or 50.22 of this chapter or a testing facility, shall direct the parties or their counsel to appear at a specified time and place for a conference to consider:

(1) Simplification, clarification, and specification of the issues;

(2) The necessity or desirability of amending the pleadings;

(3) The obtaining of stipulations and admissions of fact and of the contents and authenticity of documents to avoid unnecessary proof;

(4) Identification of witnesses and the limitation of the number of expert witnesses, and other steps to expedite the presentation of evidence;

(5) The setting of a hearing schedule; and

(6) Such other matters as may aid in the orderly disposition of the proceeding. A prehearing conference held under this section in a proceeding involving a construction permit or operating license shall be held within sixty (60) days after discovery has been completed," or such other time as the Commission or the presiding officer may specify.

(b) Prehearing conferences may be stenographically reported.

(c) The presiding officer shall enter an order which recites the action taken at the conference, the amendments allowed to the pleadings and agreements by the parties, and which limits the issues or defines the matters in controversy to be determined in the proceeding. Objections to the order may be filed by a party within five (5) days after service of the order, except that the regulatory staff may file objections to such order within ten (10) days after service. The board may revise the order in the light of the objections presented and, as permitted by § 2.718 (1) may certify for determination to the Commission or the appeal board, as appropriate, such matters raised in the objections as it deems appropriate. The order shall control the subsequent course of the proceeding unless modified for good cause.

[27 FR 377, Jan. 13, 1962, as amended at 37 F.R. 15136, July 28, 1972]

Discovery, as used in this section, does not include the production of the ACRS report, the safety evaluation prepared by the regulatory staff, or any detailed statement on environmental considerations prepared by the Director of Regulation or his designee in the proceeding pursuant to Appendix D of Part 50 of this chapter.

§ 2.753 Stipulations.

Apart from any stipulations made during or as a result of a prehearing conference, the parties may stipulate in writing at any stage of the proceeding or orally during the hearing, any relevant fact or the contents or authenticity of any document. Such a stipulation may be received in evidence. The parties may also stipulate as to the procedure to be followed in the proceeding. Such stipulations may, on motion of all parties, be recognized by the presiding officer to govern the conduct of the proceeding. [37 F.R. 15136, July 28, 1972]

§ 2.754 Proposed findings and conclusions.

(a) Within twenty (20) days after the record is closed, or within such reasonable lesser or additional time as may be allowed by the presiding officer, any party to the proceeding may, or if so directed by the presiding officer, shall file proposed findings of fact and conclusions of law, briefs and a proposed form of order or decision. Failure to file proposed findings of fact, conclusions of law or briefs when directed to do so may be deemed a default, and an order or initial decision may be entered accordingly.

(b) Except as otherwise ordered by the presiding officer:

(1) The party who has the burden of proof shall, within fifteen (15) days after the record is closed, file proposed findings of fact and conclusions of law and briefs, and a proposed form of order or decision.

(2) Other parties may file proposed findings, conclusions of law and briefs within twenty-five (25) days after the record is closed. However, the regulatory staff may file such proposed findings, conclusions of law and briefs within thirty (30) days after the record is closed.

(3) A party who has the burden of proof may reply within five (5) days after service of proposed findings and conclusions of law and briefs by other parties.

(c) Proposed findings of fact shall be clearly and concisely set forth in numbered paragraphs and shall be confined to the material issues of fact presented on the record, with exact citations to the transcript of record and exhibits in support of each proposed finding. Proposed conclusions of law shall be set forth in numbered paragraphs as to all material issues of law or discretion presented on the record. Proposed find

ings of fact and conclusions of law submitted by a person who does not have the burden of proof and who has only a limited interest in the proceeding may be confined to matters which affect his interests.

(80 Stat. 387; 5 U.S.C. 557) [27 F.R. 377, Jan. 13, 1962, as amended at 28 F.R. 10154, Sept. 17, 1963; 35 F.R. 11459, July 17, 1970; 37 F.R. 24136, Nov. 21, 1972]

§ 2.755 Oral argument before presiding officer.

