that matter but only in extraordinary circumstances. It has no responsibility or authority for issuing rules or regulations. The Appeal Board for a particular proceeding is composed of three members assigned from the Atomic Safety and Licensing Appeal Panel and possessing qualifications deemed appropriate to the issues to be decided. The Chairman of the Appeal Board for a particular proceeding shall be qualified in the conduct of administrative proceedings.

(b) Two members, being a majority of the Appeal Board, constitute a quorum, if one of those members is the member qualified in the conduct of administrative proceedings. Except as permitted by § 2.787(b), the vote of a majority controls in any decision by the Appeal Board, including orders in interlocutory matters and final decisions. A dissenting member is, of course, free to express his dissent and the reasons for it in a separate opinion for the record.

(c) Consultation between members of the Atomic Safety and Licensing Appeal Board for a particular proceeding and the staff, in initial licensing proceedings other than contested proceedings, is permitted on the conditions specified for the Commissioners under 10 CFR 2.780. However, members of atomic safety and licensing boards for particular proceedings shall not consult, on any fact in issue in those proceedings-whether contested or uncontested-with members of the Appeal Board Panel.

(d) (1) Appeals to the Appeal Board from initial decisions, or designated portions thereof, are initiated by the filing of exceptions. Such exceptions must be filed within 7 days of the issuance and service of the initial decision. A brief in support of the exceptions shall be filed by the appellant within 15 days thereafter (20 days in the case of the staff). A responsive brief may be filed by any other party within 15 days (20 days in the case of the staff) of the filing and service of the apellant's brief. The prescribed time limits are subject to being lengthened or shortened in a particular case, either on motion of a party or by the Appeal Board on its own initiative (10 CFR 2.711). The time limits are also subject to the provisions of 10 CFR 2.710 relating to service by mail.

(2) Exceptions must be separately numbered, must be concisely stated, and must specify with particularity the portion or por*tions of the initial decision (or earlier order or ruling) as to which error is asserted. Care should be taken to avoid the assertion of essentially the same error in more than one exception. Since their purpose is simply to identify the alleged errors which the appellant wishes the Appeal Board to consider, the exceptions themselves shall not contain any supporting argumentation. Rather, such argumentation shall be reserved for the brief, which must be confined to the exceptions previously filed and must contain specific references to the portions of the record or other authority relied

upon for each assertion of error. The contentions advanced in all other briefs similarly must be supported by such references. Although a limitation on the length of briefs is not now imposed, in most cases the issues raised by the exceptions should be susceptible of full treatment in a brief which does not exceed 70 pages. In this connection, inasmuch as the Appeal Board has available to it the entire record of the proceeding, extended quotations in a brief from the record are neither required nor desirable. A summary is preferable, accompanied by explicit references to the record sources. Every brief in excess of 10 pages shall contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes, regulations, and other authorities cited, with references to the pages of the brief where they are cited.

(3) There must be strict compliance with the time limits prescribed for the filing of exceptions or briefs by the rules of practice or by an order of the Appeal Board which extends or shortens those limits in the particular case. Absent a showing of extraordinary and unanticipated circumstances, motions for extensions of time must be received by the Appeal Board at least 1 day prior to the date upon which the document in question is then due for filing. In no circumstances will a document be accepted by the Appeal Board on an untimely basis unless it is accompanied by a motion for leave to file it out of time, which similarly must be founded upon extraordinary and unanticipated circumstances. Exceptions and briefs which in form or content are not in substantial compliance with the requirements imposed by the rules of practice are subject to being stricken.

(e) The holding of oral argument, whether or not specifically requested by a party, is within the Appeal Board's discretion (10 CFR 2.763). Where exceptions have been filed, the Appeal Board routinely will consider whether the case should be calendared for oral argument. This consideration normally will take place following the receipt of all briefs. Oral argument will be directed if at least one member of the Appeal Board votes in favor of it. If oral argument is to be held, an order will be issued by the Appeal Board which will set the specific date and location, as well as the time allotted to each of the parties. In some instances, the order may also restrict the scope of the oral argument to one or more specified issues. It is anticipated that oral arguments will be conducted in either Washington, D.C., or Bethesda, Md.

