# Streamlining Contested Adjudications in Licensing Proceedings > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2026-04187 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** March 3, 2026 - **Citation:** 91 FR 10450 ## Text NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2, 51, 52, and 54 [NRC-2025-1501] RIN 3150-AL58 Streamlining Contested Adjudications in Licensing Proceedings AGENCY: Nuclear Regulatory Commission. ACTION: Proposed rule. SUMMARY: The U.S. Nuclear Regulatory Commission (NRC, agency, or Commission) is proposing to revise the agency's rules of practice and procedure to streamline contested adjudications in NRC licensing proceedings in response to the Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy Act of 2024 (ADVANCE Act) and Executive Order 14300, Ordering the Reform of the Nuclear Regulatory Commission. DATES: Submit comments by April 2, 2026. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only of comments received before this date. ADDRESSES: Submit your comments, identified by Docket ID NRC-2025-1501, at https://www.regulations.gov. If your material cannot be submitted using https://www.regulations.gov, call or email the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. Do not include any personally identifiable information (such as name, address, or other contact information) or confidential business information that you do not want publicly disclosed. All comments are public records; they are publicly displayed exactly as received, and will not be deleted, modified, or redacted. Comments may be submitted anonymously. Follow the search instructions on https://www.regulations.gov to view public comments. You can read a plain language description of this proposed rule at https://www.regulations.gov/docket/NRC-2025-1501. For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Michael Spencer, Office of the General Counsel, telephone: 301-287-9115; email: Michael.Spencer@nrc.gov staff of the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. SUPPLEMENTARY INFORMATION: Executive Summary A. Need for the Regulatory Action The Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy Act of 2024 (ADVANCE Act) was signed into law in July of 2024. The ADVANCE Act establishes requirements to enhance the NRC's timeliness and efficiency, including a broad requirement for efficiency through an updated Mission Statement. 1 One provision specifically addresses the hearing process, requiring the NRC (for certain combined license applications) to among other things, complete “any necessary public licensing hearings and related processes” not later than 2 years after docketing the application. 1 ADVANCE Act of 2024, Public Law 118-67, div. B, §§ 206, 207, 501, 504, 505, 506 (2024). For example, Section 506 requires the NRC to periodically improve its performance metrics and milestone schedules for completing safety evaluations “to provide the most efficient metrics and schedules reasonably achievable.” Subsequently, in May of 2025, the President directed a series of reforms to improve the agency's efficiency and effectiveness in Executive Order (E.O.) 14300, “Ordering the Reform of the Nuclear Regulatory Commission.” 2 As relevant to this proposed rule, Section 5(j) of E.O. 14300 directs the NRC to streamline its public hearing process. Relatedly, E.O. 14300 Section 5(a) directs the NRC to establish fixed deadlines for its evaluation and approval of specified licensing actions and requests, Section 5(d) directs the NRC to establish an expedited approval pathway for reactor designs tested and demonstrated by the Department of Defense (also referred to as the Department of War) 3 or the Department of Energy (DOE), and Section 5(e) directs the NRC to “[e]stablish a process for high-volume licensing of microreactors and modular reactors[.]” 2 Executive Order No. 14300, “Ordering the Reform of the Nuclear Regulatory Commission,” 90 FR 22587 (dated May 23, 2025; published May 29, 2025). 3 The Department of Defense (DOD) was authorized to use the secondary title, the Department of War (DOW), in September 2025 by Executive Order. See Executive Order No. 14347, “Restoring the United States Department of War,” 90 FR 43893 (dated September 5, 2025; published September 10, 2025). In response to Congressional and Executive action, the NRC has developed this proposed rule focused on streamlining the agency's rules of practice and procedure. The proposed changes to the contested hearing process would reduce burden, increase clarity, and promote efficiencies in line with the deadlines established in accordance with the ADVANCE Act and E.O. 14300. B. Major Provisions Major provisions of this proposed rule include the following: • Revisions to the contested hearing process that would enable the NRC to generally complete adjudications within 8 to 14 months or faster for expedited proceedings. • A requirement for evidentiary hearings to begin as soon as practicable upon admission of contentions • Strict deadlines for the completion of hearings. • A revised process where participants would provide more information on the merits of proposed contentions in their initial filings to accelerate decision-making. • A reduction in discovery burden on all parties to reflect the greater availability of information due to technological developments. • Revisions to accelerate Commission review of appeals. • Elimination, refinement, or addition of provisions that would accommodate the schedule directives of the ADVANCE Act and E.O. 14300. C. Costs and Benefits This proposed rule is considered to be a deregulatory action and would reduce burden for both the government and hearing participants by streamlining contested hearing proceedings. Over the 5-year analysis period (2026-2030), the proposed revisions to contested hearings are projected to yield savings for the public, the industry, and government. The combined net savings would generate cumulative undiscounted savings of $51.7 million. Using 2024 as the base year, the net present value (NPV) of these net savings is $46.0 million, discounted at 3 percent, or $39.6 million, discounted at 7 percent. The projected annualized cost savings would be $9.8 million discounted at 3 percent, or $9.0 million discounted at 7 percent. These values represent net savings, as implementation costs are expected to be minimal. For more information, please see the regulatory analysis included later in this notice. Table of Contents I. Obtaining Information and Submitting Comments A. Obtaining Information B. Submitting Comments II. Executive Order 14300: Ordering the Reform of the Nuclear Regulatory Commission III. Background IV. Discussion V. Specific Requests for Comments VI. Regulatory Flexibility Certification VII. Regulatory Analysis VIII. Backfitting and Issue Finality X. Plain Writing X. National Environmental Policy Act XI. Paperwork Reduction Act XII. Regulatory Planning and Review XIII. Availability of Guidance XIV. Availability of Documents I. Obtaining Information and Submitting Comments A. Obtaining Information Please refer to Docket ID NRC-2025-1501 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods: • Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2025-1501. • NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin ADAMS Public Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, at 301-415-4737, or by email to PDR.Resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section. • NRC's PDR: The PDR, where you may examine and order copies of publicly available documents, is open by appointment. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8 a.m. and 4 p.m. eastern time, Monday through Friday, except Federal holidays. B. Submitting Comments The NRC encourages electronic comment submission through the Federal rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2025-1501 in your comment submission. The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information. If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS. II. Executive Order 14300: Ordering the Reform of the Nuclear Regulatory Commission On May 23, 2025, President Donald J. Trump signed Executive Order (E.O.) 14300, “Ordering the Reform of the Nuclear Regulatory Commission.” Section 5, “Reforming and Modernizing the NRC's Regulations,” requires the NRC to undertake a review and wholesale revision of its regulations and guidance documents as guided by the policies set forth in section 2 of the E.O. This rulemaking addresses section 5(j), which requires the NRC to “Streamline the public hearings process,” and also supports meeting the objectives of sections 5(a), 5(d), and 5(e) of E.O. 14300, as discussed below. III. Background Since its inception, the Commission has periodically taken steps to assess and improve the efficiency of its adjudicatory process, as discussed in a 2004 rule (69 FR 2182, pages 2182 through 2186; January 14, 2004) (hereinafter “2004 Adjudications Rule”). Generally, these reforms have yielded less formal adjudications intended to reduce the burden of litigation costs for all parties and remove procedural mechanisms that are not essential to developing an adequate hearing record. The Commission last finalized a major reformation of its hearing processes in 2004 in anticipation of a significant volume of new proceedings to consider applications for new facilities, to renew operating licenses, to reflect restructuring in the electric utility industry, and to license waste storage facilities. The Commission now expects a similar increase in licensing applications in coming years; and Congress and the President have directed the NRC to prepare to review and process these applications as expeditiously as possible. In 2024, Congress passed the ADVANCE Act, which established requirements to enhance the NRC's timeliness and efficiency that the NRC's licensing and regulation of the civilian use of radioactive materials and nuclear energy be conducted in a manner that is efficient and does not unnecessarily limit—(1) the civilian use of radioactive materials and deployment of nuclear energy; or (2) the benefits of civilian use of radioactive materials and nuclear energy technology to society. Further, section 207(c) of the ADVANCE Act specifically addresses the hearing process, requiring the NRC (for certain combined license applications) to (1) complete safety and environmental reviews not later than 18 months of docketing, (2) complete “any necessary public licensing hearings and related processes” not later than 2 years after docketing, and (3) make a final decision on whether to issue the combined license not later than 25 months after docketing. 4 4 This expedited process applies to applicants for combined licenses who meet certain requirements regarding, among other things, the use of previously approved designs on existing commercial reactor sites (or on substantially similar sites adjacent thereto), as described in § 207(b). Building on the ADVANCE Act, the President signed E.O. 14300 “Ordering the Reform of the Nuclear Regulatory Commission,” on May 23, 2025 (90 FR 22587; May 29, 2025). Section 3 of E.O. 14300 directs the NRC to consider the benefits of increased availability of, and innovation in, nuclear power to the nation's economic and national security in addition to safety, health, and environmental considerations, when the NRC carries out its licensing and related regulatory functions. In furtherance of the President's directive, E.O. 14300 tasks the NRC with streamlining its licensing and public hearing process. As relevant here, section 5 of E.O. 14300 directs the NRC, to work with its Department of Government Efficiency (DOGE) Team, the Office of Management and Budget (OMB), and other executive departments and agencies as appropriate, to undertake a review and wholesale revision of its regulations and guidance documents. Section 5 establishes specific tasks this effort must encompass, including streamlining the public hearings process, as directed by section 5(j). Relatedly, Section 5(a) of the E.O. directs the NRC to establish fixed deadlines for its evaluation and approval of specified licensing actions and other requests from a licensee or potential licensee rather than nonbinding generic milestone schedule guidelines. These deadlines include taking no more than 18 months to make a final decision on an application to construct and operate a new reactor of any type and taking no more than 1 year to make a final decision on an application to continue operating an existing reactor of any type. Section 5(a) also requires the NRC to adopt shorter deadlines tailored to particular reactor types or licensing pathways as appropriate. Because the timeframes in E.O. 14300 are shorter than those in the ADVANCE Act, meeting the timeframes in E.O. 14300 will generally also ensure compliance with the ADVANCE Act. In addition, section 5(e) of the E.O. directs the NRC to establish a process for high-volume licensing of microreactors and modular reactors, and section 5(d) of the E.O. directs the NRC to establish an expedited pathway to approve reactor designs that the DOW or the DOE have tested and that have demonstrated the ability to function safely. In some cases, completing licensing decisions within the E.O.-directed timeframes will turn on timely completion of a contested adjudication. However, the Commission's current hearing procedures in 10 CFR part 2 provide deadlines and milestones that would collectively exceed the timeframes specified in E.O. 14300 in most cases by a significant margin. 