ML12233A371

Entergy'S Answer Opposing New York State'S Motion to Cross-Examine

ML12233A371
Person / Time
Site:	Indian Point
Issue date:	08/20/2012
From:	Bessette P, Dennis W, Glew W, Kuyler R, Sutton K Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23324, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12233A371 (31)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) August 20, 2012 ENTERGYS ANSWER OPPOSING NEW YORK STATES MOTION TO CROSS-EXAMINE William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

ENTERGY NUCLEAR OPERATIONS, INC. Raphael P. Kuyler, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, NW Phone: (914) 272-3202 Washington, DC 20004 Fax: (914) 272-3205 Phone: (202) 739-3000 E-mail: wglew@entergy.com Fax: (202) 739-3001 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: rkuyler@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) August 20, 2012 ENTERGYS ANSWER OPPOSING NEW YORK STATES MOTION TO CROSS-EXAMINE I. INTRODUCTION Pursuant to 10 C.F.R. §§ 2.1204 and 2.323, and in accordance with the Boards Scheduling Order and its Order Memorializing Items Discussed During the July 9, 2012, Status Conference,1 Entergy Nuclear Operation, Inc. (Entergy), hereby opposes New Yorks Motion to Cross-Examine.2 This license-renewal proceeding is being held pursuant to 10 C.F.R. Part 2, Subpart L. See Licensing Board Notice of Hearing (Application for License Renewal) at 4 (June 8, 2012)

(unpublished) (Notice of Hearing). In a Subpart L proceeding, parties may cross-examine witnesses only if the presiding officer determines that cross-examination by the parties is necessary to ensure the development of an adequate record for decision. 10 C.F.R. 2.1204(b)(3) (emphases added). Under the Atomic Energy Act of 1954 (AEA), as amended, 42 U.S.C. § 2011 et seq., and the Administrative Procedure Act (APA), as amended, 5 U.S.C.

1 Licensing Board Order (Memorializing Items Discussed During the July 9, 2012, Status Conference) at 2 (July, 12, 2012) (unpublished) (July 12 Order).

2 State of New York Motion to Implement Statutorily-Granted Cross-Examination Rights Under Atomic Energy Act § 274(l) (Aug. 8, 2012) (Motion).

§ 551 et seq., that requirement applies to all agency actions and to all participants in NRC proceedingswhether or not the participant seeking cross-examination is a state.

Notwithstanding that statutory and regulatory command, the State of New York (New York) insists that states have an absolute, inviolate, and essentially unfettered right to cross-examine witnesses in NRC proceedingsand therefore unlike all other participants in those proceedings are not subject to Section 2.1204(b)(3). Motion at 1, 4, 7, 10. New York believes it is entitled to ask whatever cross-examination questions it believes are needed to be asked to assure a complete record, regardless of this Boards view as to the necessity or reasonableness of such questioning. Id. at 10-11, 15-16. What is more, New York claims that while states can disregard the limitations on cross-examination set forth in the Commissions Rules of Practice in 10 C.F.R. Part 2, the APA, and the AEA, all other parties must abide by those same requirements and limitations.

Nothing in the relevant statutes, regulations, and case law supportslet alone requiressuch an unprecedented and unfair proceeding. New Yorks argument rests entirely on one provision of the AEA, Section 274(l), 42 U.S.C. § 2021(l), which confers nothing more than a limited opportunity to cross-examine that is equivalent to the opportunity in Section 2.1204(b)(3). The two Atomic Safety and Licensing Boards that have addressed New Yorks argument have rejected it.3 This Board should, too. New Yorks motion should therefore be denied.

3 Entergy Nuclear Vt. Yankee, L.L.C. (Vt. Yankee Nuclear Power Station), LBP-04-31, 60 NRC 686, 698 (2004)

(Vermont Yankee I); Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 203-04 (2006) (Vermont Yankee II), revd on other grounds, Entergy Nuclear Vt. Yankee. (Vt.

Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371 (2007).

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II. FACTS AND PROCEDURAL HISTORY The hearing in this license renewal proceeding is scheduled to begin less than two months from now, on October 15, 2012. See Notice of Hearing at 5. The Boards Scheduling Order requires all parties to file any motions or requests to permit that party to conduct cross-examination of a specified witness or witnesses, together with associated cross-examination plan(s), pursuant to 10 C.F.R. § 2.1204(b). Licensing Board Order (Scheduling Order) at 16 (July 1, 2010) (unpublished) (Scheduling Order) (emphasis added). On July 9, 2012, this Board held a status conference and discussed with the parties deadlines for motions for cross-examination under the Scheduling Order. Three days later, the Board issued an order memorializing those discussions and directing all parties to file motions for cross examination .

. . no later than Wednesday, August 29, 2012. July 12, 2012 Order ¶ C.

New York filed this motion on August 8, 2012. It did not, however, file its motion pursuant to 10 C.F.R. § 2.1204(b), as this Board ordered. Instead, New York announced its unfettered right to cross-examination under Section 2021(l), arguing that Section 2.1204 does not apply to states.

III. ARGUMENT A. New York May Cross Examine Witnesses Only When Necessary To Ensure The Development Of An Adequate Record For Decision New Yorks motion should be denied because Section 2021(l) does not provide an absolute right, as New York insists, but only a reasonable opportunity, as the statute says, to cross-examine that is equivalent to that set forth in Section 2.2104(b)(3).4 4

Arguably, Section 2021(l) does not even apply to New York given that it is a party to this proceeding. The language of the statute, its implementing regulation, and its legislative history all strongly indicate that Section 2021(l) applies only to an interested state. See 42 U.S.C. § 2021(l) (discussing that the state need not take a position for or against the granting of the application); 10 C.F.R. § 2.315(c) (instructing that an interested State shall be afforded a reasonable opportunity to interrogate witnesses (emphasis added)); Selected Materials on Federal-State Cooperation in the Atomic Energy Field, Joint Committee on Atomic Energy, 86th 3

1. Section 2021(l) Affords A Reasonable Opportunity To Cross-Examine, Not An Absolute Right New Yorks absolute right argument contravenes the plain language of Section 2021(l), which provides that the Commission . . . shall afford reasonable opportunity for cross-examination. (Emphases added). The plain text of the statute establishes two fundamental propositions, each of which is fatal to New Yorks argument.

First, it is a reasonable opportunitynot an absolute rightthat the statute affords. The statute on its face imposes the limit of reasonableness, and because reasonable is a relational term, whether states shall have an opportunity to cross-examine witnesses must be made on a case-by-case basis. Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379, 385 (2d Cir.

1996) (internal quotation marks omitted). Determining whether states may cross-examine on a case-by-case basis is the exact opposite of the absolute right to conduct cross-examination of witnesses in NRC licensing proceedings claimed by New York. See Motion at 1.

Second, it is the Commissionacting through the presiding hearing officerthat must afford a reasonable opportunity for cross examination, and therefore it can only be the Commission that determines if and when such questioning is reasonable (and thus should be afforded). Contrary to the plain language of Section 2021(l), however, New York argues that a state alone has the prerogative to decide what it believe[s is] needed to be asked to assure a complete record, and therefore its absolute right cannot be restricted by allowing the Cong., 1st Sess. at 451 (Joint Comm. Print, Mar. 1959) (Selected Materials on Federal-State Cooperation)

(recommending to Congress that the Commission should give any interested State . . . an opportunity to examine witnesses (emphasis added)); cf. Gulf States Utils. Co. (River Bend Station, Units 1 & 2), ALAB-317, 3 NRC 175, 178 (1976) (explaining that the interested State provisions of Section 2.715(c)[, (currently Section 2.315(c)),] have a statutory foundation . . . [in] 42 U.S.C. § 2021(l)). Under the AEA, states can participate in licensing proceedings either as a party or as an interested state, but not both. 10 C.F.R.

§§ 2.309 & 2.315(c); see also, e.g., La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-04-35, 60 NRC 619, 626-27 (2004) (holding that states may claim interested state participation only if they are not already admitted parties); Massachusetts v. United States, 522 F.3d 115, 129 n.7 (1st Cir. 2008) (same). Having intervened as a party under Section 2.309, New York cannot avail itself of statutory provisionssuch as Section 2021(l)that apply only to interested states.

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Commissioners or a hearing board to decide whether cross-examination is necessary to develop an adequate, fair, and full record. Motion at 1, 16. That argument cannot be squared with the plain language of the statute, which instructs that the Commission . . . shall afford reasonable opportunity for cross-examination. 42 U.S.C. § 2021(l) (emphasis added). The necessary implication of that language is that the Commissioners, the Board, or the presiding officer must determine when cross-examination is reasonable. Otherwise, the state seeking cross-examination would be the arbiter of whether its own request is reasonable. That cannot be right.5

2. The Reasonable Opportunity To Cross-Examine Under Section 2021(l)

Is Equivalent To The Opportunity In Section 2.1204(b)

Contrary to New Yorks argument, there is no meaningful difference between the reasonable opportunity to cross-examine afforded by Section 2021(l) and that afforded by Section 2.1204(b)(3). The AEA instructs that the APA shall apply to all agency action taken under [Chapter 23]. 42 U.S.C. § 2231 (emphasis added).6 Proceedings involving state participation pursuant to Section 2021(l) fall under Chapter 23 of Title 42 of the United States Code. The APA thus applies to this proceeding and New Yorks Motion.

5 New Yorks view that as a party it is entitled to be the sole arbiter of the scope of cross-examination is also in serious tension, to say the least, with federal court practice. See, e.g., Trademark Research Corp. v. Maxwell Online, Inc., 995 F.2d 326, 339 (2d Cir. 1993) (There is no absolute right to ask a hypothetical question on cross-examination. [T]he proper scope for cross-examination is, like the qualification of witnesses, a matter of trial court discretion which we do not lightly disturb.) (alteration in original) (internal quotation marks omitted)). Boards may look to federal cases and practice as sources of authority in appropriate circumstances.

See Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2187 (Jan. 14, 2004) (Although the Commission has not required the application of the Federal Rules of Evidence in NRC adjudicatory proceedings, presiding officers and Licensing Boards have always looked to the Federal Rules for guidance in appropriate circumstances.)

6 See also, e.g., Citizens Awareness Network, Inc. v. United States, 391 F.3d 338, 345-46 (1st Cir. 2004) (The APA . . . is made applicable to the Commission by 42 U.S.C. § 2231 . . . .); Friends of the Bow v. Thompson, 124 F.3d 1210, 1214 (10th Cir. 1997) (The APA governs agency procedures in all administrative proceedings. (emphasis added)). Thus, New York is wrong that its right to cross-examine exists independently of the APA. Motion at 14.

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Under the APA, no party has an absolute right to cross-examine. A party is entitled to . . . conduct such cross-examination as may be required for a full and true disclosure of the facts. 5 U.S.C. § 556(d) (emphasis added). The First Circuit and two Boards have heldand New York does not disputethat the requirements for allowing cross-examination under Sections 2.1204(b)(3) and 556(d) are equivalent.7 Therefore, under the AEA, the equivalent requirements in Section 2.1204(b)(3) for cross-examination shall apply to all agency action, including those involving state participation pursuant to Section 2021(l). 42 U.S.C. § 2231. That is precisely what the Board held in Vermont Yankee I:

[W]e hold, based on the finding in [Citizens Awareness Network]

that the opportunity for cross-examination under

[Section 2.1204(b)(3)] is equivalent to the opportunity for cross-examination under [Section 556(d)], that the opportunity for cross-examination under 10 C.F.R. § 2.1204(b)(3) is likewise consistent with New Yorks reasonable opportunity . . . to interrogate witnesses under 42 U.S.C. § 2021(l).

LBP-04-31, 60 NRC at 710. The Board reaffirmed that holding in Vermont Yankee II, reiterating that [t]he Subpart L grant of cross-examination to situations where it is necessary to ensure the development of an adequate record for decision, 10 C.F.R. § 2.1204(b)(3), is consistent with the AEA requirement that State representatives be given a reasonable opportunity . . . to . . .

interrogate witnesses. LBP-06-20, 64 NRC at 203-4. That holding is correct, and New Yorks contrary argument should be rejected.

Consistent with an interested states reasonable opportunity to cross-examine under Section 2021(l), Section 2.1204(b)(3) provides that parties shall have the opportunity to cross-7 See Citizens Awareness Network, 391 F.3d at 551; Vt. Yankee I, LBP-04-31, 60 NRC at 710; Vt. Yankee II, LBP-06-20, 64 NRC at 203-4.

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examine when such cross-examination is needed to ensure the development of an adequate record for decision or a full and true disclosure of the facts, 5 U.S.C. § 556(d). There is nothing unreasonable about that requirement.

Moreover, New York effectively concedes that it is bound by the requirements set forth in Section 2.1204(b)(3) by arguing that Section 2021(l) preserve[s] the right that states possessed to cross-examine witnesses under the 1956 version of 10 C.F.R. § 2.747. Motion at 5.

