ML12233A371
| ML12233A371 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 08/20/2012 |
| From: | Bessette P M, Dennis W C, Glew W B, Kuyler R P, Sutton K M 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
_____________________________________________________________________________________
ENTERGY'S ANSWER OPPOSING NEW YORK STATE'S 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 ENTERGY'S ANSWER OPPOSING NEW YORK STATE'S MOTION TO CROSS-EXAMINE I. INTRODUCTION Pursuant to 10 C.F.R. §§ 2.1204 and 2.323, and in accordance with the Board's Scheduling Order and its Order Memorializing Items Discussed During the July 9, 2012, Status Conference, 1 Entergy Nuclear Operation, Inc. ("Entergy"), hereby opposes New York's 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C.F.R. Part 2, Subpart L. See Licensing Board Notice of Hearing (Application for License Renewal) at 4 (June 8, 2012) (unpublished) ("Notice of Hearing").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").
2 § 551 et seq., that requirement applies to all agency actions and to all participants in NRC proceedings-whether 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 witnesse s in NRC proceedings-and 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 Board's 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 Commission's 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, regul ations, and case law supports-let alone requires-such an unprecedented and unfair proceeding. New York's 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 York's argument have rejected it.
3 This Board should, too. New York's 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
"), rev'd on other grounds , Entergy Nuclear Vt. Yankee. (Vt. Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371 (2007).
3 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 Board's 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 S ection 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 York's 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 4 1. Section 2021(l) Affords A "Reasonable Opportunity" To Cross-Examine, Not An "Absolute Right" New York's "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 st atute establishes two fundamental propositions, each of which is fatal to New York's argument. First, it is a "reasonable opportunity"-not an "absolute right"-that 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 Commission
-acting through the presid ing hearing officer-that 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. (Nat'l 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 provisions-such as Section 2021(l)-that apply only to interested states.
5 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 York's 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 York's Motion.
5 New York's 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.
6 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). Th e First Circuit and two Boards have held-and New York does not dispute-that 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 actio n," 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 York's '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 holdi ng is correct, and New York's contrary argument should be rejected. Consistent with an interested state's "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.
7 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 1956-and currently have-to 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 2-Rules 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 not-because it cannot-challenge the First Circuit's 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 8 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 York's 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 authority-inter 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 not-because it cannot-explain 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 York's 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 claims-or if states are their own arbiters of what constitutes a "reasonable opportunity" to cross-examine, which amounts to the same thing-then states can cross-examine witnesses indefinitely (and even badger those witnesses) with impunity. New York's 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).
9 Section 2.333(3) thus confirms the absurdity of New York's 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 York's "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. Comm'r , 467 F.3d 149, 157 (2d Cir. 2006) ("Because we find the statute's 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 APA-i.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 10 "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 state's rights" and assertions about the value of cross-examination. Motion at 9-14.
Neither advances New York's cause. First, New York's 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 parties-which New York concedes are subject to Section 2.1204(b)(3).
See Motion at 18. And the Commission has already rejected New York's 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 state-whether participating as an interested state or as a party-should 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.
11 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 Demons trate That Additional Cross-Examination By The Parties Is Necessary The only reasonable explanation for New York's 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-examine-which it does not-Entergy 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).
12 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 York's additional cross-examination is necessary. New York has 13 not explained how its self-serving assertions and speculation about "possibly" satisfying the regulation overcome the Commission's presumption that examination by the Board is the better approach for this hearing.
D. New York's Eleventh-Hour Request for General Cross-Examination on All of Its Contentions Is Untimel y, 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 York's 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 8th-when New York filed this Motion-that 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 York's sole purported justification for filing its wide-ranging request so close to the hearing is this Board's 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 York's 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.
14 are "inapplicable to this motion"). Therefore, the July 12, 2012 order does not excuse the untimeliness of New York's motion.
13 Moreover, granting New York's 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 Entergy's Moti on 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 York's own purported deadline-or 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 York's motion violates this Board's 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 Board's 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.
15 IV. CONCLUSION For the reasons set forth above, New York's 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
1 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.
ATTACHMENT 1
Rules of Practice, 21 Fed. Reg. 804 (Feb. 4, 1956) dividends, the entire $30 is excludable, and there Is included in gross income in the joint return only $150 consisting of the dividends received by the husband ($200 less his $50 exclusion).
For fur-ther examples illustrating the applica-'tion of the exclusion, see § 1.34-1.(c) Where two or more persons hold stock as tenants in common, as joint tenants, or as tenants by the entirety;the dividends received with respect to such stock shall be considered as being received by each tenant to the extent that he is entitled under local law to a share of such dividends.
Where divi-dends constitute community property under local law each spouse shall be considered as receiving one-half of such dividends..(d) For restrictions and -limitations, with respebt to the type of dividends to which the exclusion is applicable, see§ 1.34-3.(e) For taxpayers not entitled to the exclusion, see § 1.34-4.(f) The regulations with respect to determination of when dividends are re-ceived under section 34 apply also to section 116. See § 1.34-1 (e).§ 1.116-2 Effective date; taxable years ending after July 31, 1954, subject to the Internal Revenue Code of 1939. Pursu-ant to section 7851 (a) (1) (C), the reg-ulations prescribed in § 1.116-1 shall also apply to taxable years beginning before January 1, 1954, and ending after July 31, 1954, and to taxable years beginning after December 31, 1953, and ending after July 31, 1954, but before August 17, 1954, though such years are subject to the Internal Revenue Code of 1939.(SEAL] RUSSELL C.. ,AIRINGTON, Commissioner of Internal Revenue.Approved:
January 31, 1956.H. CHAPMAN ROSE, Acting Secretary of the Treasury..
[F. R. Doc.56-912; Filed, Feb. 3, 1956;8:48 a. m.]TITLE 1 0-ATOMIC ENERGY Chapter I-Atomic Energy Commission PART 2-RULES OF PRACTICE Pursuant-to the Administrative Pro-cedure Act, Public Law 404, 79th Con-gress, 2d session, the following rules are published as a document subject to codi-fication, effective 30 days after publica-tion in the FEDERA REGsiasr.DESCRIPTION OF PART Scope.Subparts.Resolution of conflicts.
Definitions.
Subpart A-Procedure on Applications for Issu-once, Amendment or Transfer of a License or Construction Permit and Renewal of a license 2.100 Applicability of subpart.2.101 Administrative examination of appli-cations, notice to others, informal conferences.
2.102 Action on applications, hearings.2103 Effect of timely renewal applications.
RULES AND REGULATIONS Subpart B--Procedure for Imposing Requirements by Order, or for Modification, Suspension, or Revocation of a License or Construction Permit Sec.2.200 2.201 2-.202 2.203 Applicability of subpart.Notice of violation.
Order to show cause; temporary emergency action.Recapture of material or entry in emergency revocation cases.Subpart G-Rules of General Applicability COMMON PROVIsIONS 2.700 2'701 2.702 2.703 2.704 2.705 2.706 2.707 2.708 2.709 Filing of papers; when complete.Computation of time.Extension of time.Service of papers, methods, proof.Representation.
Intervention.
Effect of intervention or denial thereof.Consolidation.
Hearings, formal and informal.Authority to Issue oatths and affirma-tions.'unro RMAL HEARINGS 2.720 Informal hearing procedure.
2.730 2.731 2 .732 2.733 2.734 2.735 2.736 2.737 2.738 2.739 2.740 2.741 2.742 2.743-.744 2.745 2.746 2.747 2.748 2.749 2.750 2.751 2.752 2.753 2.751 2.755 2.756 2.780 2.781 2.782 2.783 2.784 2.785 2.786 2.787 FORMAL HEARNqGS Parties.Limited appearances by persons not.parties.Designation of presiding officer, dis-qualification, unavailability.
-Powers of presiding officers.Separation' of functions.
Notice of hearing.Answer.Reply.Default.Admisslons.
Prehearing conferences.
Amendments.
Hearings, public.Official reporter, transcript.
Subpenas.Depositions.
Order of procedure.
Evidence.Interlocutory appeals to the Com-mission from rulings of presiding officers.Proposed findings and conclusions.
Official notice.Intermediate decisions and their effect.Exceptions to intermediate decisions.
Briefs and oral arguments before the Commission.
Final decision.Waiver of procedures or intermediate decisions.
Petition for reconsideration.
PUBLIC RTULE WA='G Scope of rule making.Initiati6n, petition.Petition for rule making.Determination of petition.Notice of proposed rule making.Participation by interested persons.Commission action.Effective dates.AVAILABILIT OF OPFICIAL RECORDS 2.790 Public inspection, exceptions, requests for withholding.
AuruoArry:
H 2.1 to 2.790 issued under see. 161, 68 Stat. 948, 42 U. S. C. 2201.zEscR 0oN OF-pAnT§ 2.1 Scope. This part governs the conduct of all proceedings before'the Atomic Energy Commission involving licensing and licenses,'
including patent licensing under section 153 of the Atomic Energy Act of 1954 but excluding all other patent matters.2§ 2 .2 Subparts.
Each of the subparts which precedes Subpart G of this part sets forth special rules applicable to the type of proceeding described In "the opening section of the subpart. Subpart G of this part sets forth general rules applicable to all types of proceedings and should be read in conjunction with the subpart governing the particular pro-ceeding.§ 2.3 Resolution of conflicts.
In any conflict between a general rule In Sub-part G of this part and a special rule In another subpart applicable toa particu-lar type of proceeding, the special rule will govern.§ 2.4 Definitions.