(Sec. 161, 68 Stat, 948, 42 U.S.C. 2201; sec. 191, 80 Stat. 386, 42 U.S.C. 2241)

X. PROCEEDINGS FOR THE CONSIDERATION OF ANTITRUST ASPECTS OF FACILITY LICENSE APPLICATIONS

(a) Under the Atomic Energy Act of 1954, as amended, the Commission is required,

with respect to applications for construc tion permits or operating licenses for pro duction and utilization facilities for indus-trial or commercial purposes licensed under section 103, which include power reactors subject to the mandatory hearing requirements of section 189a of the Act, and some facilities for industrial or commercial purposes licensed under section 104b of the Act under the "grandfather" clause of section 102b of the Act, to follow procedures for antitrust review in section 105 of the Act. This section outlines the procedures used by the Commission to implement that section.

(b) When an application for a construction permit or an operating license for a facility under section 103 of the Act subject to antitrust 1eview under section 105 is received, the notice of receipt of application published in the FEDERAL REGISTER Will state that persons who wish to have their views on the antitrust aspects of the application presented to the Attorney General for consideration shall submit such views to the Commission within sixty (60) days after publication of the notice. The notice published in the FEDERAL REGISTER of receipt of the application for a facility operating 11cense under section 104b of the Act will, when appropriate, state that any person who intervened or sought, by timely written notice to the Commission, to intervene in the construction permit proceeding for the facility to obtain a determination of antitrust considerations or to advance a jurisdictional basis for such determination may, within 25 days after the date of publication, submit a written petition for leave to intervene and request for a hearing on the antitrust aspects of the application.

(c) (1) The Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, will refer and transmit a copy of each application for a construction permit or an operating license for a utilization or production facility under section 103 of the Act, and each request, in a proceeding for an operating 11cense for a utilization or production facility under section 104b of the Act by any person who intervened or sought by timely written notice to the Commission to intervene in the construction permit proceeding to obtain a determination of antitrust considerations or to advance a jurisdictional basis for such determination, for an antitrust review under section 105c of the application for an operating license, to the Attorney General as required by section 105c of the Act. Under that section, the Attorney General will, within a reasonable time, but in no event to exceed 180 days after receipt, render such advice to the Commission as he determines to be appropriate in regard to the finding to be made by the Commission as to whether the activities under the license would create or maintain a situation inconsistent with the antitrust laws specified in section 105a of the Act.

(2) Such review is not required for applications for operating licenses for production or utilization facilities under section 103 of the Act for which the construction permit was also issued under section 103, unless the Commission determines, after consultation with the Attorney General, that such review is advisable on the ground that significant changes in the licensee's activities or proposed activities have occurred subsequent to the previous review by the Attorney General and by the Commission under section 105c of the Act in connection with the construction permit.

(d) The Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, will publish the Attorney General's advice in the FEDERAL REGISTER promptly upon receipt, and will make such advice a part of the record in any proceeding on antitrust matters conducted in accordance with subsection 105c(5) and section 189a of the Act. The Director of Regulation will also publish in the FEDERAL REGISTER & notice that the Attorney General has not rendered any such advice. The notice published in the FEDERAL REGISTER will also include a notice of hearing, if appropriate, or, if the Attorney General has not recommended a hearing, will state that any person whose interest may be affected by the proceeding may, pursuant to and in accordance with § 2.714, file a petition for leave to intervene and request a hearing on the antitrust aspects of the application. The notice will state that petitions for leave to intervene and requests for hearing shall be filed within 30 days after publication of the notice.

(e) If a hearing on antitrust aspects of the application is requested, or is recommended by the Attorney General, it will generally be held separately from the hearing held on matters of radiological health and safety and common defense and security described in sections I-VIII of this appendix. The notice of hearing will fix a time for the hearing, which will be as soon as practicable after the receipt of the Attorney General's advice and compliance with section 189a of the Act and other provisions of this part. However, as permitted by subsection 105c(8) of the Act, with respect to proceedings in which an application for a construction permit was filed prior to December 19, 1970, and proccedings in which a written request for antitrust review of an application for an operating license to be issued under section 104b has been made by a person who intervened or sought by timely written notice to the Commission to intervene in the construction permit proceeding for the facility to obtain a determination of antitrust consideration or to advance a jurisdictional basis for such determination within 25 days after the date of publication in the FEDERAL REGISTER of notice of filing of the application for an operating license or December 19, 1970, whichever is later, the Commission may issue a construction permit or operating 11cense, provided that the permit or license so

Issued contains the condition specified in $ 50.55b of this chapter.

