309, 91 Stat. :

intend fo seek judicial review.

1483 (42 U.S.C. 2030); aac. 191. Pub. L 87--eu;..

76 Stat 409 (42 U.8.C. ZZ41); aeca. 1.01. ZOO.

Baddlt Analysia 294, 2!06, 209, f18'8tat 1%4%, UH, ffl5, 1%46,

.,_..__~ed- -'--

oL..

1248, 811 lllll8Bded f42 u.s.c. 5841. li8t3; 584t,

'l1ie NRC has uetenUW waf _,

5M6, 5YJ):; 5 US.C. 55%, 1153;. Ra:l,:ganizatkm backfit rule, 16 CFR 50.109. tloelJ not Plan No. 1 of 11189. 45 FR 405M. June m, l9IIO...

apply to ihis fuiali rule, and therefore-.

that a backfit llDBlysis is not reqmred Jar

.f. In f Ul. paragraph [c} ~ ~

ta tha fimtl rwe. becanae tbefe read as foDows: -

• f 1.11 The Colm!IRl11n.

f 1.24 Office of ComffllNlon Appellate' Attjadlualoni.,.*.. :,,_ *: *-'*-, :*

, _. ~:

Tia& Offloa or Comn:uf!Aien Appellaie Adjudicitlon-,

.,, I

1.

(a) Monitors cases_pencllna befpre preatding o~ ' *,

(b J ~vides.the Comnrluloa wfth."an analysis of any ad}udicaforymattm requiring a Commission decision [e.g.,

petitions for review, certified qaeatioa.*

• stay req~esta) Including available

• optiona:.

(c) Drafts any q_ecessary de~ -

pursuant to the Commission's guldanre after eresentation of options; and

( d) Consults with the Offu:e of the General Counsel In identifying the :

options to be presented to the *

• CoJDJBfeafon and In drafting lhe final decision to be presented ht the-Commisaion.

f 1.1 [Amended]

.~ '

, 1

8. In 10 CFR Lt the words '"and the Atomic Safety and Llcensmg Appea?

Panel'~ removed. -

.- ~. -.

PART~ OF PRACTICE FOR D0IIESTIC UCEHSINQ PROCEEDIN8S a*The authority cltatls for part%

cominuea to read aa follows..

amendments do net involve any-provisions whk:h woald improve bacldim H defined in 10 CFR 50.109{a)(l}.

(c) 'Fbe'followmg staihalts and

• 88=

~~

~~ =:..,

officials report d1rectly kl iH -

ameaded. Pub. L 8?-815. :;is Stat. a ~

List of Subjects l0CiRPrut0 Confflet of Interest, Criminal'penahy.

10CFRPad1 Organization and ftmcfiom (Government asenclea}.

10CFRl'art2

, Arnni;nuttnltive practice mm procedure, Antttruat, Byproduct material, Chwdf:led informatk>n.

En\'Jmnumtal proNldk>n. Nuclear materials. Nuclear power plants-and reactors, Penalty. Sex discrimination, Source material Special nncleel' material. Waste treatmeut aad dispoeal.

For the reasons sef ouf ln the preamble and undef fhe authority of the Atomic Energy Act of 1954, a, amended.

the Energy Reorganization.Act o£W4.

as amended, and 5 U.8.C. 552 and 553, the Nuclear Regulatory Commission is adopting the following amendments to 10 CFR parta o, 1, and 2.

PART G-CONDUCT OF EMPLOYEES Commission: Atomw Safety and u.s.C. 2241): seca. 201, aaStat. 1.a42, aa LiCBILiing Board Psnel. Office. of the.

amended [4% U.S.C. 5841);, 5 U.S.C. 553.

General CoUD88L Office of the Section z.tOl alao lim:sed under aeca. 53.. 62.

Secretary, Office of CommiBBiOD 63, 81, 103, lot, 1os, 68 Stat 930. 932. 933. Im.

Appellate Adjudication. Office of tha 936, 937,.938, ea amended (42 U.S.C. 2073. '

LSS Adminrstrator, Offiee of 2092. 2093. 2I11, 21.33. 2134. 2135}; 111e. U4{.4 Governmental and Pttblic: Affairs, and

- Pub. L 97-425, 96 Stat. 2213, u amended (42 other committee& and boards which are.

U.S.C.10134{f)): ~

102, Pub. L 91-100. 83

~'--...r-ed tabli-1:....s......ui-1t.. i-Stal 863, u amendlt(i (42 U.S.C. 4332): aec. _

aUUIUIU or es zwau 8~\,QIJ.¥ uz 301, 68 Stal 13C6 f42 u.s.c 5871). SecikJna the Act The Advisory Ccmmtlttee-on Z.l02. ~183,,Z.UK, 1,105, 2.721 aJ.o 1aA1Ni Reactor Safeguards also-reports directly under aeca.102, 103,104,105,183.188. 68 Stat.,.

to the Cel!BDlissfon..

936, 937, 936, 954. 955, u amended (42 U.S.C.

Z132, 2133, 2134, 21:36, 2233, 2239}. 8eotlon.

f 1.17 [Removed]

15. Part t ia amended bJ rmacmne.

§1.17.

6. In I 1.23, paragraph [b) it revised to read u follows:,

f 1.23 Offloe of the Genwal Counsel.

2.11! alsol.Nuecf mderPlm. L 801-415. 98 Stat. Z073 (42 U.S.C. 2239). Seotlona.uro-2.206 also lm1ed under,eca. 1116. 234.. 68 Stat.

9M, 83 8ml 4", n amended (42 U.8.C. Z236, Z282J:' aec. zoo. 8lt 8tat. 12t6 fa u.s.c._ ~

SectfOlll 2.600-UOIJ. alact fnued under lee.

102, Pub. L 91490, 83 Stat. BM. a. amended (42 u.s.c. 43321. ~

VllOa. 2.1lil aiaa

~

unda, 5 U.S.C.. 6M. SectitNll 2.7M.

Z.780. Z.770. 2.780 alao laued under 5 U.S.C..

557. Section %.7M and Table 1A of appendlx_

C also Issued under aeca. t35. 141. Pub. L 'ill-425, 118 Stal ~

Z241 '(,12 U.S.C. 10155, (b) Reviews and prepares approprlale draft Commission decisiona on pub&

petitions seeldng direct Commlsaicm action and rulemaking pmceedinga involving hearings, monitors cases.

pending before presiding officers and reviews draft C.nrnmtastoa decilliom on.