In this part, words or phrases which are defined In the Atomic Energy Act of 1954 and In the several parts of this chapter to which this part applies, shall take the meaning defined in the act and the pertinent parts with the following exception and expla-nation: (a) "Commission" means the commis-sion of five members or a quorum thereof sitting as a body, as provided by section 21 of the Atomic Energy Act of 1954, or any officer or board to whom has been delegated, pursuant to section 101o of the act and as set forth in Part 1 of this chapter, final authority for making decisions in the course of adjudication or for issuing, amending, or rescinding rules in the course of rule making.(b) "AEC" means the agency estab-'lished by the Atomic Energy Act of 1954, comprising the members of the Commis-sion and all officers, employees, and rep-resentatives authorized to act in the case or matter whether clothed with final au-thority or not.SUBPART A-PROCEDURE ON APPLICATIONS FOR ISSUANCE, AMENDMENT OR TRANSFER OF A LICENSE OR CONSTRUCTION PERMIT AND RENEWAL OF A LICENSE§ § 2.100 Applicability of subpart. The provisions of this subpart prescribe the procedure covering applications for the issuance., of a license, construction per-mit, amendment of a license or construc-tion permit at the request of the holder, transfer of a license or construction per-mit, and renewal of a license. Reference should also be made to Subpart G of this part which sets forth the rules appli-cable to all types of proceedings.
§ 2.101 Administrative examination of applications, notice to others, informal con!erences.
Applications described In IPart 30-Byproduct Material Licensing, Part 40--Sourco Material Licensing, Part 50-Licensing of Production and Utilization Facilities, Part 55-Licensing of Operators, Part 70-Special Nuclear Material Licensing.
2Tho specifications, pursuant to section 156 of the act, for patent licenses to uso AEC held patents or those declared subject to licensing under section i63a of the act, are set forth in Part 81 of this chapter. The Patent Compensation Board proceedings un-der sections 157 and 173 of the act, are gov-erned by Part 81 of this chapter.HeinOnline -- 21 Fed. Reg. 804 1956 Saturday, February 4, 1956§ 2.100 will be given a docket or other identifying number and routed to the appropriate AEC offices for administra-tive txamination.
AEC .will give to others such notice of the filing of the application as is required under the ap-plicable regulations of this chapter and such additional notices as'it deems ap-propriate.
The applicant may be re-quired to submit additional information and may be requested to confer infor-mally regarding the application.
§ 2.102 Action on applications, hear-ings. (a) The AEC,will, upon request of the applicant or an intervener, and may upon its own initiative, direct the holding of a formal hearing prior to taking action on the application.
If no prior formal hearing has been held and no notice of proposed action has been served as provided in paragraph (b) of this section, AEC will direct the holding of a formal hearing upon receipt of a request therefor from the applicant or an intervener
'within 30 days after the issuance of a license or other approval or a notice of denial (b) In such cases as it deems appro-priate, AEC may cause to be served upon the applicant, and published, a notice of proposed action upon his application and shall cause copies thereof to be served upon interveners or others entitled to or requesting notification.
The notice-shall state the terms of the proposed action.If. a formal hearing has not been held prior to issuance of the notice, AEC will direct the holding of a formal hearing upon the request of the applicant or an intervener received within fifteen days following the service of the-notice.
§ 2.103 Effect of timeqy renewal appli-cations. In the case of an application for renewal, if the licensee has made appli-cation for the renewal of a subsisting license at least 30 days prior to its ex-piration date, the.license shall not be deemed to have expired until such appli-cation'shall have been-determined.
SUBPART B--PROCEDURE FOR IMPOSING RE-QUIREMENTS BY ORDER, OR FOR MODIFICA-TION, SUSPENSION, OR-REVOCATION OF A ,LICENSE OR CONSTRUCTION PERMIT§ 2.200 Applicability of subpart. .The provisions of this subpart prescribe the procedure in cases initiated by AEC to impose requirements by order upon a licensee or holder of a construction per-mit or to modify, suspend, or revoke a license or construction permit. Refer-ence should also be made to Subpart G of this part, which.sets forth the rules applicable to all types of proceedings.
The provisions of this subpart shall not apply to action taken pursuant -to sec-tion 108 of the act.-§ 2.201 Notice of violation. (a) Prior to the institution of any proceeding for the suspension or revocation of a license or construction permit for alfeged viola-tion of any provision of the. act, regula-tions, or conditions of the license or per-mit, the licensee or permit holder shall be served with a written notice calling the facts to his attention and requesting a written explanation or statement in reply. Within 15 days of the receipt of'such notice, or such other reasonable pe-riod as may be specified in the notice, the No. 24-FEDERAL REGISTER licensee or permit holder shall send his reply to the AEC office designated In the notice. If the notice relates to conditions or conduct which may be susceptible of correction or of being brought into full compliance by action of the licensee or permit holder, he shall state in his reply the corrective steps taken or to be Insti-tuted in achieving correction and pre-venting further violations, and the date when such correction and full compli-ance will be achieved.(b) Where in the opinion of AEC the public health, interest, or safety re-quires, or the failure to be In compliance is wilful,the notice provided for in this section may be omitted.§ 2.202 Orders to show iause; condi-tional orders. (a) (1) In any case de-scribed in § 2.200, and after notice If any as required by § 2.201, AEC may issue to the licensee or permit holder an order directing him to show cause why the proposed action should not be taken.There will be includd a notice of formal hearing. The time for hearing specified shall not be less than 20 days after is-suance of the order except that, where the public interest or safety requires, AEC may provide in the order for a shorter period.(2) Where in the opinion of AEQ the public health, interest and safety re-quires, the proposed action may be made temporarily effective prior to the time for-hearing.(b) In cases initiated by AEC to im-pose requirements by order upon a licen-see or holder of a construction permit, the AEC may (in lieu of following the procedures provided in paragraph (a)of this section) issue such order to be effective at a time specified therein. The order will designate also a period of time, not less than 15 days from the date of issuance of the order, within which the licensee or permit holder may file a written request for formal hearing.The timely-filing of a request for formal hearing with respect to any order, or any part of an order, issued pursuant to this paragraph shall stay the order, or such part of the order, pending determination of the issues by the Commission.
§ 2.203 Recapture of material or en-try in emergency revocation cases. In cases found by the Commission to be of extreme importance to the common defense and security or to the health and safety of the public, the Commis-sion may without prior notice or hearing recapture any special nuclear material held by the licensee or enter upon and operate the licensed facility, provided that as promptly as possible and not later than 10 days from the recapture or entry, AEC will serve upon the licensee or permit holder an appropriate order Ito show cause why the license or con-struction.permit should not be revoked and notice of formal hearing, or will initiate steps to restore the material or facility of which the licensee or permit holder has been deprived.SUBPART G-RULES OF GENERAL APPLICABILITY COMMON PROVISIONS
-§ 2.700 Filing of vapers; when com-plete. Unless otherwise specified, papers required to be filed with AEC shall be 805 filed with the Atomic Energy Commis-slon, 1901 Constitution Avenue, NW., Washington 25, D. C. Papers required to be filed with AEC shall be deemed filed upon actual receipt by AEC at the place specified accompanied by proof of service upon parties required to be served. Upon actual receipt the fling;when by mail or telegraph, shall be deemed complete as of the date of de-posit In the mill or with the telegraph company as provided In para.raph (d)of § 2.703.§ 2.701 Computation of time. In computing any period of time prescribed or allowed by any applicable statute, rule, notice, or order, the day of the act, event, or default after which the desig-nated period of time begins to run is not to be Included.
The last day of the pe-riod so computed is to be included, un-less it Is a Saturday, Sunday, or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor a holi-day. When the period of time pre-scribed or allowed Is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded In the compu-tation.§ 2.702 Extension of time. Unless discretion is denied by statute, exten-sions of time for filing or performing any act required or allowed to be done, and continuances of any proceeding or hear-ing. may be granted In the discretion of AEC upon application and good cause shown by any party, or upon the initia-tive of AEC or stipulation of all the par-ties. Where a presiding officer has been designated for hearing, the discretion in granting extensions of time and con-tinuances in matters relating tor the hearing shall rest with the presiding officer.§ 2.703 Service of Papers, methods, Proof. (a) Except for subpenas, service of which is governed by § 2.744, AEC will servo all orders, notices, and other papers Issued by it when service thereof is required, together with any other papers which It is required by law to serve. Every other paper requiring service, such as answers, petitions, mo-tions, briefs, exceptions, and notices, shall be served by the party filing it upon all parties entitled to service thereof;and proof of service shall accompany the paper when It is tendered for filing.Where there are numerous parties to a proceeding the Commission may, upon motion or Its own initiative, make spe-cial provision regarding the service of papers.(b) Service shall be made upon the parties or their designated representa-tives.(c) Service of papers may be made by personal delivery, by first class, certi-fled or registered mail including airmail by telegraph, or bypublicationwhen pub-lication is authorized by statute, rule, or order.(d) Service upon parties shall be re-garded as complete: (1) By personal delivery, upon han-dling the paper to the individual, orleav-Ing It at his office with his clerk or other person in charge thereof or, if there is no one In charge, leaving it in a con-HeinOnline -- 21 Fed. Reg. 805 1956 RULES AND REGULATIONS spicuous place therein or, if the office is closed or the person to be served has no office, leaving it at his usual place of residence with some person of suitable age and discretion then residing therein;(2) By mail, upon deposit .in the, United States mail properly stamped and addressed; (3) By telegraph, when deposited with a telegraph company properly addressed and with charges prepaid;(4) By publication, when due notice shall have been given in the publication for the time and in the manner provided by statute, rule, or order.Service 'by mail or telegraph shall be made at the, principal place of business of the individual or party to be served or at his usual residence.(e) Proof of service of any document may consist of: (1) A certificate describ-ing the service by the person mailing, telegraphing, or making personal service of the paper or causing its publication; or (2) an. acknowledgment of service signed by the individual receiving service personally.