That regulation used language that is indistinguishable from Section 556(d) to describe the opportunity that states had in 1956and currently haveto cross-examine: Every party to the hearing shall have the right to . . . conduct such cross-examination as may be required for a full and true disclosure of the facts. Compare 10 C.F.R. § 2.747 (1956) (published in Part 2Rules of Practice, 21 Fed. Reg. 804, 808 (Feb. 4, 1956) (Attachment 1 to this Answer)), with 5 U.S.C.

§ 556(d) (A party is entitled to . . . conduct such cross-examination as may be required for a full and true disclosure of the facts.). New York does notbecause it cannotchallenge the First Circuits holding (adopted by the Boards in Vermont Yankee I & II) that Section 556(d) is equivalent to Section 2.1204(b)(3). Thus, by admitting that Section 2.747 defines its opportunity to cross-examine, New York necessarily concedes that Section 2.1204(b)(3) also defines that same opportunity.

In another attempt to avoid its obligations under Section 2.1204(b)(3), New York incorrectly asserts that the Part 2 regulations governing the conduct of hearings, which include Section 2.1204(b)(3), are based on the APA, and therefore they do not apply to this motion.

Motion at 5, 15. The Commission, however, issued Section 2.1204(b)(3) pursuant to, inter alia, the AEA, 42 U.S.C. §§ 2201(p) and 2241(a). Under those provisions, the Commission may promulgate regulations direct[ing] the conduct of licensing hearings, Section 2241(a), as 7

well as regulations necessary to carry out the purposes of [Chapter 23], Section 2201(p). This hearing is a licensing hearing under Chapter 23.8 In all events, New Yorks insistence that Part 2 regulations do not apply here conflicts with its own concession that another Part 2 regulation, 10 C.F.R. § 2.333(e), does restrict cross-examination under Section 2021(l). See Motion at 11. That regulation empowers presiding officers to take necessary and proper measures to prevent argumentative, repetitious, or cumulative cross-examination. 10 C.F.R. § 2.333(e). There is simply no reason why states are governed by Section 2.333(e), but somehow not by Section 2.1204(b)(3). Both regulations were passed pursuant to the same statutory authorityinter alia, Sections 2201 and 2241. And it would make little sense to hold hearings where presiding officers can prevent states from conducting repetitious or cumulative cross-examination, but they cannot prevent states from conducting cross-examination that is unnecessary to ensure the development of an adequate record for decision. New York does notbecause it cannotexplain how Section 2.333(e) is a permissible restriction on its purportedly inviolate right to cross-examine, but Section 2.1204(b)(3) is not. See Motion at 10-11.

New Yorks selective embrace of Section 2.333(3) is understandable only as an attempt to avoid the absurd consequences of its own argument. That is, if states really do possess the absolute right to cross-examine that New York claimsor if states are their own arbiters of what constitutes a reasonable opportunity to cross-examine, which amounts to the same thingthen states can cross-examine witnesses indefinitely (and even badger those witnesses) with impunity. New Yorks unprincipled acceptance of the limitations imposed by 8

In any event, as previously shown, the requirements in Sections 2021(l) and 2.1204(b)(3) are equivalent.

Hence, by arguing that states are bound by Section 2021(l), New York necessarily concedes that it is bound by the same requirements for cross-examination set forth in Section 2.1204(b)(3).

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Section 2.333(3) thus confirms the absurdity of New Yorks position that states (and states alone) possess an unfettered right to cross-examination, Motion at 7, such that the reasonable opportunity afforded under Section 2021(l) is somehow different than the reasonable opportunity afforded under Section 2.1204(b)(3).

B. Neither Legislative History Nor Policy Considerations Support New Yorks Absolute Right Theory In asking this Board to disregard the plain language of pertinent statutes and regulations and to depart from the holdings of Vermont Yankee I & II and Citizens Awareness Network, New York primarily relies on legislative history to argue that states have an absolute right to cross-examine. See Motion at 1, 6-9. But legislative history is irrelevant here because, as demonstrated above, the statutory text makes plain on its face that states do not have an absolute right to cross-examine. See William L. Rudkin Testamentary Trust v. Commr, 467 F.3d 149, 157 (2d Cir. 2006) (Because we find the statutes text clear and unambiguous, we need not address the . . . legislative history arguments.) (internal quotation marks omitted)). In any event, to the extent it is relevant here, the legislative history actually confirms that states do not have the absolute right to cross-examine witnesses under Section 2021(l) that New York claims.

As previously noted, when Congress passed Section 2021(l) in 1959, states did not have an absolute right to cross-examine. They had the same qualified opportunity that they have today under Section 2.1204(b)(3) and the APAi.e., they can cross-examine if needed to create a full, fair, and adequate record. Indeed, the report of the Joint Committee on Atomic Energy that New York cites discloses that the Committee had originally recommended that Congress pass a statute authorizing the Commission to give any interested State . . . an opportunity to examine witnesses. Motion at 6 (quoting Selected Materials on Federal-State Cooperation at 451 (emphasis added)). But Congress ultimately rejected that recommendation by adding 9

reasonable to limit the opportunity that states would have to cross-examine. 42 U.S.C.

§ 2021(l) (emphasis added).9 Perhaps realizing that the legislative history does not support its absolute right theory, New York falls back on general principles of states rights and assertions about the value of cross-examination. Motion at 9-14. Neither advances New Yorks cause.

First, New Yorks arguments about the value of cross-examination generally prove too much. They apply just as forcefully to the Board, which will be conducting its own cross-examination of the witnesses, and also to private partieswhich New York concedes are subject to Section 2.1204(b)(3). See Motion at 18. And the Commission has already rejected New Yorks arguments about the value of cross-examination by the parties in administrative hearings like this one on highly technical issues. See Changes to Adjudicatory Process, 69 Fed. Reg. at 2195-96 (determining that questioning by the Board is the better approach for assuring the expeditious, controlled and deliberate development of an adequate record for decision in informal hearings).

Second, New York offers no reason or authority to explain why a statewhether participating as an interested state or as a partyshould have an absolute right to cross-examine witnesses that is denied to all other participants in the proceedings. In establishing the statutory and regulatory framework governing licensing hearings, there is nothing suggesting that Congress or the Commission ever intended to elevate state interests over the interests of all others in the proceedings. On the contrary, since the inception of the AEA, all parties have had 9

None of the legislative history that New York cites even remotely suggests that Congress intended states to have an absolute and essentially unfettered right to cross-examine witnesses. See Motion at 1, 7. Still less does the history suggest (1) that Boards have no ability to prevent states from asking cross-examination questions that are unnecessary for developing an adequate, full, and fair record, or (2) that an interested state is entitled to greater procedural rights than the license holder or applicant. In sum, the legislative history fails to support any argument that the reasonable opportunity afforded by the statute is an absolute right.

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the same opportunity to cross-examine. That evenhanded practice is consistent with the practice in the federal courts, where an attorney for a state has the same opportunity to cross-examine as an attorney for a private party.10 There is no question that states occupy a unique position in our federalist system of government. See, e.g., Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1642 (2011)

(We are mindful of the central role autonomous States play in our federal system . . . .). But Congress has already taken into account the legitimate needs of states by providing, among other things, an opportunity for interested states to participate in licensing proceedings and to have a reasonable opportunity to cross-examine witnesses. New York provides no justification for its attempt to rewrite the statute to vest an absolute right to cross-examine in states and states alone, and Entergy is aware of none.11 C. New York Has Failed To Demonstrate That Additional Cross-Examination By The Parties Is Necessary The only reasonable explanation for New Yorks eleventh-hour argument that it has an absolute right to cross-examine witnesses is that New York must recognize that it cannot satisfy the governing standards for additional cross-examination by the parties. Under 10 C.F.R.

§ 2.1207(a)(3), the Board examines the parties witnesses based in part on confidential questions submitted by the parties prior to the hearing. There is one narrow exception: parties may cross-examine only if the presiding officer determines that cross-examination by the parties is necessary to ensure the development of an adequate record for decision. Id. § 2.1204(b)(3).

10 If this Board disagrees and determines that New York does possess an absolute right to cross-examinewhich it does notEntergy respectfully requests that it be granted the same right, especially considering that Entergy carries the ultimate burden of proof. See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 269 (2009). If granted, then Entergy may need additional time, beyond August 29, to prepare and submit cross-examination plans.

11 Not even the bedrock principle of state sovereign immunity to suit is absolute. See, e.g., Va. Office for Prot.,

131 S.Ct. at 1642. (no encroachment on states rights to allow suit against state to proceed under the Ex parte Young exception for suits seeking injunctive relief).

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Under that standard, [t]he party seeking to cross-examine bears the burden of showing that cross-examination is in fact necessary. Citizens Awareness Network, 391 F.3d at 351 (quoting Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 880 n.16 (1st Cir. 1978)).

In promulgating Section 2.1204(b)(3), the Commission explained that the bar for permitting cross-examination is high:

[T]he presiding officer will permit cross-examination only in the rare circumstance where the presiding officer finds in the course of the hearing that his or her questioning of witnesses will not produce an adequate record for decision, and that cross-examination by the parties is the only reasonable action to ensure the development of an adequate record.

Changes to Adjudicatory Process, 69 Fed. Reg. at 2196 (emphases added); see also id. at 2228 (explaining that the Commission expects that the use of cross examination will be rare).

Further, because cross-examination conducted by the parties often is not the most effective means for ensuring that all relevant and material information with respect to a contested issue is efficiently developed for the record of the proceeding, and because the presiding officer is ultimately responsible for the preparation of an initial decision on the . . . contested matter, the Commission also determined that questioning by the Board is the better approach for assuring the expeditious, controlled and deliberate development of an adequate record for decision in informal hearings. Id. at 2195-96.

New York does not even attempt to show that its additional cross-examination is necessary under Section 2.1204(b)(3). At most, New York speculates it is possible that its cross-examination would be allowed under that provision. Motion at 18. In support, however, New York asserts only that the value of its cross-examination will be substantial and that New York offers extremely well-qualified experts. Id. at 17-18. Even if true, those assertions do nothing to establish that New Yorks additional cross-examination is necessary. New York has 12

not explained how its self-serving assertions and speculation about possibly satisfying the regulation overcome the Commissions presumption that examination by the Board is the better approach for this hearing.

D. New Yorks Eleventh-Hour Request for General Cross-Examination on All of Its Contentions Is Untimely, And Granting The Request Will Severely Prejudice Other Parties Even if this Board concludes that Section 2021(l) affords states an independent and absolute right to cross-examine witnesses, New Yorks motion still should be denied as untimely. Under 10 C.F.R. § 2.323(a), [a] motion must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises. There has been no occurrence or circumstance in the ten days between July 29th and August 8thwhen New York filed this Motionthat would render it timely. Indeed, New York represented in August 2008, that it would present its request to exercise [its right under Section 2021(l)] after witnesses had been identified and testimony had been filed. Motion at 3. That occurred more than ten days ago, and certainly no later than when Entergy and the NRC Staff submitted their pre-filed written testimony on the contentions at issue, on or about March 30, 2012.

New Yorks sole purported justification for filing its wide-ranging request so close to the hearing is this Boards July 12 Order directing the parties to file motions for cross-examination by August 29, 2012. July 12 Order at ¶ C. But the motions for cross examination addressed in that order are motions filed pursuant to 10 C.F.R. § 2.1204(b). See Scheduling Order at 16.12 New Yorks motion rejects any obligation under Section 2.1204(b), and it has filed this motion under Section 2021(l). Motion at 15 (stating that Sections 2.315 and 2.1204(b) 12 Considering the matters discussed at the July 9, 2012 pre-hearing conference, it is clear that paragraph C of the July 12 Order clarifies the deadlines in paragraph K.6 of the Scheduling Order. See Official Tr. of Proceedings at 1155-68 (July 9, 2012), available at ADAMS Accession No. ML12192A159.

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are inapplicable to this motion). Therefore, the July 12, 2012 order does not excuse the untimeliness of New Yorks motion.13 Moreover, granting New Yorks untimely motion at this juncture would severely prejudice Entergy. The first phase of the hearing is scheduled to start in less than two months.

In that time, Entergy must, among numerous other tasks, work with approximately 30 witnesses; submit proposed questions for approximately 38 witnesses; and address any other issues that may arise. New York itself recently complained of similar obligations in a motion for a 90-day extension of time to respond to an issue raised by Entergy. See State of New York Motion for Extension of Time to Respond to Entergys Motion for Declaratory Order Regarding the Coastal Zone Management Act at 4-5 (Aug. 6, 2012) (Motion for Extension). New York does not explain how, given all of the obligations recited in the Motion for Extension, its legal team found time to prepare and file the instant 20-page Motion three weeks ahead of New Yorks own purported deadlineor why it chose to file this Motion now, more than four years after it first expressed its intent to file such a Motion. See Motion at 2.

