The Commission will incorporate in the notice of adoption of a regulation a concise general statement of its basis and purpose, and will cause the notice and regulation to be published in the FEDERAL REGISTER or served upon affected persons.

§ 2.807 Effective date.

The notice of adoption of a regulation will specify the effective date. Publication or service of the notice and regulation, other than one granting or recognizing exemptions or relieving from restrictions, will be made not less than thirty (30) days prior to the effective date unless the Commission directs otherwise on good cause found and published in the notice of rule making. Subpart 1-Special Procedures Applicable to Adjudicatory Proceedings Involving Restricted Data

§ 2.900 Purpose.

This subpart is issued pursuant to section 181 of the Atomic Energy Act of 1954, as amended, to provide such procedures in proceedings subject to this part as will effectively safeguard and prevent disclosure of Restricted Data to unauthorized persons, with minimum impairment of procedural rights.

§ 2.901 Scope.

This subpart applies to all proceedings subject to this part.

§ 2.905

Access to Restricted Data for parties; security clearances.

(a) Access to Restricted Data introduced into proceedings. (1) Restricted Data which is within a category specified in Appendix A, Part 25 of this chapter, and which is introduced into a proceeding subject to this part, will be made available to any party to the proceeding, to counsel and to such other individuals as a party intends to use in connection with the preparation and presentation of his case, provided that each such person has the required security clearance.

(2) Other Restricted Data introduced into a proceeding subject to this part will be made available to any interested party having the required security clearance; to counsel for an interested party pro

vided the counsel has the required security clearance; and to such additional persons having the required security clearance as the Commission or the presiding officer determines are needed by such party for adequate preparation or presentation of his case. Where the interest of such party will not be prejudiced, the Commission or presiding officer may postpone action upon an application for access under this subparagraph until after a notice of hearing, answers and replies have been filed.

(3) Any party desiring access to Restricted Data introduced into the record of a proceeding subject to this part should file an application for order granting access pursuant to this section.

(b) Access to Restricted Data not introduced into proceedings. (1) On application showing that access to Restricted Data may be required for the preparation of a party's case, and except as provided in paragraph (h) of this section, the Commission or the presiding officer will issue an order granting access to such Restricted Data to the party upon his obtaining the required security clearance, to counsel for the party upon their obtaining the required security clearance, and to such other individuals as may be needed by the party for the preparation and presentation of his case upon their obtaining the required clearance.

(2) Where the interest of the party applying for access will not be prejudiced, the Commission or presiding officer may postpone action on an application pursuant to this paragraph until after a notice of hearing, answers and replies have been filed.

(c) Consideration of requests for security clearances. The Commission will consider requests for appropriate security clearances in reasonable numbers pursuant to this section. A reasonable charge will be made by the Commission for costs of security clearance pursuant to this section.

(d) Questions relating to access to Restricted Data. The presiding officer may certify to the Commission for its consideration and determination any questions relating to access to Restricted Data arising under this section. Any party affected by a determination or order of the presiding officer under this section may appeal forthwith to the Commission from the determination or order. The filing by the regulatory staff of an appeal from an order of a presiding officer granting access to Restricted

Data shall stay the order pending determination of the appeal by the Commission.

(e) Application granting access to Restricted Data. An application under this section for orders granting access to Restricted Data within a category specified in Appendix A, Part 25 of this chapter, will normally be acted upon by the presiding officer, or if a proceeding is not before a presiding officer, by the Commission. An application for an order granting access to Restricted Data which is not within such a category will be acted upon by the Commission.

(f) Description of subjects of Restricted Data desired. To the extent practicable, an application for an order granting access under this section shall describe the subjects of Restricted Data to which access is desired and the level of classification (confidential, secret other) of the information; the reasons why access to the information is requested; the names of individuals for whom clearances are requested; and the reasons why security clearances are being requested for those individuals.

or

(g) Termination of orders. On the conclusion of a proceeding, the Commission will terminate all orders issued in the proceeding for access to Restricted Data and all security clearances granted pursuant to them; and may issue such orders requiring the disposal of classified matter received pursuant to them or requiring the observance of other procedures to safeguard such classified matter as it deems necessary to protect Restricted Data.