1. The authority cila.tlon fm pan o Atomic Safe!Y and 1,k:en":fflB &ant continues to read llB; follows:.

decisiona and.mimgs;.

.z 1ote1J. Se'6xl l.190alao iseued edersec:

• 103, 68 Stat.138,. u ~ed {4% u.s.c. n33}

and 5 U.S.C. 552. Seciiom 1800 and ZJIOllalso laued un4er 5 u.s.c. 1563. Section 1.809 aim illued UDdar 5 U.S.C. ~ud Mt:. 39.Pwi. L 85-Z58,. n Star. pg, u arneoded (U U.S.C.

• 2039J, Subpart ~ aho lnued under UC. _189...

68 Slat. 955 (42: UAC. 2Z39}; sec. 134. Pub. L 97-425, 96 Stat 2230 (4% u.s.c. totStt, JJubput.I.alselnusdandur-19C.'!88,68"9tat..j Aulhodty: Secs. 25. tm. 88Skt. 925.M& u amended(42.US..Cao36,Z20l):11111e.a.18

'1.ADMr'fi.Kfaaddedtoresdp-*-

.. StaL U42. u emended ~U.S.C 56A):ILO - follows: -

l.

29408 Federai Register /-Vol. 56, NoL 124 / Thursday; June 27, 1991**/ Rules and Regulations petitions and/or requests for hearing shall~ ell~~~.'.: ;;,. _

9511 (42 U.S~C. 2239). Appen4ix A also wned under sec. S: Pub. L 91-660. 84 Stat.1473 (42 *.

li.S.C. 213ll). Appendix B also luued under aec.10. Pub. L.99-240, 99 Stat. 1842 (42 U.S.C..

2021b et 1eq.).

12,713 [Amended].

~ ~.

• -' ~

• , I 2.782 [Removed]

• 17, Part 2 is amend~d by removing°~ '

§ 2.782.

18. Section 2.763 la revised to read es

• follows:

10. IIi the definition of Co~ion

• 13A. In§ 2.713(c)(4), the reference to adjudicatory tJmp/oyee in § 2.4, "2.788{b) (1). (2) and (4)" is revised to

§ 2.783 Oral argument.

paragra 0ph (2)_is revised_. lo re_ ad as_*'. _

read "I 2.788(b) (1). (2), and (3)."

In its discretion the Commission may follows:

allow oral argument upon Ula request of 0

owa:

• f 2.715 [Amended]

a party made in a petition for review or 12.4 DeflnHlonL 13B. In § 2.715(d)~ the words "by the brief on review, or upon its own Appeal Board on appeal or sue sponte initiative.

Commission adjudicatory employee or" ere removed.

§ 2.784

[Amended]

mean&- -

I 2.721

[Amended]

18e. In § 2.764, paragraph (e)(1)(1), the.*.

(2, The. employ. eitt1 of the Office '0r

14. In *1 2.721, pa:ragr~ph (c) is words "Appeal Board and" are*

r d

d h (d) is removed, and the reference to Commission Appellate Adjudi,cetion; remove an plll'8grap

paragraphs (e)(2) and (e)(3)" is ~ed redeslgneted as paragraph (c}.

to reed "paragraph (e)(2)".

11. A new§ 2.8 is added preceding,

• l5. In 12-700. paragraphs (a), (b)(l),

19. In§ z.764, paragraph (e)(3) is subpart A to read as follows:

and (c)(4) are revised to reed as follows:

removed and paragraphs (a), (b}. (e)(2}.

§ u Information collectlon requirements:

§ 2.790 tnltial decision and lta effect.

(f)(Z)(iv), and (g) are revised to read as Al"'S approyaL (a) After hearing. the prfflliding officer follows:

( a) The Nuclear Regulatory will render an initial decision which will

§ 2.784 Immediate effectrvanea of lnltfal

• Commission has submitted the constitute the final action of the dctaion directing 1asuanc:e or amendment information collection requirements Commission forty (40) days after its date of construction permit or operating llcen8e.

contained in this pert to the Office of unless any party petitions for (a) Except asfrovided in paragraphs Management and Budget (0MB) for Commission review in accordance with (c) through (f) 0 this section, or as approval es required by the Paperwork

,§ 2,786 or the Commission takes review otherwise ordered by the Commission in Reduction Act of 1980 (44 U.S.C. 3501 et sua sponte or the decision la subject to special circumstances, ~

initial

• seq.) 0MB has approved the information the provisions of § 2.764.

decision directing the issuance or

• collection requirements contained in this (b) * *

• amendment of a construction permit,*a pert under control number 3150-0136.

(1) Prepare its own decision which construction authorization, or an (b) The approved information

• will become final unless the operating license shell be effective collection requirements contained~ this

• Commission grants a petitio,n for immediately upon issuance unless the pert appear in appendix B. - *

• .. '

• reconsideration pursuant to § 2.771; or presiding officer finds that good cause*

12. In§ 2.704, paragraph (d)(2) is has been,shown by a party why the revised to read as follows:

. (c) * *

• initial decision should not become.

immediately effective, subject to review, f 2.704 Designation of presiding officer, (4) The time within which a petition thereof and further decision by the dJquaJfflcatlo unavallblllty.

for ~ew of the decision may be filed.

Commission upon petition for review. *

~

• * ~ the time within which answers in filed by any party pursuant to § 2.786 or (d) * *

• 11Upport of or in opposition to a petition

,* upon its own motion.

. A (2) The Commission may direct that for review filed by another party may be (b) Except as provided in paragraphs.

.,the record be certified to it for decision; :

filed and, in the case of an initial (c) through (f) of this section, or as i

, or

• : decision which may become final in *' *. otherwise ordered by the Commission in accordance with par881;8.ph (a) of~ '

special circumstances, the Director of, *

13. Section 2.714a{a) is revised to read. =.on. the date when it may become.

.Nuclear Reactor Regulation or Direct~r as follows:

• of Nuclear Materiel Safety end *

16. In§ 2.761, paragraphs (a)(1) and_

Safeguards, as appropriate, I 2.714a PeUtkM* for review of certain (c)(1) are revised to read as follow9:

notwithstanding the ~or granting of rulings on petitions for leave to Intel vene r

revi h

and/

_......_ for t.a..1....