§ 2.704 Representation. (a) Except as provided in braragraph (b) of this sec-tion, any person appearing before AEC may do so in person or by a representa-tive. Any person transacting business with AEC in a representative capacity may be required to show his authority to act in that capacity.(b) In a formal hearing, a person may appear in person or be represented by an attorney at law in good standing ad-mitted to practice before any court of the United States, the District of Colum-bia, or the highest court of any state, territory or possession of the United States. Presiding officers may permit qualified individuals having scientific training or experience to participate on behalf of a party in the presentation of evidence.§ 2.705 Intervention. (a) Any person whose interest may be affected by a pro-ceeding may file a petition to intervene, describing his interest, how it may be affected by AEC action, and' the position*he is taking in the matter. Service of.copies of the petition shall be made upon all parties to the proceeding.
The li-censee or applicant upon prompt notice and motion, and other parties by leave, may contest the right of the petitioner to intervene.(b) As soon as is practicable after filing of a petition and the hearing of argument, if any, the Commission will issue and serve an order either permit-ting or denying intervention.
If the order is a denial of intervention, it shall contain a statement of the grounds: If a petition is filed after a notice of hear-Ing has been issued, the designated pre-siding officer will act upon the petition.An order permitting intervention may be, conditioned upon such terms as the Commission or presiding officer may direct.§ 2.706 Effect of intervention or denial thereof. (a) A person permitted to in-tervene becomes a party to the proceed-ing.(b) Where a notice of hearing has been issued or a hearing has begun, the ad-mission thereafter of an intervener sliall not of itself enlarge or alter the issues-without amendment as provided in§ 2.741.(c) An order denying intervention.will- be without prejudice to any pro-posed limited appearance by the peti-tioner as one who is not a party for the purposes provided in § 2.731.§ 2.707 Consolidation.
Upon motion and good cause shown or upon its own initiative, the Commission may contem-poraneously consider or, consolidate for hearing or for other purposes two or more proceedings if it fnds-that such action will be conducive to the proper dispatch of its business and to the ends of justice.§2.708 Hearings, formal and in-formal. Hearings will be either formal or informal.
Formal hearings will be held in cases of adjudication, as that term is used in the Administrative Pro-cedure Act, unless the parties otherwise agree, and in such other cases as may specifically be directed.
Informal hear-ings will normally 'be held foi the pur-'poses of obtaining necessary or useful information, and affording participation by interested persons, in the formula-tion, amendment, or rescission of rules and regulations.
§ 2.709 Authority to administer oaths.and affirmations.
Any oath or afflima-tion required by or pursuant to the regu-lations in this Chapter may be admin-istered by 'any person authorized to administer oaths for general purposes by the laws of the United States, or the laws of any state, territory or possession of the United States, or of the District of Columbia, or the Commonwealth of Puerto Rico, wherein- such oath or affir-mation is administered, or by any con-sular officer of the United States. This section shall not be construed as an exclusive enumeration of the persons who may administer such oaths or affirmations.
INFORIIAL HEARINGS§ 2.720 Informal hearing procedure.
The procedure to be followed in infor-mal hearings shall be such as will best serve the purpose of the hearing. For example, an informal hearing may con-"sist of the submission of written data, views, or arguments with or without oral argument, or may partake of the nature of a conference, or may assume some of the. aspects of a formal hearing in which the subpena of witnesses and the production of evidence may be per-mitted or directed.FORMAL- HEARINGS§ 2.730 Parties. The parties to a for-mal hearing shall be AEC, the licensee or applicant as the case may be, and any person permitted to intervene pursuant to § 2.705.§ 2.731 Limited appearances by per-sons'not parties. With the consent of the presiding officer, limited appearances may be entered without request for or grant of permission to intervene by per-sons who are not parties to a hearing.With the consent of the presiding officer, and on due notice to the parties, such persons may make oral or written state-ments of their position on the Issues in-volved in the proceeding, but may not otherwise participate In the hearing.§ 2.732 Designation of presiding offi-cer, disqualification, unavailability. (a)There will be designated to preside at hearings one or more members of the Commission, or an officer or board to Whom has been delegated final authority in the matter with which the hearing Is concerned, or a hearing examiner ap-pointed pursuant to sectfon '11 of the Administrative Procedure Act. To the extent practicable, the name of the pre-siding officer designated will be included in the notice of hearing or, if omitted from the notice, made known to the parties or public as soon as Is possible thereafter, prior to the holding of the hearing..(b) Whenever a presiding officer deems himself disqualified he shall notify the Commission and withdraw from the hearing. Any-party shall have 7 days, but not beyond expiration of the hearing unless further extended for good cause shown, after notice or knowledge of the designation of the presiding officer in which to fie a request that the presiding officer withdraw on the ground of per-sonal bias or other disqualification.
The requept shall be accompanied by an affi-davit setting forth the facts alleged to constitute the ground for disqualifica.
tion. The presiding officer may file a response thereto. If the presiding offi-cer believes himself not disqualified, he may so rule and proceed with the hear-ing; and In such case, the Commission will determine the matter only as a part of the decision in the'case where excep-tions are filed to the presiding officer's intermediate decision.
The presiding of-ficer may, in his discretion, certify the question to the Commission for consid-eration and disposition, and suspend the hearing until the Commission has ruled on the question.(c) Whenever a presiding officer be-comes unavailable in the course of a hearing another presiding officer will be designated.
If the presiding officer be-comes unavailable after the taking of evidence at a hearing has been con-cluded, In lieu of designating another presiding officer the Commission may direct that the, record be forwarded to It for decision.§ 2.733 Powers of presiding officers.Prom the date of his designation in a case Until transfer .of the case to the Commission, or expiration of the time for filing exceptions to his intermediate do-cisibn, a presiding officer shall have au-thority in the case to: (a) Administer oaths and affirma-tions; I (b) Examine witnesses: (c) Rule upon offers of proof and re-ceive evidence;(d) Issue subpenas authorized by law: (e) Take or cause depositions to be taken;(f) Regulate the course of the hear-ing;(g) Hold appropriate conferences before or during the hearing;(h) Dispose of procedural requests or similar matters;HeinOnline -- 21 Fed. Reg. 806 1956 Saturday, February 4, 1956 (i) Within his discretion or upon di-rection of the Commission, certify ques-tions to the Commission for its consider-ation and disposition;(j) Make the intermediate decision in conformitywith
§ 2.751;(k) Take any other action consistent with the rules of the Commission, the Administrative Procedure Act, and the Atomic Energy Act of 1954.§ 2.734 Separation of functions. (a)Hearing examiners appointed pursuant to section 11 of the Administrative Pro-cedure Act shall perform no duties in-consistent with their duties and respon-sibilities as presiding officers, and shall not be responsible to or subject to the supervision or direction of any officer or-employe engaged in the performance of investigative or prosecuting functions for AEC.(b) In any case of adjudication other than initial licensing, (1) The presiding officer, unless he is a member of the Commission or officer having final authority in the case, may not consult any person or party on any fact in issue except upon notice and opportunity for all parties to participate, save to the extent required for the dis-position of ex parte matters as authorized by law;(2) No officer or employee of AEC, other thana member of the Commission or officer having final authority in the case, who has engaged in the perform-ance of -any investigative or prosecuting function in the case or a factually re-lated case may participate or advise in the intermediate or final decision, except as witness or counsel in the formal hear-ing.§2.735 Notice of hearing. (a)Whenever a hearing is granted, AEC will give timely notice of the hearing to all parties and to other persons, if any, entitled to notice. Such notice will state the time, place, and nature of the hear-ing' the legal authority and jurisdiction under which the hearing is to be held;the matters of fact and law asserted or to be considered, which will be identified as the "Specification of Issues"; and a re-quest for an answer. The time and place for hearing will be fixed with due regard for.the convenience and necessity of the parties or their representatives.(b) The notice of hearing may be a separate notice or when appropriate'may be embodied in an order to show cause or other-'order.(c) The procedure for issuance of the notice of hearing and specifying of the issues by AEC shall not affect the burden of proof.§ 2.736 Answer. (a) Within the time allowed by the notice of hearing for filing and serving an answer, and as required, the answer of a licensee or applicant.
shall fully advise AEC and any other parties as to the nature of the defense or othr position of the answer-ing party, the items of the specification of issues he proposes to controvert and those he does not controvert, and whether or not he proposes to appear and present evidence.
If facts are al-leged in the specification of issues the FEDERAL REGISTER answer shall admit or deny specifically each allegation of fact; or where knowl-edge is lacking, the answer may so state and the statement shall operate as a de-nial. Allegations of fact not denied shall be deemed to be admitted.
Mat-ters alleged as affirmalive defenses or positions shall be separately stated and identified and, in the absence of a reply.shall be deemed to be controverted.
The answer of an intervener shall fully ad-vise AEC and other parties of his posi-tion and whether or not he proposes to appear and present evidence.(b) If a party does not oppose any order or proposed action of AEC em-bodied in or accompanying the notice of hearing or does not wish to appear and give evidence at the hearing, the answer shall so state. In lieu of appearing, the party may if he chooses submit a state-ment of reasons why the proposed order or sanction should not be Issued or should be different than proposed, and the Commission will attribute such weight as it deems deserving to the writ-ten reasons.§ 2.737 Reply. In appropriate cases AEC may file and serve a reply to the answer or, if the answer affects other parties to the proceeding, may permit such parties to file and serve a reply.§ 2.738 Default. Failure of a party to file and serve an answer within the time provided in the notice of hearing or as prescribed in this part or to appear at a hearing, shall be deemed to author-ize the Commission, in its discretion, as to such party (a) to find the facts alleged in the specification of issues to be true and to enter such finding or order as may be appropriate, without further no-tice or hearing; or (b) to proceed to take proof, without further notice, on the allegations or issues set forth in the specification of issues.§ 2.739 Admissions.