13 New Yorks motion violates this Boards July 1, 2010 Order and Section 2.1204(b) in yet another way. The Order and Section 2.1204(b)(1) require parties who wish to cross-examine to submit a cross-examination plan containing certain information: (i) A brief description of the issue or issues on which cross-examination will be conducted; (ii) The objective to be achieved by cross-examination; and (iii) The proposed line of questions that may logically lead to achieving the objective of the cross-examination. New York has indicated that it will submit only its proposed areas of cross-examination of witnesses as contemplated by the Boards July 1, 2012 Scheduling Order. Motion at 1. Thus, it is not clear to Entergy whether New York intends to fully comply with the requirements of the Scheduling Order. That Order requires New York to follow the requirements set forth in Section 2.1204(b), but New York argues that it need not comply with Section 2.1204.

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IV. CONCLUSION For the reasons set forth above, New Yorks Motion should be denied.

Respectfully submitted, Signed (electronically) by Raphael P. Kuyler William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

Entergy Nuclear Operations, Inc. Raphael P. Kuyler, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, N.W.

Phone: (914) 272-3202 Washington, D.C. 20004 E-mail: wglew@entergy.com Phone: (202) 739-5738 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: rkuyler@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

Dated in Washington, D.C.

this 20th day of August 2012 15

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) August 20, 2012 MOTION CERTIFICATION Counsel for Entergy certifies that he has made a sincere effort to make himself available to listen and respond to the moving parties, and to resolve the factual and legal issues raised in the motion, and that his efforts to resolve the issues have been unsuccessful.

Executed in Accord with 10 C.F.R. § 2.304(d) by Paul M. Bessette Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Raphael P. Kuyler, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5796 Fax: (202) 739-3001 E-mail: pbessette@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

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ATTACHMENT 1 Rules of Practice, 21 Fed. Reg. 804 (Feb. 4, 1956)

RULES AND REGULATIONS dividends, the entire $30 is excludable, Subpart B--Procedure for Imposing Requirements licensing and licenses,' including patent and there Is included in gross income in by Order, or for Modification, Suspension, or licensing under section 153 of the Atomic the joint return only $150 consisting of Revocation of a License or Construction Permit Energy Act of 1954 2but excluding all the dividends received by the husband Sec. other patent matters.

($200 less his $50 exclusion). For fur- 2.200 Applicability of subpart.

ther examples illustrating the applica-' 2.201 Notice of violation. § 2 .2 Subparts. Each of the subparts tion of the exclusion, see § 1.34-1. 2-.202 Order to show cause; temporary which precedes Subpart G of this part (c) Where two or more persons hold emergency action. sets forth special rules applicable to the 2.203 Recapture of material or entry in type of proceeding described In "the stock as tenants in common, as joint emergency revocation cases. opening section of the subpart. Subpart tenants, or as tenants by the entirety; G of this part sets forth general rules the dividends received with respect to Subpart G-Rules of General Applicability such stock shall be considered as being applicable to all types of proceedings and received by each tenant to the extent COMMON PROVIsIONS should be read in conjunction with the that he is entitled under local law to a 2.700 Filing of papers; when complete. subpart governing the particular pro-share of such dividends. Where divi- 2'701 Computation of time. ceeding.

2.702 Extension of time. § 2.3 Resolution of conflicts. In any dends constitute community property 2.703 Service of papers, methods, proof.

under local law each spouse shall be 2.704 Representation. conflict between a general rule In Sub-considered as receiving one-half of such 2.705 Intervention. part G of this part and a special rule In dividends.. 2.706 Effect of intervention or denial another subpart applicable toa particu-(d) For restrictions and -limitations, thereof. lar type of proceeding, the special rule with respebt to the type of dividends to 2.707 Consolidation. will govern.

which the exclusion is applicable, see 2.708 Hearings, formal and informal.

2.709 Authority to Issue oatths and affirma- § 2.4 Definitions. In this part, words

§ 1.34-3. tions.' or phrases which are defined In the (e) For taxpayers not entitled to the Atomic Energy Act of 1954 and In the exclusion, see § 1.34-4. unro RMAL HEARINGS several parts of this chapter to which (f) The regulations with respect to 2.720 Informal hearing procedure. this part applies, shall take the meaning determination of when dividends are re- defined in the act and the pertinent parts ceived under section 34 apply also to FORMAL HEARNqGS with the following exception and expla-section 116. See § 1.34-1 (e). 2.730 Parties. nation:

§ 1.116-2 Effective date; taxable years 2.731 Limited appearances by persons not (a) "Commission" means the commis-

. parties.

ending after July 31, 1954, subject to the 2 .732 Designation of presiding officer, dis- sion of five members or a quorum thereof Internal Revenue Code of 1939. Pursu- qualification, unavailability. - sitting as a body, as provided by section ant to section 7851 (a) (1) (C), the reg- 2.733 Powers of presiding officers. 21 of the Atomic Energy Act of 1954, or ulations prescribed in § 1.116-1 shall also 2.734 Separation' of functions. any officer or board to whom has been apply to taxable years beginning before 2.735 Notice of hearing. delegated, pursuant to section 101o of January 1, 1954, and ending after July 2.736 Answer. the act and as set forth in Part 1 of 31, 1954, and to taxable years beginning 2.737 Reply. this chapter, final authority for making after December 31, 1953, and ending 2.738 Default.

2.739 Admisslons.

decisions in the course of adjudication after July 31, 1954, but before August 17, 2.740 Prehearing conferences. or for issuing, amending, or rescinding 1954, though such years are subject to 2.741 Amendments. rules in the course of rule making.

the Internal Revenue Code of 1939. 2.742 Hearings, public. (b) "AEC" means the agency estab-'

(SEAL] RUSSELL C..,AIRINGTON, 2.743 Official reporter, transcript. lished by the Atomic Energy Act of 1954,

-.744 Subpenas. comprising the members of the Commis-Commissionerof InternalRevenue. 2.745 Depositions. sion and all officers, employees, and rep-Approved: January 31, 1956. 2.746 Order of procedure. resentatives authorized to act in the case 2.747 Evidence.

H. CHAPMAN ROSE, 2.748 Interlocutory appeals to the Com- or matter whether clothed with final au-Acting Secretaryof the Treasury.. mission from rulings of presiding thority or not.

officers. SUBPART A-PROCEDURE ON APPLICATIONS

[F. R. Doc.56-912; Filed, Feb. 3, 1956; 2.749 Proposed findings and conclusions.

8:48 a. m.] FOR ISSUANCE, AMENDMENT OR TRANSFER 2.750 Official notice.

Intermediate decisions and their OF A LICENSE OR CONSTRUCTION PERMIT 2.751 effect. AND RENEWAL OF A LICENSE TITLE 1 0-ATOMIC ENERGY 2.752 Exceptions to intermediate decisions.

Briefs and oral arguments before the

§ 2.100 Applicability of subpart. The 2.753 provisions of this subpart prescribe the Chapter I-Atomic Energy Commission. procedure covering applications for the 2.751 Final decision.

Commission 2.755 Waiver of procedures or intermediate issuance., of a license, construction per-decisions. mit, amendment of a license or construc-PART 2-RULES OF PRACTICE tion permit at the request of the holder, 2.756 Petition for reconsideration.

Pursuant-to the Administrative Pro- transfer of a license or construction per-PUBLIC RTULE WA='G mit, and renewal of a license. Reference cedure Act, Public Law 404, 79th Con-gress, 2d session, the following rules are 2.780 Scope of rule making. should also be made to Subpart G of this published as a document subject to codi- 2.781 Initiati6n, petition. part which sets forth the rules appli-fication, effective 30 days after publica- 2.782 Petition for rule making. cable to all types of proceedings.

tion in the FEDERA REGsiasr. 2.783 Determination of petition.

2.784 Notice of proposed rule making. § 2.101 Administrativeexaminationof DESCRIPTION OF PART 2.785 Participation by interested persons. applications, notice to others, informal 2.786 Commission action. con!erences. Applications described In Scope. 2.787 Effective dates.

Subparts. IPart 30-Byproduct Material Licensing, Resolution of conflicts. AVAILABILIT OF OPFICIAL RECORDS Definitions.

Part 40--Sourco Material Licensing, Part 2.790 Public inspection, exceptions, requests 50-Licensing of Production and Utilization Subpart A-Procedure on Applications for Issu- for withholding. Facilities, Part 55-Licensing of Operators, once, Amendment or Transfer of a License or Part 70-Special Nuclear Material Licensing.

Construction Permit and Renewal of a license AuruoArry: H 2.1 to 2.790 issued under 2Tho specifications, pursuant to section see. 161, 68 Stat. 948, 42 U. S. C. 2201. 156 of the act, for patent licenses to uso 2.100 Applicability of subpart. AEC held patents or those declared subject 2.101 Administrative examination of appli- zEscR 0oN OF-pAnT to licensing under section i63a of the act, cations, notice to others, informal are set forth in Part 81 of this chapter. The conferences. § 2.1 Scope. This part governs the 2.102 Patent Compensation Board proceedings un-Action on applications, hearings. conduct of all proceedings before'the der sections 157 and 173 of the act, are gov-2103 Effect of timely renewal applications. Atomic Energy Commission involving erned by Part 81 of this chapter.

HeinOnline -- 21 Fed. Reg. 804 1956

Saturday, February4, 1956 FEDERAL REGISTER 805

§ 2.100 will be given a docket or other licensee or permit holder shall send his filed with the Atomic Energy Commis-reply to the AEC office designated In the slon, 1901 Constitution Avenue, NW.,

identifying number and routed to the Washington 25, D. C. Papers required appropriate AEC offices for administra- notice. If the notice relates to conditions or conduct which may be susceptible of to be filed with AEC shall be deemed tive txamination. AEC . will give to filed upon actual receipt by AEC at the others such notice of the filing of the correction or of being brought into full compliance by action of the licensee or place specified accompanied by proof of application as is required under the ap- service upon parties required to be plicable regulations of this chapter and permit holder, he shall state in his reply the corrective steps taken or to be Insti- served. Upon actual receipt the fling; such additional notices as'it deems ap- when by mail or telegraph, shall be propriate. The applicant may be re- tuted in achieving correction and pre-quired to submit additional information venting further violations, and the date deemed complete as of the date of de-when such correction and full compli- posit In the mill or with the telegraph and may be requested to confer infor- company as provided In para.raph (d) mally regarding the application. ance will be achieved.

(b) Where in the opinion of AEC the of § 2.703.

§ 2.102 Action on applications, hear- public health, interest, or safety re- § 2.701 Computation of time. In ings. (a) The AEC,will, upon request quires, or the failure to be In compliance computing any period of time prescribed of the applicant or an intervener, and is wilful,the notice provided for in this or allowed by any applicable statute, may upon its own initiative, direct the section may be omitted. rule, notice, or order, the day of the act, holding of a formal hearing prior to event, or default after which the desig-taking action on the application. If no § 2.202 Orders to show iause; condi-tional orders. (a) (1) In any case de- nated period of time begins to run is not prior formal hearing has been held and to be Included. The last day of the pe-no notice of proposed action has been scribed in § 2.200, and after notice If any as required by § 2.201, AEC may issue to riod so computed is to be included, un-served as provided in paragraph (b) of less it Is a Saturday, Sunday, or a legal this section, AEC will direct the holding the licensee or permit holder an order directing him to show cause why the holiday, in which event the period runs of a formal hearing upon receipt of a until the end of the next day which is request therefor from the applicant or proposed action should not be taken.