§ 2.78f Expedited declalonal procedure.

a petition ior ew, s 1Ssue a or*.......--

,...... **11-construction permit, a construction.

(a) Notwithstanding the pro~ions of (a) * * *. 1 authorization, or an operating license, or I 2.730(f), an order of the pres1d1ng *

. (1) All parties stipulate that the,infti~

amendments thereto, authorized by an officer or the atomic safety and licensing

• decision may be omitted and waive thell' initial decision, within ten (10) days board designated to rule on petitions for *, rights to file a petition for review, to from the date of issuance of the.

leave to intervene and/or requests for. -

request oral argument, and to s~ek

,.. decision.

hearing may be appealed, in accordance, judicial ~aw:.* _ -..'..

• * * *, --. *. * ~.. ~ _: -~., :

with the provisions of this section, to the, *.

. ( * *

• Commission within ten (10) days after e) da

• f service of the order. The appeal shall be '

(c)

(2) Commission. Within sixty ye 0 asserted by the filing of a notice of. *

'* * (1) All parties stipulate that the initial

• the service of any Licensing Board a

el and accompanying supporting'

, decision may be made effective

• . *. decision that wo_uld otherwise a1c1thorlze i:r:;_ Any other party may file a brief in.,,. 'immediately and waive their rights to '. 'fBBUanc::e of a construction permit, the support of or in oppositloQ.-to the' appeal, ' file a petition for review, to request oral.

Commission will seek_ to issue a

..., ~

within ten (10) days after service of the : "'argum~t, and to seek judicial review; decision on any stay motions that W'll al N th

~nl. r_...m ruling.Bon* -.

. -. timely filed. Such motions shall be filed appe o o er apy.......,iv

.u Federal lmgJatet I Vol 58,; Na; 121' J-TlundaJ. fune %7. 1991 / Rwes and Regnlattona 29189 as provWed by 10 CFa. 2.18'. F<< tbe,,.,

expired for Oirntn!nion N'¥iew 1if tle admietstr:aM'vtt remedies lieloca seekfsaa.

purpoeeoftbi.poliq.a "stay'"melioail decisfcxr.

,,.. _ ~

judicial review..

om that neb t& defet tae effedi.noesa. *

~.

(Zl A petitlm. for~ uade-thia. * **

of a J.k:en.sma Board decWoa beJoo4, ;., -n ra f 2.181; psragrapltt [d}f2)- and (fl paragraph must be no looser than ten *

• the peri011 neceaaary fot the~ are revised fo reed 88.follows:.. *.

(18} pagee. ud mast contain the. *

• acticmdescr.ihed hereln.Hnosbty lollowiziF pa~ are filed.. the Cnmrnissfmt will.... I 1.711 Sepsatlon of tunctlona. *

. (i} A coucisa summary of tha decimal withia. tlte sam.e time period (m earlier if.. * -- *, ~. : *., **:...._ * * *,.. ~*. * * * *

• or acttou of whb:h. re.view* aaosht.

po,sible),. analyze tile record and (d) "- * *. *. *

..

• Pi} A statement (b>catdtng i:ec:ord cons~11 permit decimDo below on (2} The prolribitions of drls sectfon. *

- cttatr..} ~

Iha Jllattel's of facl or

• ita own motion and will aeek to bsue a will ceaae to apply to the disputed '

., law ra1aed in the petition {01' revh!w decision on whether a stay hi.warmated. * * *issues pertinenrto a full or partial initial were ptcriouslJr raised bafme lhe It shall not, however, declde. lhat a stay decfsion when. {n accordance witb.

prea.ldmgofflcer and. if they were at is Wattanted without giving the affected f V88,_ fhe tfme lrlll' explrad for

-* wfls thy a>cJld not haft been raised; parties an opportunity to,be taeanl. Tha

• Commfsakm rrnewof the decfsion.

{ill) Acondte atal'ement v.ily-Ia the inltialdecisionwillJ>econatdered< * * **

• *. t-

.-*.* *,... '* * *,*.

• petitiomt"swiew~d~or-aclion stayadpmdiqlheCommlasioa1,*

• fflJf'*

fnf.,.al fl' __,..,_-i f iserro~aml *.

deciaioD. Ir. dedding these atay. * *:-**.:. * * *

• ~, an u or' w,Qs on... *

(iv} A condaf atatmnmt'ldy. *

~

tioaa.tbe.OwJBl*sk,athall-..i,.:.* *. atated~reslm~oriDput011!aci Commissi. ~~..i..-'~be~.

~

01' opinion.obtained uaiewlt.of a on_.....,.. -

prgcedmea. sel ow ill 10 ~

2.788. *. comrnunfc;ationaulborir.ed by Urli *..

• 00 Any other party lo Iha~ *

• (IP_*,*

,-. '"... ',;J:, - *,:*:,,.;:,,:. :.aeetion...the auhstaoee oftha *

• ~

williin tea.('10} daya.after-servfau,l

=)~~~;~~~- =~:===:~==~~o:m-=-*-..

CommlAloa Wl1 allow the~:* *m.uat he. a.£rorded 811 Ol)porfunity to.

re-riew. 1'bia answer mut be no lons,r * -.

• • lomn Ila 0ldfDary comae or* gtve' * ' *. * *.- *

• controvert th& fact or-opinioo.. Ii th&*

than In (tOl ~and should condaely lnstructfona as to die fatura handling or*

• partie. have D.Olhadan ~

19 addtaa tha matters ia paragraph lb~

• the~ Purthermott._ ~e,.

*: _.* ~trovart *t1ta fad Qi opimoD prior to,.

of this aectiml. to tha extent~,

Comm\stfon roal! ma parlh:ulu ca~-. -,.

• tha filing of &h~ decision. a-party may *.

Tha petitionimgparq llhallhne no ri8ht determin& lhaJ r:empllance wu,i ~-* controYert the fad. or opinion hy films 8 to reply. e,ccepi u pemrl~ed hy tlw,

regulatlona andpolidea may:ao l'ongpt

• pefftion for review of an lnltial. declsi~

Commiasion.