After answer has been filed, any party may file and serve upon the opposing side a written request for the admission of the genuine-ness and authenticity of any relevant documents described in or attached to the request or for the admission of the truth of any relevant matters of fact stated in the request. Each matter for which an admission is requested shall be deemed admitted unless within the time designated In the request, but not less than 10 days after service thereof or such further time as the presiding officer may allow upon motion and no-tice, the party to whom the request is directed serves upon the requesting party a sworn statement either denying the matters upon which the admission Is requested or setting up the reasons why he cannot truthfully admit or deny such matters.§ 2.740 Prehearing conferences. (a)In order to provide opportunity for the settlement of a proceeding or any of the issues therein, or for agreement upon procedural and other matters, there may be held at any time prior to or during, a hearing, upon due notice of the time and place given to all parties, such con-ferences of the parties as, in the dis-cretion of the presiding officer, time, the nature of the proceeding, and the public interest may permit.(b) Action taken at a prehearing con-ference may be recorded for appropriate use at the hearing in the form of a written stipulation among the parties reciting the matters upon which there has been agreenient.
The stipulatioiz shall be binding upon the parties thereto,§ 2.741 Amendments.
At any time prior to the time fixed for hearing but not later than five days prior, the party responsible for the specification of is.sues, answer, or reply, respectively, may amend the same by filing an amendment and serving It upon the parties. At any time thereafter, amendments may be permitted in the discretion of the presid-Ing officer'upon such terms as he shall prescribe.
§ 2.742 Hearings public. Except as may be required pursuant to section 181 of the act, hearings shall be public.No=: Provislons with respect to parallel procedures pursuant to sectlon 181 of the Act will be published at an early date.§ 2.743 OfficIaZ reporter, transcript.
Hearings shall be reported under the su-pervision of the presiding officer, steno-graphically or by other means, by an, official reporter, who may be designated from time to time by AEC or may be a regular employee of AEC. The tran-script of the report shall be a part of the record and the sole official transcript of the proceeding.
Except as limited pur-suant to section 181 of the act or order of the Commission, the transcript will be open for inspection at AEC offices and copies may be obtained from the official reporter upon payment of the charges fixed therefor.
Errors in the transcript may be corrected by order of the presid-Ing officer following a notice of motion to correct filed and served on the affected parties within 10 days after notice that the completed transcript has been re-ceived by AEC, or as otherwise agreed upon by the parties and approved by the presiding officer.§ 2.744 SubPenas. (a) Upon appli-cation by any party to a hearing, the designated presiding officer or, if he is not available, a member of the Cromis-sion or other designated officer will issue to such party subpenas requiring the attendance and testimony of witnesses or the production of evidence in the hearing. In his discretion, the officer to whom application is made may require from the requesting party a showing of general relevance of the testimony or evidence sought and may withhold is-suance of the subpena if such showing Is not made; but such officer shall not attempt to determine the admissibility of evidence in passing upon an appli-cation for subpena.(b) Every subpena shall bear the name of the Commission, the name and office of the issuing officer, and the title of the hearing, and shall command the person to whom it is directed to attend and give testimony or produce specified data at a designated time and place.The subpena shall also contain a state-ment advising of the existence of the quashing procedure provided in para-graph (f) of this section.HeinOnline -- 21 Fed. Reg. 807 1956 (c) Unless the service of a subpena is acknowledged on its face by the witness, it shall be served by a person who is not a party to the hearing and is not less than 18 years of age but may in any case be served by an officer or employee of AEC. Service of a subpena upon a person named therein shall be made by delivering a copy of the subpena to such person and by tendering him the fees for one day's attendance and the mile-age allowed by law. When the subpena Is issued on behalf of AEC, fees and mileage may but need not be tendered, and the subpena may be served by registered mail.(d) Witnesses summoned before AEC shall be paid by the party, at whose in-, stance they appear the same fees and mileage that are paid to -witnesses in the district courts of the United States.(e) The person serving the subpena shall make proof of service by filing the subpena and the required return, affi-davit, or acknowledgment of service with the officer before whom the witness is required to testify or produce evidence or with AEC. Failure to make proof of service shall not affect the validity of the service.(f) Upon motion made promptly, and In any event at or before the time speci-fled in the subpena for compliance, by the person to whom the subpena is directed, and' upon notice to the party to whom the subpena was issued, the presiding officer or, if he is unavailable, the Commission may (1) quash or modify the subpena if it is unreasonable or re-quires evidence not, relevant to any matter in issue, or (2) condition denial of the motion upon just and reasonable terms.(g) Upon application and for good cause shown, AEC will seek judicial en-forcement of a subpena issued to a party and which has not been quashed.§ 2.745 .'Depositions. (a) Upon appli-cation and good cause shown, the desig-nated presiding officer or, if he is unavailable, the Commission may order that the testimony, of any person, n-cluding a party, be taken by deposition upon oral examination or written inter-rogatories for, use as evidence -in the hearing. The attendance of witnesses may be compelled by the use of a subpena.(b) The application shall be in writ-ing and shall be servedupon the parties and filed, giving reasonable notice of the proposed time and place for taking the deposition, the name and address of each person to be examined, if known, or if the name is not known a general de-scription sufficient to identify him or the class or group to which he belohgs, and the reasons why such deposition should be taken. If good cause is shown, an order will be issued authorizing the dep-osition, and specifying the time, place, and manner of taking of the deposition, any limitations imposed for the benefit of witnesses or parties, and the number of copies of the deposition to be supplied.The order shall be served upon all parties by the person proposing to take the dep-osition a reasonable period in advanice of the time fixed for taking testimony.
-(c) Within the United States, depo-sitions shall be taken-before any officer RULES AND REGULATIONS authorized t administer oaths by the laws of the United States or of the place where the examination is held. Outside the United States, depositions shall be taken before a secretary of an embassy or legation, consul general, vice consul, or consular agent of the United States, or a person authorized to administer oaths designated by AEC or agreed upon by the parties by stipulation in writing filed with AEC.(d) Unless the order provides other-wise, the deponent may be examined re-garding any matter not privileged, which is relevant to the subject matter involved in the hearing. He shall be sworn 'or shall affirm before any questions are put to him. Examination and cross-exam-ination shall proceed as at a hearing.Each question propbunded shall be re-corded and the answer taken down in the words of the witness. Objections on questions of evidence shall be noted in short form without the arguments.
Ho*ever, the officer shall not decide on the competency, materiality, or rele-vancy of evidence but shall record the evidence -subject to objection.
Objec-tions to questions or evidence not made before the officer shall not be deemed waived unless the ground of the objec-tion is one which might have been ob-viated or removed if presented at that time.(e) When the testimony Is fully tran-scribed, the deposition shall be sub-mitted to the deponent for examination and signed by him, unless he is ill or cannot be found or refuses to sign. The officer shall certify to the deposition, and if not signed by the deponent shall cer-tify to the reasons therefor, and shall promptly forward the deposition by reg-istered mail to AEC., The party taking the 'deposition shall give prompt notice of its filing to all- other parties.(f) Where the deposition is to be taken upon written interrogatories, the party proposing the deposition shall serve upon each of the parties and file a copy of the proposed' interrogation showing each interrogatory separately and consecutively numbered, the name and address of the person who is to an-swer them, and the name, descriptive-title, and address of the officer before whom they are to be taken. Within 7 days after service any party may serve cross-interrogatories upon the party proposing to take the deposition.
Ob-jections to interrogatories or cross-interrogatories shall be made promptly after service and will be settled by the presiding officer or the Commission; as the case may be; provided that objec-tions to form, unless made before the order for taking the .deposition is issued, shall be deemed waived. Except as the parties otherwise agree, .the deposition upon written interrogatories shall be taken only with the deponent, the offi-cer, and the reporter or stenographer present during the interrogation, to which fact the officer shall certify. The interrogatories, cross -interrogatories, and the answers shall be recorded and signed, and the deposition certified, re-turned, and filed as in the case of a deposition upon oral examination.(g) A deposition will not become a part of the record in the hearing until a'nd unless received in evidence by the presiding officer, upon his own motion or the motion of any party. If only part of a deposition Is offered In evidence by a party, any other party may require him to introduce all of It which Is relevant to the part Introduced, and any party may introduce any other parts. A party shall not be deemed to make a person his own witness for any purpose by tak-ing his deposition.
Any party may re-but any relevant evidence contained in a deposition whether Introduced by him or by any other party.(h) Deponents whose depositions are taken and the officers taking depositions shall be entitled to the same fees as are paid for like services In the district courts of the United States to be paid by the party at whose instance the deposi-tions are taken.§ 2.746 Order of procedure.
The pre-siding officer or the Commission, as the case may be, will designate the order of 15rocedure at hearings including the or-der In which interveners will be heard, Normally, at hebrings for the grant, amendment or transfer of a license or-construction permit or the renewal of a license, the, applicant will open and close; and at hearings for the revoca-tion,, suspension, or AEC initiated modi-fication of a license or construction per-mit, AEC will open'and close.§ 2.747 Evidence. (a) Every party to the hearing shall have the right to pro-sent such oral or documentary evidence and rebuttal evidence and conduct such cross-examination as may be required for a full and true disclosure of the facts, The parties shall be encouraged to pro-sent evidence in written form.(b) The presiding officer shall exclude all Irrelevant, Immaterial, or unduly repetitious evidence.(c) Objections to the admission or ex-clusion of evidence bhall state the grounds of objections.
The transcript shall include the objections, the grotinds, and the rulings, but not the argument of the grounds unless ordered by the pro-siding officer.(d) Any offer of proof made in con-nection with an objection taken to the ruling of the presiding officer, excluding or rejecting proffered oral testimony, shall consist of a statement of the sub-stance of the evidence which the party'contends would be adduced by such tes-timony. If the excluded material is documentary or written, a copy of such material shall be marked for Identifica-tion and shall constitute the offer of proof.(e) Unless the presiding officer per-mits otherwise, written exhibits will not be redelved in evidence unless offered In duplicate.
