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.

(2) The requirements of subparagraph (1) of this paragraph (d) do not apply to an application for an operating license for a production or utilization facility 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 the Commission under section 105c of the Act in connection with the construction permit.

(3) The Director of Regulation will cause the Attorney General's advice received pursuant to subparagraph (1) of this paragraph (d) to be published 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 cause to be published in the FEDERAL REGISTER a notice that the Attorney General has not rendered any such advice. Any notice published in the FEDERAL REGISTER pursuant to this subparagraph will also include a notice of hearing, if appropriate, or 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 pubiication of the notice. (42 U.S.C. 2132-2135, 2233, 2239) [27 F.R. 377, Jan. 13, 1962, as amended at 35 F.R. 19658, Dec. 29, 1970: 36 F.R. 13270, July 17, 1971; 37 F.R. 15130, July 28, 1972]

§ 2.103 Action on applications for byproduct, source, special nuclear material, and operator licenses.

(a) If the Director of Regulation finds that an application for a byproduct,

source, special nuclear material, or operator license complies with the requirements of the Act and this chapter, he will issue a license. If the license is for a facility or for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee, the Director of Regulation will inform the State and local officials specified in § 2.104(e) of the issuance of the license.

(b) If the Director of Regulation finds that an application does not comply with the requirements of the Act and this chapter he may issue a notice of proposed denial or a notice of denial of the application and inform the applicant in writing of:

(1) The nature of any deficiencies or the reason for the proposed denial or the denial, and

(2) The right of the applicant to demand a hearing within twenty (20) days from the date of the notice or such longer period as may be specified in the notice. (28 F.R. 10152, Sept. 17, 1963, as amended at 34 F.R. 12255, July 25, 1969; 37 F.R. 15130. July 28, 1972]

HEARING ON APPLICATION-HOW INITIATED § 2.104 Notice of hearing.

(a) In the case of an application on which a hearing is required by the Act or this chapter, or in which the Commission finds that a hearing is required in the public interest, the Secretary will issue a notice of hearing to be published in the FEDERAL REGISTER as required by law at least fifteen (15) days, and in the case of an application concerning a construction permit for a facility of the type described in § 50.21(b) or § 50.22 of this chapter or a testing facility, at least thirty (30) days, prior to the date set for hearing in the notice.1 In addition, in the case of an application for a construction permit for a facility of the type described in § 50.21(b) or § 50.22 of this chapter, or a testing facility, the notice (other than a notice issued pursuant to paragraph (d) of this section) shall be issued as soon as practicable after the application has been docketed. The notice will state:

1 The thirty (30) day requirement of this paragraph is not applicable to a notice of the time and place of hearing published by the presiding officer after the notice of hearing described in this section has been published.

(1) The time, place, and nature of the hearing and/or prehearing conference, if any;

(2) The authority under which the hearing is to be held;

(3) The matters of fact and law to be considered; and

(4) The time within which answers to the notice shall be filed.

(b) In the case of an application for a construction permit for a facility on which the Act requires a hearing, the notice of hearing will, except as provided in paragraph (d) of this section and unless the Commission determines otherwise, state, in implementation of paragraph (a) (3) of this section:

(1) That, if the proceeding is a contested proceeding, the presiding officer will consider the following issues:

2

(1) Whether in accordance with the provisions of § 50.35(a) of this chapter:

(a) The applicant has described the proposed design of the facility, including, but not limited to, the principal architectural and engineering criteria for the design, and has identified the major features or components incorporated therein for the protection of the health and safety of the public;

(b) Such further technical or design information as may be required to complete the safety analysis, and which can reasonably be left for later consideration will be supplied in the final safety analysis report;

(c) Safety features or components, if any, which require research and development, have been described by the applicant and the applicant has identified, and there will be conducted, a research and development program reasonably designed to resolve any safety questions associated with such features or components; and

(d) On the basis of the foregoing, there is reasonable assurance that (1) such safety questions will be satisfactorily resolved at or before the latest date stated in the application for completion of the proposed facility; and (2) taking into consideration the site criteria contained in Part 100 of this chapter, the proposed facility can be constructed and operated at the proposed location without undue risk to the health and safety of the public;

2 Issues (1) to (iv) are the issues pursuant to the Atomic Energy Act of 1954, as amended. Issue (v) is the issue pursuant to the National Environmental Policy Act of 1969.