10 CFR part 2, appendix B, “Model Milestones.” And experience has shown that these milestones, which are not binding, are sometimes substantially exceeded in practice. Therefore, the Commission proposes to revise its hearing procedures to support faster adjudications that will enable the agency to meet the licensing timelines contemplated by the ADVANCE Act and E.O. 14300. Based on past experience, the NRC believes that the proposed adjudicatory deadlines would provide reasonable timeframes for parties to meaningfully raise, and the presiding officer to resolve, disputed issues. These revisions would continue the overall trend, described previously, of reducing the formality in NRC adjudications to enhance efficiency. The NRC's predecessor agency, the Atomic Energy Commission, at one time believed that the Atomic Energy Act of 1954, as amended (AEA), required formal adjudicatory hearings in all cases (2004 Adjudications Rule, 69 FR 2182, page 2183; January 14, 2004). Now the prevailing view is that, with the exception of hearings on applications for licenses to construct and operate uranium enrichment facilities, informal hearings will also satisfy the AEA. (2004 Adjudications Rule, 69 FR 2182, pages 2183 through 2186; January 14, 2004). On balance, these amendments would generally use simpler, more informal processes and shorter schedules to complete adjudications within the timeframes contemplated in the ADVANCE Act and E.O. 14300. The Commission has chosen to use a Licensing Board as the default presiding officer for contested licensing proceedings, including license transfers, because Boards are independent and statutorily established, possess legal and technical expertise, and are well placed to efficiently conduct NRC licensing proceedings given their experience and ability to focus exclusively on adjudicatory matters. Considering the wide variety of situations a Board could face after a contention is admitted, the presiding officer would have considerable flexibility to select the appropriate procedures for resolving disputed issues within strict timeframes proposed by this rulemaking. For example, these proposed procedures would continue to rely primarily on written pleadings and statements to maintain clarity and precision in the record, although the presiding officer would have the flexibility to convene oral proceedings when necessary. These revisions would frontload the hearing process by generally requiring parties to provide more information on the merits of proposed contentions when filing their initial pleadings and would then require evidentiary hearings on any admitted contentions to be held as soon as practicable thereafter. To support more efficient and timely resolution of admitted contentions in certain circumstances, the procedures would still provide for motions to dismiss contentions prior to an evidentiary hearing. These proposed procedures would also address new or amended contentions filed later in the NRC's review process to ensure that the NRC is still able to complete adjudications in a timely manner. The Commission proposes three significant revisions to accomplish this goal. First, in light of the dynamic nature of our licensing process, parties frequently file new or amended contentions throughout NRC adjudications, often in response to amended applications or other new information. To accommodate these filings within the necessary E.O. 14300 timelines, the proposed revisions would establish deadlines the presiding officer must use in setting hearing schedules that will provide sufficient time to (1) fully litigate an initial round of contentions (including an evidentiary hearing on any admitted contentions) and (2) fully litigate a second round of contentions through an evidentiary hearing on those contentions, even if there is no overlap between the rounds of litigation. Second, the Commission recognizes that, in rare instances critical issues could arise sufficiently late in a proceeding to challenge the E.O. 14300 timelines for a decision on the application. To ensure that only critical issues have the potential to be admitted late in the proceeding, these revisions would establish a Standard Record Closure Date, which would generally be the date the presiding officer would be expected to enter an initial decision after an evidentiary hearing on the first round of contentions, assuming that the evidentiary hearing phase immediately commences upon the admission of the contention. Contentions filed after the Standard Record Closure Date would need to additionally meet the agency's standards for reopening the record, which will ensure those contentions raise critical issues. Third, to avoid the prospect of parties filing contentions very late in a proceeding that would potentially delay licensing, these revisions would establish that new or amended contentions would not be considered pending before the agency until the presiding officer finds there is good cause for submitting these contentions after the prescribed initial filing deadline for contentions ( i.e., that they have been timely submitted based on new, materially different information). This proposal would, as discussed later in this notice, eliminate the possibility of parties delaying licensing in certain proceedings simply by filing a new or amended contention. As stated previously, the Commission proposes to establish hearing schedules that would allow for two non-overlapping hearings to be conducted within the 18-month and 1-year E.O. 14300 timelines; one hearing for contentions submitted by the initial filing deadline for contentions and a second hearing held thereafter on a new or amended contention arising later in the review. The revisions to part 2 primarily accomplish this acceleration by requiring the presiding officer to commence the evidentiary hearing as soon as practicable after admitting contentions. In contrast, evidentiary hearings generally do not begin under the current rules until after the staff completes its review. This proposal also reflects the Commission's understanding that the E.O.'s discussion of fixed deadlines for the NRC's evaluation and approval to support a final decision on the application refers to the agency's approval of the licensing action or other request if the NRC's evaluation determines that pertinent requirements are met. Given this understanding, the changes in this proposed rule focus on ensuring that there is a final presiding officer decision on all contested issues within the E.O. 14300 timelines as these decisions have immediate effect by default, regardless of the pendency of appeals. As such, the presiding officer's decision would allow the licensing decision to be made even in circumstances where the AEA requires a hearing to be completed before the issuance and effectiveness of a license. Consequently, in this proposed rule, the appeals process occurs outside of the scope of the fixed deadlines outlined in Section 5(a) of Executive Order 14300. Nonetheless, the NRC proposes to streamline the appeals process to support the overarching goals of the ADVANCE Act and E.O. 14300. The revisions to part 2 would accomplish this by making small changes to the filing deadlines for appeals and establishing standard milestones for issuance of final Commission decisions on appeals. As a result, in many (if not most) cases, the appeals process would also be completed within the E.O.-directed 18-month or 1-year timelines. Finally, while the Commission expects these revisions would substantially improve the efficiency of NRC contested licensing adjudications, they would not constitute a wholesale rewrite of part 2, and many proceedings such as enforcement proceedings, proceedings on denials of applications, or proceedings for construction or operation of a high-level waste geological repository would only be minimally impacted. Proceedings under 10 CFR 52.103 would also be minimally impacted by the proposed changes because the procedures for such hearings are established by case-specific order, and the NRC will consider modifications to the existing standard procedures for these proceedings in a separate process. Further, separate from this proposed rule, the NRC is also considering potential changes to the agency's mandatory hearing process to further increase efficiency and support meeting the deadlines in the ADVANCE Act and E.O. 14300. Relatedly, under a separate proposed rule, the NRC also intends to consider potential changes to the agency's implementation of the National Environmental Policy Act (NEPA), which, among other changes, could impact the scope of issues that may be permissible for adjudication in contested hearings. The changes proposed in this rule are a series of targeted amendments intended to ensure timely and efficient contested adjudication for most NRC licensing actions. IV. Discussion To achieve the objectives described previously, the Commission proposes to amend 10 CFR part 2 in the following areas: Changes to Definitions in 10 CFR 2.4 The NRC proposes changes to four of the definitions in 10 CFR 2.4. Proposed revisions to the definitions of “contested proceeding” and “potential party” are related to matters discussed in more detail later in this notice. The NRC proposes to modify the definition of “contested proceeding” to conform to proposed changes to 10 CFR 2.309(c) regarding motions for leave to file hearing requests, intervention petitions, and contentions after the deadline established for such submissions (collectively “challenges after the deadline”), in particular to reflect that until the motion for leave to file is granted upon a showing of good cause, the challenge after the deadline would not be considered pending before the NRC. Nonetheless, while the motion is pending before the NRC, it would still be considered within the scope of the contested proceeding since the purpose of the motion is to seek permission to file a challenge after the deadline to contest the application. The NRC also proposes to revise the definition of “potential party” by removing references to subpart M of part 2, which currently governs proceedings on license transfer applications. Many recent license transfer applications raise technical issues on decommissioning the Commission did not intend subpart M to address. Therefore, the NRC proposes to eliminate subpart M and conduct license transfer proceedings under the more general subpart L. The NRC proposes to add a new definition of “highly expedited proceeding” to reflect proposed changes elsewhere in part 2 (in § 2.309, § 2.323, and subpart L) that would apply shorter timeframes to filings and decisions in proceedings that need to be conducted on an even more expedited basis than the other reviews the NRC would typically handle. As reflected in the standard schedules on the NRC website at https://www.nrc.gov/about-nrc/generic-schedules.html, the NRC currently intends to apply an 18-month or 12-month review schedule to most types of applications it receives. However, some applications would have a significantly shorter anticipated review schedule. For example, measurement uncertainty recapture uprate license amendments currently have a 6-month review schedule, and amendments adopting a Technical Specifications Task Force traveler using the Consolidated Line-Item Improvement Process currently have a 7-month review schedule. The NRC proposes to include these two types of applications within the definition of “highly expedited proceeding” to reflect the shorter review schedules and focused natures of these reviews. The NRC might designate other types of applications as highly expedited proceedings. For example, in accordance with E.O. 14300 section 5(e), the NRC intends to conduct a rulemaking to establish a process for high-volume licensing of microreactors and modular reactors. As part of that rulemaking, the NRC might include certain applications under E.O. 14300 section 5(e) within the definition of “highly expedited proceeding.” Independent of the NRC's efforts pursuant to E.O. 14300 section 5(e), the NRC might later decide to include an application or a class of applications within the scope of “highly expedited proceedings.” To provide flexibility and otherwise account for potential changes to NRC review schedules and processes over time, the proposed definition of “highly expedited proceeding” would include any proceeding that the Commission designates as a highly expedited proceeding; such designations could be done outside a rulemaking process. Finally, the NRC also proposes to add a new definition of “Standard Record Closure Date” to 10 CFR 2.4 to support proposed changes elsewhere in this notice regarding standards and schedules for filing challenges after the deadline later in the proceeding. As discussed later, the NRC considers it appropriate to apply the reopening criteria and an expedited evidentiary schedule to such challenges if the associated contention is admitted for hearing. The NRC proposes to apply these provisions after the point in the proceeding in which the NRC could have completed an evidentiary hearing in the hypothetical situation where a contention filed by the deadline for contentions in 10 CFR 2.309(b) is both admitted for hearing and proceeds to an evidentiary hearing immediately after the admission of the contention, consistent with the NRC's proposed policy of holding evidentiary hearings as early as practicable. This point of the proceeding would be termed the Standard Record Closure Date because the record of the proceeding would be closed with respect to the introduction of new or amended contentions into the proceeding. Because the proposed regulations define the time in which (1) contentions, answers, and replies are to be filed, (2) when decisions on contention admissibility are due, and (3) when initial decisions after an evidentiary hearing are to be issued, the NRC is able to compute the Standard Record Closure Date for different types of proceedings, and the NRC proposes to include the Standard Record Closure Dates for these proceedings in proposed 10 CFR 2.1207 and in Federal Register notices announcing an opportunity to request a hearing, as discussed later in this notice. The proposed definition of “Standard Record Closure Date” in 10 CFR 2.4 would define how the date is calculated, consistent with the description in this paragraph. Representation by Those Who Are Not Attorneys The NRC proposes to revise 10 CFR 2.314(b) to eliminate representation of partnerships, corporations, unincorporated associations, and other persons by those who are not attorneys. Currently, § 2.314(b) allows a duly authorized member or officer (even if not an attorney) to represent a partnership, corporation, or unincorporated association. The NRC also allows state and local government bodies to be represented by duly authorized persons who are not attorneys, as discussed in a 2007 denial of a petition for rulemaking (72 FR 73676; December 28, 2007). However, as explained in the following paragraphs, such representation is not required by law and is not consistent with the timeliness or efficiency objectives of the ADVANCE Act and E.O. 14300. With the proposed changes, only an individual would be allowed to appear on his or her own behalf. Federal agencies are not required by law to allow representation by non-attorneys in their adjudicatory proceedings. For example, 5 U.S.C. 500 states that a person before an agency may be represented by an attorney in good standing with a State bar but also provides that this statutory provision does not (for most agencies, including the NRC) grant or deny the right of a non-attorney to appear for or represent a person before an agency. Similarly, the Administrative Procedure Act (APA) provision on representation, 5 U.S.C. 555(b), states that it does not grant or deny a person who is not a lawyer the right to appear for or represent others before an agency or in an agency proceeding. In addition, participants in NRC proceedings need to diligently adhere to the NRC's hearing requirements to meet the timeliness and efficiency goals in the ADVANCE Act and E.O. 14300. Successfully navigating the NRC's hearing process necessitates substantial legal knowledge and skill, particularly given the accelerated schedules proposed in this rule. Although less formal than a federal court trial, NRC proceedings employ processes common in trials (like standing, motions, disclosures, evidentiary standards, testimony, proposed findings of fact and conclusions of law, stay requests, and appeals). Also, the meaning of many terms in the NRC's hearing regulations are established by case law. In these ways, the NRC's hearing process shares features with federal court proceedings, where a non-attorney individual may appear on his or her own behalf but may not represent other individuals or entities. It has been recognized that non-attorney representation might be inappropriate for “highly technical” disputes requiring “specialized knowledge.” 