In addition; a copy of each such exhibit must be furnished each of the parties at the hearing, unless the parties have previously been furnished with copies or the presiding officer directs otherwise.
The presiding officer shall fix a time for the exchange of exhibits.
The presiding officer may permit a party to replace with a true copy an original doc-ument admitted as evidence.(f) An official record of a govern-mental agency or an entry in such rec-ord, when admissible, may be evidenced HeinOnline -- 21 Fed. Reg. 808 1956 Saturday, February 4, 1956 by an official publication thereof or by a copy attested as a true copy by the officer having legal custody ofthe record, or by his deputy, and accompanied by a cer-tificate that such officer has the custody.§ 2.748 Interlocutory appeals to the Commission from rulings of presiding officers.
Except as may be otherwise specifically provided, the rulings of a presiding officer may not be appealed from during the time the proceeding is pending.before him, except in extraordi-nary circumstances where in the judg-ment of the presiding officer prompt de-cision by the Commission is necessary to prevent detriment to the public interest or unusual delay or expense. In such instances the matter' shall be referred for determination forthwith by the pre-siding officer to the Commission.
§ 2.749 Proposed findings and con-clusions.
At the close of the reception of evidence, or within a reasonable time thereafter as fixed by the presiding offl-cer, the parties may file for considera-tion proposed findings and conclusions
'with supporting reasons, briefs, or mem-oranda of law. Such proposals shall con-tain exact references to the record and.authorities relied on.§ 2.750 Official notice. (a) With or without prior request or notice, the pre-siding officer or the Commission, as the* case.may be, may take official notice of any fact which might be judicially no-ticed by thd courts of the United States or of any technical and scientific fact within the knowledge of AEC as an ex-pert body.(b) Any party may controvert a re-quest or a suggestion that official notice be taken of a fact at the time the request or suggestion is made, if it be made orally, or by a pleading, brief, or notice.If any decision is stated to rest in whole or in part upon official notice of a fact which the parties have not had a prior, opportunity to controvert, anyparty may controvert such fact by appropriate ex-ception if an intermediate decision is involved or by a petition for reconsidera-tion if a final decision is involved.
The controversion shall concisely and clearly set forth the sources, authority, and other data relied upon to show the exist-ence or nonexistence of the fact assumed or denied in the decision.§ 2.751 Intermediate decisions and their effect. (a) After hearing, the pre-siding officer will ordinarily render an intermediate decision, which decision 6hall become final unless exceptions are taken in accordance with § 2.752 or the Commission has directed that the record be certified to it for final decision.(b) However, in any case involving an application for an initial license the Commission may direct that the presid-ing officer certify the record to it with-out an intermediate decision.
In such case the Commission may: (1) Direct a responsible officer to pre-pare an intermediate decision which will not become final until the Commission acts upon it; or (2) Prepare 'its own intermediate decision, which shall become final unless exceptions are taken in accordance with§ 2.752; or FEDERAL REGISTER (3) Omit an Intermedlatp decision upon a finding on the record that due and timely execution of the Commission's functions imperatively and unavoidably so requires.(c) Each intermediate decision shall be in writing and shall contain: Cl) Findings and conclusions, with the reasons or basis therefor upon all mate-rial issues of fact, law, or discretion pre-sented on the record;(2) The ruling upon each proposed finding or conclusion filed by a party;(3) All facts officially noticed pursu-ant to § 2.750, relied upon in the de-cision;(4) The appropriate rule, order, sanc-tion, relief, or denial thereof, with the effective date;(5) The time within which exceptions to the decision may be filed, the time in which briefs in support of or In opposl-tion to the exceptions may be filed and, in the case of an intermediate decision which may become final unless excep-tions are filed, the date when such decision will become final in the absence of exceptions thereto.(d) The intermediate decision, other than an oral decision, shall be served upon all parties to the proceeding.
In the case of an oral decision, the presiding officer shall apprise the parties before Its pronouncement of his intention, and the time when he proposes, to render an oral decision.(e) Intermediate decisions shall be-come a part of the record.§ 2.752 Exceptions to intermediate de-cisions. Within 20 days after service of any intermediate decision, or such longer period as may be fixed therein, any party to a hearing may file exceptions to the decision with the Commission, and shall serve copies of such exceptions on all other parties to the hearing. Each ex-ception shall be separately numbered, shall identify the part of the intermedi-ate decision to which objection is made, shall designate by specific reference the portions of the record relied upon in sup-port of the objections, and shall state the grounds for the exception including the citation of authorities in support thereof. Any objection to a ruling, find-ing, or conclusion which Is not made part of the exceptions shall be deemed to have been waived, and the Commis-sion need not consider such objections.
I§ 2.753 Briefs and oral arguments be-fore the Commission. (a) Within such period after service of an Intermediate decision as may be fixed therein, any party to a proceeding may file a brief before the Commission in support of his exceptions to the decision or in opposi-tion to the exceptions filed by any other party.(b) In its discretion the Commission may allow oral argument upon the re-quest of a party made in his exceptions or brief, or upon Its own initiative.
§ 2.754 Final decision. (a) Upon sub-mission of a case to the Commission for final decision, the Commission will nor-mally consider the whole record. But when reviewing an intermediate deci-sion, the Commission may limit the issues to be reviewed, and give consider-atlon only to those findings and conclu-slons to which exceptions have been filed.(b) The final decision shallbe inwrit-ing and shall contain: (1) A statement of findings and con-cluslons, with the reasons or basis there-for, upon all the material Issues of fact, law, or discretion presented; (2) All facts officially noticed pursu-ant to § 2.750. relied upon in this deci-sion;(3) The ruling on each relevant and material exception filed;(4) The appropriate rule, order, sanc-tion, relief, or denial thereof, with the effective date.(c) The decision shall be served upon all parties to the proceeding.
§ 2.755 Waiver of procedures or inter-mediate decisions.
The parties to any hearing may agree to waive any one or more of the procedural steps or inter-mediate decisions which would other-wise precede the reaching of a final decision by the Commission.
§ 2.756 Petition for reconsideration.
A petition for reconsideration of a final decision after hearing may be filed by any party to the hearing, within 10 days after the decision has been issued and served. However, no petition may be filed with respect to an intermediate de-cision which has become final through failure to file exceptions thereto. The petition for reconsideration shall state specifically wherein the matter deter-mined is claimed to be erroneous, the grounds relied upon, and the relief sought. Within 7 days after a petition for reconsideration has been filed, any party to the hearing may file an answer in opposition to or support of the peti-tion. Neither the filing nor the granting of the petition shall'operate as a stay of the decision unless so ordered by the commission.
PUBLIC RULE MA=ZNG§ 2.780 Scope of rule making. The procedure described in this subpart as rule making or public rule making re-lates to the issuance, amendment, or re-scission of substantive rules in which participation by interested persons is prescribed under section 4 of the Admin-istrative Procedure Act.§ 2.781 Initiation, Petition.
Rule making will be initiated by AEC, upon its own motion, upon the recbmmenda-tion of another agency of the govern-ment, or upon the petition of any other interested person as he2inafter pro-vided.§ 2.782 Petition for rule making. Any interested person may petition the Com-mission to Issue, amend, or rescind any rule or regulation of the Commission within the score of § 2.780. The petition shall state the substance or text of any proposed rule or regulation, or amend-ment thereof, or shall specify the rule or regulation the rescission of which is de-.sired, and shall state the basis for the request. The petition will be given a docket or other Identifying number and will become a matter of public record.except as may otherwise be required pursuant to section 181 of the act or order of the Commission.
HeinOnline -- 21 Fed. Reg. 809 1956 RULES AND REGULATIONS
§ 2.783 Determination of petition.
No hearing will be held directly on the peti-tion unless the Commission deems it ad-visable. If the Commission determines that the petition discloses sufficient reasons to justify the relief requested; the Commission will issue an appropriate notice of proposed rule making. If the Commission.determines that the petition does not disclose sufficient-reasons to justify instituting the public rule making procedure, the Commission will so notify the petitioner with a' simple statement of the grounds.§ 2.784 Notice of proposed rule mak-ing. A general notice of proposed rule making will be published in the FEDERAL REGISTER unless all perslns subject to the proposed rule making are named and either personally served with notice or otherwise have actual notice in accord-ance with law. The notice, whether published or personally served, shall in-clude: (a) A statement of the time, place, and nature of the public rule making hearing; (b) reference to the authority under which the rule is proposed; (c)either the terms or substance of the pro-posed rule or a description of the sub-jedts and issues involved.
The publica-tion or service of notice shall be made not less than 15 days prior to the time.fixed for the hearing, provided that a lesser time may be prescribed upon good cause found and incorporated, with a brief statement of the reasons, in the notice.§ 2.785 Participation.
by interested persons. After notice required .by§ 2.784, the Commission will, afford in-terested persons an opportunity to par-ticipate in the rule making through the submission of data, views, or arguments in such informal, hearing, pursuant to§ 2.720, as the notice provides.
The opportunity to participate may include an opportunity to comment upon or respond to the data, views," or argu-ments submitted by others. Where ad-ditional time may be needed for this purpose the Commission may, upon the requbst of an interested person, grant an additional reasonable period of time for the submission of data, 'views, or arguments in reply.§ 2.786 Commission action. After consideration' of all relevant matters presented, the Commission will incor-porate in any, rule adopted a concise general statement of its basis and pur-pose and will cause the rule to be pub-lished in the FEDERAL REGISTER or served upon the affected parties. .§ 2.787 Effective dates. The rule.will specify its effective date. Publication or service of the rule, other than one granting or recognizing exemption or re-lieving restriction, shall be made not less than 30 days prior to the effective date thereof unless the Commission may provide otherwise upon good cause found and published with the rule.AVAILABILITY OF OFFICIAL RECORDS§ 2.790 Public inspection, exceptions, requests for withholding. (a) Except as provided in paragraph (b) of this section or 'as required to protect Re-stricted Data or defense information, matters of official record in any proceed-ing subject to this part (including ap-plichtions for licenses, licenses, rules, regulations, orders, transcripts of hear-ings, exhibits received in evidence, and'decisions) will be made available for public inspection.(b) The AEC may withhold any docu-:ment or part thereof from public in--spection if disclosure of its contents is" not required in the public interest and would adversely affect the interest of a person concerned.