There will be includd a notice of formal neither a Saturday, Sunday, nor a holi-an intervener 'within 30 days after the day. When the period of time pre-issuance of a license or other approval or hearing. The time for hearing specified shall not be less than 20 days after is- scribed or allowed Is less than seven days, a notice of denial suance of the order except that, where intermediate Saturdays, Sundays, and (b) In such cases as it deems appro- holidays shall be excluded In the compu-priate, AEC may cause to be served upon the public interest or safety requires, AEC may provide in the order for a tation.

the applicant, and published, a notice of proposed action upon his application and shorter period. § 2.702 Extension of time. Unless shall cause copies thereof to be served (2) Where in the opinion of AEQ the discretion is denied by statute, exten-upon interveners or others entitled to or public health, interest and safety re- sions of time for filing or performing any requesting notification. The notice-shall quires, the proposed action may be made act required or allowed to be done, and state the terms of the proposed action. temporarily effective prior to the time continuances of any proceeding or hear-If. a formal hearing has not been held for-hearing. ing. may be granted In the discretion of prior to issuance of the notice, AEC will (b) In cases initiated by AEC to im- AEC upon application and good cause direct the holding of a formal hearing pose requirements by order upon a licen- shown by any party, or upon the initia-upon the request of the applicant or an see or holder of a construction permit, tive of AEC or stipulation of all the par-intervener received within fifteen days the AEC may (in lieu of following the ties. Where a presiding officer has been following the service of the-notice. procedures provided in paragraph (a) designated for hearing, the discretion in of this section) issue such order to be granting extensions of time and con-

§ 2.103 Effect of timeqy renewal appli- effective at a time specified therein. The tinuances in matters relating tor the cations. In the case of an application for order will designate also a period of hearing shall rest with the presiding renewal, if the licensee has made appli- time, not less than 15 days from the date officer.

cation for the renewal of a subsisting of issuance of the order, within which license at least 30 days prior to its ex- the licensee or permit holder may file § 2.703 Service of Papers, methods, piration date, the.license shall not be a written request for formal hearing. Proof. (a) Except for subpenas, service deemed to have expired until such appli- The timely-filing of a request for formal of which is governed by § 2.744, AEC will cation'shall have been-determined. hearing with respect to any order, or any servo all orders, notices, and other papers Issued by it when service thereof SUBPART B--PROCEDURE FOR IMPOSING RE- part of an order, issued pursuant to this is required, together with any other QUIREMENTS BY ORDER, OR FOR MODIFICA- paragraph shall stay the order, or such TION, SUSPENSION, OR-REVOCATION OF A part of the order, pending determination papers which It is required by law to

,LICENSE OR CONSTRUCTION PERMIT of the issues by the Commission. serve. Every other paper requiring service, such as answers, petitions, mo-

§ 2.200 Applicability of subpart. .The § 2.203 Recapture of material or en- tions, briefs, exceptions, and notices, provisions of this subpart prescribe the try in emergency revocation cases. In shall be served by the party filing it upon procedure in cases initiated by AEC to cases found by the Commission to be all parties entitled to service thereof; impose requirements by order upon a of extreme importance to the common and proof of service shall accompany licensee or holder of a construction per- defense and security or to the health the paper when It is tendered for filing.

mit or to modify, suspend, or revoke a and safety of the public, the Commis- Where there are numerous parties to a license or construction permit. Refer- sion may without prior notice or hearing proceeding the Commission may, upon ence should also be made to Subpart G recapture any special nuclear material motion or Its own initiative, make spe-of this part, which.sets forth the rules held by the licensee or enter upon and cial provision regarding the service of applicable to all types of proceedings. operate the licensed facility, provided papers.

The provisions of this subpart shall not that as promptly as possible and not (b) Service shall be made upon the apply to action taken pursuant -to sec- later than 10 days from the recapture parties or their designated representa-tion 108 of the act. or entry, AEC will serve upon the licensee tives.

- § 2.201 Notice of violation. (a) Prior Ito or permit holder an appropriate order (c) Service of papers may be made show cause why the license or con- by personal delivery, by first class, certi-to the institution of any proceeding for the suspension or revocation of a license struction.permitformal should not be revoked fled or registered mail including airmail or construction permit for alfeged viola- and notice of hearing, or will by telegraph, or bypublicationwhen pub-tion of any provision of the. act, regula- initiate steps to restore the material or lication is authorized by statute, rule, or tions, or conditions of the license or per- facility of which the licensee or permit order.

mit, the licensee or permit holder shall holder has been deprived. (d) Service upon parties shall be re-be served with a written notice calling SUBPART G-RULES OF GENERAL APPLICABILITY garded as complete:

the facts to his attention and requesting (1) By personal delivery, upon han-COMMON PROVISIONS dling the paper to the individual, orleav-a written explanation or statement in reply. Within 15 days of the receipt of' - § 2.700 Filing of vapers; when com- Ing It at his office with his clerk or other such notice, or such other reasonable pe- plete. Unless otherwise specified, papers person in charge thereof or, if there is riod as may be specified in the notice, the required to be filed with AEC shall be no one In charge, leaving it in a con-No. 24-HeinOnline -- 21 Fed. Reg. 805 1956

RULES AND REGULATIONS spicuous place therein or, if the office mission thereafter of an intervener sliall persons may make oral or written state-is closed or the person to be served has not of itself enlarge or alter the issues- ments of their position on the Issues in-no office, leaving it at his usual place of without amendment as provided in volved in the proceeding, but may not residence with some person of suitable § 2.741. otherwise participate In the hearing.

age and discretion then residing therein; (c) An order denying intervention § 2.732 Designation of presiding offi-(2) By mail, upon deposit .in the, .will- be without prejudice to any pro- cer, disqualification,unavailability. (a)

United States mail properly stamped and posed limited appearance by the peti- There will be designated to preside at addressed; tioner as one who is not a party for the hearings one or more members of the (3) By telegraph, when deposited with purposes provided in § 2.731. Commission, or an officer or board to a telegraph company properly addressed § 2.707 Consolidation. Upon motion Whom has been delegated final authority and with charges prepaid; and good cause shown or upon its own in the matter with which the hearing Is (4) By publication, when due notice initiative, the Commission may contem- concerned, or a hearing examiner ap-shall have been given in the publication poraneously consider or, consolidate for pointed pursuant to sectfon '11 of the for the time and in the manner provided hearing or for other purposes two or Administrative Procedure Act. To the by statute, rule, or order. more proceedings if it fnds-that such extent practicable, the name of the pre-Service 'by mail or telegraph shall be action will be conducive to the proper siding officer designated will be included made at the, principal place of business dispatch of its business and to the ends in the notice of hearing or, if omitted of the individual or party to be served of justice. from the notice, made known to the or at his usual residence. parties or public as soon as Is possible

§2.708 Hearings, formal and in- thereafter, prior to the holding of the (e) Proof of service of any document formal. Hearings will be either formal may consist of: (1) A certificate describ- or informal. Formal hearings will be hearing..

ing the service by the person mailing, held in cases of adjudication, as that (b) Whenever a presiding officer telegraphing, or making personal service term is used in the Administrative Pro- deems himself disqualified he shall notify of the paper or causing its publication; cedure Act, unless the parties otherwise the Commission and withdraw from the or (2) an. acknowledgment of service agree, and in such other cases as may hearing. Any-party shall have 7 days, signed by the individual receiving service specifically be directed. Informal hear- but not beyond expiration of the hearing personally. unless further extended for good cause ings will normally 'be held foi the pur-' shown, after notice or knowledge of the

§ 2.704 Representation. (a) Except poses of obtaining necessary or useful designation of the presiding officer in as provided in braragraph (b) of this sec- information, and affording participation which to fie a request that the presiding tion, any person appearing before AEC by interested persons, in the formula- officer withdraw on the ground of per-may do so in person or by a representa- tion, amendment, or rescission of rules sonal bias or other disqualification. The tive. Any person transacting business and regulations. requept shall be accompanied by an affi-with AEC in a representative capacity § 2.709 Authority to administer oaths. davit setting forth the facts alleged to may be required to show his authority and affirmations. Any oath or afflima- constitute the ground for disqualifica.

to act in that capacity. tion required by or pursuant to the regu- tion. The presiding officer may file a (b) In a formal hearing, a person may lations in this Chapter may be admin- response thereto. If the presiding offi-appear in person or be represented by an istered by 'any person authorized to cer believes himself not disqualified, he attorney at law in good standing ad- administer oaths for general purposes by may so rule and proceed with the hear-mitted to practice before any court of the laws of the United States, or the laws ing; and In such case, the Commission the United States, the District of Colum- of any state, territory or possession of will determine the matter only as a part bia, or the highest court of any state, the United States, or of the District of of the decision in the'case where excep-territory or possession of the United Columbia, or the Commonwealth of tions are filed to the presiding officer's States. Presiding officers may permit Puerto Rico, wherein-such oath or affir- intermediate decision. The presiding of-qualified individuals having scientific mation is administered, or by any con- ficer may, in his discretion, certify the training or experience to participate on sular officer of the United States. This question to the Commission for consid-behalf of a party in the presentation of section shall not be construed as an eration and disposition, and suspend the evidence. exclusive enumeration of the persons hearing until the Commission has ruled

§ 2.705 Intervention. (a) Any person who may administer such oaths or on the question.

whose interest may be affected by a pro- affirmations. (c) Whenever a presiding officer be-ceeding may file a petition to intervene, comes unavailable in the course of a describing his interest, how it may be INFORIIAL HEARINGS hearing another presiding officer will be affected by AEC action, and' the position § 2.720 Informal hearing procedure. designated. If the presiding officer be-

• he is taking in the matter. Service of. The procedure to be followed in infor- comes unavailable after the taking of copies of the petition shall be made upon mal hearings shall be such as will best evidence at a hearing has been con-all parties to the proceeding. The li- serve the purpose of the hearing. For cluded, In lieu of designating another censee or applicant upon prompt notice example, an informal hearing may con- presiding officer the Commission may and motion, and other parties by leave, "sist of the submission of written data, direct that the, record be forwarded to may contest the right of the petitioner views, or arguments with or without It for decision.

to intervene. oral argument, or may partake of the § 2.733 Powers of presiding officers.

(b) As soon as is practicable after nature of a conference, or may assume Prom the date of his designation in a filing of a petition and the hearing of some of the. aspects of a formal hearing case Until transfer .of the case to the argument, if any, the Commission will in which the subpena of witnesses and Commission, or expiration of the time for issue and serve an order either permit- the production of evidence may be per- filing exceptions to his intermediate do-ting or denying intervention. If the mitted or directed. cisibn, a presiding officer shall have au-order is a denial of intervention, it shall FORMAL- HEARINGS thority in the case to:

contain a statement of the grounds: If (a) Administer oaths and affirma-a petition is filed after a notice of hear- § 2.730 Parties. The parties to a for- tions; I Ing has been issued, the designated pre- mal hearing shall be AEC, the licensee (b) Examine witnesses:

siding officer will act upon the petition. or applicant as the case may be, and any (c) Rule upon offers of proof and re-An order permitting intervention may be, person permitted to intervene pursuant ceive evidence; conditioned upon such terms as the to § 2.705. (d) Issue subpenas authorized by law:

Commission or presiding officer may § 2.731 Limited appearances by per- (e) Take or cause depositions to be direct. sons'not parties. With the consent of taken;

§ 2.706 Effect of intervention or denial the presiding officer, limited appearances (f) Regulate the course of the hear-thereof. (a) A person permitted to in- may be entered without request for or ing; tervene becomes a party to the proceed- grant of permission to intervene by per- (g) Hold appropriate conferences ing. sons who are not parties to a hearing. before or during the hearing; (b) Where a notice of hearing has been With the consent of the presiding officer, (h) Dispose of procedural requests or issued or a hearing has begun, the ad- and on due notice to the parties, such similar matters; HeinOnline -- 21 Fed. Reg. 806 1956

Saturday, February 4, 1956 FEDERAL REGISTER (i) Within his discretion or upon di- answer shall admit or deny specifically nature of the proceeding, and the public rection of the Commission, certify ques- each allegation of fact; or where knowl- interest may permit.

tions to the Commission for its consider- edge is lacking, the answer may so state (b) Action taken at a prehearing con-ation and disposition; and the statement shall operate as a de- ference may be recorded for appropriate (j) Make the intermediate decision nial. Allegations of fact not denied use at the hearing in the form of a in conformitywith § 2.751; shall be deemed to be admitted. Mat- written stipulation among the parties (k) Take any other action consistent ters alleged as affirmalive defenses or reciting the matters upon which there with the rules of the Commission, the positions shall be separately stated and has been agreenient. The stipulatioiz Administrative Procedure Act, and the identified and, in the absence of a reply. shall be binding upon the parties thereto, Atomic Energy Act of 1954. shall be deemed to be controverted. The § 2.741 Amendments. At any time answer of an intervener shall fully ad- prior to the time fixed for hearing but

§ 2.734 Separation of functions. (a) vise AEC and other parties of his posi-Hearing examiners appointed pursuant not later than five days prior, the party tion and whether or not he proposes to responsible for the specification of is.

to section 11 of the Administrative Pro- appear and present evidence.

cedure Act shall perform no duties in- sues, answer, or reply, respectively, may (b) If a party does not oppose any amend the same by filing an amendment consistent with their duties and respon- order or proposed action of AEC em-sibilities as presiding officers, and shall and serving It upon the parties. At any bodied in or accompanying the notice of time thereafter, amendments may be not be responsible to or subject to the hearing or does not wish to appear and supervision or direction of any officer permitted in the discretion of the presid-give evidence at the hearing, the answer Ing officer'upon such terms as he shall or-employe engaged in the performance shall so state. In lieu of appearing, the of investigative or prosecuting functions prescribe.

party may if he chooses submit a state-for AEC. ment of reasons why the proposed order § 2.742 Hearings public. Except as (b) In any case of adjudication may be required pursuant to section 181 or sanction should not be Issued or other than initial licensing, should be different than proposed, and of the act, hearings shall be public.