5 5 See page 71 of the 2019 report “Federal Administrative Adjudication Outside the Administrative Procedure Act” prepared by Michael Asimow for the Administrative Conference of the United States. These concerns are not merely theoretical. Experience has shown that in many NRC proceedings, non-attorney representatives have demonstrated a lack of understanding of the NRC's procedural requirements, made arguments that are not cognizable in the hearing process, submitted procedurally impermissible filings, and failed to clearly articulate claims. The time and resources needed to address such issues are not consistent with timely and efficient adjudicatory proceedings that are necessary to meet the objectives of the ADVANCE Act and E.O. 14300. Limiting representation to attorneys should lead to clearer, more professional, and more procedurally compliant filings that will help support the NRC's timeliness and efficiency goals. For these reasons, the NRC proposes to revise § 2.314(b) to provide that only individuals may appear on their own behalf and that all other “persons” (a term that is broadly defined in 10 CFR 2.4) may be represented only by an attorney-at-law. As a conforming change, the NRC proposes to revise the last sentence of 10 CFR 2.314(b) to eliminate discussion of matters related solely to representation by those other than attorneys. Consistent with federal court practice, the NRC's regulations would continue to allow individuals to appear on their own behalf, even if they are not attorneys. As discussed in a 2020 decision in the Vogtle proceeding (CLI-20-6, 91 NRC 225), the Commission has given greater latitude to hearing requests submitted by non-attorney intervenors while acknowledging that non-attorney petitioners are still expected to comply with our procedural rules. Requirements for Publication of Federal Register Notices Announcing an Opportunity To Request a Hearing, Petition To Intervene, and/or File Contentions The NRC proposes several changes to the regulations in 10 CFR 2.101, 2.104, and 2.105 regarding the publication of Federal Register notices announcing an opportunity to request a hearing, petition to intervene, and/or file contentions. First, the NRC proposes to generally notice these hearing opportunities as early as practicable. The hearing process may not reasonably be initiated before the NRC staff accepts the application for review ( i.e., dockets the application), but noticing the hearing opportunity as early as practicable thereafter would accelerate issue identification and resolution and could help mitigate any unavoidable delays that may occur later ( e.g., from illness of counsel or a witness). For certain proceedings, 10 CFR 2.104(a) already requires the staff to issue the hearing notice “as soon as practicable after the NRC has docketed the application.” With one exception, the NRC proposes changes to 10 CFR 2.104 and 2.105 to expand this requirement to publish notices as soon as practicable to other Federal Register notices announcing a hearing opportunity in order to accelerate the initiation of the adjudicatory process, with a conforming change to 10 CFR 2.101(f)(5). The exception pertains to notices of proposed action subject to the requirements of 10 CFR 50.91. Notices under 10 CFR 50.91 are for proposed amendments to specified production and utilization facility licenses, which are generally published on a monthly basis given their volume. Given the high volume, it would not be practical to publish individual Federal Register notices subject to 10 CFR 50.91 for the subject licensing actions. Also, only a small number of these amendments are challenged in the hearing process, and the associated licensing actions may be taken during the pendency of a hearing if the NRC makes a final no significant hazards consideration determination. Second, the NRC proposes to modify 10 CFR 2.104 and 2.105 to provide that Federal Register notices announcing a hearing opportunity must provide additional clarity by stating the Standard Record Closure Date specified in 10 CFR 2.1207 and the additional filing deadline information required by 10 CFR 2.309(b)(5). The basis for this change is described later in this notice in the context of proposed changes to 10 CFR 2.309 requirements for hearing requests, intervention petitions, and contentions. Good Cause for Extensions of Time Meeting the licensing deadlines contemplated in the ADVANCE Act and E.O. 14300 will require strict adherence to the schedules described in the rule. 10 CFR 2.307 currently provides that the time periods in part 2 may be extended upon a showing of good cause. However, in recent years the NRC has frequently granted extensions based on ordinary circumstances, such as the complexity of reactor licensing applications or parties' litigation obligations in other proceedings, as in a June 29, 2018, Order of the Secretary in the Turkey Point proceeding (ML18180A185). To ensure that extension requests do not undermine timely adjudications, the NRC proposes to further define good cause in § 2.307. Because good cause is necessarily context specific, the revisions would cover two circumstances. First, as the Commission has previously explained in a 2012 rule (77 FR 46562; August 3, 2012), good cause in the context of § 2.307 should constitute “extraordinary” events that are not within the parties' control, such as sickness or weather. Major holidays could similarly be an extraordinary circumstance. Thus, in normal circumstances the presiding officer should only grant an extension when a circumstance outside of the ordinary occurs that is not brought on by the movant's actions or inactions. Second, with the ADVANCE Act and Executive Order 14300, efficient and timely decision-making on license applications is a key focus area for the agency. Therefore, in circumstances when an extension request has the demonstrated potential to delay an entire adjudicatory proceeding past the NRC staff's scheduled date to complete its review, then the extension request would be required to meet a higher standard. In those circumstances, the presiding officer would only grant the extension upon finding unavoidable and extreme circumstances. While reviewing courts have determined that this is a reasonable extension of the good cause standard, National Whistleblower Center v. Nuclear Regulatory Commission, 208 F.3d 256, 262-63 (D.C. Cir. 2000), the NRC has not regularly applied this standard in recent years. The application of this standard should ensure that the presiding officer only extends deadlines that could challenge the overall schedule for an adjudication in response to rare, unforeseeable, and serious events. For example, a presiding officer in the McGuire/Catawba proceeding (LBP-01-31, 54 NRC 242) previously found unavoidable and extreme circumstances justified extending the time to file hearing requests when security information was unavailable shortly after the terrorist attacks of September 11, 2001. Finally, to ensure that extension requests do not undermine the NRC's timeliness goals for adjudication, the presiding officer should only grant the extension request for the minimum amount of time necessary to accommodate the circumstances giving rise to good cause. Requirements for Hearing Requests, Intervention Petitions, and Contentions The NRC proposes to revise its regulations for hearing requests, intervention petitions, and contentions to (1) eliminate discretionary intervention, (2) refine but not raise the contention admissibility criteria, (3) account for the NRC's proposal for most licensing proceedings, in which more information on the merits of proposed contentions would be provided in the litigants' initial filings (contention submissions, answers, and replies), (4) accelerate filing and decision deadlines consistent with the ADVANCE Act and E.O. 14300, and (5) clarify and strengthen the requirements for hearing requests, intervention petitions, and new or amended contentions filed after the deadline in 10 CFR 2.309(b) ( i.e., “challenges after the deadline”). An underlying theme for several of these proposed changes is that the NRC proposes to take a more tailored approach to timeframes for initial filings and decisions thereon to account for specific types of applications rather than the more one-size-fits-all approach in the current regulations, where the same time is provided for contentions on shorter or simpler applications as on longer or more complex applications. The proposed timeframes would provide sufficient time for parties to meaningfully raise disputed issues in the type of proceeding at issue and for the presiding officer to determine whether the standing and contention requirements are met. Using more tailored hearing timelines is consistent with direction in NEIMA section 102(c), ADVANCE Act section 504, and E.O. 14300 section 5 regarding specified timelines for different types of NRC reviews. To do this, the NRC proposes to establish several basic timeframes for different types of proceedings so that the NRC's hearing regulations are clear and manageable and provide greater flexibility, while recognizing that it would be impractical to establish a multitude of timeframes for every type of proceeding and constantly modify hearing processes and regulations to account for the different NRC decision-making schedules as they are updated over time. In addition, as discussed later, the NRC proposes to require the presiding officer in each proceeding to establish a hearing schedule that, to the greatest extent practicable, will not extend past the NRC staff's scheduled date for completing its review of the application. This provision could, for example, address an expedited NRC review under E.O. 14300 section 5(d) of a reactor design tested and demonstrated by DOE or DOW. For clarity, the NRC proposes to add a new § 2.309(b)(5) (with cross-references in §§ 2.104 and 2.105) requiring Federal Register notices announcing an opportunity for hearing to specify the applicable filing deadlines for hearing requests, intervention petitions, and contentions (including those filed after the § 2.309(b)(1)-(b)(3) deadlines), and the applicable deadlines for the associated answers and replies. These notices would also be required to specify the Standard Record Closure Date for the proceeding, which would be important information for application of the proposed revision of the reopening requirements in § 2.326 and certain proposed scheduling provisions in subpart L, as explained later in this notice. The NRC proposes to revise 10 CFR 2.309 to eliminate discretionary intervention because (a) the NRC is not required to grant party status to those who do not demonstrate standing since the mandated hearing opportunity in AEA section189a. is for “any person whose interest may be affected” and the NRC has historically required a showing of standing to demonstrate the requisite interest, 6 (b) discretionary intervention has rarely been allowed in practice, 7 and (c) spending time and resources assessing discretionary intervention requests is not conducive to meeting the efficiency and timeliness goals of the ADVANCE Act and E.O. 14300. 6 The Commission explained this historical approach in a 2020 decision in the Bellefonte proceeding (CLI-20-16, 92 NRC 511). 7 The NRC has identified two proceedings in which Licensing Boards have granted discretionary intervention since the last major reform of the NRC's hearing process in 2004. In a 2009 decision in the High-Level Waste Repository proceeding (LBP-09-6, 69 NRC 367), the Licensing Board found that the Nuclear Energy Institute had met the discretionary intervention factors but had also established standing; hence granting discretionary intervention made no difference in that case. In the Andrew Siemaszko enforcement proceeding, the Licensing Board's granting of discretionary intervention was overturned by the Commission on appeal in a 2006 decision (CLI-06-16, 63 NRC 708). Further, in this 2006 decision, the Commission stated the NRC had not granted a request for discretionary intervention in the previous dozen years. Thus, the availability of discretionary intervention has made little practical difference in the last three decades of NRC adjudicatory practice. The NRC also proposes to refine the contention admissibility criteria in two ways. First, the NRC proposes to augment the requirement in § 2.309(f)(1)(iv) to demonstrate that a contention is material by requiring the petitioner to specify the legal requirement on which the contention is based. Specifying the pertinent legal requirement is important for demonstrating the materiality of the contention, and clarity in this regard can avoid needless confusion about the legal basis for a contention ( e.g., safety versus environmental requirements) and the inefficiencies that accompany efforts to resolve such confusion. Second, the NRC proposes revising § 2.309(f)(1)(vi) to require the petitioner to clearly indicate whether a contention is one of omission or adequacy. Different requirements apply to contentions of omission versus contentions of adequacy, and a lack of clarity regarding the nature of the contention requires additional resources from the NRC staff, applicant, and presiding officer to cover all the bases. The NRC also proposes to revise § 2.309 to reflect a proposal to modify the content and schedule for litigants' initial filings in proceedings for the grant, renewal, licensee-initiated amendment, termination, or transfer of licenses or permits (except for a high-level waste repository proceeding under part 2, subpart J; a proceeding for granting a license to construct and operate a uranium enrichment facility; or a proceeding on a denial of an application). Under this proposal, standing would be assessed separately from contention admissibility, and more information on the merits of contentions would be provided in the litigants' initial filings on contentions ( i.e., proposed contentions, answers, and replies) in order to more expeditiously resolve contentions and avoid protracted evidentiary hearings. The following changes would be made to § 2.309 for the identified licensing proceedings: 8 8 The following changes would not apply, however, to the three types of proceedings identified as exceptions earlier in this paragraph. • A hearing request would be granted if the requestor shows standing, and contention admissibility would be assessed separately in a parallel but less accelerated process. If a petitioner's hearing request is granted, the presiding officer would then determine whether the petitioner's proposed contentions are admissible. If a petitioner's hearing request is denied, the petitioner's proposed contentions would not be further addressed in the adjudicatory proceeding. Because a hearing request would be required only to show standing, an expedited schedule is proposed for hearing requests and associated filings and decisions. By accelerating filings and decisions on standing, the participants and presiding officer could save resources litigating contentions in proceedings where standing has not been demonstrated. 