39-053 0-75--4

(ii) Whether the applicant is technically qualified to design and construct the proposed facility;

(iii) Whether the applicant is financially qualified to design and construct the proposed facility;

(iv) Whether the issuance of a permit for the construction of the facility will be inimical to the common defense and security or to the health and safety of the public.

(v) If the application is for a construction permit for a nuclear power reactor, a testing facility, a fuel reprocessing plant, or other facility whose construction or operation has been determined by the Commission to have a significant impact on the environment, whether, in accordance with the requirements of Part 51 of this chapter, the construction permit should be issued as proposed.

(2) That, if the proceeding is not a contested proceeding, the presiding officer will determine (i) without conducting a de novo evaluation of the application, 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 affirmative findings on subdivisions (i) through (iii) specified in subparagraph (1) of this paragraph (b) and a negative finding on subdivision (iv) specified in subparagraph (1) of this paragraph (b) proposed to be made and the issuance of the construction permit proposed by the Director of Regulation, and (ii) if the application is for a construction permit for a nuclear power reactor, a testing facility, a fuel reprocessing plant, or other facility whose construction or operation has been determined by the Commission to have a significant impact on the environment, whether the review conducted by the Commission pursuant to the National Environmental Policy Act (NEPA) has been adequate.

(3) That regardless of whether the proceeding is contested or uncontested, the presiding officer will, in accordance with Part 51 of this chapter,

(i) Determine whether the requirements of section 102 (2) (A), (C) and (D) of the National Environmental Policy Act and Part 51 of this chapter have been complied with in the proceeding;

(ii) Independently consider the final balance among conflicting factors contained in the record of the proceeding

with a view to determining the appropriate action to be taken; and

(iii) Determine whether the construction permit should be issued, denied, or appropriately conditioned to protect environmental values.

(c) In the case of an application for an operating license in which a hearing will be held, the notice of hearing will, except as provided in paragraph (d) of this section and unless the Commission determines otherwise, state, in implementation of paragraph (a) (3) of this section, that the presiding officer will consider any matters in controversy among the parties, within the purview of:

(1) Whether there is reasonable assurance that construction of the facility will be substantially completed on a timely basis, in conformity with the construction permit and the application as amended, the provisions of the Act, and the regulations in this chapter;

(2) Whether the facility will operate in conformity with the application as amended, the provisions of the Act, and the regulations in this chapter;

(3) Whether there is reasonable assurance (i) that the activities to be authorized by the operating license can be conducted without endangering the health and safety of the public, and (ii) that such activities will be conducted in compliance with the regulations in this chapter;

(4) Whether the applicant is technically and financially qualified to engage in the activities to be authorized by the operating license in accordance with the regulations in this chapter;

(5) Whether the applicable provisions of Part 140 of this chapter have been satisfied;

(6) Whether issuance of the license will be inimical to the common defense and security or to the health and safety of the public; and

(7) If the application is for an operating license for a nuclear power reactor, a testing facility, or a fuel reprocessing plant, or other facility whose operation has been determined by the Commission to have a significant impact on the environment, whether, in accordance with the requirements of Part 51 of this chapter, the operating license should be issued as proposed.3

(d) In the case of an application for a construction permit or an operating license for a facility on which a hearing is required by the Act or this chapter, or in which the Commission finds that a hearing is required in the public interest, for the consideration of the antitrust aspects of the application, the notice of hearing will, unless the Commission determines otherwise, state, in implementation of paragraph (a) (1) and (3) of this section,

(1) A time of the hearing, which will be as soon as practicable after the receipt of the Attorney General's advice and compliance with sections 105 and 189a of the Act and other provisions of this part;

4

(2) That the presiding officer will consider the issue of whether or not 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; and

(3) That matters of radiological health and safety and common defense and security, and matters raised under the National Environmental Policy Act of 1969, will be considered at another hearing for which a notice will be published pursuant to paragraphs (a) and (b) of this section, unless otherwise authorized by the Commission.