(1) The presiding officer, unless he is the Commission will attribute such No=: Provislons with respect to parallel a member of the Commission or officer weight as it deems deserving to the writ- procedures pursuant to sectlon 181 of the having final authority in the case, may ten reasons. Act will be published at an early date.

not consult any person or party on any fact in issue except upon notice and § 2.737 Reply. In appropriate cases § 2.743 OfficIaZ reporter, transcript.

opportunity for all parties to participate, AEC may file and serve a reply to the Hearings shall be reported under the su-answer or, if the answer affects other pervision of the presiding officer, steno-save to the extent required for the dis- graphically or by other means, by an, position of ex parte matters as authorized parties to the proceeding, may permit such parties to file and serve a reply. official reporter, who may be designated by law; from time to time by AEC or may be a (2) No officer or employee of AEC, § 2.738 Default. Failure of a party regular employee of AEC. The tran-other thana member of the Commission to file and serve an answer within the script of the report shall be a part of the or officer having final authority in the time provided in the notice of hearing record and the sole official transcript of case, who has engaged in the perform- or as prescribed in this part or to appear the proceeding. Except as limited pur-ance of -any investigative or prosecuting at a hearing, shall be deemed to author- suant to section 181 of the act or order function in the case or a factually re- ize the Commission, in its discretion, as of the Commission, the transcript will be lated case may participate or advise in to such party (a) to find the facts alleged open for inspection at AEC offices and the intermediate or final decision, except in the specification of issues to be true copies may be obtained from the official as witness or counsel in the formal hear- and to enter such finding or order as reporter upon payment of the charges ing. may be appropriate, without further no- fixed therefor. Errors in the transcript

§2.735 Notice of hearing. (a) tice or hearing; or (b) to proceed to take may be corrected by order of the presid-Whenever a hearing is granted, AEC will proof, without further notice, on the Ing officer following a notice of motion give timely notice of the hearing to all allegations or issues set forth in the to correct filed and served on the affected parties and to other persons, if any, specification of issues. parties within 10 days after notice that entitled to notice. Such notice will state § 2.739 Admissions. After answer the completed transcript has been re-the time, place, and nature of the hear- has been filed, any party may file and ceived by AEC, or as otherwise agreed ing' the legal authority and jurisdiction serve upon the opposing side a written upon by the parties and approved by the under which the hearing is to be held; request for the admission of the genuine- presiding officer.

the matters of fact and law asserted or to ness and authenticity of any relevant § 2.744 SubPenas. (a) Upon appli-be considered, which will be identified as documents described in or attached to cation by any party to a hearing, the the "Specification of Issues"; and a re- the request or for the admission of the designated presiding officer or, if he is quest for an answer. The time and place truth of any relevant matters of fact not available, a member of the Cromis-for hearing will be fixed with due regard stated in the request. Each matter for sion or other designated officer will issue for.the convenience and necessity of the which an admission is requested shall to such party subpenas requiring the parties or their representatives. be deemed admitted unless within the attendance and testimony of witnesses (b) The notice of hearing may be a time designated In the request, but not or the production of evidence in the separate notice or when appropriate'may less than 10 days after service thereof hearing. In his discretion, the officer to be embodied in an order to show cause or or such further time as the presiding whom application is made may require other-'order. officer may allow upon motion and no- from the requesting party a showing of (c) The procedure for issuance of the tice, the party to whom the request is general relevance of the testimony or notice of hearing and specifying of the directed serves upon the requesting party evidence sought and may withhold is-issues by AEC shall not affect the burden a sworn statement either denying the suance of the subpena if such showing of proof. matters upon which the admission Is Is not made; but such officer shall not

§ 2.736 Answer. (a) Within the time requested or setting up the reasons why attempt to determine the admissibility allowed by the notice of hearing for he cannot truthfully admit or deny such of evidence in passing upon an appli-filing and serving an answer, and as matters. cation for subpena.

required, the answer of a licensee or § 2.740 Prehearingconferences. (a) (b) Every subpena shall bear the applicant. shall fully advise AEC and In order to provide opportunity for the name of the Commission, the name and any other parties as to the nature of the settlement of a proceeding or any of the office of the issuing officer, and the title of the hearing, and shall command the defense or othr position of the answer- issues therein, or for agreement upon person to whom it is directed to attend ing party, the items of the specification procedural and other matters, there may and give testimony or produce specified of issues he proposes to controvert and be held at any time prior to or during, data at a designated time and place.

those he does not controvert, and a hearing, upon due notice of the time The subpena shall also contain a state-whether or not he proposes to appear and place given to all parties, such con- ment advising of the existence of the and present evidence. If facts are al- ferences of the parties as, in the dis- quashing procedure provided in para-leged in the specification of issues the cretion of the presiding officer, time, the graph (f) of this section.

HeinOnline -- 21 Fed. Reg. 807 1956

RULES AND REGULATIONS (c) Unless the service of a subpena is authorized t administer oaths by the a'nd unless received in evidence by the acknowledged on its face by the witness, laws of the United States or of the place presiding officer, upon his own motion or it shall be served by a person who is not where the examination is held. Outside the motion of any party. If only part of a party to the hearing and is not less the United States, depositions shall be a deposition Is offered In evidence by a than 18 years of age but may in any taken before a secretary of an embassy party, any other party may require him case be served by an officer or employee or legation, consul general, vice consul, to introduce all of It which Is relevant of AEC. Service of a subpena upon a or consular agent of the United States, to the part Introduced, and any party person named therein shall be made by or a person authorized to administer may introduce any other parts. A party delivering a copy of the subpena to such oaths designated by AEC or agreed upon shall not be deemed to make a person person and by tendering him the fees by the parties by stipulation in writing his own witness for any purpose by tak-for one day's attendance and the mile- filed with AEC. ing his deposition. Any party may re-age allowed by law. When the subpena (d) Unless the order provides other- but any relevant evidence contained in Is issued on behalf of AEC, fees and wise, the deponent may be examined re- a deposition whether Introduced by him mileage may but need not be tendered, garding any matter not privileged, which or by any other party.

and the subpena may be served by is relevant to the subject matter involved (h) Deponents whose depositions are registered mail. in the hearing. He shall be sworn 'or taken and the officers taking depositions (d) Witnesses summoned before AEC shall affirm before any questions are put shall be entitled to the same fees as are shall be paid by the party, at whose in-, to him. Examination and cross-exam- paid for like services In the district stance they appear the same fees and ination shall proceed as at a hearing. courts of the United States to be paid by mileage that are paid to -witnesses in the Each question propbunded shall be re- the party at whose instance the deposi-district courts of the United States. corded and the answer taken down in the tions are taken.

(e) The person serving the subpena words of the witness. Objections on shall make proof of service by filing the questions of evidence shall be noted in § 2.746 Order of procedure. The pre-subpena and the required return, affi- short form without the arguments. siding officer or the Commission, as the davit, or acknowledgment of service Ho*ever, the officer shall not decide on case may be, will designate the order of with the officer before whom the witness the competency, materiality, or rele- 15rocedure at hearings including the or-is required to testify or produce evidence vancy of evidence but shall record the der In which interveners will be heard, or with AEC. Failure to make proof of evidence -subject to objection. Objec- Normally, at hebrings for the grant, service shall not affect the validity of tions to questions or evidence not made amendment or transfer of a license or the service. before the officer shall not be deemed -construction permit or the renewal of a (f) Upon motion made promptly, and waived unless the ground of the objec- license, the, applicant will open and In any event at or before the time speci- tion is one which might have been ob- close; and at hearings for the revoca-fled in the subpena for compliance, by viated or removed if presented at that tion,, suspension, or AEC initiated modi-the person to whom the subpena is time. fication of a license or construction per-directed, and' upon notice to the party (e) When the testimony Is fully tran- mit, AEC will open'and close.

§ 2.747 Evidence. (a) Every to whom the subpena was issued, the scribed, the deposition shall be sub- party to presiding officer or, if he is unavailable, mitted to the deponent for examination the hearing shall have the right to pro-the Commission may (1) quash or modify and signed by him, unless he is ill or sent such oral or documentary evidence the subpena if it is unreasonable or re- cannot be found or refuses to sign. The and rebuttal evidence and conduct such quires evidence not, relevant to any officer shall certify to the deposition, and cross-examination as may be required matter in issue, or (2) condition denial if not signed by the deponent shall cer- for a full and true disclosure of the facts, of the motion upon just and reasonable tify to the reasons therefor, and shall The parties shall be encouraged to pro-terms. promptly forward the deposition by reg- sent evidence in written form.

(g) Upon application and for good istered mail to AEC., The party taking (b) The presiding officer shall exclude cause shown, AEC will seek judicial en- the 'deposition shall give prompt notice all Irrelevant, Immaterial, or unduly forcement of a subpena issued to a party of its filing to all- other parties. repetitious evidence.

and which has not been quashed. (f) Where the deposition is to be (c) Objections to the admission or ex-

§ 2.745 .'Depositions. (a) Upon appli- taken upon written interrogatories, the clusion of evidence bhall state the cation and good cause shown, the desig- party proposing the deposition shall grounds of objections. The transcript nated presiding officer or, if he is serve upon each of the parties and file shall include the objections, the grotinds, unavailable, the Commission may order a copy of the proposed' interrogation and the rulings, but not the argument of that the testimony, of any person, n- showing each interrogatory separately the grounds unless ordered by the pro-cluding a party, be taken by deposition and consecutively numbered, the name siding officer.

upon oral examination or written inter- and address of the person who is to an- (d) Any offer of proof made in con-rogatories for, use as evidence -in the swer them, and the name, descriptive- nection with an objection taken to the hearing. The attendance of witnesses title, and address of the officer before ruling of the presiding officer, excluding may be compelled by the use of a subpena. whom they are to be taken. Within 7 or rejecting proffered oral testimony, (b) The application shall be in writ- days after service any party may serve shall consist of a statement of the sub-ing and shall be servedupon the parties cross-interrogatories upon the party stance of the evidence which the party and filed, giving reasonable notice of the proposing to take the deposition. Ob- 'contends would be adduced by such tes-proposed time and place for taking the jections to interrogatories or cross- timony. If the excluded material is deposition, the name and address of each interrogatories shall be made promptly documentary or written, a copy of such person to be examined, if known, or if after service and will be settled by the material shall be marked for Identifica-the name is not known a general de- presiding officer or the Commission; as tion and shall constitute the offer of scription sufficient to identify him or the the case may be; provided that objec- proof.

class or group to which he belohgs, and tions to form, unless made before the (e) Unless the presiding officer per-the reasons why such deposition should order for taking the .deposition is issued, mits otherwise, written exhibits will not be taken. If good cause is shown, an shall be deemed waived. Except as the be redelved in evidence unless offered In order will be issued authorizing the dep- parties otherwise agree, .the deposition duplicate. In addition; a copy of each osition, and specifying the time, place, upon written interrogatories shall be such exhibit must be furnished each of and manner of taking of the deposition, taken only with the deponent, the offi- the parties at the hearing, unless the any limitations imposed for the benefit cer, and the reporter or stenographer parties have previously been furnished of witnesses or parties, and the number present during the interrogation, to with copies or the presiding officer directs of copies of the deposition to be supplied. which fact the officer shall certify. The otherwise. The presiding officer shall fix The order shall be served upon all parties interrogatories, cross - interrogatories, a time for the exchange of exhibits. The by the person proposing to take the dep- and the answers shall be recorded and presiding officer may permit a party to osition a reasonable period in advanice of signed, and the deposition certified, re- replace with a true copy an original doc-the time fixed for taking testimony. turned, and filed as in the case of a ument admitted as evidence.