• be Bf1fiWeg,Uo warrant. approval of_a..** -

ot a petition foueconaldeffltion of a (4} The petition fi:>r review may be * :*

license llpglJ:cation and may al'ter those- ' final decision that deacly and condaely

• granted ht the~ of the

. regulatfona and polidea.,

~-

lla1a f.onh tb informaUoB or argument * ~

ghiag dae wetght lo th&*

• 00 The Commiaaica'* effectiveDell&- *...

• relied on to ah.ow the C91)Jrary. J£

• .

• emtence\ of II nhdantialqueation wilh detmmlnation_la elltitely withoul :., *.. appropriate. a party.may be a.fbded the respect. lo the &niowing amsidmations:.

~

• Pleiwflealoprocee1ings IJDder J.a.786 -.-.

opportunity for crosa-examlnatlaor 1o*

,. (I} A flndiBgQfmalerlaUactia~.

..,.,, o--

• or t 2:.718."*.,,.. * * *

~ * "\ * * * * -.. presem nb.rtlal evidence.*

erroneous er in coniict wttk a f:imrng as

~ -* *...."

zo.bi ti.no.~(a)ia~ * ****

. ~..... *. *..- _ to the aam&~~.*~.: *- * :*_

• • • • * "* to'reaclufoDo~

• _,.. * *. f'-111' °'9moYedt

~

' : * *. ~-* *' '... >

• '- :.:...- *. *, u: Part z. ~ arnewfed lJy removiog,

• tH) A naceasa1J legal cnu,:h1sl01t is- * *. * *. -

--* 11.719 *Pfnalcfecflfou *....:. ;;*'*

• _n,,..... **-:.:* *a 2.785.r' * *

• withomgovl!Crlnt~.. ia*

.*a *

{a}'ltwC:cnuwiafroo.wiJ:r~, '**-.*

.25.~n2.788~revisedtoreedu

• depattare-fromorCOuttlflJID

.... conaiderthawhale.recoqlou~. :*: foll~we-.*.' -~-... *..e.***:.:- ~'. *.

established~.. '.

but may11mit tbit iaoea.'to be~ : *', * * * ** * * *,

• • • * *. *-:- * * * * ** * - :' *'

• CW} A aabstantW and.~ * * *-*. *

• to those idenafi&d. in murder ~

f l.'"16 Rffl9w of dectlfoi 1-.anct aotr:om,, : *

• question of law, policy or-discre_tloa.

• revt

' '" -..... *. I,~'.. of.~

officer. -

been raised:

.* * ~-* -:-~ -...:~-** :..:.-<*-:-'::* __ '.***;',:,:-,

[a}Wit&fn!otty[40}deya.aftuih.e.. ::*.

(fv)Tneconductofttie-proceedlng * *'- *

., *,.,, * -;. *, -* * :.; ;_.:*+ **--z.-:.- ~-

• data of adecfsioslor action by &.. *

.-... invo~ apre~proc:edv:ral errom;

, *... ~

ID. l 2.m.. ~apph lalJa tni&e;d * - prealdhig ofBcet. ~

within t1urty {30}

• . or

. toi-ea4ui>Howa -,';., *,.*,--.-* -:-,. *dapa&tapetitumfouaviewaftlia.-.

(vJAnyother~tloa.whic:hlh

• f 2:Ttr* Peatran __ rar rec.,nlllcwado,1..' * ~ J~ ~-.:'. d,rsion OC" action baa-bem::i. med tiiDdu

• Commlmrion may ~

to be in the

. * :_*r'}AL~.r.:..:.for- *.c '&..:,_ti.-.::_.*:.*, paragraph(blofthi&aectian.whichnet-

• publfc~tereal..,,*

~ ~may=~: f?R~lt is greater. the Commission.may review

• * (5JA petition tormiewwfll not be

• -~~lQ)~~~lbe~~~.!:Je~~ill~~:,:-- _::!:e~ten~~t!::::1era.. -

'. *, * '.*a' )~

,

• l..,extewia lhatimafor its review. * *.*,,, <

DOt 1'1HSMbefore dMtpresfdins of&er, ~

• . - "~

J.. * **.,

~,*.. * **..,,,.* ~:i-.:i*'-.,,.fbl(l)Wlthiafifteesl(15ldaJSafter.

• matterraisetlauasponteby-apresidmg.

• .*, -- 22...hr..i U89. pat&SJaph [eK.z:t..- * * ~-:, : 11ervia; of a fuB or partial Initial decision.-- officer-Jia. been rai98d IJefifflr tlte *, - *,

• *. revised tQ mad* foiowa:. -. * *.,_ *.". "!- -.. :-

bs ai:;dma Gfflcer. ~

within flftaan pre~tlfng ~

ltw llMt purpose of thf9...

., c

• --'~-.,,:....;.'.'-**. ***(15) a.fterserviceofanyotha. *' 'aectimt. * -,.-; * ** -* * *' *"".,.. _._,-.

.. I~

__ &,~

.. cam*m&:a~-. -1.:.~ ";~.~;. ~-

decfsJon or action by a presidina officer~--

f&JA pelftfon-far*revtewwmnoth * *~!_ ~ -

.. *.*. :,.-~., --~--: * ~.,...,-:::_*<.~-..;i-,, *. *< with respect to wldcba pefftfon for- --

• *, granted a.toisstrearaisedbefore tbet '* * -

{alt***

• ~ ***',..

• 0 *.~* * *

~.._..-L, ~t..r*L>-,na... ~ f,___m---.

llpe...&..._...._ll!..-,

• ~,.',~- **, '** t.,- ~---;--

• *** -,,-r--'.~***:'t'*~V-Ul$-iia,;l'fto:,-w,zuau,,,--.1l

-pres~ou,,,m-Olt

~lllVUVU~*'

.. fa,'Aar,ehibltt :a ol-.,sedtcm--..>

• 1-, ma,filaapetttionbnmewwitt.

reconsideration..