9 Hearing requests would be due within 30 days of the Federal Register notice announcing the hearing opportunity, except for license transfers, where the existing 20-day period would be retained. 10 In most proceedings, answers to hearing requests would be due within 10 days of the hearing request, replies would be due within 7 days of the service of answers, and the presiding officer's decision would be due within 20 days of the filing of replies. However, no reply would be permitted in highly expedited proceedings because there is no statutory right to file a reply to an answer to a hearing request, and the prohibition on replies to answers in highly expedited proceedings is consistent with the existing prohibition in § 2.309(i)(2) on replies to answers in proceedings under 10 CFR 52.103, which are highly expedited proceedings on whether acceptance criteria in the inspections, tests, analyses, and acceptance criteria (ITAAC) in combined licenses are met. 9 However, any resource savings would be limited somewhat because litigation of contentions would proceed in parallel with litigation of standing, albeit on a longer schedule. Based on the proposed schedules, in cases where the presiding officer determines that standing has not been shown, there may be resource savings associated with the filings of answers and replies on contentions, oral argument on contentions (if held), and presiding officer decisions on contentions. 10 A 30-day period would be used for highly expedited proceedings on license and license amendment applications for production and utilization facilities under AEA sections 103 and 104b. and on testing facilities under AEA section 104c. because of the 30-day notice provisions for such facilities in AEA section 189. • The NRC also proposes to accelerate the consideration of the merits of proposed contentions. Under the current process, the initial filings and decision on proposed contentions are focused on identifying issues where an “inquiry in depth” is appropriate, 11 which would occur during a later, more involved evidentiary hearing process that has historically taken substantial time and resources to complete. These initial filings and the associated contention admissibility decision also involve a great deal of time and effort, and it could be more efficient to use this phase of the proceeding for a more in-depth exploration of the contested issues up front, which should better focus an evidentiary hearing, if one is held. Therefore, for proceedings involving the grant, renewal, licensee-initiated amendment, termination, or transfer of licenses or permits (except for a high-level waste repository proceeding under part 2, subpart J; a proceeding for granting a license to construct and operate a uranium enrichment facility; or a proceeding on a denial of an application), the NRC is proposing that the applicant (and, as applicable, the NRC staff) would file merits-based views in answers to proposed contentions, including the submission of supporting evidence, with the petitioner being able to reply to these views with additional supporting evidence. If proposed contentions are admitted, subsequent litigation on them could be conducted more swiftly than under the current process since more evidentiary material and related argument would have been submitted, and each party would thereby have a better understanding of the positions being taken on the contentions, which would allow their initial testimony and position statements to be more focused. Regarding specifics, under the new proposed hearing format, (a) answers to contentions from the applicant must (and answers to contentions from the NRC staff may) address the merits of the contentions, including submission of evidence and affidavits, in addition to addressing the contention admissibility criteria, 12 (b) petitioners' replies could address the answers' factual arguments on the merits with additional evidence, 13 and (c) litigants would have to file documents (except those already in ADAMS) and affidavits supporting their factual arguments, with an affidavit detailing the individual's knowledge of the facts alleged or expertise in the discipline(s) appropriate to the issues raised. Requiring the submission of supporting evidence and affidavits is fundamental to the proposal to accelerate the hearing process by building on the substantial evidentiary submissions in the initial filings. The contention standards and criteria would not be changed by this requirement, and the presiding officer would not consider information pertaining to the merits of the contentions until after issuing a decision to admit or otherwise narrow the scope of the contentions. 14 11 Rules of Practice for Domestic Licensing Proceedings—Procedural Changes in the Hearing Process, 54 FR 33 168, 33 171 (Aug. 11, 1989) (final rule). 12 Addressing the merits would be optional for the NRC staff; the staff would have flexibility to address only contention admissibility factors, consistent with its existing flexibility on whether to participate in the proceeding at all. This would provide the staff flexibility to make strategic resource decisions to maintain its review schedule. However, in highly expedited proceedings, the staff would be expected to address the merits of contentions in their answers to the extent practical to support the accelerated review and hearing schedule. 13 Currently, a reply may not be used to add new documentary support for contentions, as illustrated by the Commission's 2006 decision in the Palisades proceeding (CLI-06-17, 63 NRC 727). Under this proposal and consistent with current case law, replies could not expand or modify the scope of the proposed contention or provide factual support that could have been provided in the original contention but was not. As the Commission emphasized in its 2004 decision in the National Enrichment Facility proceeding (CLI-04-25, 60 NRC 223), the contention admissibility and timeliness requirements demand a level of discipline and preparedness on the part of petitioners, who must examine the publicly available material and set forth their claims and the support for their claims at the outset. The Commission further explained that replies may not raise new arguments and should be narrowly focused on the legal or logical arguments in the answers to the hearing request. 14 These changes would not be expected to substantially affect the burden associated with filing proposed contentions because they are consistent with the existing requirement in § 2.309(f)(1)(v) to factually support contentions with documentary and expert support. Also, NRC case law establishes the relevance of expert qualifications to contention admissibility determinations, e.g., the Commission's 2010 decision in the Levy County proceeding (CLI-10-2, 71 NRC 27). Further, many relevant documents would already be in ADAMS, and petitioners already routinely submit supporting documents, including signed expert declarations that detail the asserted qualifications of the expert. The NRC anticipates some additional burden associated with the filing of expert declarations in answers to contentions and in replies to answers, but in many cases experts are already supporting the litigants' preparation of their answers and replies, and accelerating the resolution of contested issues should bring about a compensating burden reduction for those contentions that are admitted. • Under § 2.309(b), contentions would be due within set time periods after publication of the Federal Register notice announcing the hearing opportunity depending on the type of application. As reflected in Table 1, the NRC would retain the standard 60-day filing period for the most complex applications, a 20-day filing period would be provided for transfer applications (consistent with current requirements), a 30-day filing period would be provided for highly expedited proceedings, and a 45-day filing period would be provided for all other applications. The most complex applications would be those for (1) a construction permit, an initial operating license, or an initial combined license under 10 CFR parts 50 or 52 for a commercial production or utilization facility, where the application does not reference a design certification or manufacturing license; or (2) a license to construct and/or operate a uranium recovery or fuel cycle facility under part 40 or part 70. Applications covered by the 45-day filing period would include 10 CFR part 54 power reactor license renewals, 10 CFR part 52 combined licenses referencing a design certification, 10 CFR part 52 early site permits, license amendment applications, non-power reactor applications, and limited work authorization applications. These proposed filing periods reflect the NRC's consideration of the need for timeliness and efficiency pursuant to the ADVANCE Act and E.O. 14300, as well as the anticipated length and complexity of the identified applications. This includes accounting for factors that would reduce the scope and complexity of the adjudicatory proceeding, such as whether an application for a production or utilization facility references a prior NRC approval providing issue finality in the adjudicatory proceeding that encompasses design issues. 15 15 Existing NRC regulations establish that certain NRC approvals finally resolve specified issues in later proceedings referencing the NRC approval. To the extent an issue is finally resolved, it may not be revisited in a later proceeding absent a rule waiver—this effectively limits the scope of that later proceeding. Design certifications and manufacturing licenses are existing NRC approvals that provide issue finality in the adjudicatory proceeding that would encompass design issues. The NRC notes that a standard design approval does not provide finality in the adjudicatory proceeding and therefore would not affect the scope of the adjudication, while an early site permit provides finality in an adjudicatory proceeding but only on a narrower scope of issues that does not include the design of the facility. • The applicant and NRC staff would be required to submit answers to contentions filed by the § 2.309(b) deadline within 25 days of the contention for most applications (consistent with current requirements), and within 20 days of the contention for transfer proceedings and highly expedited proceedings. These proposed due dates reflect the need for timeliness and efficiency pursuant to the ADVANCE Act and E.O. 14300, and the expected complexity of the proceedings, while recognizing that the applicant (and sometimes the NRC staff) would face the new burden of responding to proposed contentions on the merits with supporting evidence, including affidavits. • Consistent with current regulations, replies to answers to contentions submitted by the deadline in § 2.309(b) would be due within 7 days of the answers. • These proposals would necessitate conforming changes to other regulations. For example, the NRC proposes to remove the reference in 10 CFR 54.27 to a 60-day filing period for hearing requests in power reactor license renewal proceedings because this proposed rule would impose a shorter filing period in such proceedings and because time periods for filing hearing requests should be specified in 10 CFR part 2 and not other parts of the NRC's regulations. Other conforming changes would be made in 2.309, e.g., revisions to § 2.309(a) and § 2.309(h)(1) to reflect that hearing requests and intervention petitions for the proceedings identified previously would be required to address only standing while contention admissibility is assessed separately. The NRC also proposes to divide § 2.309(a) into subparagraphs for clarity. As part of the conforming changes to § 2.309(a), the NRC proposes to delete the sentence addressing proceedings under 10 CFR 52.103 because the changes in this proposed rule would make that sentence unnecessary. With the proposed deletion, proceedings under 10 CFR 52.103 would be covered by proposed § 2.309(a)(2). The NRC proposes to retain the current filing periods for hearing requests, intervention petitions, answers, and replies in proceedings not affected by the proposals to consider standing separate from contention admissibility and to accelerate the consideration of the merits of contentions ( i.e., proceedings on a license to construct and operate a uranium enrichment facility, a proceeding under subpart J of this part, a proceeding under 10 CFR 52.103, or a proceeding on a denial of an application). Applications for licenses to construct and operate a uranium enrichment facility are among the most complex types of applications the NRC receives, and the existing filing deadlines for these applications are the same as the corresponding deadlines proposed in this rule for applications of similar complexity. Also, as stated previously, this proposed rule is not intended to have more than a minimal impact on the other three listed types of proceedings. For all proceedings, the NRC would modify § 2.309(j) to impose accelerated deadlines for decisions by presiding officers on hearing requests and contentions, ranging from 20 days