- (c) Within the United States, depo- deposition upon oral examination. (f) An official record of a govern-(g) A deposition will not become a mental agency or an entry in such rec-sitions shall be taken-before any officer part of the record in the hearing until ord, when admissible, may be evidenced HeinOnline -- 21 Fed. Reg. 808 1956

Saturday, February 4, 1956 FEDERAL REGISTER by an official publication thereof or by a (3) Omit an Intermedlatp decision atlon only to those findings and conclu-copy attested as a true copy by the officer upon a finding on the record that due and slons to which exceptions have been filed.

having legal custody ofthe record, or by timely execution of the Commission's (b) The final decision shallbe inwrit-his deputy, and accompanied by a cer- functions imperatively and unavoidably ing and shall contain:

tificate that such officer has the custody. so requires. (1) A statement of findings and con-(c) Each intermediate decision shall cluslons, with the reasons or basis there-

§2.748 Interlocutory appeals to the be in writing and shall contain: for, upon all the material Issues of fact, Commission from rulings of presiding Cl) Findings and conclusions, with the law, or discretion presented; officers. Except as may be otherwise reasons or basis therefor upon all mate- (2) All facts officially noticed pursu-specifically provided, the rulings of a rial issues of fact, law, or discretion pre- ant to § 2.750. relied upon in this deci-presiding officer may not be appealed sented on the record; sion; from during the time the proceeding is (2) The ruling upon each proposed (3) The ruling on each relevant and pending.before him, except in extraordi- finding or conclusion filed by a party; material exception filed; nary circumstances where in the judg- (3) All facts officially noticed pursu- (4) The appropriate rule, order, sanc-ment of the presiding officer prompt de- ant to § 2.750, relied upon in the de- tion, relief, or denial thereof, with the cision by the Commission is necessary to cision; effective date.

prevent detriment to the public interest (4) The appropriate rule, order, sanc- (c) The decision shall be served upon or unusual delay or expense. In such tion, relief, or denial thereof, with the all parties to the proceeding.

instances the matter' shall be referred effective date; § 2.755 Waiver of proceduresor inter-for determination forthwith by the pre- (5) The time within which exceptions mediate decisions. The parties to any siding officer to the Commission. to the decision may be filed, the time hearing may agree to waive any one or

§ 2.749 Proposed findings and con- in which briefs in support of or In opposl- more of the procedural steps or inter-clusions. At the close of the reception tion to the exceptions may be filed and, mediate decisions which would other-of evidence, or within a reasonable time in the case of an intermediate decision wise precede the reaching of a final thereafter as fixed by the presiding offl- which may become final unless excep- decision by the Commission.

cer, the parties may file for considera- tions are filed, the date when such decision will become final in the absence § 2.756 Petition for reconsideration.

tion proposed findings and conclusions A petition for reconsideration of a final

'with supporting reasons, briefs, or mem- of exceptions thereto.

oranda of law. Such proposals shall con- (d) The intermediate decision, other decision after hearing may be filed by tain exact references to the record and. than an oral decision, shall be served any party to the hearing, within 10 days authorities relied on. upon all parties to the proceeding. In after the decision has been issued and the case of an oral decision, the presiding served. However, no petition may be

§ 2.750 Official notice. (a) With or officer shall apprise the parties before Its filed with respect to an intermediate de-without prior request or notice, the pre- pronouncement of his intention, and the cision which has become final through siding officer or the Commission, as the time when he proposes, to render an oral failure to file exceptions thereto. The

• case.may be, may take official notice of decision. petition for reconsideration shall state any fact which might be judicially no- (e) Intermediate decisions shall be- specifically wherein the matter deter-ticed by thd courts of the United States come a part of the record. mined is claimed to be erroneous, the or of any technical and scientific fact grounds relied upon, and the relief within the knowledge of AEC as an ex- § 2.752 Exceptionsto intermediatede- sought. Within 7 days after a petition pert body. cisions. Within 20 days after service of for reconsideration has been filed, any (b) Any party may controvert a re- any intermediate decision, or such longer party to the hearing may file an answer quest or a suggestion that official notice period as may be fixed therein, any party in opposition to or support of the peti-be taken of a fact at the time the request to a hearing may file exceptions to the tion. Neither the filing nor the granting or suggestion is made, if it be made decision with the Commission, and shall of the petition shall'operate as a stay of orally, or by a pleading, brief, or notice. serve copies of such exceptions on all the decision unless so ordered by the If any decision is stated to rest in whole other parties to the hearing. Each ex- commission.

or in part upon official notice of a fact ception shall be separately numbered, shall identify the part of the intermedi- PUBLIC RULE MA=ZNG which the parties have not had a prior, opportunity to controvert, anyparty may ate decision to which objection is made, § 2.780 Scope of rule making. The controvert such fact by appropriate ex- shall designate by specific reference the procedure described in this subpart as ception if an intermediate decision is portions of the record relied upon in sup- rule making or public rule making re-involved or by a petition for reconsidera- port of the objections, and shall state lates to the issuance, amendment, or re-tion if a final decision is involved. The the grounds for the exception including scission of substantive rules in which controversion shall concisely and clearly the citation of authorities in support participation by interested persons is set forth the sources, authority, and thereof. Any objection to a ruling, find- prescribed under section 4 of the Admin-other data relied upon to show the exist- ing, or conclusion which Is not made istrative Procedure Act.

ence or nonexistence of the fact assumed part of the exceptions shall be deemed § 2.781 Initiation, Petition. Rule or denied in the decision. to have been waived, and the Commis-sion need not consider such objections. making will be initiated by AEC, upon

§ 2.751 Intermediate decisions and its own motion, upon the recbmmenda-their effect. (a) After hearing, the pre- I§ 2.753 Briefs and oral argumentsbe- tion of another agency of the govern-siding officer will ordinarily render an fore the Commission. (a) Within such ment, or upon the petition of any other intermediate decision, which decision period after service of an Intermediate interested person as he2inafter pro-6hall become final unless exceptions are decision as may be fixed therein, any vided.

taken in accordance with § 2.752 or the party to a proceeding may file a brief § 2.782 Petition for rule making. Any Commission has directed that the record before the Commission in support of his be certified to it for final decision. exceptions to the decision or in opposi- interested person may petition the Com-(b) However, in any case involving an tion to the exceptions filed by any other mission to Issue, amend, or rescind any rule or regulation of the Commission application for an initial license the party.

within the score of § 2.780. The petition Commission may direct that the presid- (b) In its discretion the Commission shall state the substance or text of any ing officer certify the record to it with- may allow oral argument upon the re-proposed rule or regulation, or amend-out an intermediate decision. In such quest of a party made in his exceptions ment thereof, or shall specify the rule or case the Commission may: or brief, or upon Its own initiative.

regulation the rescission of which is de-.

(1) Direct a responsible officer to pre- § 2.754 Final decision. (a) Upon sub- sired, and shall state the basis for the pare an intermediate decision which will mission of a case to the Commission for request. The petition will be given a not become final until the Commission final decision, the Commission will nor- docket or other Identifying number and acts upon it; or (2) Prepare 'its own intermediate mally consider the whole record. But will become a matter of public record.

decision, which shall become final unless when reviewing an intermediate deci- except as may otherwise be required exceptions are taken in accordance with sion, the Commission may limit the pursuant to section 181 of the act or

§ 2.752; or issues to be reviewed, and give consider- order of the Commission.

HeinOnline -- 21 Fed. Reg. 809 1956

RULES AND REGULATIONS PERMITS

§ 2.783 Determinationof petition. No matters of official record in any proceed- Sec.

hearing will be held directly on the peti- ing subject to this part (including ap- 25.21 Issuance.

tion unless the Commission deems it ad- plichtions for licenses, licenses, rules, 25.22 Scope of permit.

visable. If the Commission determines regulations, orders, transcripts of hear- 25.23 Terms and conditions of access.

that the petition discloses sufficient ings, exhibits received in evidence, and 25.24 Administration.

reasons to justify the relief requested; 'decisions) will be made available for 25.25 Term and renewal.

the Commission will issue an appropriate public inspection. 25.26 Assignment.

notice of proposed rule making. If the (b) The AEC may withhold any docu- 25.27 Amendment.

25.28 Commission action on application to Commission.determines that the petition :ment or part thereof from public in-- renew or amend.

does not disclose sufficient- reasons to spection if disclosure of its contents is" 25.29 Modification and revocation of per-justify instituting the public rule making not required in the public interest and mts.

procedure, the Commission will so notify would adversely affect the interest of a 25.30 Exceptions and additional require-the petitioner with a' simple statement of person concerned. Such withholding ments.

the grounds. from public inspection shall not, how- 25.31 Effective date; amendment of permits affect the right of persons-properly previously Issued.

§ 2.784 Notice of proposed rule mak- ever, and directly concerned to inspect the ing. A general notice of proposed rule document. AuToniTY: H 25.1 to 25,31 Issued under making will be published in the FEDERAL sec. 161, 68 Stat. 948; 42 U. S O, 2201, (c) Persons requesting that docu-REGISTER unless all perslns subject to the ments or information therein be with- GENERAL PROVISIONS proposed rule making are named and held from public disclosure shall make either personally served with notice or prompt application identifying the ma- § 25.1 Purpose. The regulations In otherwise have actual notice in accord- terial and giving the reasons. Where this part establish procedures and ance with law. The notice, whether th6 applicant is responsible for the prep- criteria for permitting persons to have published or personally served, shall in- aration of the document, he shall in- access to Confidential or Secret Re-clude: (a) A statement of the time, place, sofar as is possible segregate in a stricted Data relating to civilian uses of and nature of the public rule making separate paper the information for atomic energy.

hearing; (b) reference to the authority which the special treatment is requested. § 25.2 Applicability. The regulations under which the rule is proposed; (c) The AEC may honor the request upon a in this part apply to any person within either the terms or substance of the pro- finding that public inspection is not re- or under the jurisdiction of the United posed rule or a description of the sub- quired in the public interest and would States who desires access to Restricted jedts and issues involved. The publica- adversely affect the interest of the person Data for use In his business, profession tion or service of notice shall be made concerned. If the request is denied, the or trade.

not less than 15 days prior to the time. applicant will be notified thereof with a fixed for the hearing, provided that a statement of the reasons. § 25.3 Definitions. As used In this lesser time may be prescribed upon good part:

cause found and incorporated, with a Dated at Washington, D. C., this 31st -(a) "Act" means "the Atomic Energy brief statement of the reasons, in the day of January 1956. Act of 1954 (68 Stat. 919), including any notice. amendments thereto.

K. E."FxxLnS, (b) "Category" means a category of

§ 2.785 Participation.by interested General Manager. Restricted Data designated In Appendix persons. After notice required . by [F. R. Dc.56-908; Filed, Feb. 3. 1956; A to the regulations in this part.

§ 2.784, the Commission will, afford in- 8:48 a. m.l (c) "Commission" means the Atomic terested persons an opportunity to par- Energy Commission or Its duly author-ticipate in the rule making through the ized representatives.

• submission of data, views, or arguments (d) "Permittee" means the holder of in such informal, hearing, pursuant to

§ 2.720, as the notice provides. The 1PART 25--AcqEss TO RESTRICTED DATA a permit issued pursuant to the regula-opportunity to participate may include tions in this part.

In view of the fact that'the Atomic (e) "Person" means (1) any individ-an opportunity to comment upon or Energy Commission has received a sub-respond to the data, views," or argu- stantial number of applications and has ual, corporation, partnership, firm, as-ments submitted by others. Where ad- issued a substantial number of access sociation, trust, estate, public or private ditional time may be needed for this permits in accordance-with procedures institution, group, Government agency purpose the Commission may, upon the set forth in the notice of proposed rule other than the Commission, any state requbst of an interested person, grant making published in the FEDERAL REGIS- or any political subdivision of, or any an additional reasonable period of time TER on May 19, 1955 (20 F. R. 3634), and, political entity within a state, or ether for the submission of data, 'views, or because interested persons will not be entity; and (2) any legal successor, rep-arguments in reply. adversely affected, the Commission has resentative, agent, or agency of the foregoing.

§ 2.786 Commission action. After found that good cause exists why the (f) "Restricted Data" means all data consideration' of all relevant matters regulations in this part should be made concerning (1) design, manufacture or presented, the Commission will incor- effective without the customary 30-day utilization, of atomic weapons; (2) tile porate in any, rule adopted a concise 'period of notice. production of special nuclear material:

general statement of its basis and pur- Pursuant to the Administrative Pro-or (3) the use of special nuclear mate-pose and will cause the rule to be pub- cedure Act, Public Law 404, 79th Cong., rial in the production of energy, but shall lished in the FEDERAL REGISTER or served 2d sess., the following rules are published not include data declassified or removed upon the affected parties. . is a document subject to codification, to be effective upon publication in the from the Restricted Data category pur-

§ 2.787 Effective dates. The rule.will FEDERAL REGISTER. suant to section 142 of the act.

specify its effective date. Publication § 25.4 Interpretations. Except as or service of the rule, other than one Sec. oENERAL PROVISIONS specifically authorized by the Commis-granting or recognizing exemption or re- 25.1 Purpose. sion in writing, no interpr6tation of the lieving restriction, shall be made not 25.2 Applicability. meaning of the regulations in this part less than 30 days prior to the effective 25.3 Definitions. by any officer or employee of the Com-date thereof unless the Commission may 25.4 Interpretations. mission other than a written interpreta-provide otherwise upon good cause found 25.5 Communications. tion by the General Counsel will be rec-and published with the rule. 25.6 "Categories of available information. ognized to be binding upon the Commis-AVAILABILITY OF OFFICIAL RECORDS APPLICATIONS sion. -

25.11 Applications. § 25.5 Communications., All com-

§ 2.790 Public inspection, exceptions, 25.12 Non-eligibility.

requests for withholding. (a) Except 25.13 Additional information.

'municatlons concerning the regulations as provided in paragraph (b) of this 25.14 Public inspection of applications. in this part, and applications filed under section or 'as required to protect Re- 25.15 nequirements for approval of appli- them, should be addressed to the Atomic stricted Data or defense information, cations. Energy Commission, 1901 Constitution HeinOnline -- 21 Fed. Reg. 810 1956

Saturday, February4, 1956 FEDERAL REGISTER Avenue NW., Washington 25, D. C.. At- (8) PrIncipallocation(s) at which Re- Data in all of the categories set forth in tention: Division of Civilian Application. stricted Data will be used. Appendix A.