. c-

~

• cease toapplytoex)lads -;:, ;-

,**,* ;. *'. Cororntssfnooo.Ul8Rr9mlclupeeifiedh

• te)lfwithfnthlrfirf.38}elaf9~"-

communfc;atlona relevant to the_..~,* E~ph(b)tt)ol.dm.aec&n. Th- --,: fllfngefapetitignlbrreviewth- *

• ol afml mpart~aUlitWdeclidQQ-whim...

of apatttsfornwtew ls.. '*****! 1 Com.at1Hiottioe&"J1otograntthe petfffon.* >** *

-~.~-* _.. ~ accardaai witlt.J V88. ~time~.*.: rnflltCfetmy b a pady to aha1181 n...-*, '-, In whole or In part. thtt petition ahaJf *

• 2'J410 Federal Register*/ Vol. 56;No.- 124./ Thursday, June 27, 1991 /"Rules and RegulatioDB deemed denied, unless the Commission in its discretion extends the time for its,

collBirleration of the petition and any :

• answers thereto. * * * *

(d) ff a petition for review la 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 recon!lideration of a Com.mission decision after review may be filed.

within ten (10) days, but is not necessary for exhaustion of -

administrative remedies. However, if a A

petition for reconsideration is filed, the W

Commission decision is not final until

• the petition is decide_d. _ **

(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

• odered by the Commission. *

(g) Certified questions and referred rulings. A question cert$ed to the Commission under § 2.718(ir or a ruling referred under § 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 imm89-iate and

. _serious fn'!:lparable impact.which, as a

• practical matter, could not be alleviated A

through a petition for review of the W, presiding officer's final decision; or (2) Affects the basic structure of the

• proceeding in a pervasive or unusual manner.

12.787 [Rernov.d]

26. Part 2 la amended by removing I 2.787.

27. Section 2.788 is revised to read ai follows:

.. (1f A concise tlllIIlDUU')' of the decision or action which is requested to be.

• _ stayed;

- (2) A concise atatemeJll of the grounds

• .for ab;ly, 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 tlllbject to dispute, appropriate references to the record or afflda~ts by knowledgeable persons.

(c) Service of an application for a stay on the other parties shall be by the same

-of this part. The 'procedures in this subpart take precedence over the 10, CFR part* 2, subpart G,-rules of general applicability, except fOl' the following provisiona: I § 2.702, 2.703, 2.704, 2.707, 2.709, 2.711, 2.713, 2.715, 2.715a, 2.717.

2.718, 2.720, 2.721, 2.722, 2.732, 2.733, 2.734, 2.742, 2.743, 2.750, 2.751, 2.753,

• 2.754, 2.755, 2.756, 2.757, 2.758, 2.759,

• 2.1ao. 2.781, 2.783, 2.770, 2.771, 2.772, 2.780. 2.781, 2.786, 2.788, and 2.790.

29. In § 2.1015, paragraph (c) is revised to read as follows:

method, e.g.. telecopier message, mail,

§ 2.1015 Appeals.

• as the method for filing the application with the Commission-or the presiding (c) Appeals from a Presiding Officer officer. -

initial decision or partial injtial decision (d) Within ten (10) days after service must be filed and briefed before the of an application for a stay under this Commission in accordance with the section; any party may file an answer following requirements.

• supporting or opposing the granting of a (1) Notice of appeal. Within ten (10) stay. This answer must be no longer days after senrice of an initial decision.

than ten (10) pages, exclusive of any party may take an appeal to the affidavits, and should concisely address Commission by filing a notice of appeal.

the matters in paragraph (b) of this The notice shall specify:

section to the extent appropriate. No (i) The party taldng the appeal; and further replies to answers will be entertained. Filing of and service of an (ii) The decision being appealed.

• answer on the other parties mnst be by (2) Filing appellant's brief. Each

• the same method, e.g., telecopier appellant shall file a brief supporting its*

message, mail, as the method for filing position on appeal within thirty (30) the application for the stay.

days (40 days if Commission staff is the

• . (e) in determining whether to grant or appellant) after the filing of notice deny an application for a stay,'the required by paragraph (a) of this section.

. Commission or presiding officer will (3) Filing iespolliJive brief. Any party' consider:

who is not an appellant may file a bri_ef (1) Whether the moving party has in support of or in opposition to the *, -

made a strong showing t4at it/.& lilcely to.

appeal within thirty (30) days after the

• prevail on the merits; * *

• . *. period has expired for the fillrig and (2) Whether the party will be service of the brief of all appellants.

• irreparably injured unless a stay is Commission staff may file a responsive granted;*

brief within forty (40) days after the

. (3) Wheth81' the granting of a stay.

period has expired for the filing and would~ other parties; and service of the briefs of all appellants. A (4) Where the public in~st lies.

responding party shall file a single (f} In extraordinary CB.tletl, where responsive brief re~ess of the

• prompt application is made under this.

number of appellants'briefs filed.

• section, the Commission or presiding*

(4) Brief content. A brief in excess of officer may grant a temporary s_tay to ten (10) pages must contain a table of

• pretl8l'V8_the statna quo without ~Biting contents, with page references, and a for filing of any answer. The application table of casea (alphabetically arranged),

f 2.781 8taya of decltllons of presiding may be made orally provided the statutes regulations, and other offlcer8 pending review.

application is promptly confirmed by. -

authorities cited. with references to the (a) Within ten (10) days after service telecopier message. Any party applying pages of the brief where they are cited. **

f under this paragraph shall make all cl o a,decision or action of a presiding

• reasonable efforts to inform the other *.

(i) ~appellants brief must early officer any party-to tlutproceeding may-

• partlea of th li *ti all if d

• .. Identify the errors of fact or law that are

• file an application for a s~y of the

.. orally.

~ app. ca. ~

or_ 1, ~ ~-

the subj~ of _the appeal. An interve~or- _.

effectiveness of the decision or action. _

28. Section 2.lOOO is revised to read as'*

appellant t1 bnef must be confined to pending filing of and a decision on a

_ follows:

• issues which the intervenor-appellant petition for review. This application may placed in co~troversy or sought to place be filed with the Commission or_ the.

• I 2.1000 Scope of eubpart.

• : r.

• * :s... in controversy in the_pn;,ceedfng. For presiding officer, ~ut not _both _l!t the

• _. ;.

The rule in this subpart govern the

each issue appealpd. the precise portion same time.

-"

• ___. procedure for applications for a licenae. of the record relied upon in support of (b} An ~1

~~cation for a stay mustbe.

to receive and possess high-level

.. _:_

• the a888rtion of ti':1'01'. m~ also be no longer ten (10) P.agea, exclusive

. radioactive waste at a geologic provided.

of affidavits, and m"1st contain the_

,.. ) repository opera_tions area noticed

_ (ii) Each responsive brief must contain fol_lowfnSE.