from the filing of replies ( e.g., for a decision on a hearing request in which the presiding officer addresses standing but not contention admissibility) to 35 days from the filing of replies (for a decision on hearing requests or contentions on certain major license applications). Also, consistent with the proposed § 2.307 standard for extensions of time, the § 2.309 deadlines for presiding officer decisions on hearing requests, intervention petitions, and contentions (including for such filings made after the filing deadline in § 2.309(b)) may be extended only if extraordinary circumstances prevent the presiding officer from issuing a decision by the deadline. Further, at the earliest practicable opportunity, the presiding officer would be required to notify the Commission and the litigants of the delay and the extraordinary circumstances that necessitate a delay. The potential need for oral argument, prehearing conferences, or additional briefing would not by themselves constitute extraordinary circumstances. Finally, while not addressed in the regulation text itself, the proposed framework would provide the presiding officers flexibility to take steps to accelerate the commencement of the evidentiary hearing phase, such as prioritizing issuance of decisions on admissible contentions. The NRC proposes several modifications to 10 CFR 2.309(c) to clarify and strengthen the requirements for challenges after the deadline ( i.e., hearing requests, intervention petitions, and new or amended contentions filed after the deadline in § 2.309(b)). First, the NRC proposes to clarify and revise its regulations to avoid delays in making licensing decisions in certain proceedings due to the submission of 11th-hour challenges after the deadline near the end of the NRC staff's application review. Currently, petitioners must submit “motions for leave to file” contentions after the deadline that must satisfy § 2.309(c). Hearing requests and intervention petitions after the deadline must also satisfy § 2.309(c), although NRC regulations do not require a “motion for leave to file” such filings. The NRC proposes to extend the “motion for leave to file” concept to hearing requests and interventions petitions after the deadline, and clarify that challenges after the deadline would not be considered pending before the NRC until the motion for leave to file has been granted upon a showing of good cause under 10 CFR 2.309(c). These changes would address statutory requirements for a pre-effectiveness hearing (or pre-effectiveness hearing opportunity) for certain licensing actions. 16 For example, AEA section 189a.(1)(A) allows the NRC to issue operating licenses for certain facilities “in the absence” of a request for hearing from a person whose interest may be affected; therefore, the pendency of a hearing request before the NRC could affect the timing of the NRC's licensing decision. However, the AEA does not require a hearing request submitted after the specified deadline for hearing requests to be considered automatically pending before the NRC regardless of when it was filed. Rather, the related AEA section 189a.(1)(A) requirement specifying a 30-day notice period for operating licenses indicates that Congress contemplated that hearing requests be filed within specified periods. 17 The AEA provides no absolute right to file challenges after the specified notice period, nor does it indicate that petitioners may file challenges at any time they choose and thereby delay NRC action on the application. Under the proposed change, challenges after the deadline would not be considered pending before the agency (and therefore would not delay NRC action on an application subject to a pre-effectiveness hearing requirement) unless and until the motion for leave to file the challenge after the deadline has been granted upon a showing under § 2.309(c) of good cause for filing after the deadline. Thus, as reflected in a proposed new § 2.309(c)(7) and in revisions to § 2.340(i)(2), (j)(4), and (k)(2), the mere submission of such challenges after the deadline would not interfere with timely NRC licensing or regulatory decisions, even for those applications subject to a pre-effectiveness hearing (or pre-effectiveness hearing opportunity) requirement. The effectiveness of the licensing action would be stayed only if the petitioner meets the standard for granting a stay request. 18 To reflect the motion for leave to file terminology, the NRC also proposes conforming changes in other paragraphs of § 2.309 and in 10 CFR 2.4 (definition of “contested proceeding”) and 2.323(a). 16 The Commission's 1992 decision in the Shoreham proceeding (CLI-92-4, 35 NRC 69) explains the statutory basis for the pre-effectiveness hearing requirements for specified production and utilization facilities. A partial list of applications for which a pre-effectiveness hearing (or hearing opportunity) is currently required is included in current 10 CFR 2.1202(a). In addition, AEA section 193(b) requires the NRC to complete a “single adjudicatory hearing” before issuing a license to construct and operate a uranium enrichment facility. A pre-effectiveness hearing is not required for license transfers, most materials licenses, and reactor license amendments not involving a significant hazards consideration. 17 The other pre-effectiveness hearing requirements in AEA section 189a. also involve provisions where the NRC is required to give specified notice. In addition, AEA section 193(b)(1)-(2) requires the NRC to conduct a single adjudicatory hearing before the issuance of a license for such construction and operation, which does not require that late-filed requests should automatically stay NRC action. 18 Under Commission case law, the person requesting a stay of a licensing decision must either show irreparable harm that is imminent, certain, and great, or make an “overwhelming showing” of likelihood of success on the merits that amounts to a “virtual certainty.” See, for example, discussion in the Commission's 2019 decision in the Pilgrim proceeding (CLI-19-11, 90 NRC 258) on pages 264 and 280. Second, the NRC proposes changes to the timeline for motions for leave to file and associated challenges after the deadline. For the motion and challenge to be considered timely, they would need to be filed within 30 days of the new, materially different information giving rise to the challenge after the deadline. Currently, the regulations do not specify when the filing is considered to be timely, although 30 days is the time usually prescribed in presiding officer scheduling orders. This filing period would be accelerated to 20 days from the new, materially different information in transfer proceedings and highly expedited proceedings because these proceedings are on a shorter timeline. Because challenges after the deadline should be narrowly focused on new, materially different information, less time would ordinarily be provided for answers to challenges after the deadline—20 days in most proceedings under the new proposed hearing format and enrichment proceedings, and 15 days in highly expedited proceedings and transfer proceedings. In addition, 7 days would be provided for replies associated with challenges after the deadline. Finally, presiding officer decisions on challenges after the deadline would be due within 25 days of the reply, a deadline reflecting the anticipated narrower scope of challenges after the deadline. These deadlines for answers, replies, and decisions are reflected in proposed § 2.309(c)(5) and (6). Finally, the NRC proposes to modify § 2.309(g) to reflect changes to § 2.310 that are discussed later in this notice. The different timelines under § 2.309 for initial filings and decisions thereon for hearing requests, intervention petitions, and contentions filed by the deadline in § 2.309(b)(1) and (b)(3) are reflected in Table 1 (for simplicity, the table uses “hearing request” to refer to both hearing requests and intervention petitions). As explained previously, for proceedings involving the grant, renewal, licensee-initiated amendment, termination, or transfer of licenses or permits (except for a high-level waste repository proceeding under part 2, subpart J; a proceeding for granting a license to construct and operate a uranium enrichment facility; or a proceeding on a denial of an application), contentions are considered separately from the hearing request. Table 2 provides the proposed timelines for motions for leave to file hearing requests, intervention petitions, and new or amended contentions filed after the deadline in § 2.309(b)(1) and (b)(3). Table 1—Proposed Schedule for Initial Filings/Decisions on Hearings Requests and Contentions Filed by 10 CFR 2.309 (b)(1), (b)(3) Deadlines Action Transfer 2.309(b)(1) Highly expedited 2.309(b)(3)(iii) Enrichment (construct-and-operate) 2.309(b)(3)(i) Most complex 2.309(b)(3)(ii) Other proceedings 2.309(b)(3)(iv) Hearing Request 20 days from Notice 30 days from Notice 60 days from Notice 30 days from Notice 30 days from Notice. Contentions (if considered separately) 20 days from Notice 30 days from Notice N/A 60 days from Notice 45 days from Notice. Answer to Request 10 days from Request 10 days from Request 25 days from Request 10 days from Request 10 days from Request. Answer to Contentions 20 days from Contentions 20 days from Contentions N/A 25 days from Contentions 25 days from Contentions. Reply to Answer to Request 7 days from Answer to Request N/A 7 days from Answer to Request 7 days from Answer to Request 7 days from Answer to Request. Reply to Answer to Contentions 7 days from Answer to Contentions 7 days from Answer to Contentions N/A 7 days from Answer to Contentions 7 days from Answer to Contentions. Decision on Request 20 days from Reply to Answer to Request (57 days from Notice) 20 days from Answer to Request (60 days from Notice) 35 days from Reply to Answer to Request (127 days from Notice) 20 days from Reply to Answer to Request (67 days from Notice) 20 days from Reply to Answer to Request (67 days from Notice). Decision on Contentions 30 days from Reply to Answer to Contentions 30 days from Reply to Answer to Contentions N/A 35 days from Reply to Answer to Contentions 35 days from Reply to Answer to Contentions. Total 77 days from Notice 87 days from Notice 127 days from Notice 127 days from Notice 112 days from Notice. Table 2—Proposed Schedule for Filings/Decisions on Motions for Leave To File Hearings Requests and New or Amended Contentions After 10 CFR 2.309 (b)(1), (b)(3) Deadlines Action Transfer 2.309(b)(1) Highly expedited 2.309(b)(3)(iii) Enrichment (construct-and-operate), most complex, other proceedings 2.309(b)(3)(i), (ii), (iv) Motion for Leave to File Hearing Request/Contention 20 days from New Information 20 days from New Information 30 days from New Information. Answer to Motion and Request/Contention 15 days from Motion/Request/Contention 15 days from Motion/Request/Contention 20 days from Motion/Request/Contention. Reply to Answer 7 days from Answer 7 days from Answer 7 days from Answer. Decision on Motion and Request/Contention 25 days from Reply to Answer to Request 25 days from Answer to Request 25 days from Reply to Answer to Request. Total 47 days from Motion/Request/Contention 47 days from Motion/Request/Contention 52 days from Motion/Request/Contention. Selection of Hearing Procedures As part of this rule, the NRC proposes to use a revised subpart L hearing format to govern the adjudication of admitted contentions in almost all proceedings for the grant, renewal, licensee-initiated amendment, termination, or transfer of licenses or permits subject to 10 CFR parts 30, 32 through 36, 39, 40, 50, 52, 54, 55, 61, 70 and 72. Subpart L is already used for most of these proceedings, but the NRC proposes increased use of subpart L with the following changes: • The NRC proposes to conduct proceedings on a license to construct and operate a uranium enrichment facility under subpart L rather than subpart G because the revised subpart L provides a faster, more streamlined process than subpart G and is better suited for licensing proceedings (in fact, most licensing proceedings are already conducted under subpart L). The NRC previously decided to conduct these uranium enrichment proceedings under subpart G because AEA section 193 requires such proceedings to be conducted “on the record” ( i.e., in accordance with the formal procedures in the APA for “on the record” proceedings). The U.S. Court of Appeals for the First Circuit subsequently concluded in 2004 (391 F.3d 338) that subpart L complies with these formal APA requirements. The proposed revisions to subpart L would continue to ensure that these enrichment proceedings would comply with the formal APA requirements, while being more streamlined and efficient than the subpart G procedures. The NRC proposes to remove and reserve 10 CFR 2.310(c) and revise 10 CFR 2.700 to reflect this change. 