§ 25.6 Categories of available infor- (c) Each application shall contain (b In addition, access permits may mation. For administrative purposes complete and accurate disclosure with authorize access, subJect to personnel the Commission has categorized Re- respect to the real party or parties in security clearances, to such Secret Re-stricted Data which will be made avail- interest and as to all other matters and stricted Data as is included within the able -to permittees into a number of things required to be disclosed. particular category or categories speci-major categories as set forth in Appen- § 25.12 Non-eligibility. The follow- fled in the permit.

dix A to this part. Information pertain- ing persons are not eligible to apply for § 25.23 Terms and conditions of ac-ing to the design, manufacture or utili- an access permit: cess. (a) Neither the United States, zation of atomic weapons is not included (a) Corporations not organized under* nor the Commission, nor any person act-in these categories and will not be made the laws of the United States or a politi- ing on behalf of the Commission makes available under this part. Cal subdivision thereof. any warranty or other representation, APPLICATIONS (b) Any individual who is not a citizen express or implied, (1) with respect to of the United States. the accuracy, completeness or usefulness

§ 25.11" Applications. (a) Any person (c) Any partnership not including . of any information made available pur-desiring access to Confidential or Secret among the partners one or more citizens suant to an access permit, or (2) that; Restricted Data pursuant to these regula- of the United States; or any other unin- the use of any such Information may tions should submit an application (Form corporated association not including one not infringe privately owned rights.

AEC 378) for an access permit to the or more citizens of the United States (b) The Commission hereby waives Atomic Energy Commission, 1901 Con- among Its principal officers. such rights with respect to any invention stitution Avenue NW., Washington 25, (d) Any organization which is owned, or discovery as it may have pursuant to D. C., Attention: Division of Civilian controlled or dominated by the Govern- section 152 of the act by reason of such Application. ment of, a citizen of, or an organization invention or discovery having been made NoTE: Where an individual desires access organized under the laws or a country or conceived in the course of, in connec-to Restricted Data for use in'the performance or area listed as a Subgroup A country tion with, or resulting from access to of his duties as an employee, the application or destination in § 371.3 (15 CFR 371.3) Restricted Data received under the terms for an access permit should be fied by his of the Comprehensive Export Schedule of of an access permit.

employer. the United States Department of Com- (c) Each permIttee shall:

(b) Each application should contain merce. (1) Comply with all applicable pro-the following infgriLation: § 25.13 Additional information. The visions of the Atomic Energy Act of 1954 (1) Name of applicant; Commission may, at any time after the and with Part 95 of this chapter and (2) Address of applicant; filing of the original application and with all other applicable rules, regu-(3) Description of business or occupa- before the termination of the permit, lations and orders of the Commission; tion of applicant; require additional information In order (2) Be deemed to have waived all (4) (i) If applicant is an individual, to enable the Commission to determine claims for damages under section 183 of state citizenship. whether the permit should be granted title 35 U. S. Code by reason of the im-(ii) If applicant is a partnership, state or denied or whether it should be modi- position of any secrecy order on any name, citizenship and address of each fied or revoked. patent application, and all claims for partner and the principal location where Just compensation under section 173 of the partnership does business. § 25.14 Public inspection of applica- the Atomic Energy Act of 1954, with re-(iii) If applicant is a corporation or tions. Applications and documents sub- spect to any Invention or discovery made an unincorporated association, state: mitted to the Commission In connection or conceived in the course of, in con-(a) The state where it is incorporated with applications may be made available nection with, or under the terms of the or organized and the principal location for public inspection In accordance with access permit; where it does business; the regulations contained in Part 2 of (3) Be deemed to havewaved any and (b) The names, addresses and citizen- this chapter. all claims against the United States, the ship of its directors and of its principal § 25.15 Requirements for approval of Cbmmsslon and all persons acting on officers; applications. (a) An application for ac- behalf of the Commission that might (c) Whether it is owned, controlled or cess to Confidential Restricted Data In arise in connection with the use, by the dominated by an alien, a foreign corpora- all the categories set forth in Appendix applicant, of any and all information tion, or foreign government, and if so, A, will be approved only if the applica- supplied by them pursuant to the access give details. tion demonstrates that the applicant has permit; (iv) If the applicant is acting as agent a potential use or application for such (4) Shall obtain and preserve in his or representative of another person in data in his business, trade or profession. files written agreements from all in-filing the application, identify the prln- (b) An application for access to dividuals who will have access to Re-cipal and furnish information required Secret Restricted Data in any of the stricted Data under the access permit to under this subparagraph with respect to categories will be approved only if the give effect to subparagraphs (2) and (3) such principal; application demonstrates that the ap- of this paragraph.

(5) Total number of full-time em- plicant has a need for such data In his ployees; § 25.24 Administration. 'With respect business, trade or profession. Such need to each permit issued pursuant to the (6) Classification of Restricted Data must be demonstrated as to each of the regulations in this part, the Commission (Confidential or Secret) to which access categories to which such access is will designate an offilce, usually an op-is requested; requested.

(7) Potential use of the Restricted erations Omce to:

PER11IS (a) Process all personnel security Data in the applicant's business, pro-

-fession or trade. If acc~ss to Secret § 25.21 Issuance. (a) Upon a deter- clearances requested in connection with Restricted Data is requested, list the mination that an application meets the the permit; specific categories by number and fur- requirements of this regulation, the (b) Review the procedures submitted nish detailed reasons why such access Commission will issue to the applicant by the Applicant, in accordance with within the'specified-categories is needed an access permit on Form AEC 379. Part 95 of this chapter, for the safe-by the applicant. The need for Secret guarding of Restricted Data; and NOTE: An Access Permit Is not a zecurity information should be stated by describ- clearance. It does not authorize any Indi- (c) Provide information to the per-ing its proposed use in specific research, vidual not having an appropriate AhEc se- mittee with respect to the sources and design, planning, construction, manufac- curity clearance to receive Restrlcted Data. locations of Restricted Data available turing, or operating projects; in activi- See 525.24 and Part 95 of this chapter. under his permit.

ties under licenses issued by the Commis- § 25.22- Scope of permit. (a) All ac- § 25.25 Term and renewaL (a) Each sion;, in studies or evaluations planned cess permits will as a minimum, author- access permit will be Issued for a two or underway; or in work or services to be ize access, subject to personnel security year term, unless otherwise stated in the performed for other organizations. clearances, to Confidential Restricted permit, HeinOnline -- 21 Fed. Reg. 811 1956

RULES AND REGULATIONS (b) Applications for renewal of' an APPENDIX A allowable concentrations, clinical tests and access permit shall be on Application criteria of injury, industrial diseases, pro-CATEGORIES OP RESTRICTED DATA AVAILABLE (In- tective measures and safety procedures, per-Form AEC 378. In any case in which a CLUDING SCOPE NOTES FOR EACA CATEGORY) sonnel decontamination, and therapeutic permittee has filed a properly completed measures with respect both to radioaotivo application for renewal more than thirty C-4 Chemistry; general. This category includes such information as the relatively and other toxic agents.

(30) days prior to the expiration of his unspecialized and fundamental chemistry of C-22 Isotope separation. This category existing permit, such existing permit elements and their compounds through ele- ncludes information on:

. 1. Any method (except gaseous diffusion) shall not expire until the application for ment 92. It includes such information as a renewal has been finally acted upon the following: of separating one or more isotopes of an by the Commission. 1. Chemical properties, reactions, and cor- element from a mixture of isotopes of that rosion studies. element.

§ 25.26 Assignment. An access permit 2. Laboratory scale preparations and puri- 2. Design, construction, and operation of Is non-transferable and non-assignable. fication. the electromagnetic separation process.

3. Physical chemistry including chemical 3. Production and isolation of stable

§ 25.27 Amendment. An access per- thermodynamics, chemical kinetics, and isotopes.

mit may be amended from time to time crystal structure. 4. Special methods such as those for the upon application by the permittee. An 4. Analytical methods, including 'mass separation of boron and hydrogen isotopes.

application for amendment shall be filed spectroscopy. See also categories C-28 and 0-34.

in accordance with § 25.11 and shall 5. General chemical engineering theory, C-37 Instrumentation, This category In-specify the nature of and the grounds for design, construction, and/or testing of lab- cludes information primarily relating to the oratories and equipment of interest to design, development, construction, testing, the amendment, requested. chemists and chemical engineers. or evaluation of instruments of all types,

§ 25.28 Commission action on appli- See also categories C-7, C-10, C-16, 0-55 In general the only classified information in cation to renew or amend. In consider- for'specialized applications. this category is that which describes classi-C-7 Chemistry; radiationand radiochem- fied applications.

ing an application by a permittee to C-25 Metallurgy and ceramics, This istry. This category includes information renew or amend his permit, the Commis- on: category Includes information on:

sion will apply the criteria set forth in 1. The chemical effects of radiation on 1. Metallurgy, including reduction to 25.15. .. . matter. metal, of non-fissionable substances, tho-

2. rhe production of radioisotopes. rium, uranium 233, and all Isotopic mixtures

§ 25.29 Modification and revocation 3. The chemical Isolation and purification ,ofuranium 235 and uranium 238, of permits. The Commission "may're- of radioisotopes and their compounds. 2. Ceramics and refractories which do not voke, suspend or modify any access per- 4. The chemistry of radioactive ,,sub- directly or exclusively pertain to plutonium mit for any material false statement in stances, including fission products. technology. (See category 0-55.)

the application or in any report sub- 5. The prpparation of labeled compounds. 3. Corrosion studies on uranium metal, mitted to the Commission pursuant to 6. Tracer chemistry. alloys, and reactor elements.

the regulations in this part or because 7. Effect of radiation on chemical reac- 4. Design and methods of manufacture, tions. See also categories C-4, C-10, and coating, canning, and testing uranium re-of conditions or facts which would have actor fuel elements, including those for pro-C-16.

warranted a refusal to grant the permit C-10 Chemistry; separation processes for duction reactors.

in the first instance, or for violation of plutonium and uranium. This category in- 5. Laboratory-scale electrolytic deposition any of the terms and conditions of the cludes information on: of high-purity uranium.

Atomic Energy Act of 1954 or Commis- . 1. The chemistry and chemical engineer- 6. Laboratory-scale pyrometallurgical stu-sion rules, regulations or orders issued ing of processes for the separation, decon- dies toward separation of uranium and fission pursuant thereto. tamination, and processing of plutonium products.

and uranium from materials or solutions See also category G-40.

§ 25.30 Exceptions'and additionaZ re- containing real or simulated fission prod- C-26 Metallurgy; raw materials. ThiM quirements. Notwithstanding any other ucts. category includes informaxtion on:

2. The separation of U-233 from Irradi-. 1.. Uranium, thorium, zirconium, beryllium provision _in the regulations in this part, ore and ffineral beneflclatlon.

ated thorium, Including the decontamina-the Commission may deny an application tion and purification of the U-233 and 2. Design, development, and equipment for an access permit of suspend, modify irradiated thorium. relating to raw materials technology, or revoke any access permit, or incor- .3. Development work, chemical engineer- 3. Analytical procedures pertaining to ore porate additional conditions or require- Ing problems, and pilot plant rune pei- beneficlatlon.

taining to the program 'of recovery of 4. Chemical research directed toward the ments In any access permit, upon finding uranium from Hanford and Oak Ridge solution of raw materials processing prob-that such denial, revocation- or the in- National Laboratory process solutions re- lems.

corporation of such conditions and limi- niianing after plutonium removal. 5. Pilot plant, semi-works, or larger scale tations is necessary or appropriate in the See also categories-C--25, C-47, C-55, C-68 process design and flow shoots for beneflela-interest of the common defense and and 0-78. tion and concentration.

C-28 Particle acceleratorsand high volt-C-16 Chemistry; transuranic elements.

security. This category includes information on: age machines. This category includes infor-The chemistry of the transuranic ele- mation on the design, development, construc-

§ 25.31 Effective date; -amendmentof tion, and operation of high-voltage machines ments and their compounds.

permits previously issued. (a) The C-21 Controlled thermonuclear processes. and particle accelerators, including Van do regulations in this part are effective upon This category includes information on the Graaff generators, linear accelerators, cyclo-publication in the FDERAL REGISTER. theory, design, development, and operation of trons, synchrotrons, bevatrons, X-ray ma-(b) Each access permit heretofore is- experiments relating to the controlled release chines, etc.

of energy from thermonuclear reactions. In- C-34 Physics and mathematics, This sued by the Commission shall be deemed formation relating to thermonuclear weapons category is intended to cover basic physics to have been amended, effective upon Is specifically excluded. and mathematics and includes, but Is not publicati6n of this part in the FEDERAL C-46 Criticality hazards. This category limited to, the following:

includes information on: 1. Nuclear characteristics of all elements, REGISTER, by deleting those provisions of 2. General theory of neutron diffusion and the permit, and of the application there- 1. Critical mass experiments.