~ **=~*

_.*.. - *.,.,.,. -:.* *.. pursuant to I 2.101(f}(B) or I 2.106{a)(5) a reference to the precise portion of the

record which supports each factual review_may be filed and the date when conference or adjourned, 18881on. and the assertion made.

the decision becomes final in the,.< - " *.

• -public interest. Adjourned se89iona of *

(5) Brief length. A party shall not file a -absence of the Commission taldng *;_~,,-, hearinga-may be held in the Wa!lhington. DC brief in excess of seventy' (70) pages in review of the decisiOIL.*

~ _

~-,'

area if all partie!lllo !ltipulate. H the partl8!1 ltaemrth.beofexconchtenlSivtse,otafpagleeosfcicotantalningtionsanthde

! '*..:,_.*,:::.-.',:~ >.,

disagree,andanypartyconsidersthatthere ble O ble

• are valid reaaom for holding such session In dd -dum

. (f) Following an initial decision * -~ ".

the Washington, DC area, the matter should any 8 en -

containing Btahltes, resolving all issues in favor of the.<.'t*~

be referred to the Commission for resolution.

rules, regulations, etc. A party may licensing action as specified in

~.

~'

t~~=e~s':.iat;: ~~tsii8ail:1t,for paragraph ( e) of~ section, the : --:.* :*:-* _" : '36A. In part 2, 'ap~endix a: se*ction "-

made by motion submitted at least *

• Director of Nuclear Reactor Regulation-l(c)(1), the reference to "§ § 2.760 and

( ) da b

or the Director of Nuclear Material

,* a*

2.762" is revt--_. to read "§ 2.760".

seven 7 ys efore the date upon. _-

Saf d Saff""*~-Aft tlt1U

• which the brief ls due for filing and shall

,ety an

. "5 ur:uua,. 88 approp~ate, -* *

37. In 10 CFR part 2,-all further - * -

specify the enlargement requested.

,notwithstanding the fUiiis of II petition references to the "Atomic Safety and (6) Certificate of service. All for review or pendency of any review -:-

Licensing Appeal Panel," "Atomic -

documents filed undar this section must taken by tbe Commission pursuant to -.::

_ Safety and Licensing Appeal Bo~" and be accompanied by a certificate

§ 2,786, shall take the appropriate "Appeal Board" are removed and the reflecting service upon all other parties licensing action upon making the following instructions apply:

to the proceeding.

appropriate licensing findings promptly,

. A. In cases where there are two (7) Fq11ure to comply. A brief which in, except as may be provided pursuant to - * -references, and the word "or precedes form or contenfis not in substantial paragraph (e)(l) or (2) of this section. -

or follows one of the listed terms, it is.

compliance with the provisions of this 33* Section 2.1253 is revised to read*88

• removed with the tehn.

.~. : __ _

follows:

section may be 11tricken, either on B. In cases were there are two motion of a party or by the Commission f 2.1253 Petitions tor review of lnHlal - * :.-. _ _ references and the words "as.

on its own initiative.

declslona. --

appropriate" appear in the same

_ Parties and§ 2.1211(b)'particlpants _

11entence with the listed term, they are

30. In I 2.1209; paragraph (d) ill may p~tition for ~ew ot an initial -

also removed. * -"

• 1 * *-

• revised-to read as follows:

decision under this subpart fn C. Ifthe words "and" or "and/or *_,

accordance with the procedures *set out

, precede one of the terms listed. it is -

• I 2.1209 Power of prHldlng officer.

[d) Certify questions to the Commission for determination. either in the presiding offi~r*s discretion or on*

direction of the Commission; in I § 2.786 and 2.763 or the CommlBBion

~moved with the term. -*

may review tlie decision on its own*

. D. The words "the", "a", or "an" *

• motion. Commission review will be - --

• preceding one of the listed terms is _.

conducted in accordance with those -

removed with the term if there are no

~rocedures the Co,mmission deems _

other tAmalning terms to which the word appropriate. The filing of a petition for,

':',PPlies. * *

~ *

• _ review is mandatory for a party to Dated at Roclcville, MD this 1~ day of

31. Section 2.1241 is revised to read as-exhaust Its administrative remedies June., 1991.

follows:

before seeking judicial revi~. ' *: ~

• For the Nuclear Regulatory ~sion.

I 2.1241 Settlement of proceedings.

The fair and reasonable settlement of proceedings subject to this subpart ill encouraged. A settlement must be approved by the presiding c;,fficer or the Comnµsslon as appropriate in ordw: to ee binding in the proceeding.

32. In § 2.1251, paragraphs (a), (c)(3)

. and (f) are ~Bed to read as follows:

I 2.1251 lnltlal decllk>n and lta*effect.

[a) Unless the Commission directs that the record be certified to it iri accordance with paragraph (b) of this section. the presiding officer shall re~der an initial decision after completion of an informal hearing under this subpart. That initial decision

• constitute11 the fln&l action of the Commission thirty (30) day11 after the date of Issuance, unless any party petitions for Commission review in accordance with § 2.786 or the Commission takes review of the-decision sua sponte.

(c)' * * *

(3) The*ttme within which a petition for review may be filed. the time within which any answer to a peti,tion for I 2.1255 [Removed]

• Samuel J. Chllk. -

Secretary of the Commission.

§,f: 2 is amended by removing*

[FR Doc. 91_15002 Filed,6-26-91;_8:fS am]

I 2. 1257 CRemoveclJ

35. Part 2 is amended by removing

§ 2.121;i7, I

36. ui part 2, appendix A. section IX is removed and section I[b) is revised to read as follows:. -

Appendix A~tatement of General Policy and Procedure: Conduct of Proceedings for the Issuance of. -' '

Construction Permits and Operating

• Licenses for Production and Utilization f:acllities for Which a Hearing h.