Such withholding from public inspection shall not, how-ever, affect the right of persons-properly and directly concerned to inspect the document.(c) Persons requesting that docu-ments or information therein be with-held from public disclosure shall make prompt application identifying the ma-terial and giving the reasons. Where th6 applicant is responsible for the prep-aration of the document, he shall in-sofar as is possible segregate in a separate paper the information for which the special treatment is requested.
The AEC may honor the request upon a finding that public inspection is not re-quired in the public interest and would adversely affect the interest of the person concerned.
If the request is denied, the applicant will be notified thereof with a statement of the reasons.Dated at Washington, D. C., this 31st day of January 1956.K. E."FxxLnS, General Manager.[F. R. Dc.56-908; Filed, Feb. 3. 1956;8:48 a. m.l 1PART 25--AcqEss TO RESTRICTED DATA In view of the fact that'the Atomic Energy Commission has received a sub-stantial number of applications and has issued a substantial number of access permits in accordance-with procedures set forth in the notice of proposed rule making published in the FEDERAL REGIS-TER on May 19, 1955 (20 F. R. 3634), and, because interested persons will not be adversely affected, the Commission has found that good cause exists why the regulations in this part should be made effective without the customary 30-day'period of notice.Pursuant to the Administrative Pro-cedure Act, Public Law 404, 79th Cong., 2d sess., the following rules are published is a document subject to codification, to be effective upon publication in the FEDERAL REGISTER.oENERAL PROVISIONS Sec.25.1 Purpose.25.2 Applicability.
25.3 Definitions.
25.4 Interpretations.
25.5 Communications.
25.6 "Categories of available information.
APPLICATIONS 25.11 Applications.
25.12 Non-eligibility.
25.13 Additional information.
25.14 Public inspection of applications.
25.15 nequirements for approval of appli-cations.Sec.25.21 25.22 25.23 25.24 25.25 25.26 25.27 25.28 25.29 25.30 25.31 PERMITS Issuance.Scope of permit.Terms and conditions of access.Administration.
Term and renewal.Assignment.
Amendment.
Commission action on application to renew or amend.Modification and revocation of per-mts.Exceptions and additional require-ments.Effective date; amendment of permits previously Issued.AuToniTY:
H 25.1 to 25,31 Issued under sec. 161, 68 Stat. 948; 42 U. S O, 2201, GENERAL PROVISIONS
§ 25.1 Purpose. The regulations In this part establish procedures and criteria for permitting persons to have access to Confidential or Secret Re-stricted Data relating to civilian uses of atomic energy.§ 25.2 Applicability.
The regulations in this part apply to any person within or under the jurisdiction of the United States who desires access to Restricted Data for use In his business, profession or trade.§ 25.3 Definitions.
As used In this part:-(a) "Act" means "the Atomic Energy Act of 1954 (68 Stat. 919), including any amendments thereto.(b) "Category" means a category of Restricted Data designated In Appendix A to the regulations in this part.(c) "Commission" means the Atomic Energy Commission or Its duly author-ized representatives.
- (d) "Permittee" means the holder of a permit issued pursuant to the regula-tions in this part.(e) "Person" means (1) any individ-ual, corporation, partnership, firm, as-sociation, trust, estate, public or private institution, group, Government agency other than the Commission, any state or any political subdivision of, or any political entity within a state, or ether entity; and (2) any legal successor, rep-resentative, agent, or agency of the foregoing.(f) "Restricted Data" means all data concerning (1) design, manufacture or utilization, of atomic weapons; (2) tile production of special nuclear material: or (3) the use of special nuclear mate-rial in the production of energy, but shall not include data declassified or removed from the Restricted Data category pur-suant to section 142 of the act.§ 25.4 Interpretations.
Except as specifically authorized by the Commis-sion in writing, no interpr6tation of the meaning of the regulations in this part by any officer or employee of the Com-mission other than a written interpreta-tion by the General Counsel will be rec-ognized to be binding upon the Commis-sion. -§ 25.5 Communications., All com-'municatlons concerning the regulations in this part, and applications filed under them, should be addressed to the Atomic Energy Commission, 1901 Constitution HeinOnline -- 21 Fed. Reg. 810 1956 Saturday, February 4, 1956 Avenue NW., Washington 25, D. C.. At-tention: Division of Civilian Application.
§ 25.6 Categories of available infor-mation. For administrative purposes the Commission has categorized Re-stricted Data which will be made avail-able -to permittees into a number of major categories as set forth in Appen-dix A to this part. Information pertain-ing to the design, manufacture or utili-zation of atomic weapons is not included in these categories and will not be made available under this part.APPLICATIONS
§ 25.11" Applications. (a) Any person desiring access to Confidential or Secret Restricted Data pursuant to these regula-tions should submit an application (Form AEC 378) for an access permit to the Atomic Energy Commission, 1901 Con-stitution Avenue NW., Washington 25, D. C., Attention:
Division of Civilian Application.
NoTE: Where an individual desires access to Restricted Data for use in' the performance of his duties as an employee, the application for an access permit should be fied by his employer.(b) Each application should contain the following infgriLation:
(1) Name of applicant; (2) Address of applicant; (3) Description of business or occupa-tion of applicant; (4) (i) If applicant is an individual, state citizenship.(ii) If applicant is a partnership, state name, citizenship and address of each partner and the principal location where the partnership does business.(iii) If applicant is a corporation or an unincorporated association, state: (a) The state where it is incorporated or organized and the principal location where it does business;(b) The names, addresses and citizen-ship of its directors and of its principal officers;(c) Whether it is owned, controlled or dominated by an alien, a foreign corpora-tion, or foreign government, and if so, give details.(iv) If the applicant is acting as agent or representative of another person in filing the application, identify the prln-cipal and furnish information required under this subparagraph with respect to such principal; (5) Total number of full-time em-ployees;(6) Classification of Restricted Data (Confidential or Secret) to which access is requested; (7) Potential use of the Restricted Data in the applicant's business, pro--fession or trade. If acc~ss to Secret Restricted Data is requested, list the specific categories by number and fur-nish detailed reasons why such access within the'specified-categories is needed by the applicant.
The need for Secret information should be stated by describ-ing its proposed use in specific research, design, planning, construction, manufac-turing, or operating projects; in activi-ties under licenses issued by the Commis-sion;, in studies or evaluations planned or underway; or in work or services to be performed for other organizations.
FEDERAL REGISTER (8) PrIncipallocation(s) at which Re-stricted Data will be used.(c) Each application shall contain complete and accurate disclosure with respect to the real party or parties in interest and as to all other matters and things required to be disclosed.
§ 25.12 Non-eligibility.
The follow-ing persons are not eligible to apply for an access permit: (a) Corporations not organized under*the laws of the United States or a politi-Cal subdivision thereof.(b) Any individual who is not a citizen of the United States.(c) Any partnership not including among the partners one or more citizens of the United States; or any other unin-corporated association not including one or more citizens of the United States among Its principal officers.(d) Any organization which is owned, controlled or dominated by the Govern-ment of, a citizen of, or an organization organized under the laws or a country or area listed as a Subgroup A country or destination in § 371.3 (15 CFR 371.3)of the Comprehensive Export Schedule of the United States Department of Com-merce.§ 25.13 Additional information.
The Commission may, at any time after the filing of the original application and before the termination of the permit, require additional information In order to enable the Commission to determine whether the permit should be granted or denied or whether it should be modi-fied or revoked.§ 25.14 Public inspection of applica-tions. Applications and documents sub-mitted to the Commission In connection with applications may be made available for public inspection In accordance with the regulations contained in Part 2 of this chapter.§ 25.15 Requirements for approval of applications. (a) An application for ac-cess to Confidential Restricted Data In all the categories set forth in Appendix A, will be approved only if the applica-tion demonstrates that the applicant has a potential use or application for such data in his business, trade or profession.(b) An application for access to Secret Restricted Data in any of the categories will be approved only if the application demonstrates that the ap-plicant has a need for such data In his business, trade or profession.
Such need must be demonstrated as to each of the categories to which such access is requested.
PER11IS§ 25.21 Issuance. (a) Upon a deter-mination that an application meets the requirements of this regulation, the Commission will issue to the applicant an access permit on Form AEC 379.NOTE: An Access Permit Is not a zecurity clearance.