2. Safety precautions In conducting criti- fundamental reactor theory, for, which grant to the Commission for cal mass experiments. 3. Basic theory of shielding design and governmental purposes a license in, and 3. Safe processing and storage of speclal construction problems.

which require the permit holder to re- nuclear materials. 4. Mathematical theory and methods.

This category does not include informa- 5. Mechanics, sound, and shock.

port to the Commission, any invention 6. General hea't-transfor and fluid-flow tion on reactor hazards or critical experi-or discovery resulting from access to ments in support of reactor design (see cate- studies.

Secret Restricted Data under the access gories 0-42, C-80, and C-81). 7. Basic theory of thermal diffusion, gase-Permit. ous diffusion, and electromagnetic methods S-41 Health and safety. This category of Isotope separation.

NOTE: The reporting requirements con-- includes information on biological and med- 8. High-voltage break-down in Vacutum, tained herein have been approved by the Ical studies applicable directly to the health Insulation in vacuum, etc.

Bureau of the Budget in accordance with and safety of personnel, Including such 9. Experimental data on ion cross sections the Federal Reports Act of 1942. 'topics as toxicities, tolerance and maximal for electrons, ions, secondary omisisons, eto, HeinOnline -- 21 Fed. Reg. 812 1956

Saturday, February 4, 1956 FEDERAL REGISTER 813

10. The general phenomena of discharges 2. Information concerning reactors for re- ton and technology of present or proposed in magnetic fields. search or testing purposes. Savannah River processes and reactors which

,C-40 Radiation effects on reactor mate- 3. Theory, design, and construction of pro- 15 not included In categories 0-25, c-42 and rials. This category includes information ot duction reactors. C-10 because it reveals operating levels, rates, the effects of radiation on reactor compo- 4. Critical mass experiments or other phys- and other production data.

nents, for example: Wigner effect, blisterings, ics data not related to specific power reactor 0-70 Fuel element technology. (See etc., and reports on the effects of radiation design. category C-25.)

on plastics, lubricants, etc. C-47 Technozlogy; feed materials. Thia C-77 Reactor technology. (See category See also category C-7 category includes information on: 0-42.)

C-42 Reactors;production. This category 1. Chemical research and development di- C-78 Separations process technology.

includes information on: rected toward large-scale production of in- (See category C-10.)

1. Theory, design, construction and opera- termediate and feed materials. e. g., UO, 0,., C-50 Technology;tritium. The scopenote tion of Hanford and Savannah River produc- UF,, UP, The=, ThF,. etc. for this category is classified Confidential.

-tion reactors, and any reactor proposed for 2. Refinery process development work for It will be sent upon request to properly large-scale production or special nuclear 'uranium ores and concentrates. cleared persons pursuant to access permits.

materials. 3. Uranium recovery procedures for Ecrap -70 Radioactive waste. This category

2. The effects of radiation on graphite and materials, residues, and efiluents. includes research and development informa-other structural materials which clearly re- 4. Quality control procedures pertinent to tion on:

-late to production reactors. production of high-purity uranium com- 1. Chemical and chemical engineering G-80 Reactors;research and testing. This pounds. problems ncldental to the storage and dis-category includes information on: 5. Designs. construction, and operational posal of waste radioactive materials, both 1.- Theory, design, construction, and oper- procedures for pilot-plant equipment. natural and artificial.

ation of nuclear reactors used primarily as See also category 0-25. 2. Decontamination measures for process a source of neutrons for the purpose of con- C-60, 67, 68 Technology. Hanford proc- equipment and other contaminated surfaces.

ducting experimental studies on neutron or esses. These categories include information 3. Meteorological and geological informa-other particle interactions with matter, or on the design, construction, operation, and tion applied to problems of radioactive waste medical or biological research and applica- technology of present or proposed Hanford disposal or storage.

tion. processes and reactors which is not Included 4. Air cleaning, control and disposal of

2. Fundamental shielding studies. n categories 0-25, C-42 and C-10 because It radioactive effluents.

3. 'Basic nuclear research with reactors. reveals operating levels, rates, and other

4. The production of nonfisslonable iso- production data. Dated at Washington, D. C., this 27th topes. C-66 Fuel element technology. (See day of January 1956.

5. Fundamental studies if breeding. category C-25.) R.W. Cooxr This category does not include: C-67 Reactor technology. (Sea category

.I. Power reactors or experimental power C-42.) Acting General Manager.

reactors. (See category C-81.) " C-68 Separations process technology. [P. R. Doe.56-910; Piled, Feb. 3, 1956;

2. Classified defense information on reac- (See category C-10.) 8:48 a. i.]

tors for military purposes.. C-55 Technology; plutonium. This cate-c-81 Reactors; power. This category in- gory includes information not Involting cludes information on: weapon data on:

1. Theory, design, construction, and oper- 1. Reduction of plutonium compounds to ation of nuclear reactors (including exper- metal. PART 95-SA UARDING OF RESTRICTED imental power reactors) whose primary pur- 2. Metallurgy of plutonium and Its alloys. DATA pose is the production of power. 3. Chemistry involved In final purification of plutonium compounds, plutonium metal Correction

2. Economic, fundamental feasibility, de-"

production, and fabrication.

velopment and design aspects of power re-actors or experimental power reactor com-

4. Special analytical techniques required In F. R. Document 56-487, appearing to determine the purity of weapon grade in the issue for Thursday, February 2, ponents. plutonium.

3. Reactor technology and closely related 1956, at page 718, the footnote designator

5. Procedures for recovery of plutonium topics pertaining to military reactors which from scrap materials, residues. etc.

"1" appearing after the word "Data" in are dissociated from military utilizatilon the part heading of Part 95, should be systems. See also categories C-10, C-16.

This category does not include: C-76, 77, 78 Technology; Savannah River deleted and inserted after "Part 25" in

1. Classified defense information on nu- processes. These categories contain Infor- the first sentence of the introductory clear power plants for military purposes. mation on the design, construction, opera- text.

PROPOSED RULE MAKING

-FEDERAL HOME LOAN BANK provisions § 109.1 Scope of regulations. The as provided In section 407 of the National of this part shall govern hear- Housing Act, as amended (12 U. S. C.

BOARD ings to determine whether cause exists, 1730).

under the provisions of section 6 (1) of § 109.2 Service. filing of papers,etc.-

[ 24 CFR Part 109 1 the Federal Home Loan Bank Act, as (a) Proof of service. All documents or

[1o.92621 amended (12 U. S. C. 1426 (1)), for the papers required to be served by the removal of any member of a Federal Board on any interested party shall be RULES OF PRACTICE AND PROCEDURE: AD- Home Loan Bank from membership or JUDICATIONS U N D E R ADMINISTRATIVE served by the Secretary. unless some for depriving any nonmember borrower other person shall be designated for such PROCEDURE AcT of the privilege of obtaining advances from a Federal Home Loan Bank; hear- purpose by the Board. Such service, ex-NOTICE- OF PROPOSED RULE MA=SING ings under the provisions of section 5 (d) cept on Counsel for the Board, shall be made by personal service or by registered JANUAy 30, 1956. of the Home Owners' Loan Act of 1933, mail addressed to the last known ad-Resolved, that, pursuant to Part 108 as amended (12 U. S. C. 1464 (d)), in- dress as shown on the records of the of the general regulations of the Federal volving alleged violations of law or regu- Board, on the attorney or representative Home Loan Bank Board'(24 CFR Part lation by a Feddral savings and loan as- of record of any party: Provided, That 108) it is hereby proposed that, pursuant sociation and upon the existence of grounds for the appointment of a con- if there is no attorney or representative to section 17, 47 Stat. 736 (12 U. S. C.

servator or receiver for a Federal savings of record, such service shall be made 1437) and section 5, 48 Stat. 132 (12 upon the person or institution involved U. S. C. 1464), the general regulations of and loan association; and hearings to de- at the last known address, as shown on the-Federal H6me Loan Bank Board (24 termine whether cause exists for the ter- the records of the Board. The term Sec-CFR, Ch. I, Subchapter A) be amended mination of the insured status of any rethry as used in this part shall mean by adding a new Part 109 at the end institution insured by the Federal Sav- the Secretary and any Assistant Secre-thereof to read as follows:., ings and Loan Insurance Corporation, tary to the Board.

No. 21-5 HeinOnline -- 21 Fed. Reg. 813 1956

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) August 20, 2012 CERTIFICATE OF SERVICE I hereby certify that a copy of the Entergys Answer Opposing New York States Motion to Cross-Examine was served electronically via the Electronic Information Exchange on the following recipients.

Administrative Judge Administrative Judge Lawrence G. McDade, Chair Dr. Michael F. Kennedy Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 (E-mail: Lawrence.McDade@nrc.gov) (E-mail: Michael.Kennedy@nrc.gov)

Administrative Judge Office of the Secretary Dr. Richard E. Wardwell Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocket@nrc.gov)

Washington, DC 20555-0001 (E-mail: Richard.Wardwell@nrc.gov)

Office of Commission Appellate Adjudication Shelby Lewman, Law Clerk U.S. Nuclear Regulatory Commission Anne Siarnacki, Law Clerk Mail Stop: O-7H4M Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamail.resource@nrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: shelbie.lewman@nrc.gov)

(E-mail: Anne.Siarnacki@nrc.gov)

Sherwin E. Turk, Esq. Melissa-Jean Rotini, Esq.

Edward L. Williamson, Esq. Assistant County Attorney Beth N. Mizuno, Esq. Office of Robert F. Meehan, Esq.

David E. Roth, Esq. Westchester County Attorney Brian G. Harris, Esq. 148 Martine Avenue, 6th Floor Mary B. Spencer, Esq. White Plains, NY 10601 Anita Ghosh, Esq. (E-mail: MJR1@westchestergov.com)

Joseph A. Lindell, Esq.

Brian Newell, Paralegal Phillip Musegaas, Esq.

Office of the General Counsel Deborah Brancato, Esq.

Mail Stop: O-15D21 Riverkeeper, Inc.

U.S. Nuclear Regulatory Commission 20 Secor Road Washington, DC 20555-0001 Ossining, NY 10562 (E-mail: Sherwin.Turk@nrc.gov) (E-mail: phillip@riverkeeper.org)

(E-mail: Edward.Williamson@nrc.gov) (E-mail: dbrancato@riverkeeper.org)

(E-mail: Beth.Mizuno@nrc.gov)

(E-mail: David.Roth@nrc.gov)

(E-mail: Brian.Harris@nrc.gov)

(E-mail: Mary.Spencer@nrc.gov)

(E-mail: Anita.Ghosh@nrc.gov)

(E-mail: Joseph.Lindell@nrc.gov)

(E-mail: Brian.Newell@nrc.gov)

Manna Jo Greene Daniel Riesel, Esq.

Karla Raimundi Victoria Shiah Treanor, Esq.

Hudson River Sloop Clearwater, Inc. Sive, Paget & Riesel, P.C.

724 Wolcott Ave. 460 Park Avenue Beacon, NY 12508 New York, NY 10022 (E-mail: mannajo@clearwater.org) (E-mail: driesel@sprlaw.com)

(E-mail: karla@clearwater.org) (E-mail: vshiah@sprlaw.com)

(E-mail: stephenfiller@gmail.com)

John J. Sipos, Esq. John Louis Parker, Esq.

Charlie Donaldson Esq. Office of General Counsel, Region 3 Assistant Attorneys General New York Dept. of Environmental Office of the Attorney General Conservation of New York of New York 21 S. Putt Corners Road The Capitol New Paltz, New York 12561-1620 Albany, NY 12224-0341 (E-mail: jlparker@gw.dec.state.ny.us)

(E-mail: John.Sipos@ag.ny.gov)

(E-mail: Charlie.Donaldson@ag.ny.gov)

Sean Murray, Mayor Michael J. Delaney, Esq.

Kevin Hay, Village Administrator Vice President -Energy Department Village of Buchanan New York City Economic Development Municipal Building Corporation (NYCDEC) 236 Tate Avenue 110 William Street New York, NY 10038 Buchanan, NY 10511-1298 mdelaney@nycedc.com (E-mail: smurray@villageofbuchanan.com)

(E-mail: Administrator@villageofbuchanan.com)

Janice A. Dean, Esq.

Teresa Manzi Assistant Attorney General Office of the Attorney General of New York of New York 120 Broadway, 26th Floor New York, New York 10271 (E-mail: Janice.Dean@ag.ny.gov)

(E-mail: Teresa.Manzi@ag.ny.gov)

Signed (electronically) by Raphael P. Kuyler Raphael P. Kuyler, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5146 Fax: (202) 739-3001 E-mail: rkuyler@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

DB1/ 70739435