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 regulatory staff). A responsive brief may be filed by any other party within 15 days (20 days in the case of the regulatory staff) of the filing and service of the appellant'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 portions 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, inas

much 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 construction permits or operating licenses for production and utilization facilities for industrial 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 review 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 Regulation 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 Regulation 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 a 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 11

cense, 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.

(1) 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 license 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 Environ

mental 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]

(a) This part establishes a Board of Contract Appeals and prescribes the functions and rules of procedure of such Board in considering and deciding appeals from a decision of an AEC contract officer:

(1) In a dispute arising under

(i) Any AEC prime contract containing a disputes provision requiring an AEC contracting officer's decision and providing for an appeal therefrom to the Commission, and

(ii) Any subcontract entered into by a cost-type prime contractor in which such a dispute provision has been included in accordance with AECPR 9-59.003; ' and

1

(2) Assessing liquidated damages pursuant to section 104 (c) of the Contract Work Hours Standards Act (40 U.S.C. sec. 327-332).

(b) The Board, sitting in panels as provided in § 3.100(c) shall conduct debarment hearings and decide for the Commission debarment cases. The rules of procedure provided in this part shall apply to debarment proceedings conducted by the Board to the extent determined by the Board to be appropriate. § 3.2 Purpose.

(a) The purpose of this part is to provide for the orderly, impartial, fair, and expeditious handling of contract appeals in an informal manner, consistent with the requirements of law, the regulations of this part, the orderly conduct of the proceedings, and the necessity for preserving the record.

(b) Emphasis is placed upon the sound administration of the provisions of this part in specific cases, because it is impracticable to articulate a rule to fit every possible circumstance which may be encountered. The provisions of this part will be interpreted so as to secure a just and inexpensive determination of proceedings without unnecessary delay. Subpart A-Creation and Charter of the Atomic Energy Commission Board of Contract Appeals

§ 3.100 Establishment and membership of the Board.

(a) There is hereby established within the Atomic Energy Commission the "Atomic Energy Commission Board of

1 Appendix A of this part contains an excerpt of the AECPR.

Contract Appeals" (herein referred to as the Board, abbreviated AECBCA) which shall be the authorized representative of the Commission for the purpose of considering and deciding proceedings within the scope of this part. Decisions of the Board are final decisions of the Commission.

(b) The Board shall be composed of members appointed by the Commission. The Commission shall designate one member of the Board as Chairman and ancther member as Vice Chairman. The Chairman and Vice Chairman shall be full-time employees of the Commission and attorneys admitted to practice before the highest court of any State, Territory, or the District of Columbia.

(c) For the purpose of considering and deciding an appeal, the Board shall consist of a panel of three members, one of whom shall be the Chairman or Vice Chairman. The Chairman or Vice Chairman shall preside over the panel's activities. The composition of a panel shall be established by the Chairman within ten (10) days after receipt of the appeal file. The decision of the panel shall be the decision of the Board.

(d) Should the appellant elect to have his appeal considered under the accelerated procedures of § 3.205, the Board shall consist of the Chairman or, at the designation or in the absence of the Chairman, the Vice Chairman. The decision of the Chairman (or Vice Chairman) shall be the decision of the Board.

(e) In the absence of the Chairman, the Vice Chairman shall have all the powers and duties of the Chairman.

(f) Two of the three members on a panel shall constitute a quorum for the conduct of the panel's business. The presiding member of a panel shall designate one of the remaining members to preside in his absence.

(g) The Board members, including the Chairman and Vice Chairman, are subject to the laws relating to conflict of interest and the implementing AEC policies published in AEC Manual Chapter 4124, Part 0 of this chapter.

§ 3.101 Authority of the Board.

(a) The Board shall have all powers necessary for the performance of its duties including but not limited to the authority to conduct hearings, call witnesses, dismiss appeals, order the production of documents and other evidence, administer oaths and affirmations, issue subpoenas, order depositions to be taken,

(a) The Chairman shall be responsible directly to the Commission.

(b) The Chairman shall have all powers necessary for assuring the proper functioning of the Board, including but not limited to the following:

(1) Assuring the orderly, fair, impartial, and expeditious handling of proceedings;

(2) Acting on procedural matters before the Board including the issuance of subpoenas;

(3) Taking all actions necessary for the conduct of proceedings before the Board prior to the designation of a panel;

(4) Exercising the proper control of the docket.

§ 3.103 Ex parte communications.

(a) No member of the Board or of the Board's staff shall entertain off the record, except from another member of the Board or of the Board's staff, nor shall any person directly or indirectly involved in an appeal submit to the Board or the Board's staff, off the record, any evidence, explanation, analysis, or advice, whether written or oral regarding any substantive matter at issue in the appeal.

(b) This section does not apply to ex parte communications authorized by law or concerning the Board's administrative functions.

Subpart B-Rules of Procedure in Contract Appeals

decision from which the appeal is taken, and the reasons why the decision is deemed erroneous, and shall include a request for application of the accelerated procedure under §3.205 if such is desired.

(b) A statement of fact and argument in the form of a brief in support of the appeal may be submitted with the notice of appeal, or, if the appellant prefers, may be mailed to or filed with the contracting officer, addressed to the Board, within fifteen (15) days after the mailing or filing of the notice. When a statement of fact and argument in the form of a brief in support of the appeal is not submitted with the notice, the contractor shall state in the notice whether such a statement of fact and argument in the form of a brief in support of the appeal will be filed.

§ 3.201 Answer.

(a) When a statement of fact and argument in the form of a brief in support of the appeal has been filed, an answer may be filed with the Board by the contracting officer within thirty (30) days from the date of receipt of the statement of fact and argument in the form of a brief in support of the appeal.

(b) In the event no statement of fact and argument in the form of a brief is filed by appellant, the contracting officer may file an additional statement of his position and supporting argument within thirty (30) days from the receipt of notice that no statement of fact and argument in the form of a brief in support of the appeal will be filed. § 3.202

Responsibilities of the contracting officer.

(a) Immediately upon receipt of the notice of appeal, the contracting officer shall inform the Board that the appeal has been received and shall promptly but in no event later than fifteen (15) days from the date of receipt transmit the appeal file in quintuplicate (triplicate in accelerated proceedings) to the Board. The appeal file shall consist of the notice of appeal and the appellant's brief, if any, submitted therewith and of all documents on which the contracting officer has relled in making his decision, including the following:

(1) The decision of the contracting officer;

(2) The contract, specifications, pertinent drawings and plans, and modifications including change orders; and