When, in the opinion of the presiding officer, time permits and the nature of the proceeding and the public interest warrant, he may allow and fix a time for the presentation of oral argument. He will impose appropriate limits of time on the argument. The transcript of the argument shall be a part of the record.

§ 2.756 Informal procedures.

The Commission encourages the use of informal procedures consistent with the Act, sections 551-558 of title 5 of the United States Code, and the regulations in this chapter, and with the orderly conduct of the proceeding and the necessity for preserving a suitable record for review.

[35 F.R. 11459, July 17, 1970]

§ 2.757 Authority of presiding officer to regulate procedure in a hearing.

To prevent unnecessary delays or an unnecessarily large record, the presiding officer may:

(a) Limit the number of witnesses whose testimony may be cumulative: (b) Strike argumentative, repetitious, cumulative, or irrelevant evidence;

(c) Take necessary and proper measures to prevent argumentative, repetitious, or cumulative cross-examination; and

(d) Impose such time limitations on arguments as he determines appropriate, having regard for the volume of the evidence and the importance and complexity of the issues involved.

[37 FR 15136, July 28, 1972]

material, special nuclear material or byproduct material, shall not be subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding involving initial licensing subject to this subpart, other than a pending proceeding wherein a party has attacked such rule or regulation, and the presiding officer, the Atomic Safety and Licensing Appeal Board or the Commission has ruled thereon before August 27, 1972.

(b) A party to an adjudicatory proceeding involving initial licensing subject to this subpart may petition that the application of a specified Commission rule or regulation or any provision thereof, of the type described in paragraph (a) of this section, be waived or an exception made for the particular proceeding. The sole ground for a petition for waiver or exception shall be that special circumstances with respect to the subject matter of the particular proceeding are such that application of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted. The petition shall be accompanied by an affidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which application of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted, and shall set forth with particularity the special circumstances alleged to justify the waiver or exception requested. Any other party may file a response thereto, by counteraffidavit or otherwise.

(c) If, on the basis of the petition, affidavit and any response thereto provided for in paragraph (b) of this section, the presiding officer determines that the petitioning party has not made a prima facie showing that the application of the specific Commission rule or regulation or provision thereof to a particular aspect or aspects of the subject matter of the proceeding would not serve the purposes for which the rule or regulation was adopted and that application of the rule or regulation should be waived or an exception granted, no evidence may be received on that matter and no discovery, cross-examination or argument directed to the matter will be permitted, and the presiding officer may not further consider the matter.

(d) If, on the basis of the petition, affidavit and any response provided for in paragraph (b) of this section, the pre

siding officer determines that such a prima facie showing has been made, the presiding officer shall, before ruling thereon, certify directly to the Commission for determination the matter of whether the application of the Commission rule or regulation or provision thereof to a particular aspect or aspects of the subject matter of the proceeding, in the context of this section, should be waived or an exception made. The Commission may, among other things, on the basis of the petition, affidavits, and any response, determine whether the application of the specified rule or regulation (or provision thereof) should be waived or an exception be made, or the Commission may direct such further proceedings as it deems appropriate to aid its determination.

(e) Whether or not the procedure in paragraph (b) of this section is available, a party to an initial licensing proceeding may file a petition for rule making pursuant to § 2.802.

[37 F.R. 15136, July 28, 1972]

§ 2.759 Settlement in initial licensing proceedings.

The Commission recognizes that the public interest may be served through settlement of particular issues in a proceeding or the entire proceeding. Therefore, to the extent that it is not inconsistent with hearing requirements in section 189 of the Act (42 U.S.C. 2239), the fair and reasonable settlement of contested initial licensing proceedings is encouraged. It is expected that the presiding officer and all of the parties to those proceedings will take appropriate steps to carry out this purpose.

[37 F.R. 15137, July 28, 1972]

INITIAL DECISION AND COMMISSION
REVIEW

(b) Where the public interest so requires, the Commission may direct that the presiding officer certify the record to it without an initial decision, and may:

(1) Prepare its own initial decision, which will become final unless exceptions are filed; or

(2) Omit an initial decision on a finding that due and timely execution of Its functions imperatively and unavoidably so requires.