(h) Refusal to grant access to Restricted Data. The Commission may refuse to grant access to Restricted Data which is not within a category specified in Appendix A to Part 25 of this chapter on a determination that the granting of access will be inimical to the common defense and security.

§ 2.906 Obligation of parties to avoid introduction of Restricted Data.

It is the obligation of all parties in a proceeding subject to this part to avoid, where practicable, the introduction of Restricted Data into the proceeding This obligation rests on each party whether or not all other parties have the required security clearance.

§ 2.907 Notice of intent to introduce Restricted Data.

(a) If, at the time of publication of a notice of hearing, it appears to the

regulatory staff that it will be impracticable for it to avoid the introduction of Restricted Data into the proceeding it will file a notice of intent to introduce Restricted Data.

(b) If, at the time of filing of an answer to the notice of hearing it appears to the party filing that it will be impracticable for the party to avoid the introduction of Restricted Data into the proceeding, the party shall state in the answer a notice of intent to introduce Restricted Data into the proceeding.

(c) If, at any later stage of a proceeding, it appears to any party that it will be impracticable to avoid the introduction of Restricted Data into the proceeding, the party shall give to the other parties prompt written notice of intent to introduce Restricted Data into the proceeding.

(d) Restricted Data shall not be introduced into a proceeding after publication of a notice of hearing unless a notice of intent has been filed in accordance with 2.908, except as permitted in the discretion of the presiding officer when it is clear that no party or the public interest will be prejudiced.

§ 2.908 Contents of notice of intent to introduce Restricted Data.

(a) A party who intends to introduce Restricted Data shall file a notice of intent with the Secretary. The notice shall be unclassified and, to the extent consistent with classification requirements, shall include the following:

(1) The subject matter of the Restricted Data which it is anticipated will be involved;

(2) The highest level of classification of the information (confidential, secret, or other);

(3) The stage of the proceeding at which he anticipates a need to introduce the information; and

(4) The relevance and materiality of the information to the issues on the

quired security clearances, the presiding officer may in his discretion:

(a) Rearrange the normal order of the proceeding in a manner which gives such interested parties an opportunity to obtain required security clearances with minimum delay in the conduct of the proceeding.

(b) Suspend the proceeding or any portion of it until all interested parties have had opportunity to obtain required security clearances. No proceeding shall be suspended for such reasons for more than 100 days except with the consent of all parties or on a determination by the presiding officer that further suspension of the proceeding would not be contrary to the public interest.

(c) Take such other action as he determines to be in the best interest of all parties and the public.

§ 2.910 Unclassified statements required.

(a) Whenever Restricted Data is offered in evidence in a proceeding, the party offering it shall submit to the presiding officer and to all parties to the proceeding an unclassified statement setting forth the information in the classified matter as accurately and completely as possible.

(b) In accordance with such procedures as may be agreed upon by the parties or prescribed by the presiding officer, and after notice to all parties and opportunity to be heard thereon, the presiding officer shall determine whether the unclassified statement or any portion of it, together with any appropriate modifications suggested by any party, may be substituted for the classified matter or any portion of it without prejIudice to the interest of any party or to the public interest.

(c) If the presiding officer determines that the unclassified statement, together with such unclassified modifications as he finds are necessary or appropriate to protect the interest of other parties and the public interest, adequately sets forth information in the classified matter which is relevant and material to the issues in the proceeding, he shall direct that the classified matter be excluded from the record of the proceeding. His determination will be considered by the Commission as a part of the decision in the event of review.

(d) If the presiding officer determines that an unclassified statement does not adequately present the information contained in the classified matter which

is relevant and material to the issues in the proceeding, he shall include his reasons in his determination. This determination shall be included as part of the record and will be considered by the Commission in the event of review of the determination.