19 19 The NRC does not propose to revise the provisions in 10 CFR 40.33, 70.23a, and 70.31(e) requiring the mandatory hearing for licenses to construct and operate uranium enrichment facilities to be conducted under subpart G of part 2. Changes to the mandatory hearing provisions are outside the scope of this rulemaking. • The NRC proposes to eliminate the provision in 10 CFR 2.310(d) and 2.700 providing that certain proceedings for nuclear power reactors would be held under subpart G if (as stated in § 2.310(d)) “the presiding officer by order finds that resolution of the contention or contested matter necessitates resolution of issues of material fact relating to the occurrence of a past activity, where the credibility of an eyewitness may reasonably be expected to be at issue, and/or issues of motive or intent of the party or eyewitness material to the resolution of the contested matter.” This possibility has not been exercised since it was established in the 2004 Adjudications Rule (69 FR 2182; January 14, 2004), and subpart L provides for cross-examination, if needed. • The NRC proposes to remove and reserve 10 CFR 2.310(g) and subpart M, which currently governs license transfer proceedings, because the proposed revisions to subpart L would suitably ensure that transfer proceedings are conducted promptly. As explained later in this notice, the streamlined and expedited subpart L procedures would impose strict deadlines for completing license transfer evidentiary hearings in about 2 to 3 months. Also, subpart M is premised on the Commission serving as the presiding officer for transfer proceedings, and the NRC proposes to employ a Licensing Board as the presiding officer for transfer proceedings, as explained previously. Conforming changes to reflect the removal of subpart M are proposed in 10 CFR 2.4 (definition of “potential party”) and in 10 CFR 2.313(a), 2.901, and 2.1103. In addition, the NRC proposes to revise 10 CFR 2.1103 to clarify the applicability of subpart K, add a reference to 10 CFR part 52 to maintain consistency with the hearing format selection requirements in 10 CFR 2.310, and provide, consistent with 10 CFR 2.310(e), that subpart K would apply upon the request of a party to use subpart K but that, otherwise, subpart L would be used. • The NRC proposes to revise 10 CFR 2.310(e) and remove and reserve 10 CFR 2.310(h) to eliminate the option of using subpart N for licensing proceedings that would by default be conducted under subpart L (absent those rare circumstances triggering the use of an alternative subpart). Subpart N was created to provide simplified procedures with oral hearings for the expeditious resolution of disputes. However, the NRC has never used subpart N since it was created in the 2004 Adjudications Rule (69 FR 2182; January 14, 2004), and the NRC believes that the oral hearing procedures for subpart N are generally not well suited for licensing proceedings, which often involve complex technical subject matter, where the precision of a primarily written hearing format is desirable. • The NRC also proposes to make conforming changes to 10 CFR 2.310(a) to reflect these changes. In addition, the NRC proposes to remove cross-references in 10 CFR part 52 to specified subparts of 10 CFR part 2 as potential sources of hearing procedures for certain license applications. These cross-references are not consistent with the proposed changes to 10 CFR 2.310, and hearing formats should be specified in 10 CFR part 2 and not other parts of the NRC's regulations. The affected sections are 10 CFR 52.21 and 52.163, and 10 CFR part 52, appendix N, section 8. Timeline for Motions Submitted in Highly Expedited Proceedings Consistent with the overall streamlining approach of the proposed rule, the agency proposes to amend Section 2.323 to reduce the timelines for submittal of motions and corresponding answers in highly expedited proceedings. As previously discussed, highly expedited proceedings are narrower in scope and on a shorter timeline than standard proceedings covered under part 2. To achieve timelines commensurate with the substance and urgency of highly expedited proceedings, Section 2.323(a)(2) would be changed to require that motions filed in these proceedings must be made no later than seven (7) days after the occurrence or circumstance from which the motion arises. Further, Section 2.323(c) would be amended to state that answers to motions in highly expedited proceedings must be submitted within seven (7) days after service of the motion. The agency also proposes a simple restructuring of Section 2.323(c) into three subparagraphs (1)-(3), introducing additional clarity and improving readability of the applicable requirements. Reopening Standards The NRC intends to complete contested hearings on a schedule that supports licensing within the timelines contemplated by the ADVANCE Act and E.O. 14300. Consequently, to ensure that the adjudicatory process does not delay licensing decisions, the proposed revised adjudicatory procedures have been constructed so as to generally accommodate an evidentiary hearing on admitted contentions filed by the § 2.309(b) deadline for filing contentions and a hearing on admitted contentions filed after that deadline, even if there is essentially no overlap between the filing and decision schedules for the two. For example, if a party files new contentions the day after the presiding officer issues an initial decision on the Standard Record Closure Date following an evidentiary hearing on initially filed contentions, the revised procedures would generally allow the agency to complete a full evidentiary hearing on those new contentions within the 18-month and 1-year timelines in E.O. 14300. Thus, the NRC has a high confidence that application of these revised adjudicatory procedures will enable the agency to meet the E.O. 14300 timelines in the vast majority of proceedings. The NRC acknowledges that in rare cases critical issues may arise late in a proceeding that might require the adjudication to exceed the NRC staff review timelines established in accordance with the ADVANCE Act and E.O. 14300. Therefore, to ensure that only critical issues would lead to such delays, the NRC proposes to amend 10 CFR 2.326 to specify that the adjudicatory record will close on the Standard Record Closure Date for the proceeding. As a result, contentions filed after the record closes would need to meet the heightened reopening standards in 10 CFR 2.326, which require the contention to be timely in accordance with 10 CFR 2.309(c), address a significant issue, and demonstrate that it would likely materially affect the outcome of the proceeding. These proposed revisions to 10 CFR 2.326 would comport with existing NRC precedent. The Commission has routinely emphasized that the adjudicatory record for a proceeding closes at the conclusion of an evidentiary hearing, for example, in a 2012 decision in the Pilgrim proceeding (CLI-12-3, 75 NRC 132). Also, the Commission has applied the reopening provisions even earlier in a proceeding ( e.g., when a proceeding terminates once all contentions have been decided), such as in the Commission's 2012 decision in the North Anna proceeding (CLI-12-14, 75 NRC 692). Therefore, under existing precedent, the proceeding would terminate and the reopening provisions apply in a situation when a presiding officer denies all hearing requests filed by the deadline in § 2.309(b) and there are no pending contentions in the proceeding. It is possible under existing precedent for a chain of periodically filed new or amended contentions, none of them admissible, to hold open the record of the proceeding even to the end of the NRC's review of an application. To avoid this anomalous result and to provide a standard time for when the record would close for a proceeding, the proposed revisions to 10 CFR 2.326 would add a new paragraph (e) stating that the record for the proceeding will automatically close at the Standard Record Closure Date, a date providing sufficient time to hold an evidentiary hearing on admitted contentions submitted by the original deadline. It would provide further, consistent with existing practice, that if the presiding officer enters an order closing the record following an evidentiary hearing, then the record would close at that earlier point. The Commission has also recognized that if some issues are pending once the record closes, the record may remain open on those limited issues; an example is the Commission's decision in the Pilgrim proceeding (CLI-12-3, 75 NRC 132). Therefore, paragraph (e) would also clarify that if other contentions either remain pending or are subject to a motion for leave to file at the time the record closes, the record will remain open only with respect to the issues raised by those contentions. By providing the public with an opportunity to request a hearing prior to closing the record, this proposal comports with applicable Federal case law considering challenges to the NRC's reopening standards. In the D.C. Circuit federal court of appeal's 1984 decision in Deukmejian v. NRC (751 F.2d 1287), the NRC required an intervenor to meet the reopening standards to participate in a proceeding on a full power operating license to challenge an applicant's application to amend a low power license by extending the license term. The court determined the two actions were separate proceedings. By requiring the petitioner to meet the heightened pleading requirements in the reopening standard, the NRC improperly abridged the petitioner's hearing rights under section 189a. of the Atomic Energy Act. Thus, under Deukmejian, the NRC must provide petitioners with at least one opportunity to participate in an adjudication prior to closing the record. The proposed revisions to 10 CFR 2.326 would meet this standard because they would not close the record until well after the opportunity to request a hearing expires. Also, because the proposed revisions to 10 CFR 2.326 would automatically close the record in the specified circumstances, the NRC proposes to revise §§ 2.104, 2.105, and 2.309(b)(5) to require Federal Register notices announcing opportunities to request hearings to state the Standard Record Closure Date for the proceeding. In so doing, this would put the public on notice and provide clarity on when the record would close. Finally, in addition to the adjustments described previously to address the scheduling directives of the ADVANCE Act and E.O. 14300, the agency proposes to modify the criteria included in 10 CFR 2.326(a)(2) to state that a significant environmental issue can only be identified in a proceeding where a categorical exclusion does not apply. In circumstances where a categorical exclusion is used to comply with the National Environmental Policy Act, by definition, there are no significant environmental issues associated with the proposed Federal action. The agency considers this to be a clarity change responsive to the potential for increased use of categorical exclusions in future reviews. In accordance with E.O. 14300 Section 5(c), the NRC is separately considering revisions to its regulations governing compliance with the National Environmental Policy Act. Discovery The NRC proposes several changes to reduce burdens to the parties from their obligations to make certain disclosures after contentions are admitted in most licensing proceedings and also proposes to expedite the production of initial disclosures to support the accelerated evidentiary hearing timeframes in subpart L. 20 First, the NRC staff's hearing file obligations would be entirely eliminated. Experience shows the hearing file currently required by § 2.1203 is burdensome and provides little value to the litigation because it covers the entire application under review instead of focusing on the admitted contentions. Moreover, the hearing file was established before the NRC required electronic filing of applications, regularly posted the entirety of applications and related documents on its website, and developed robust search functions in public-facing ADAMS. To the extent members of the public face difficulties in searching ADAMS, NRC Public Document Room staff are available to assist during business hours. Thus, the rationale supporting the hearing file obligation has become outdated. By eliminating the hearing file, the NRC does not intend to suggest that the agency is reverting to traditional discovery; therefore the NRC proposes to retain paragraph (d), which specifies that no additional forms of discovery are authorized. 20 These proposed changes would not affect the discovery provisions in proceedings under subpart G or subpart J of part 2. The NRC also proposes eliminating the NRC staff's 10 CFR 2.336(b) disclosure obligations (except for proceedings on denials of applications, which is discussed next) because the staff ordinarily makes the application, correspondence with the applicant, and other documents related to the review ( e.g., guidance) publicly available in ADAMS. Also, in appropriate circumstances, the Secretary of the Commission issues orders under 10 CFR 2.307(c) to provide opportunities for potential parties to seek access to sensitive unclassified information to support their preparation of contentions. Further, the staff's disclosures largely replicate the applicant's required disclosures or otherwise concern internal documents that are typically not produced to the other parties. Moreover, the staff is a neutral party without a stake in the application—the applicant, who has a direct stake in the application, should be responsible for producing relevant documents. The NRC proposes to retain the 10 CFR 2.336(b) disclosures obligation (in modified form) in proceedings on denials of applications because no other party would replicate the staff's disclosures and the staff has a different role in a proceeding on the denial of an application than in other contested licensing proceedings. The NRC further proposes to modify 10 CFR 2.336(b) to tailor the required document disclosures to the circumstances associated with a proceeding on a denial of an application ( e.g., the document categories associated with the application and NRC correspondence with the applicant would be eliminated because the applicant already would be in possession of this material). Finally, the NRC proposes conforming changes to § 2.336(a) to reflect applicant disclosures in a proceeding on a denial of an application. Second, the NRC proposes further changes to 10 CFR 2.336 to reduce the burdens of other participants. Parties commonly agree to exclude from disclosures non-public draft documents that have not been circulated among the parties; the NRC proposes to codify this practice in the NRC's regulations in new subparagraphs (a)(4) and (b)(2). In addition, parties should not be required to update their disclosures during the evidentiary hearing phase because the most important relevant documents should have been disclosed by this point, and the evidentiary hearing is the most resource-intensive phase of the process. Notably, this would not relieve litigants from their ongoing general obligation to keep the presiding officer and litigants informed of relevant new developments in a proceeding, as the Commission emphasized in its 2006 decision in the USEC proceeding (CLI-06-10, 63 NRC 451). Finally, the NRC proposes to revise § 2.336 to require the applicant, petitioner, and (as applicable) staff to produce their initial disclosures within 20 days of a presiding officer order admitting contested issues into the proceeding rather than 30 days from a presiding officer order granting a hearing request or intervention petition. Twenty days should be sufficient for diligent litigants to prepare their 10 CFR 2.336 disclosures, and an accelerated initial disclosures schedule is necessary to support the expedited evidentiary hearing timeframes that are proposed in subpart L. Moreover, twenty days is greater than the general timeline contemplated for initial disclosures under the Federal Rules of Civil Procedure. The 20 days would generally run from the date of an order admitting contentions to reflect the proposal in this proposed rule for most licensing proceedings to separate decision-making on hearing requests from decision-making on proposed contentions. This proposed revision also accounts for new or amended contentions that might be admitted after the 10 CFR 2.309(b) initial filing