It does not authorize any Indi-vidual not having an appropriate AhEc se-curity clearance to receive Restrlcted Data.See 525.24 and Part 95 of this chapter.§ 25.22- Scope of permit. (a) All ac-cess permits will as a minimum, author-ize access, subject to personnel security clearances, to Confidential Restricted Data in all of the categories set forth in Appendix A.(b In addition, access permits may authorize access, subJect to personnel security clearances, to such Secret Re-stricted Data as is included within the particular category or categories speci-fled in the permit.§ 25.23 Terms and conditions of ac-cess. (a) Neither the United States, nor the Commission, nor any person act-ing on behalf of the Commission makes any warranty or other representation, express or implied, (1) with respect to the accuracy, completeness or usefulness
.of any information made available pur-suant to an access permit, or (2) that;the use of any such Information may not infringe privately owned rights.(b) The Commission hereby waives such rights with respect to any invention or discovery as it may have pursuant to section 152 of the act by reason of such invention or discovery having been made or conceived in the course of, in connec-tion with, or resulting from access to Restricted Data received under the terms of an access permit.(c) Each permIttee shall: (1) Comply with all applicable pro-visions of the Atomic Energy Act of 1954 and with Part 95 of this chapter and with all other applicable rules, regu-lations and orders of the Commission; (2) Be deemed to have waived all claims for damages under section 183 of title 35 U. S. Code by reason of the im-position of any secrecy order on any patent application, and all claims for Just compensation under section 173 of the Atomic Energy Act of 1954, with re-spect to any Invention or discovery made or conceived in the course of, in con-nection with, or under the terms of the access permit;(3) Be deemed to havewaved any and all claims against the United States, the Cbmmsslon and all persons acting on behalf of the Commission that might arise in connection with the use, by the applicant, of any and all information supplied by them pursuant to the access permit;(4) Shall obtain and preserve in his files written agreements from all in-dividuals who will have access to Re-stricted Data under the access permit to give effect to subparagraphs (2) and (3)of this paragraph.
§ 25.24 Administration.
'With respect to each permit issued pursuant to the regulations in this part, the Commission will designate an offilce, usually an op-erations Omce to: (a) Process all personnel security clearances requested in connection with the permit;(b) Review the procedures submitted by the Applicant, in accordance with Part 95 of this chapter, for the safe-guarding of Restricted Data; and (c) Provide information to the per-mittee with respect to the sources and locations of Restricted Data available under his permit.§ 25.25 Term and renewaL (a) Each access permit will be Issued for a two year term, unless otherwise stated in the permit, HeinOnline -- 21 Fed. Reg. 811 1956 RULES AND REGULATIONS (b) Applications for renewal of' an access permit shall be on Application Form AEC 378. In any case in which a permittee has filed a properly completed application for renewal more than thirty (30) days prior to the expiration of his existing permit, such existing permit shall not expire until the application for a renewal has been finally acted upon by the Commission.
§ 25.26 Assignment.
An access permit Is non-transferable and non-assignable.
§ 25.27 Amendment.
An access per-mit may be amended from time to time upon application by the permittee.
An application for amendment shall be filed in accordance with § 25.11 and shall specify the nature of and the grounds for the amendment, requested.
§ 25.28 Commission action on appli-cation to renew or amend. In consider-ing an application by a permittee to renew or amend his permit, the Commis-sion will apply the criteria set forth in 25.15. .. .§ 25.29 Modification and revocation of permits. The Commission "may're-voke, suspend or modify any access per-mit for any material false statement in the application or in any report sub-mitted to the Commission pursuant to the regulations in this part or because of conditions or facts which would have warranted a refusal to grant the permit in the first instance, or for violation of any of the terms and conditions of the Atomic Energy Act of 1954 or Commis-sion rules, regulations or orders issued pursuant thereto.§ 25.30 Exceptions'and additionaZ re-quirements.
Notwithstanding any other provision
_in the regulations in this part, the Commission may deny an application for an access permit of suspend, modify or revoke any access permit, or incor-porate additional conditions or require-ments In any access permit, upon finding that such denial, revocation-or the in-corporation of such conditions and limi-tations is necessary or appropriate in the interest of the common defense and security.§ 25.31 Effective date; -amendment of permits previously issued. (a) The regulations in this part are effective upon publication in the FDERAL REGISTER.(b) Each access permit heretofore is-sued by the Commission shall be deemed to have been amended, effective upon publicati6n of this part in the FEDERAL REGISTER, by deleting those provisions of the permit, and of the application there-for, which grant to the Commission for governmental purposes a license in, and which require the permit holder to re-port to the Commission, any invention or discovery resulting from access to Secret Restricted Data under the access Permit.NOTE: The reporting requirements con--tained herein have been approved by the Bureau of the Budget in accordance with the Federal Reports Act of 1942.APPENDIX A CATEGORIES OP RESTRICTED DATA AVAILABLE (In-CLUDING SCOPE NOTES FOR EACA CATEGORY)C-4 Chemistry; general. This category includes such information as the relatively unspecialized and fundamental chemistry of elements and their compounds through ele-ment 92. It includes such information as the following:
- 1. Chemical properties, reactions, and cor-rosion studies.2. Laboratory scale preparations and puri-fication.3. Physical chemistry including chemical thermodynamics, chemical kinetics, and crystal structure.
- 4. Analytical methods, including
'mass spectroscopy.
- 5. General chemical engineering theory, design, construction, and/or testing of lab-oratories and equipment of interest to chemists and chemical engineers.
See also categories C-7, C-10, C-16, 0-55 for'specialized applications.
C-7 Chemistry; radiation and radiochem-istry. This category includes information on: 1. The chemical effects of radiation on matter.2. rhe production of radioisotopes.
- 3. The chemical Isolation and purification of radioisotopes and their compounds.
- 4. The chemistry of radioactive
,,sub-stances, including fission products.5. The prpparation of labeled compounds.
- 6. Tracer chemistry.
- 7. Effect of radiation on chemical reac-tions. See also categories C-4, C-10, and C-16.C-10 Chemistry; separation processes for plutonium and uranium. This category in-cludes information on:.1. The chemistry and chemical engineer-ing of processes for the separation, decon-tamination, and processing of plutonium and uranium from materials or solutions containing real or simulated fission prod-ucts.2. The separation of U-233 from Irradi-.ated thorium, Including the decontamina-tion and purification of the U-233 and irradiated thorium..3. Development work, chemical engineer-Ing problems, and pilot plant rune pei-taining to the program 'of recovery of uranium from Hanford and Oak Ridge National Laboratory process solutions re-niianing after plutonium removal.See also categories-C--25, C-47, C-55, C-68 and 0-78.C-16 Chemistry; transuranic elements.This category includes information on: The chemistry of the transuranic ele-ments and their compounds.
C-21 Controlled thermonuclear processes.
This category includes information on the theory, design, development, and operation of experiments relating to the controlled release of energy from thermonuclear reactions.
In-formation relating to thermonuclear weapons Is specifically excluded.C-46 Criticality hazards. This category includes information on: 1. Critical mass experiments.
- 2. Safety precautions In conducting criti-cal mass experiments.
- 3. Safe processing and storage of speclal nuclear materials.
This category does not include informa-tion on reactor hazards or critical experi-ments in support of reactor design (see cate-gories 0-42, C-80, and C-81).S-41 Health and safety. This category includes information on biological and med-Ical studies applicable directly to the health and safety of personnel, Including such'topics as toxicities, tolerance and maximal allowable concentrations, clinical tests and criteria of injury, industrial diseases, pro-tective measures and safety procedures, per-sonnel decontamination, and therapeutic measures with respect both to radioaotivo and other toxic agents.C-22 Isotope separation.
This category ncludes information on:.1. Any method (except gaseous diffusion) of separating one or more isotopes of an element from a mixture of isotopes of that element.2. Design, construction, and operation of the electromagnetic separation process.3. Production and isolation of stable isotopes.4. Special methods such as those for the separation of boron and hydrogen isotopes.See also categories C-28 and 0-34.C-37 Instrumentation, This category In-cludes information primarily relating to the design, development, construction, testing, or evaluation of instruments of all types, In general the only classified information in this category is that which describes classi-fied applications.
C-25 Metallurgy and ceramics, This category Includes information on: 1. Metallurgy, including reduction to metal, of non-fissionable substances, tho-rium, uranium 233, and all Isotopic mixtures ,of uranium 235 and uranium 238, 2. Ceramics and refractories which do not directly or exclusively pertain to plutonium technology. (See category 0-55.)3. Corrosion studies on uranium metal, alloys, and reactor elements.4. Design and methods of manufacture, coating, canning, and testing uranium re-actor fuel elements, including those for pro-duction reactors.5. Laboratory-scale electrolytic deposition of high-purity uranium.6. Laboratory-scale pyrometallurgical stu-dies toward separation of uranium and fission products.See also category G-40.C-26 Metallurgy; raw materials.
ThiM category includes informaxtion on: 1.. Uranium, thorium, zirconium, beryllium ore and ffineral beneflclatlon.
- 2. Design, development, and equipment relating to raw materials technology, 3. Analytical procedures pertaining to ore beneficlatlon.
- 4. Chemical research directed toward the solution of raw materials processing prob-lems.5. Pilot plant, semi-works, or larger scale process design and flow shoots for beneflela-tion and concentration.
C-28 Particle accelerators and high volt-age machines.
This category includes infor-mation on the design, development, construc-tion, and operation of high-voltage machines and particle accelerators, including Van do Graaff generators, linear accelerators, cyclo-trons, synchrotrons, bevatrons, X-ray ma-chines, etc.C-34 Physics and mathematics, This category is intended to cover basic physics and mathematics and includes, but Is not limited to, the following:
- 1. Nuclear characteristics of all elements, 2. General theory of neutron diffusion and fundamental reactor theory, 3. Basic theory of shielding design and construction problems.4. Mathematical theory and methods.5. Mechanics, sound, and shock.6. General hea't-transfor and fluid-flow studies.7. Basic theory of thermal diffusion, gase-ous diffusion, and electromagnetic methods of Isotope separation.
- 8. High-voltage break-down in Vacutum, Insulation in vacuum, etc.9. Experimental data on ion cross sections for electrons, ions, secondary omisisons, eto, HeinOnline -- 21 Fed. Reg. 812 1956 Saturday, February 4, 1956 10. The general phenomena of discharges in magnetic fields.,C-40 Radiation effects on reactor mate-rials. This category includes information ot the effects of radiation on reactor compo-nents, for example: Wigner effect, blisterings, etc., and reports on the effects of radiation on plastics, lubricants, etc.See also category C-7 C-42 Reactors; production.