(f) Hearings on antitrust aspects will be conducted by atomic safety and licensing boards, each comprised of three members, one of whom will be qualified in the conduct of administrative proceedings and two of whom will have such technical or other qualIfications as the Commission deems appropriate to the issues to be decided, or by a hearing examiner.

(g) When the Attorney General has advised that there may be adverse antitrust aspects and recommends that a hearing be held, the Attorney General or his designee may participate as a party in the proceedings.

(h) At the hearing, the board will give due consideration to the advice received from the Attorney General and to evidence pertaining to antitrust aspects received at the hearing. (1) The board will, in its initial decision, make a finding as to whether the activities under the proposed license would create or maintain a situation inconsistent with the antitrust laws as specified in section 105a of the Act. If the board finds that such a situation would be created or maintained, it will consider, in determining whether the permit or license should be issued or continued, such other factors as the board in its =Judgment deems necessary to protect the public interest, including the need for power in the affected area. The concept of certainty of contravention of the antitrust laws or the policies clearly underlying these laws is not Intended to be implicit in this standard; nor is mere possibility of inconsistency. It is intended that the finding be based on reasonable probability of contravention of the antitrust laws or the policies clearly underlying these laws. It is intended that, in effect, the board will conclude whether, in its judgment, it is reasonably probable that the activities under the license would, when the license is issued or thereafter, be inconsistent with any of the antitrust laws or the policies = clearly underlying these laws.

(J) On the basis of its findings, the board may (1) authorize the issuance of the permit or license after favorable consideration of matters of radiological health and safety and common defense and security, and matters raised under the National Environmental #Policy Act of 1969, at the hearing described in sections I-VIII of this appendix; (11) authorize the continuation of a permit or 11cense already issued; (111) direct the denial of the application for the permit or license, or the rescission of a permit or license already = issued; or (iv) authorize the issuance of a permit or license subject to appropriate conditions, and subject to favorable consideration of matters of radiological health and safety and common defense and security, and matters raised under the National Environmental Policy Act of 1969 at the hearing described in sections I-VIII of this appendix. [27 F.R. 377, Jan. 13, 1962, as amended at 34 F.R. 13362, Aug. 19, 1969; 35 F.R. 5318, Mar. 31, 1970; 35 F.R. 5463, Apr. 2, 1970; 35

F.R. 6644, Apr. 25, 1970; 35 F.R. 19659, Dec. 29, 1970; 36 F.R. 13270; July 17, 1972; 36 F.R. 23900, Dec. 16, 1971; 37 F.R. 15138, July 28, 1972; 37 F.R. 17159, Aug. 25, 1972; 37 F.R. 17381, Aug. 26, 1972; 37 F.R. 22793, Oct. 25, 1972; 37 FR 24736, Nov. 21, 1972; 38 FR 3398, Feb. 6, 1973; 38 FR 5625, Mar. 2, 1973; 39 FR 14508, Apr. 24, 1974; 39 FR 26279, July 18, 1974; 40 FR 2974, Jan. 17, 1975; 40 FR 8777, Mar. 3, 1975; 40 FR 51996, Nov. 7, 1975]

EFFECTS ON OTHER REGULATIONS; FORMS
AND INSTRUCTIONS

4.91 Effect on other regulations.
4.92 Forms and instructions.
4.93 Supervision and coordination.

Appendix A-Federal Financial Assistance to Which this Part Applies.

AUTHORITY: Pub. L. 83-703, 68 Stat. 919, as amended, (42 U.S.C. 2011); secs. 602-605 Pub. L. 88-352, 78 Stat. 252, 253 (42 U.S.C. 2000d1-2000d-4); sec 401, Pub. L. 93-438, 88 Stat. 1254 (42 U.S.C. 5891).

SOURCE: The provisions of this Part 4 appear at 29 FR 19277, Dec. 31, 1964, unless otherwise noted.

NOMENCLATURE CHANGES: 40 FR 8777-8778, Mar. 3, 1975.

GENERAL PROVISIONS

§ 4.1 Purpose.

The purpose of this part is to effectuate the provisions of Title VI of the Civil Rights Act of 1964 and Title IV of the Energy Reorganization Act of 1974 (hereafter collectively referred to as the "Act") to the end that no person in the United States shall, on the ground of sex, race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from NRC.