Required Under Section 189a of the * -

Atomic Energy Act of 1954, a11 ~ed L Preliminary Matters

• 1 ~*

(b) In fixing the time and place of any conference, including preheering conferenoea, or of any adjourned aeuion of the evidantiary hearing, due regard ahall be had for tha convenience and necessity of the parties, petitloner1 for leave to intervene. or the repre!ll!Iltatlves of 1111ch per!IODS, aa well u of the Board membera, the nature of IIUOh IIIIJ.INQ COOE *711CM1-M FEOERALR 1

.,..~

~~-

r.....,

Rulea Regard In A vallablUty Of Information; F dom of lnfonnatlon Reform Act AGl!NCY: Board o Federal Reserve ACTION: Final R of Govarnors of-the Federal Rese System (the "Board") has adop ed as a final ~e, without change, th amendment to Its Rule11 Regarding A ailabillty of.

Information that w II adopted by fnterlm rule effective Janu 2, 1991 (55 FR 49876, December 3, 990). The interim rule reflected chang in the direct costs to the Board to con ct searches, review d~ents, and cop documents 1n.

AGENCY:

ACTION:

SUMMARY

NUCLEAR REGULATORY COMMISSION 10 CFR Part 2

?.IN: 3150 - AD77 Interim Procedures for Agency Appellate Review Nuclear Regulatory Commission.

Final rule.

DOCKETED

[7590-01]

USNRC

• go OCT 22 A 8 :07 This final rule puts into place a transition plan which the Nuclear Regulatory Commission (NRC) is adopting to handle all appeals from initial decisions of presiding officers in all formal and informal agency adjudications, and certain other appellate and related matters, which are e

filed from the day after the date of publication of this final rule until the effective date of a final rule to be issued pursuant to the Commission's ongoing rulemaking proceeding for establishing procedures for direct agency appellate review by the Colllllission.

A notice of proposed rulemaking in that proceeding is being published in this issue of the Federal Register.

As that proposed rule explains, a new procedural system for direct appellate review by the Commission is necessitated by the Co1T111ission's recent decision to abolish the Atomic Safety and Licensing Appeal Panel which heretofore has provided an intermediate level of appeal as of right from initial decisions.

The transition plan implemented by this final rule provides that, with certain exceptions, the Commission, rather than an appeal board, will provide agency

appellate review for appellate matters filed in the interim period between the day after the date of this final rule and the effective date of a final appel'late review rule.

The Cormnission review, in this interim period, will follow existing procedures.

Specific appellate matters which are pending before appeal boards on the date of this final rule will be decided by the appeal boards.

EFFECTIVE DATE:

(One day after date of publication)

FOR FURTHER INFORMATION CONTACT: E. Neil Jensen, Senior Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555.

Telephone: 301-492-1634.

SUPPLEMENTARY INFORMATION:

In a companion document published in this issue of the Federal Register, the NRC announces a proposed rulemaking to establish procedures for direct review of initial decisions of presiding officers in all formal and informal agency adjudications by the commissioners of the NRC.

Direct review by the commissioners will replace review by appeal boards constituted from the Atomic Safety and Licensing Appeal Panel.

The Commission has decided to abolish the Appeal Panel.

The notice of proposed rulemaking proposes to adopt a discretionary system of Commission review and invites comments on that choice and on what particular procedures should be adopted.

This final rule implements the plan the Commission is adopting to provide for an orderly transition from appellate review by appeal boards to appellate review by the Commission.

The Commission has determined that an orderly 2

transition will be assisted by the connnissioners taking to themselves, with certain exceptions, all appeals and other appellate and related matters (including appeals from initial decisions, interlocutory appeals and motions, I

certified questions, referrals and petitions for directed certification) filed in the period beginning one day after publication of this document and ending on the effective date of a final rule. The Commission review during.this interim period will follow existing procedures.

Thus the present right of parties to a mandatory review on the merits of initial decisions will not be*

e-,

affected. All appeals and other appellate and related matters pending before an appeal board on the date of publication of thi's notice will be decided by the appeal board under current regulations.

This transition plan will enable appeal boards to conclude their work on pending appeals without interruption by new ones.

In addition, by allowing appeal boards to complete all pending matters the work already expended on these matters will not be lost.

The Convnjssion has allowed for an exception to the requirement that all new appellate matters be filed with it. If a filing is closely related to a matter currently pending before an appeal board, it should be decided by the appeal board even if it is filed after the date of publication of this final rule.

For example, a motion for stay pending an appeal on a matter that is pending before an appeal board should be_decided by the appeal board even if filed after the effective date of this final rule. Under this exception the Commission expects the appeal board to continue performing its currently pending appellate functions in the Seabrook operating license proceeding.

3

This will conserve agency resources by assuring that an appeal board will be able to make use of its familiarity with a case to decide pending matters connected with the case.

The appeal board is to decide in the first instance whether papers filed with it should be referred to the Commission under this transition plan.

The final rule being issued today amends certain of the Commission's regulations to make them consistent with this transition plan. Thus, the authorization for appeal boards to exercise the authority and perform the review functions which would otherwise be exercised and performed by the Commission in 10 CFR 2.785 and 2.1255 is revoked with respect to new appellate matters.

10 CFR 2.788 is amended to make clear that stay requests in the interim period are not to be filed with an appeal board unless closely related to a matter currently pending before the appeal board.

Similarly, 10 CFR 2.1015 is amended to make clear that appeals governed by that regulation are to be filed with the Commis.sion and not with an appeal board.

The Commission's procedure in 10 CFR 2.786 for filing a petition for review of an appeal board decision or action with the Commission remains effective for cases pending before an appeal board on the date of publication of this notice.

Such a petition for review will be superfluous and will not be available to a party whose appeal is heard by the Commission under the transition plan.

However, the Commissio~'s procedure at§ 2.771 for petitioning for reconsideration of a Co1T111issiorr decision remains effective.

4 e

Because this amendment preserves the right of parties to a merits review of initial decisions of presiding officers and relates solely to matters of agency practice, notice of proposed rulemaking and public procedures thereon are unnecessary and the amendment may be made effective upon publication without_deferring effectiveness for 30 days.

Environmental Impact: Categorical Exclusion The NRC has dete~mined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(l). Therefore, neither an environmental impact statement nor an environmental assessment has bgen prepared for this final regulation.

Paperwork Reduction Act Statement This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.)._. Existing requirements were approved by the Office of Management and Budget approval number 3150-0i36.

Regulatory Analysis The Conrnission needs a plan to achieve an efficient transition between agency appellate review by appeal boards and agency appellate review by the Commission.