This category includes information on: 1. Theory, design, construction and opera-tion of Hanford and Savannah River produc--tion reactors, and any reactor proposed for large-scale production or special nuclear materials.
- 2. The effects of radiation on graphite and other structural materials which clearly re--late to production reactors.G-80 Reactors; research and testing. This category includes information on: 1.- Theory, design, construction, and oper-ation of nuclear reactors used primarily as a source of neutrons for the purpose of con-ducting experimental studies on neutron or other particle interactions with matter, or medical or biological research and applica-tion.2. Fundamental shielding studies.3. 'Basic nuclear research with reactors.4. The production of nonfisslonable iso-topes.5. Fundamental studies if breeding.This category does not include:.I. Power reactors or experimental power reactors. (See category C-81.) " 2. Classified defense information on reac-tors for military purposes..
c-81 Reactors; power. This category in-cludes information on: 1. Theory, design, construction, and oper-ation of nuclear reactors (including exper-imental power reactors) whose primary pur-pose is the production of power.2. Economic, fundamental feasibility, de-" velopment and design aspects of power re-actors or experimental power reactor com-ponents.3. Reactor technology and closely related topics pertaining to military reactors which are dissociated from military utilizatilon systems.This category does not include: 1. Classified defense information on nu-clear power plants for military purposes.FEDERAL REGISTER 2. Information concerning reactors for re-search or testing purposes.3. Theory, design, and construction of pro-duction reactors.4. Critical mass experiments or other phys-ics data not related to specific power reactor design.C-47 Technozlogy; feed materials.
Thia category includes information on: 1. Chemical research and development di-rected toward large-scale production of in-termediate and feed materials.
- e. g., UO, 0,., UF,, UP, The=, ThF,. etc.2. Refinery process development work for'uranium ores and concentrates.
- 3. Uranium recovery procedures for Ecrap materials, residues, and efiluents.
- 4. Quality control procedures pertinent to production of high-purity uranium com-pounds.5. Designs. construction, and operational procedures for pilot-plant equipment.
See also category 0-25.C-60, 67, 68 Technology.
Hanford proc-esses. These categories include information on the design, construction, operation, and technology of present or proposed Hanford processes and reactors which is not Included n categories 0-25, C-42 and C-10 because It reveals operating levels, rates, and other production data.C-66 Fuel element technology. (See category C-25.)C-67 Reactor technology. (Sea category C-42.)C-68 Separations process technology.(See category C-10.)C-55 Technology; plutonium.
This cate-gory includes information not Involting weapon data on: 1. Reduction of plutonium compounds to metal.2. Metallurgy of plutonium and Its alloys.3. Chemistry involved In final purification of plutonium compounds, plutonium metal production, and fabrication.
- 4. Special analytical techniques required to determine the purity of weapon grade plutonium.
- 5. Procedures for recovery of plutonium from scrap materials, residues.
etc.See also categories C-10, C-16.C-76, 77, 78 Technology; Savannah River processes.
These categories contain Infor-mation on the design, construction, opera-813 ton and technology of present or proposed Savannah River processes and reactors which 15 not included In categories 0-25, c-42 and C-10 because it reveals operating levels, rates, and other production data.0-70 Fuel element technology. (See category C-25.)C-77 Reactor technology. (See category 0-42.)C-78 Separations process technology.(See category C-10.)C-50 Technology; tritium. The scopenote for this category is classified Confidential.
It will be sent upon request to properly cleared persons pursuant to access permits.-70 Radioactive waste. This category includes research and development informa-tion on: 1. Chemical and chemical engineering problems ncldental to the storage and dis-posal of waste radioactive materials, both natural and artificial.
- 2. Decontamination measures for process equipment and other contaminated surfaces.3. Meteorological and geological informa-tion applied to problems of radioactive waste disposal or storage.4. Air cleaning, control and disposal of radioactive effluents.
Dated at Washington, D. C., this 27th day of January 1956.R. W. Cooxr Acting General Manager.[P. R. Doe.56-910; Piled, Feb. 3, 1956;8:48 a. i.]PART 95-SA UARDING OF RESTRICTED DATA Correction In F. R. Document 56-487, appearing in the issue for Thursday, February 2, 1956, at page 718, the footnote designator "1" appearing after the word "Data" in the part heading of Part 95, should be deleted and inserted after "Part 25" in the first sentence of the introductory text.PROPOSED RULE MAKING-FEDERAL HOME LOAN BANK BOARD[ 24 CFR Part 109 1[1o. 92621 RULES OF PRACTICE AND PROCEDURE:
AD-JUDICATIONS U N D E R ADMINISTRATIVE PROCEDURE AcT NOTICE- OF PROPOSED RULE MA=SING JANUAy 30, 1956.Resolved, that, pursuant to Part 108 of the general regulations of the Federal Home Loan Bank Board'(24 CFR Part 108) it is hereby proposed that, pursuant to section 17, 47 Stat. 736 (12 U. S. C.1437) and section 5, 48 Stat. 132 (12 U. S. C. 1464), the general regulations of the-Federal H6me Loan Bank Board (24 CFR, Ch. I, Subchapter A) be amended by adding a new Part 109 at the end thereof to read as follows:., No. 21-5§ 109.1 Scope of regulations.
The provisions of this part shall govern hear-ings to determine whether cause exists, under the provisions of section 6 (1) of the Federal Home Loan Bank Act, as amended (12 U. S. C. 1426 (1)), for the removal of any member of a Federal Home Loan Bank from membership or for depriving any nonmember borrower of the privilege of obtaining advances from a Federal Home Loan Bank; hear-ings under the provisions of section 5 (d)of the Home Owners' Loan Act of 1933, as amended (12 U. S. C. 1464 (d)), in-volving alleged violations of law or regu-lation by a Feddral savings and loan as-sociation and upon the existence of grounds for the appointment of a con-servator or receiver for a Federal savings and loan association; and hearings to de-termine whether cause exists for the ter-mination of the insured status of any institution insured by the Federal Sav-ings and Loan Insurance Corporation, as provided In section 407 of the National Housing Act, as amended (12 U. S. C.1730).§ 109.2 Service. filing of papers, etc.-(a) Proof of service. All documents or papers required to be served by the Board on any interested party shall be served by the Secretary.
unless some other person shall be designated for such purpose by the Board. Such service, ex-cept on Counsel for the Board, shall be made by personal service or by registered mail addressed to the last known ad-dress as shown on the records of the Board, on the attorney or representative of record of any party: Provided, That if there is no attorney or representative of record, such service shall be made upon the person or institution involved at the last known address, as shown on the records of the Board. The term Sec-rethry as used in this part shall mean the Secretary and any Assistant Secre-tary to the Board.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 "Entergy's Answer Opposing New York State's Motion to Cross-Examine" was served electronically via the Electronic Information Exchange on the following recipients.
Administrative Judge
Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel
Mail Stop: T-3 F23
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Lawrence.McDade@nrc.gov)
Administrative Judge Dr. Michael F. Kennedy Atomic Safety and Licensing Board Panel
Mail Stop: T-3 F23
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Michael.Kennedy@nrc.gov) Administrative Judge Dr. Richard E. Wardwell Atomic Safety and Licensing Board Panel
Mail Stop: T-3 F23
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Richard.Wardwell@nrc.gov)
Office of the Secretary Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: hearingdocket@nrc.gov)
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-7H4M
Washington, DC 20555-0001 (E-mail: ocaamail.resource@nrc.gov) Shelby Lewman, Law Clerk Anne Siarnacki, Law Clerk Atomic Safety and Licensing Board Panel
Mail Stop: T-3 F23
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. Edward L. Williamson, Esq.
Beth N. Mizuno, Esq.
David E. Roth, Esq.
Brian G. Harris, Esq.
Mary B. Spencer, Esq.
Anita Ghosh, Esq.
Joseph A. Lindell, Esq.
Brian Newell, Paralegal
Office of the General Counsel
Mail Stop: O-15D21
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Sherwin.Turk@nrc.gov)
(E-mail: Edward.Williamson@nrc.gov)
(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) Melissa-Jean Rotini, Esq.
Assistant County Attorney
Office of Robert F. Meehan, Esq.
Westchester County Attorney
148 Martine Avenue, 6th Floor
White Plains, NY 10601 (E-mail: MJR1@westchestergov.com)
Phillip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
20 Secor Road
Ossining, NY 10562 (E-mail: phillip@riverkeeper.org)
(E-mail: dbrancato@riverkeeper.org)
Manna Jo Greene Karla Raimundi
Hudson River Sloop Clearwater, Inc.
724 Wolcott Ave.
Beacon, NY 12508 (E-mail: mannajo@clearwater.org)
(E-mail: karla@clearwater.org)
(E-mail: stephenfiller@gmail.com)
Daniel Riesel, Esq.
Victoria Shiah Treanor, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue
New York, NY 10022 (E-mail: driesel@sprlaw.com)
(E-mail: vshiah@sprlaw.com)
DB1/ 70739435 John J. Sipos, Esq.
Charlie Donaldson Esq.
Assistant Attorneys General Office of the Attorney General of New York of New York
The Capitol
Albany, NY 12224-0341 (E-mail: John.Sipos@ag.ny.gov)
(E-mail: Charlie.Donaldson@ag.ny.gov)
John Louis Parker, Esq. Office of General Counsel, Region 3 New York Dept. of Environmental
Conservation
21 S. Putt Corners Road
New Paltz, New York 12561-1620 (E-mail: jlparker@gw.dec.state.ny.us)
Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building
236 Tate Avenue
Buchanan, NY 10511-1298 (E-mail: smurray@villageofbuchanan.com)
(E-mail: Administrator@villageofbuchanan.com)
Michael J. Delaney, Esq. Vice President -Energy Department New York City Economic Development
Corporation (NYCDEC) 110 William Street New York, NY 10038
mdelaney@nycedc.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.