(c) An initial decision will be in writing and will be based on the whole record and supported by reliable, probative, and substantial evidence. The initial decision will include:

(1) Findings, conclusions and rulings, with the reasons or basis for them, on all material issues of fact, law, or discretion presented on the record;

(2) All facts officially noticed and relied on in making the decision;

(3) The appropriate ruling, order or denial of relief with the effective date;

(4) The time within which exceptions to the decision and a brief in support of them may be filed, the time within which briefs in support of or in opposition to exceptions filed by another party may be filed and, in the case of an initial decision which may become final in accordance with paragraph (a) of this section, the date when it may become final. (80 Stat. 387; 5 U.S.C. 557) [27 F.R. 377, Jan. 13, 1962, as amended at 31 F.R. 4339, Mar. 12, 1966; 35 F.R. 11459, July 17, 1970] § 2.760a

Initial decisions in contested proceedings on applications for facility operating licenses.

In any initial decision in a contested proceeding on an application for an operating license for a production or utilization facility, the presiding officer shall make findings of fact and conclusions of law only on the matters actually put into controversy by the parties to the proceeding and which have been determined to be the issues in the proceeding by the Commission or the presiding officer. Depending on the resolution of those matters, the Director of Regulation, after making the requisite findings, will issue, deny, or appropriately condition the license.

[37 F.R. 15137, July 28, 1972] § 2.761

Expedited decisional procedure. (a) The presiding officer may determine a proceeding by an order after

the conclusion of a hearing without issuing an initial decision, when:

(1) All parties stipulate that the initial decision may be omitted and waive their rights to file exceptions, to request oral argument, and to seek judicial review;

(2) No unresolved substantial issue of fact, law, or discretion remains, and the record clearly warrants granting the relief requested; and

(3) The presiding officer finds that dispensing with the issuance of the initial decision is in the public interest.

(b) An order entered pursuant to paragraph (a) of this section shall be subject to review by the Commission on its own motion within thirty (30) days after its date.

(c) An initial decision may be made effective immediately, subject to review by the Commission on its own motion within thirty (30) days after its date, except as otherwise provided in this chapter, when:

(1) All parties stipulate that the initial decision may be made effective immediately and waive their rights to file exceptions, to request oral argument, and to seek judicial review;

(2) No unresolved substantial issue of fact, law, or discretion remains and the record clearly warrants granting the relief requested; and

(3) The presiding officer finds that it is in the public interest to make the initial decision effective immediately.

(d) The provisions of this section do not apply to an initial decision directing the issuance or amendment of a construction permit or construction authorization, or the issuance of an operating license or provisional operating authorization.

[27 F.R. 377, Jan. 13, 1962, as amended at 28 F.R. 7935, Aug. 3, 1963; 28 F.R. 10154, Sept. 17, 1963; 31 F.R. 4339, Mar. 12, 1966; 35 F.R. 5318, Mar. 31, 1970]

but no later than thirty (30) days after issuance of such statement, and complete such a hearing and issue an initial decision on such matters. Prehearing procedures regarding issues covered by Part 51 and § 50.10(e) (2) (ii) of this chapter, including any discovery and special prehearing conferences and prehearing conferences as provided in §§ 2.740, 2.740a, 2.740b, 2.741, 2.742, 2.751a, and 2.752, shall be scheduled accordingly. The provisions of §§ 2.754, 2.755, 2.760, 2.762, 2.763, and 2.764 (a) shall apply to any proceeding conducted and any initial decision rendered in accordance with this section. Paragraph 2.764(b) shall not apply to any partial initial decision rendered in accordance with this section. This section shall not preclude separate hearings and decisions on other particular issues.

[39 FR 14508, Apr. 24, 1974, as amended at 39 FR 26279, July 18, 1974]

§ 2.762 Appeals to the Commission from initial decisions.