(e) The Secretary will give timely notice of the hearing to all parties and to other persons, if any, entitled by law to notice. The Secretary will transmit a notice of hearing on an appli

the National Environmental Policy Act of 1969.

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 Dec. 19, 1970, and proceedings 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 Dec. 19, 1970, whichever is later, the Commission may issue a construction permit or operating license in advance of consideration of, and findings with respect to, the antitrust aspects of the application: Provided, That the permit or license so issued contains the conditions specified in § 50.55b of this chapter.

cation for a facility license or for a license for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee, to the Governor or other appropriate official of the State and to the chief executive of the municipality in which the facility is to be located or the activity is to be conducted or, if the facility is not to be located or the activity conducted within a municipality, to the chief executive of the county.

(Sec. 189a., 68 Stat. 955, as amended; 42 U.S.C. 2132-2135, 2233, 2239(a)) [27 F.R. 377, Jan. 13, 1962, as amended at 28 F.R. 10152, Sept. 17, 1963; 31 F.R. 12776, Sept. 30, 1966; 34 F.R. 12255, July 25, 1969; 35 F.R. 5318, Mar. 31, 1970; 35 F.R. 11459, July 17, 1970; 35 F.R. 19658, Dec. 29, 1970; 37 F.R. 15130, July 28, 1972; 39 FR 17972, May 22, 1974; 39 FR 26729, July 18, 1974; 39 FR 33202, Sept. 16, 1974]

§ 2.105 Notice of proposed action.

(a) If a hearing is not required by the Act or this chapter, and if the Commission or the Director of Regulation has not found that a hearing is in the public interest, he will, prior to acting thereon, cause to be published in the FEDERAL REGISTER a notice of proposed action with respect to an application for:

(1) A license for a facility;

(2) A license for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee; or

(3) An amendment of a license specified in paragraph (a) (1) or (2) of this section and which involves a significant hazards consideration.

(4) Any other license or amendment as to which the Commission or the Director of Regulation determines that an opportunity for a public hearing should be afforded.

In the case of an application for an operating license for a facility of a type described in § 50.21(b) or § 50.22 of this chapter or a testing facility, a notice of opportunity for hearing shall be issued as soon as practicable after the application has been docketed.

(b) The notice of proposed action will set forth:

(1) The nature of the action proposed;

(2) The manner in which a copy of the safety analysis and of the ACRS report, if any, may be obtained or examined.

(c) If an application for a license is complete enough to permit all evaluations, other than completion inspection, necessary for the issuance of a construction permit and operating license, the notice of proposed issuance of a construction permit may provide that on completion of construction and inspection the operating license will be issued without further prior notice.

(d) The notice of proposed action will provide that, within thirty (30) days from the date of publication of the notice in the FEDERAL REGISTER, or such lesser period authorized by law as the Commission may specify:

(1) The applicant may file a request for a hearing; and

(2) Any person whose interest may be affected by the proceeding may file a petition for leave to intervene.

(e) If no request for a hearing or petition for leave to intervene is filed within the time prescribed in the notice, the Director of Regulation will issue the license, inform the appropriate State and local officials, and cause to be published in the FEDERAL REGISTER a notice of issuance of the license. If a request for a hearing and/or a petition for leave to intervene is filed within the time prescribed in the notice, the Commission or an atomic safety and licensing board designated by the Commission or by the Chairman of the Atomic Safety and Licensing Board Panel will rule on the request and/or petition and the Secretary or the designated atomic safety and licensing board will issue a notice of hearing or an appropriate order.

(f) Applications for facility licenses under section 103 of the Act and for facility operating licenses under section 104b of the Act as to which any person 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 are also subject to the provisions of §§ 2.101 (b) and 2.102(d).