(e) The presiding officer may postpone all or part of the procedures established in this section until the reception of all other evidence has been completed. Service of the unclassified statement required in paragraph (a) of this section shall not be postponed if any party does not have access to Restricted Data. § 2.911

Admissibility of Restricted Data. A presiding officer shall not receive any Restricted Data in evidence unless:

(a) The relevance and materiality of the Restricted Data to the issues in the proceeding, and its competence, are clearly established; and

(b) The exclusion of the Restricted Data would prejudice the interest of a party or the public interest.

§ 2.912

Weight to be attached to classified evidence.

In considering the weight and effect of any Restricted Data received in evidence to which an interested party has not had opportunity to receive access, the presiding officer and the Commission shall give to such evidence such weight as is appropriate under the circumstances, taking into consideration any lack of opportunity to rebut or impeach the evidence. § 2.913

Review of Restricted Data received in evidence.

At the close of the reception of evidence, the presiding officer shall review the record and shall direct that any Restricted Data be expunged from the record where such expunction would not prejudice the interests of a party or the public interest. Such directions by the presiding officer will be considered by the Commission in the event of review of the determinations of the presiding officer.

§ 2.914 Access under Part 25 of this chapter not affected.

Nothing in this subpart or any order issued in a proceeding pursuant to the regulations in this subpart shall be deemed to abridge access to Restricted Data to which any person may be en

titled under the regulations in Part 25 of this chapter.

APPENDIX A STATEMENT OF GENERAL POLICY: CONDUCT OF PROCEEDINGS FOR THE ISSUANCE OF CONSTRUCTION PERMITS FOR PRODUCTION AND UTILIZATION FACILITIES FOR WHICH A HEARING IS REQUIRED UNDER SECTION 189 a. OF THE ATOMIC ENERGY ACT OF 1954, As AMENDED

On December 8, 1962, the Atomic Energy Commission published amendments of its Rules of Practice (10 CFR Part 2) to describe the functions and procedures of its atomic safety and licensing boards (27 F.R. 12184). Those amendments implemented Public Law 87-615 of the 87th Congress, effective August 29, 1962, which was designed to permit greater flexibility and to encourage informality in the conduct of AEC licensing proceedings. The statement of considerations which was published with the amendments to Part 2 included recommendations for the conduct of proceedings by atomic safety and licensing boards, in order to carry out the purpose that hearings in which there are no substantial contested issues among the parties should be conducted more informally than had theretofore been the practice. On November 25, 1963, the Commission issued Press Release F-240 which covered in greater detail the same general subject matter as the statement of considerations and also emphasized the importance which the Commission attached to implementing the informal procedures to the fullest extent practicable in uncontested cases. In the statement of considerations the Commission, recognizing the need for continuing review of its procedures, specifically pointed out that it intended to adopt from time to time any further amendments of its regulations which experience in the operation of atomic safety and licensing boards might indicate as being necessary or desirable.

As a part of that continuing review the Commission announced the appointment of a seven-member Regulatory Review Panel on January 25, 1965, to study (1) the programs and procedures for the licensing and regulation of reactors and (2) the decisionmaking process in the Commission's regulatory program.

Several of the Panel's recommendations, which were submitted on July 14, 1965, are implemented in the amendments to Part which have been issued simultaneously herewith. As a result of those amendments, the statement of considerations and press release referred to above no longer accurately reflect in detail current Commission rules and policy.

The following Statement of General Policy explains in detail the procedures which the Atomic Energy Commission expects to be followed by atomic safety and licensing boards in the conduct of proceedings relating to the issuance of construction permits for nuclear power and test reactors and other

production or utilization facilities for which a hearing is mandatory under section 189a of the Atomic Energy Act of 1954, as amended (the Act).1 The Statement reflects the Commission's intent that such proceedings be conducted informally and expeditiously and its concern that its procedures maintain sufficient flexibility to accommodate that objective.