(a) Within 7 days after service of an initial decision, any party may take an appeal to the Commission by the filing of exceptions to that decision or designated portions thereof. Each exception shall be separately numbered and shall (1) state concisely, without supporting argumentation, the single error of fact or law which is being asserted in that exception; and (2) identify with particularity the portion of the decision (or earlier order or ruling) to which the exception is addressed. A brief in support of the exceptions shall be filed within 15 days thereafter (20 days in the case of the regulatory staff). The brief shall be confined to a consideration of the exceptions previously filed by the party and, with respect to each exception, shall specify, inter alia, the precise portion of the record relied upon in support of the assertion of error.

(b) Within 15 days of the filing and service of the brief of the appellant (20 days in the case of the regulatory staff), any other party may file a brief in support of, or in opposition to, the exceptions. Each factual assertion made in such supporting or opposing brief shall be supported by a reference to the precise portion of the record upon which it is based.

(c) A brief in excess of 10 pages shall contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes, regulations,

In its discretion the Commission may allow oral argument upon the request of a party made in his exceptions or brief, or upon its own initiative.

[31 F.R 4339, Mar. 12, 1966] § 2.764

Immediate effectiveness of initial decision directing issuance or amendment of construction permit or operating license.

(a) An initial decision directing the issuance or amendment of a construction permit, a construction authorization, or an operating license shall be effective immediately upon issuance unless the presiding officer finds that good cause has been shown by a party why the initial decision should not become immediately effective, subject to the review thereof and further decision by the Commission upon exceptions filed by any party pursuant to § 2.762 or upon its own motion.

(b) The Director of Regulations, notwithstanding the filing of exceptions, shall issue a construction permit, a construction authorization, or an operating license, or amendments thereto, authorized by an initial decision, within ten (10) days from the date of issuance of the decision.

[36 F.R. 828, Jan. 19, 1970]

FINAL DECISION

§ 2.770 Final decision.

(a) The Commission will ordinarily consider the whole record on review, but may limit the issues to be reviewed and consider only findings and conclusions to which exceptions have been filed.

(b) The Commission may adopt modify, or set aside the findings, conclusions and order in the initial decision and will state the basis of its action The final decision will be in writing and will include:

39-053 0-75- -6

(1) A statement of findings and conclusions, with the basis for them on all material issues of fact, law or discretion presented;

(2) All facts officially noticed;

(3) The ruling on each material exception;

(4) The appropriate ruling, order, or denial of relief, with the effective date. (80 Stat. 387; 5 U.S.C. 557) [27 F.R. 377. Jan. 13, 1962, as amended at 35 F.R. 11459, July 17, 1970]

§ 2.771

Petition for reconsideration.

(a) A petition for reconsideration of a final decision may be filed by a party within ten (10) days after the date of the decision. No petition may be filed with respect to an initial decision which has become final through failure to file exceptions thereto.

(b) The petition for reconsideration shall state specifically the respects in which the final decision is claimed to be erroneous, the grounds of the petition, and the relief sought. Within seven (7) days after a petition for reconsideration has been filed, any other party may file an answer in opposition to or in support of the petition. However, the regulatory staff may file such an answer within twelve (12) days after a petition for reconsideration has been filed.

(c) Neither the filing nor the granting of the petition shall stay the decision unless the Commission orders otherwise. [27 F.R. 377, Jan. 13, 1962, as amended at 31 F.R. 4340, Mar. 12, 1966; 37 F.R. 15137, July 28, 1972]

§ 2.772 Authority of the Secretary to Rule on Procedural Matters.

When briefs, motions or other papers listed herein are submitted to the Commission itself, as opposed to officers who have been delegated authority to act for the Commission, the Secretary or the Assistant Secretary are authorized to:

(a) Prescribe schedules for the filing of briefs, motions, or other pleadings, where such schedules may differ from those elsewhere prescribed in these rules or where these rules do not prescribe a schedule;

(b) Rule on motions for extensions of time;

(c) Reject motions, briefs, pleadings, and other documents filed with the Commission later than the time prescribed by the Secretary or the Assistant Secretary or established by an order, rule, or regulation of the Commission unless good cause is shown for the late filing; and