deadline for contentions. However, in a proceeding on a denial of an application, the 20-day period would run from the order granting a demand for hearing. Conforming Changes to Scheduling Regulations To accommodate the shorter timeframes for completing adjudications contemplated by this proposed rule, the NRC is proposing a number of conforming amendments to other sections in part 2, which pertain to scheduling. Specifically, the NRC proposes to revise paragraph (b) in 10 CFR 2.312, “Notice of hearing,” to reflect the Commission's expectation that considerations informing the selection of a time and place for a hearing should not override the overall timeframes established for timely adjudications by this rule or by any proceeding-specific Commission order. To provide additional flexibilities that may facilitate meeting those timeframes, the NRC also proposes to revise 10 CFR 2.329, “Prehearing conference,” to give the presiding officer or Commission discretion on whether to hold a prehearing conference. Next, the NRC proposes a number of edits to 10 CFR 2.332, “General case scheduling and management,” that will conform to the streamlined procedures and shortened timeframes proposed elsewhere in this rule. Because the timeframes proposed by this rule would be mandatory, the NRC proposes to revise paragraph (a) to reflect the presiding officer's obligation to develop a schedule that would meet the licensing timeframes proposed by this rule. Likewise, the NRC proposes to amend paragraph (d) to conform to the Commission's expectations that hearings under subpart L would ordinarily begin once the presiding officer admits contentions, not when the staff issues its review documents. Specifically, the presiding officer would immediately proceed to an evidentiary hearing after the admission of a contention unless either (i) the NRC staff or applicant intend to seek dismissal of the admitted contention or (ii) the NRC staff decides to participate as a party but is not yet able to take final positions on the matters in controversy. Section 2.332(d) includes notification requirements to effectuate this provision. The commencement of the evidentiary hearing phase would be delayed in cases where the NRC staff or applicant seek to dismiss a contention because the process for seeking dismissal is quicker and less resource-intensive than an evidentiary hearing; thus, the dismissal process may be a more efficient way of resolving a contention if the presiding officer decides that the standards for dismissing the contention are satisfied. The other reason for delaying the commencement of the evidentiary hearing—when the NRC staff seeks to participate as a party but is not able to take a final position on the matters in controversy—reflects the special role the NRC staff has in the licensing process and the Commission's desire to ensure that the presiding officer is aware of the NRC staff's considered position on the contested issues in those cases where the staff chooses to participate as a party. The NRC staff may not always be in the position (particularly early in its review) to take a final position on the matters in controversy—in this regard, the NRC staff is in a different position from the petitioner (who formulated and supported the proposed contention and should be in a position to commence the evidentiary hearing upon admission of the contention) and the applicant (who developed the application and should have the wherewithal to promptly address challenges to it). In the interests of prompt adjudication, the proposed § 2.332(d) would further require the NRC staff, in cases where it decides to participate as a party but is not yet able to take a final position on the admitted contention, to prioritize its resources to put itself in a position to provide testimony on the contention at the earliest practicable time and notify the presiding officer and the other parties when the staff is ready to do so. Section 2.332(d) would be further revised to require the presiding officer, to the greatest extent practicable, to establish a schedule that will not extend past the NRC staff's scheduled date for completing its review of the particular application. This provision has the purpose of ensuring timely NRC decision-making when it is practicable to do so and is intended to address both individual NRC reviews that are on a more expedited review schedule as well as the resolution of admitted contentions submitted later during an NRC review. As a conforming change, the NRC proposes to revise 10 CFR 51.104(a) to remove the prohibition, in proceedings where a final environmental impact statement (EIS) has been prepared in connection with a proposed action, on the NRC staff either presenting a position on matters within the scope of the National Environmental Policy Act or offering the final EIS into evidence until the final EIS is made available. There is no statutory basis for this prohibition. Also, delaying the commencement of evidentiary hearings on environmental contentions until a final EIS has been completed, which might occur near the end of the NRC's review period, does not support the timeliness and efficiency goals of the ADVANCE Act and E.O. 14300. With the removal of this prohibition, the operative provisions of § 51.104(a) and (b) would be essentially identical, so the NRC further proposes to consolidate § 51.104(a) and (b) into § 51.104(a) and remove and reserve § 51.104(b). In another conforming change, the NRC proposes to revise 10 CFR 2.332(b) to reflect that only enforcement proceedings, not licensing proceedings, would be subject to the model milestones in appendix B of part 2. As discussed later, strict deadlines would be imposed in licensing proceedings rather than model milestones. Finally, the NRC proposes to amend 10 CFR 2.334, “Implementing hearing schedule for proceeding,” by clarifying paragraph (a) to directly state the presiding officer's obligation to take necessary measures to ensure timely adjudication, by revising paragraph (b) to incorporate the standard in section 2.307(a) for extending a schedule, and by revising paragraph (c) to require the presiding officer to notify the Commission of any delays beyond the timeframes established by this rule. Proposed Revisions to Subpart L Hearing Format and Conforming Changes Elsewhere in Part 2 As explained previously, the NRC proposes to make a number of significant changes to subpart L to streamline and accelerate the hearing process for proceedings for the grant, renewal, licensee-initiated amendment, termination, or transfer of licenses or permits subject to 10 CFR parts 30, 32 through 36, 39, 40, 50, 52, 54, 55, 61, 70 and 72. The two most significant proposed changes are (1) to establish strict deadlines for the issuance of initial decisions in most licensing proceedings and (2) to provide greater flexibility to the presiding officer to decide which components of the subpart L hearing process are needed to support the presiding officer's decision-making. The NRC also proposes other changes to streamline proceedings and ensure prompt and accurate decision-making, as discussed in the following paragraphs. The NRC proposes to establish strict deadlines for the issuance of an initial decision to ensure that adjudicatory proceedings are promptly conducted and support the efficiency goals and mandates of the ADVANCE Act and E.O. 14300. These deadlines would be tailored to different types of proceedings to account for the varying complexity of different license applications as well as the greater need for expedited decision-making in certain proceedings ( e.g., in highly expedited proceedings). The NRC proposes that these deadlines may only be extended if unavoidable and extreme circumstances necessitate a delay. The NRC proposes to provide presiding officers greater flexibility in structuring the subpart L evidentiary hearing phase because admitted contentions could take a wide variety of forms, and the presiding officer in an individual proceeding is better placed to decide what information is needed for the admitted contentions before it to support accurate decision-making and the development of a sound record, while ensuring that the parties are given a fair and equal opportunity to make their cases ( e.g., if one party may file written testimony and a position statement, all other parties would have the same opportunity). The presiding officer would also tailor the hearing schedule to the particular circumstances of a proceeding while complying with requirements for decision-making deadlines. The specific proposed changes to subpart L and conforming changes elsewhere in this part are detailed in the following subsections. For clarity and completeness, the NRC will detail here all proposed changes to subpart L, including those discussed elsewhere in this notice. A. Changes to Scope Provisions in 10 CFR 2.1200 The NRC proposes to revise 10 CFR 2.1200 to reflect the modified scope of subpart L, as discussed previously in the context of changes to 10 CFR 2.310 and 2.700. As stated before, license transfer proceedings would now be conducted under subpart L, as well as contested proceedings on the grant of licenses to construct and operate uranium enrichment facilities. The NRC also proposes to clarify § 2.1200 to reflect the existing provision in § 2.310(b) providing that enforcement proceedings may be held under subpart L if all parties agree. B. Changes to 10 CFR 2.1202 Regarding the NRC Staff's Authority and Role The NRC proposes several modifications to the provisions in 10 CFR 2.1202 regarding the NRC staff's authority to take licensing actions and its role in the adjudicatory proceeding. First, the NRC proposes to modify provisions on the issuance and effectiveness of licensing decisions during the pendency of a hearing. Currently, § 2.1202(a) provides that the NRC staff is expected to promptly issue its approval or denial of the application, or take other appropriate action on the underlying regulatory matter for which a hearing was provided, and that the NRC staff's action is effective upon issuance except for several listed licensing actions. The NRC proposes to revise the list of exceptions in § 2.1202(a) as follows: • Currently, the listed exceptions include all applications to construct and/or operate a production or utilization facility (including limited work authorizations and combined licenses). However, the pre-effectiveness hearing requirements in AEA section 189a. apply to production and utilization facilities licensed under AEA sections 103 and 104b. (corresponding to facilities under 10 CFR 50.21(b) and 50.22) or testing facilities licensed under AEA section104c. (corresponding to a facility under 10 CFR 50.21(c) that meets the definition of “testing facility” in 10 CFR 50.2). The AEA's pre-effectiveness hearing requirements do not apply to production and utilization facilities licensed under AEA section104a. ( i.e., medical therapy facilities under 10 CFR 50.21(a)) or to production and utilization facilities licensed under AEA section 104c. that are not testing facilities ( i.e., non-testing facilities under 10 CFR 50.21(c)). The NRC proposes to revise 10 CFR 2.1202(a)(1) to reflect the scope of the AEA's pre-effectiveness hearing requirements and in recognition of the lower safety significance of medical therapy facilities under 10 CFR 50.21(a) and non-testing facilities under 10 CFR 50.21(c). • The NRC proposes to revise 10 CFR 2.1202(a)(3) to remove the current exception for 10 CFR part 52 manufacturing licenses and put in its place an exception for licenses to construct and operate uranium enrichment facilities. In the 2007 rule adding the exception for manufacturing licenses (72 FR 49352, page 49420; August 28, 2007), the Commission acknowledged that there is no statutory requirement for including an exception for manufacturing licenses, but stated, “Nonetheless, as a matter of discretion, the NRC has decided to treat manufacturing licenses similar to construction permits in this regard, although the NRC reserves the right to change its practice in the future.” The NRC proposes to remove the exception for manufacturing licenses because such licenses are not subject to the AEA's pre-effectiveness hearing requirements, a manufacturing license authorizes only the manufacture (not operation) of a facility, and vendors may fabricate major portions of a facility without a manufacturing license so long as those portions do not constitute a production or utilization facility. In these circumstances, there is no substantial reason to delay the issuance and effectiveness of a manufacturing license because of a pending hearing on the license application. The NRC proposes to include an exception for applications for licenses to construct and operate uranium enrichment facilities. Such applications are currently subject to hearings under subpart G, but the NRC proposes to conduct hearings on these applications under subpart L. As stated previously, licenses to construct and operate uranium enrichment facilities are subject to a statutory pre-effectiveness hearing requirement, so it is appropriate to include them in the list of exceptions in 10 CFR 2.1202(a). The NRC also proposes to modify 10 CFR 2.1202(b), regarding the role of the NRC staff in the hearing process, to accelerate the time in which the NRC staff is required to notify the presiding officer and the other parties of whether it will participate as a party in the proceeding. In addition, the NRC proposes to modify this section to reflect the proposed provisions (discussed previously) regarding the elimination of the staff's hearing file obligations in 10 CFR 2.1203 and the elimination (in the proceedings addressed by § 2.1202(b)(2)) of the staff's document disclosure obligations under 10 CFR 2.336(b). C. Changes to 10 CFR 2.1203 Regarding Elimination of Hearing File As discussed previously, the NRC proposes to eliminate the hearing file requirements in paragraphs (a) to (c) of 10 CFR 2.1203, while retaining the prohibition on additional discovery currently in paragraph (d) of 10 CFR 2.1203. D. Changes to 10 CFR 2.1205 Regarding Summary Disposition The NRC proposes several changes regarding the schedule for summary disposition motions. First, to avoid unduly burdening parties as they undertake evidentiary hearing activities, the NRC proposes to modify § 2.1205(a) so that summary disposition motions are not permitted later than 30 days before the scheduled date for filing initial written testimony. Summary disposition may be a useful tool to avoid the resource expenditures associated with an evidentiary hearing, but after evidentiary hearing activities are underway, the filing of