(42 U.S.C. 2132-2135, 2233, 2239) [27 F.R. 377, Jan. 13, 1962, as amended at 28 F.R. 10152, Sept. 17, 1963; 31 F.R. 12776, Sept. 30, 1966; 34 FR 9702, June 21, 1969; 34 FR 12255, July 25, 1969; 35 F.R. 19658, Dec. 29, 1970; 36 F.R. 4686, Mar. 11, 1971; 37 F.R. 15131, July 28, 1972; 37 F.R. 28711, Dec. 29, 1972; 38 FR 9585, Apr. 18, 1973]

§ 2.106 Notice of issuance.

(a) The Director of Regulation will cause to be published in the FEDERAL REGISTER notice of, and will inform the State and local officials specified in § 2.104(e) of the issuance of:

(1) A license or an amendment of a license for which a notice of proposed action has been previously published; and

(2) An amendment of a license for a facility of the type described in § 50.21 (b) or § 50.22 of this chapter, or a testing facility, whether or not a notice of proposed action has been previously published.

(b) The notice of issuance will set forth:

(1) The nature of the license or amendment;

(2) The manner in which copies of the safety analysis, if any, may be obtained and examined; and

(3) A finding that the application for the license or amendment complies with the requirements of the Act and this chapter.

[37 FR 15131, July 28, 1972, as amended at 38 FR 9586, Apr. 18, 1973]

§ 2.107 Withdrawal of application.

(a) The Commission may permit ar applicant to withdraw an application prior to the issuance of a notice of hearing on such terms and conditions as it may prescribe, or may, on receiving a request for withdrawal of an application, deny the application or dismiss it with prejudice. Withdrawal of an application after the issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe.

(b) The withdrawal of an application does not authorize the removal of any document from the files of the Commission.

(c) The Director of Regulation will cause to be published in the FEDERAL REGISTER a notice of the withdrawal of an application if notice of receipt of the application has been previously published.

[27 F.R. 377, Jan. 13, 1962, as amended at 28 F.R. 10152, Sept. 17, 1963]

§ 2.108 Denial of application for failure to supply information.

(a) The Director of Regulation may deny an application if an applicant fails to respond to a request for additional information within thirty (30) days from the date of the request, or within such other time as may be specified.

(b) The Director of Regulation will cause to be published in the FEDERAL REGISTER a notice of denial when notice of receipt of the application has previously been published, but no notice of hearing has yet been published. The notice of denial will provide that, within thirty (30) days after the date of publication in the FEDERAL REGISTER (1) the applicant may demand a hearing, and (2) any person whose interest may be affected by the proceeding may file a petition for leave to intervene.

(c) When both a notice of receipt of the application and a notice of hearing have been published, the presiding officer, upon a motion made by the Regulatory Staff pursuant to § 2.730, will rule whether an application should be denied by the Director of Regulation pursuant to paragraph (a).

[27 FR 377, Jan. 13, 1962, as amended at 39 FR 43195, Dec. 11, 1974]

NOTE: Paragraphs (b) and (c) above become effective Jan. 10, 1975. For the convenience of the user, the superseded paragraph (b) appears below.

(b) The Director of Regulation will cause to be published in the FEDERAL REGISTER a notice of denial when notice of receipt of the application has previously been published. The notice of denial will provide that, within thirty (30) days after the date of the denial (1) the applicant may demand a hearing, and (2) any person whose interest may be affected by the proceeding may file a petition for leave to intervene.

If, at least thirty (30) days prior to the expiration of an existing license authorizing any activity of a continuing nature, a licensee files an application for a renewal or for a new license for the activity so authorized, the existing license will not be deemed to have expired until the application has been finally determined.

[28 F.R. 10152, Sept. 17, 1963)

Subpart B-Procedure for Imposing Requirements by Order, or for Modification, Suspension, or Revocation of a License, or for Imposing Civil Penalties 1

1

§ 2.200 Scope of subpart.

(a) This subpart prescribes the procedures in cases initiated by the regula136 F.R. 16896, Aug. 26, 1971.