[40 FR 8778, Mar. 3, 1975]

§ 4.2 Application of this part.

(a) This part applies to any program for which Federal financial assistance is authorized under a law administered by NRC. The programs to which this part applies are listed in Appendix A of this part; Appendix A may be revised from time to time by notice published in the FEDERAL REGISTER. This part applies to money paid, property transferred, or other Federal financial assistance extended under any such program after the effective date of this part pursuant to an application approved prior to such effective date, and to any such assistance extended at any time pursuant to a grant, loan, or contract by NRC, the terms of

which require compliance with this part, or pursuant to an NRC-authorized grant, loan, or contract by a contract or subcontractor of NRC, the terms of which require compliance with this part.

(b) This part does not apply to (1) any Federal financial assistance by way of insurance or guaranty contracts, (2) money paid, property transferred, or other asistance extended under any such program before the effective date of this part, except as provided in paragraph (a) of this section, (3) any assistance to any individual who is the ultimate beneficiary under any such program, or (4) any employment practice, under any such program, of any employer, employment agency, or labor organization, except as provided in § 4.13.

(a) "Applicant" means one who submits an application, request, or plan required to be approved by NRC, or by a primary recipient, as a condition to eligibility for Federal financial assistance; "application" means such an application, request, or plan.

(b) "Commission" means the Commission of five members or a quorum thereof sitting as a body; “NRC" means the Nuclear Regulatory Commission and its duly authorized representatives.

(c) "Facility" includes all or any portion of structures, equipment, or other real or personal property or interests therein, and the provision of facilities includes the construction, expansion, renovation, remodeling, alteration or acquisition of facilities.

(d) "Federal financial assistance" includes (1) grants and loans of Federal funds, (2) the grant or donation of Federal property and interests in property, (3) the detail of Federal personnel or of other personnel at Federal expense, (4) the sale and lease of, and the permission to use (on other than a casual or transient basis), Federal property or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or In recognition of the public interest to be served by such sale or lease to the recipient, and (5) any Federal agreement. arrangement, or other contract which has as one of its purposes the provision of assistance.

(e) "Administrative Law Judge" means an individual appointed pursuant

to section 11 of the Administrative Procedure Act to conduct proceedings subject to this part.

(f) "Primary recipient" means any recipient which is authorized or required to extend Federal financial assistance to another recipient for the purpose of carrying out a program.

(g) "Program" includes any program, project, or activity designated in Appendix A of this part for the provision of services, financial aid, or other benefits to individuals (including education or training) whether provided through employees of the recipient or provided by others through contracts or other arrangements with the recipient, and including work opportunities and cash or loan or other assistance to individuals, or for the provision of facilities for furnishing services, financial aid or other benefits to individuals. The services, financial aid, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include any services, financial aid, or other benefits provided with the aid of Federal financial assistance or with the aid of any nonFederal funds, property, or other resources required to be extended or made available for the program to meet matching requirements or other conditions which must be met in order to receive E the Federal financial assistance, and to include any services, financial aid, or other benefits provided in or through a E facility provided with the aid of Federal financial assistance or such non-Federal resources.

(h) "Recipient" means any State, political subdivision of any State, or instrumentality of any State or political I subdivision, any public or private agency, institution, or organization, or other entity, or any individual, in any State, to whom Federal financial assistance is extended, directly or through another recipient, for any program, including any successor, assignee, or transferee thereof. but such term does not include any ultimate beneficiary under any such program.

(i) "Responsible NRC official" means the Executive Director for Operations, and the Directors of Nuclear Material Safety and Safeguards, Nuclear Reactor Regulation and Nuclear Regulatory Research, or any officer to whom they have I delegated authority to act;

(j) "United States" means the States of the United States, the District of Columbia, Puerto Rico, the Virgin Islands,

No person in the United States shall, on the ground of sex, race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program to which this part applies.

[29 FR 19277, Dec. 31, 1964, as amended at 40 FR 8778, Mar. 3, 1975]

§ 4.12 Specific discriminatory actions prohibited.

(a) A recipient under any program to which this part applies may not, directly or through contractual or other arrangements, on the ground of sex, race, color, or national origin:

(1) Deny an individual any service, financial aid, or other benefit provided under the program;

(2) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;

(3) Subject an individual to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;

(4) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program:

(5) Treat an individual differently from others in determining whether he satisfies any admission, enrollment,

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