Such proceedings are frequently uncontested in that the application for a construction permit is not opposed by an intervenor nor are there any controversies between the Commission's regulatory staff and the applicant concerning the issuance of the permit or the terms and conditions thereof. The provisions of sections I through V of the following Statement are, for the sake of convenience, set out in the framework of the uncontested proceeding. They are applicable also, however, to the contested proceeding except as the context would otherwise indicate, or except as indicated in section VI. Section VI sets out the procedures specifically applicable to the contested proceeding.

Atomic safety and licensing boards are appointed from time to time by the Atomic Energy Commission to conduct hearings in licensing cases under the authority of section 191 of the Act. Section 191 authorizes the Commission to establish one or more atomic safety and licensing boards to conduct public hearings and to make intermediate or final decisions in administrative proceedings relating to granting, suspending, revoking or amending licenses or authorizations issued by the Commission. It requires that each board consist of two members who are technically qualified and one member who is qualified in the conduct of administrative proceedings. Members for each board may be appointed by the Commission from a panel selected from private life, the staff of the Commission or other Federal agencies.

This statement is intended as a guide to the conduct of public hearings under the mandatory hearing requirements of the Act for the information of the public and assistance of members of boards and parties to licensing proceedings. It is not all inclusive. It is intended to explain and summarize certain requirements of governing statutes, the Commission's Rules of Practice, 10 CFR Part 2, and some applicable principles of law and good practice.

1 Except as the context may otherwise indicate, this Statement is also generally applicable to the conduct of proceedings for the issuance of operating licenses for such facilities, as well as to authorization proceedings conducted under 10 CFR Part 115, Procedures for Review of Certain Nuclear Reactors Exempted from Licensing Requirements, and to licensing proceedings of the type described in the Statement which may be conducted by a hearing examiner as the presiding officer.

I. PRELIMINARY MATTERS

(a) A public hearing is announced by the issuance of a notice of hearing signed by the Commission's Secretary, stating the nature of the hearing, its time and place and the issues to be considered. When a hearing is to be held before a board, the notice of hearing will ordinarily designate the chairman and the other members. The time and place of the prehearing conference will ordinarily be stated in the notice of hearing. The notice of hearing is published in the FEDERAL REGISTER at least 30 days prior to the date of hearing. In addition, a public announcement is issued by the Commission regarding the date and place of the hearing.

(b) In fixing the time and place of any postponed hearing or of the prehearing conference the boards will take into consideration the convenience of board members, the AEC staff and other parties to the extent practicable.

(c) The notice of hearing will, unless the staff opposes the application, include the findings which the Director of Regulation proposes to make, that is, the findings which are necessary under the Act and the Commission's regulations to support the granting of an application, and the form of provisional construction permit which he proposes to issue. The Director of Regulation will, of course, be free to propose different findings on the basis of new information brought out at the hearing.

(d) The notice of hearing will state that the board will determine whether the application and the record of the proceeding contain sufficient information, and the review of the application by the Commission's regulatory staff has been adequate, to support the findings proposed to be made by the Director of Regulation and the issuance of the proposed provisional construction permit. The notice of hearing will also state that the board will not conduct a de novo evaluation of the application.

(e) Prior to a hearing, board members should review and become familiar with:

The record of any relevant prior proceedings in the case, including initial decisions and Commission orders. The Advisory Committee on Reactor Safeguards (ACRS) report, the staff safety analysis, the application and all other papers filed in the proceeding. The Commission's Rules of Practice, 10 CFR Part 2, and such other regulations or published statements of policy of the Commission as may be pertinent to the proceedings.

(f) At any time when a board is in existence but is not actually in session, the chairman has all the powers of the board to take action on procedural matters. The chairman may have occasion, when the board is not in session, to dispose of preliminary procedural requests including, among other things, motions by parties relating to the conduct of the hearing. He may wish to discuss such requests with the other members of the board before ruling on them. No in