The transition plan put in place by this rule change will have no effect on parties other than to change the forum for appellate review of initial decisions in affected proceedings. Th~ transition plan will, however, enable appeal boards to complete their work on existing cases without being interrupted by new appeals.

By leaving all pending appellate matters for 5

resolution by appeal boards, this transition plan also prevents any potential loss in the efforts already expended by an appeal board.

Thus the cost entailed in the promulgation and application of this final rule is necessary and appropriate.

The foregoing discussion constitutes the regulatory analysis for this rule.

Backfit Analysis This rule does not modify or add to systems, structures, components, or design of a production or utilization facility; the design approval or manufacturing license for a production or utilization facility; or the procedures or organization required to design, construct, or operate a production or utilization-facility. Accordingly, no backfit analysis pursuant to 10 CFR 50.109 is required for this final rule.

List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitr~st, ~yproduct material, Classified infonnation, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the,~nergy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, th~ Nuclear Regulatory Commission is adopting the following amendments to 10 CFR Pa-rt 2:

6

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

1.

The authority citation for Part 2 continues to read as follows:

AUTHORITY:

Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (4*2 u.s.c. 5841) ;* 5 u.s.c. 552.

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f),

Pub. L.97-425, 96 Stat. 2213, as amended (42 U.S.C. IOI34(f));

sec. 102, Pub. L.-91-190, 83 Stat. 853, as amended (42 U.S.C.

4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).

Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2239).

Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C,- 2239).

Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42-u.s.c. 223~, 2282); sec. 206, 88 ~tat.

1246 (42 U.S.C. 5846).

Sections 2.600-2.606 also issued under sec. 102, Pub.,L.91-190, 83 Stat. 853, as amended (42 U._S.C.

4332).

Sections *2.700a, 2.719 also issued under 5 U.S.C. 554.

Sections 2.754, 2.760, 2.770, 2~780 also issued 5 U.S.C.- 557.

Section 2.764 and Table IA of Appendix C also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (A2 U.S.C. 10155, -

10161).

Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and,5 u:s.c. 552.

Sections 2.800 and 2.808 also issued under 5 U.S.C. 553.

Section 2.809 also issued under ~ U.S. C. 553 and sec. 29, Pub. L.85-256,. 71 Stat. 579, as amended (42 U.S.C. 2039).

Subpart K also issued under sec. 189, 68 Stat. 955 (42 u.s._c. 2239; sec. 134, Pub. L.97-425, 96 Stat.

2230 (42 U.S.C. 10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239)._ Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135). Appendix B also issued unde sec. 10, Pub. L.99-240, 99 Stat. 1842 (42 U.S.C.

2021b et seq.).

2.

Section 2.785 is amended to add the following note:

§ 2.785 Functions of Atomic Safety and Licensing Appeal Board.

NOTE: Pending completion of the Commission's ongoing rulemaking

(

proceeding for establishing procedures for direct Commission review of initial 7

decisions, i.e., until the effective date of a final rule, the authorization of Atomic Safety and Licensing Appeal Boards to exercise the authority and perform the review functions which would otherwise be exercised and performed by the Commission is restricted as set forth in paragraphs (a) and (b) of this note, notwithstanding any provisions of this regulation to the contrary.

(a) Appeal boards are authorized to decide all appeals and ~ther appellate and related matters (including appeals from initial decisions, interlocutory appeals and motions, certified questions, referrals and petitions for directed certification) pending before an appeal board on_________

(the date on which this final rule is published in the Federal Register)

(b) Appeal boards are not authorized to decide appeals and other appellate and related matters filed in the period beginning

---

(one day after publication of this final rule in the Federal Register) and ending on the effective date of a final rule in the rulemaking proceeding referred to above, unless a filing is closely related to a matter currently pending before an appeal board.

Appeals and other appellate and related matters filed in this period will be decided by the Commission under current regulations.

The appeal board should decide in the first instance whether papers filed with it should be referred to the Commission under the terms of this Note.

8

3. Section 2.788 is amended to add the following note:

§ 2.788 Stays of decisions of presiding officers and Atomic Safety and Licensing Appeal Boards pending review.

NOTE:

Pending completion of the Corm1ission's ongoing rulemaking proceeding establishing procedures for direct Commission review of initial decisions, requests for stays of decisions of presiding officers shall not be filed with an Atomic Safety and Licensing Appeal Board in the period beginning (one day after publication of this final rule in the Federal Register) unless a stay request is related closely to a matter currently pending before an appeal board.

4.

Section 2.1015 is amended to add the following note:

§ 2.1015 Appeals.

NOTE:

Any appeal taken pursuant to the terms of this regulation after (the date on which this final rule is published in the Federal Register) shall be filed with the Commission rather than with an Atomic Safety and Licensing Appeal Board notwithstanding any provisions of this regulation to the contrary.

5.

Section 2.1255 is amended to add the following note:

§2.1255 Review by the Atomic Safety and Licensing Appeal Board.

9

NOTE:

Pending completion of the Commission's ongoing rulemaking proceeding for establishing procedures for direct Commission review of initial decisions, i.e., until the effective date of a final rule, the authorization of Atomic Safety and Licensing Appeal Boards to exercise the authority and perform the review functions which would otherwise be exercised and performed by the Corrrnission is restricted as set forth in paragraphs (a) and (b) of this note, notwithstanding any provisions of this regulation to the contrary.

(a) Appeal boards are authorized to decide all appeals and other appellate and related matters (including appeals from initial decisions, interlocutory appeals and motions, certified questions, referrals and petitions for directed certification) pending before an appeal board on (the date on which this final rule is published in the Federal Register)

(b)

Appeal boards are not authorized to decide appeals and other appellate and related matters filed in the period beginning (one day after publication of this final rule in the Federal Register) and ending on the effective date of a final rule in the rulemaking proceeding referred to above unless a filing is closely related to a matter currently pending before an appeal board. Appeals and other appellate and related matters filed in this period will be decided by the Commission under current regulations. Appeal toards should decide in the 10

first instance whether papers filed with it should be referred to the Commission under t~~ terms of this Note.

~

Dated at R0..:Kville, Maryland. this (<? day of ili:._, 1990.

For the Nuclear Regulatory Commission.

Corrvnission 11