summary disposition motions risks distracting parties from their hearing preparations and burdening them unnecessarily. Second, consistent with other proposed changes in this proposed rule, the NRC proposes to reduce the time for filing answers to summary disposition motions from 20 days to 15 days after service of the motion. The NRC also proposes to provide a 20-day period from the filing of answers for a decision on the motion. Fifteen days should be sufficient for parties to address the pertinent standards for summary disposition motions, and a 20-day period for decisions is consistent with the overall hearing schedule and other proposed timeframes for decisions in this proposed rule. E. Changes to 10 CFR 2.1206 to 2.1210 Regarding the Hearing Process and Schedule Currently, 10 CFR 2.1206 to 2.1210 provide the principal requirements for the subpart L evidentiary hearing process and schedule, including prescriptive requirements for which written filings are permitted and when, and whether an oral hearing must be held. For the reasons discussed earlier, the NRC proposes to replace these detailed requirements with simpler, more flexible and informal provisions for most proceedings. As reflected in proposed § 2.1206(a)(2), a hearing in a proceeding for the grant of a license to construct and operate a uranium enrichment facility would be required to comply with the APA's formal procedures for “on the record” hearings. As explained in the following paragraphs, §§ 2.1206 and 2.1207 would be completely revised, while §§ 2.1208 and 2.1209 would be removed and reserved, and minor conforming changes would be made § 2.1210. Under proposed § 2.1206(a), the presiding officer would issue a scheduling order that would include the presiding officer's determinations on which written filings are permitted, the schedule for these filings, whether to hold an oral hearing, and the schedule for issuing an initial decision. Motions for cross-examination under 10 CFR 2.1204 would be permitted (consistent with the current regulations). Otherwise, the presiding officer would largely have flexibility to decide which written filings the parties would be permitted to make to provide the information necessary to support the presiding officer's decision. These potential written filings, which would be listed in § 2.1206(b)(1), are (1) initial testimony, position statements, and supporting exhibits; (2) rebuttal testimony, position statements, and supporting exhibits; (3) motions in limine and motions to strike; (4) written briefing and/or written responses to questions from the presiding officer; (5) proposed questions for the presiding officer to ask the witnesses; and (6) proposed findings of fact and conclusions of law. These listed filings are currently available in a subpart L hearing process, but the presiding officer would have flexibility to determine which filings to permit in a particular case. Similarly, the presiding officer would generally have flexibility to determine whether an oral hearing is needed to support the presiding officer's decision—currently, an oral hearing is required unless all parties agree to a hearing based solely on written presentations, but the NRC sees no need to require that an oral hearing be held as a default matter. The initial decision is the culmination of the evidentiary hearing process, and the NRC proposes that the scheduling order include the schedule for an initial decision, which must comply with the requirements of 10 CFR 2.332 and (if applicable) 10 CFR 2.1207. As discussed later in this document, proposed 10 CFR 2.1207 provides schedule requirements for the issuance of initial decisions in most licensing proceedings. Proposed § 2.1206(b)(2) identifies certain additional flexibilities for the parties and the presiding officer that would apply depending on which written filings are permitted. Historically, written testimony in subpart L proceedings has been submitted in question-and-answer form, but a party would be allowed to submit testimony in affidavit form if the party prefers. Also, the NRC proposes that most licensing proceedings would be subject to the § 2.309(k) requirement that litigants include witness evidence in their initial filings in the form of affidavits—this requirement would allow these affidavits to be entered into evidence at the evidentiary hearing if they meet the criteria for admissible evidence in 10 CFR 2.337. Section 2.1206(b)(2) would also provide that if statements of position and proposed findings of fact and conclusions of law are both permitted, parties would be allowed to file statements of position in the form of proposed findings and conclusions to facilitate the prompt preparation of proposed findings and conclusions after the hearing. Finally, § 2.1206(b)(2) would clarify the presiding officer's authority to allow oral motions in limine or motions to strike in lieu of (or in addition to) written filings. Proposed § 2.1206(b)(2) would not provide an exhaustive list of flexibilities, and the presiding officer would retain all authority provided in the pertinent provisions of part 2 to regulate the conduct of the proceeding. Proposed § 2.1206(c) retains requirements in current subpart L regarding the participants' ability to designate and present their own witnesses; the presiding officer's discretion to formulate questions and ask questions as the presiding officer considers appropriate; the presiding officer's authority to address situations where a witness is unable to appear in an oral hearing; and existing provisions on the propounding of questions by the presiding officer and the submission of proposed questions for the presiding officer to ask the witnesses. While the presiding officer would ordinarily have great flexibility to structure the evidentiary hearing, for two types of proceedings—those on applications to construct and operate a uranium enrichment facility and on denials of applications—the NRC proposes § 2.1206(d) that would require (consistent with current subpart L) that (1) a transcribed oral hearing be held unless all parties jointly agree to dispense with an oral hearing, and (2) each party be permitted to file written testimony, a position statement, and supporting exhibits; to submit rebuttal evidence and argument; and to file proposed findings of fact and conclusions of law. These elements of an evidentiary hearing would be required for a proceeding concerning the grant of a license to construct and operate a uranium enrichment facility to maintain consistency with the requirements for formal “on the record” hearings in the APA. 21 The NRC also proposes to retain these elements of a subpart L hearing for denials of applications because hearings on denials ordinarily arise from a “demand for hearing” under 10 CFR 2.103 or 2.108 that would not typically involve the robust issue development provided in the initial filings under the 10 CFR 2.309 process. 22 21 The NRC recognizes that an oral hearing may not be required by the APA in all cases. As reflected in 5 U.S.C. 556(d), an agency may, in “applications for initial licenses . . ., when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form” even in a formal APA hearing. 22 The NRC acknowledges that for denials noticed under 10 CFR 2.108(b), any person whose interest may be affected may file an intervention petition under 10 CFR 2.309, but the NRC does not anticipate that a hearing on a denial of an application would ordinarily arise through this mechanism. Instead, a hearing on a denial of an application would most likely result from a demand for hearing from the applicant under 10 CFR 2.103 or 2.108—a demand for hearing is not subject to the requirements of 10 CFR 2.309. The NRC proposes in § 2.1207 to provide scheduling requirements for issuance of initial decisions in proceedings under subpart L, with the exception of enforcement proceedings and proceedings on denials of applications. 23 For each type of proceeding, the NRC proposes (1) a deadline for initial decisions for contentions, including (as applicable) a shorter deadline for initial decisions on contentions submitted after the Standard Record Closure Date, (2) a specification of the Standard Record Closure Date for that type of proceeding, and (3) a requirement that unavoidable and extreme circumstances are necessary for delays beyond the deadline for initial decision. Deadlines are stated in terms of calendar days from the admission of the contention, assuming that the presiding officer immediately proceeds to an evidentiary hearing in accordance with 10 CFR 2.332(d), although if this does not occur ( e.g., the NRC staff is not yet able to take a final position on the contested issues) the deadline would run from an alternative triggering event established in the scheduling order ( e.g., the NRC staff's notification that it is able to take a final position on the contested issues). Also, § 2.1207 would require unavoidable and extreme circumstances for extensions beyond the prescribed initial decision deadlines to ensure that delays in decision-making occur only when necessary. Relatedly, in accordance with proposed changes to § 2.334(c) discussed previously, the presiding officer must provide written notification to the Commission any time during the course of the proceeding when it appears that the issuance of the initial decision will be delayed beyond the time specified in the hearing schedule. 23 The NRC is not proposing specific schedules for issuance of initial decisions in subpart L enforcement proceedings and proceedings on denials of application because circumstances are likely to vary in these proceedings. In addition, neither the ADVANCE Act nor E.O. 14300 address schedules for enforcement proceedings. Also, denials of applications would be subject to the general requirement in 10 CFR 2.332(c) to establish a schedule to expedite the proceeding, and the Commission expects that presiding officers would consider relevant comparable hearing schedules in § 2.1207 in establishing a hearing process and schedule that ensure a prompt and fair proceeding that supports accurate decision-making and development of an adequate record. In establishing proposed deadlines, the NRC considered the anticipated complexity of the pertinent application, along with associated NRC review deadlines and goals. More time is being proposed for complex applications subject to an 18-month deadline for a final decision on the application, while less time is being proposed for less complex applications subject to shorter deadlines for a final decision on the application. In some cases, the NRC has not established a standard fixed deadline shorter than 18 months for a particular application, but the NRC would seek to come to a final decision in substantially less than 18 months, if practical, because the application review is less complicated ( e.g., a commercial reactor application referencing an issued design certification, which finally resolves most design issues for both the staff review and the adjudicatory proceeding). The NRC has also considered different timelines depending on when the contention was submitted. For two reasons, the NRC generally proposes a shorter deadline for initial decisions on contentions submitted after the Standard Record Closure Date. First, an expedited schedule is needed for admitted contentions submitted later in a proceeding to support prompt NRC decision-making consistent with the direction in the ADVANCE Act and E.O. 14300. As stated previously and discussed in more detail later in the context of Table 4, the NRC's general overall goal with these changes has been to establish a process where two non-overlapping hearings could be held within the 18-month and 1-year E.O. 14300 deadlines (one hearing on contentions submitted by the § 2.309(b) deadline—which would conclude on the Standard Record Closure Date—and the second hearing on a new or amended contention submitted after the Standard Record Closure Date). Second, consistent with other proposed changes to part 2 (in particular, those in 10 CFR 2.332(d)), the NRC would ordinarily proceed to an evidentiary hearing on contentions submitted earlier in the proceeding as soon as practicable. Thus, hearings on admitted contentions submitted later in the proceeding would be expected to narrowly focus on new information arising later in the review, in contrast to contentions submitted early in the review that might embrace the entire application. To promote clarity, § 2.1207 would specify the Standard Record Closure Date for different types of proceedings, based on the proposed definition of this term in 10 CFR 2.4, and the Standard Record Closure Date for a particular proceeding would be specified in the Federal Register notice announcing the hearing opportunity, in accordance with proposed revisions to 10 CFR 2.104, 2.105, and 2.309. Regarding the specific deadlines in 10 CFR 2.1207, the NRC proposes in § 2.1207(a) the longest deadline (145 days) for a proceeding on the grant of a license to construct and operate a uranium enrichment facility. Such proceedings are required to comply with the formal APA hearing requirements; formal proceedings generally require more time than informal proceedings. Also, unlike the other proceedings subject to § 2.1207, the regulations would not provide for evidentiary submissions in answers to contentions from the applicant and NRC staff or in the petitioner's replies to those answers—in other words, more evidentiary material would have to be introduced in the evidentiary hearing process for enrichment proceedings under § 2.1207(a) because less would be introduced in the initial filings. While the presiding officer would have flexibility to establish a hearing schedule based on the specific circumstances of a proceeding, the hypothetical schedule that follows in Table 3 shows that 145 days is sufficient time to conduct an evidentiary hearing that includes initial and rebuttal testimony and statements of position, an oral hearing, and post-hearing proposed findings of fact and conclusions of law. A shorter deadline (110 days) would be provided for hearings on contentions submitted after the Standard Record Closure Date, for the reasons given previously and as supported by the hypothetical timeline in Table 3. These proposed initial decision deadlines, combined with the associated timetables for initial filings identified in Tables 1 and 2, support the NRC's general 18-month deadline for final decisions on these enrichment applications with substantial margin, as shown in Table 4. Table 3—Hypothetical Timeline for an Evidentia [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2026-04187. Public record. Not legal advice.