ML23153A081
| ML23153A081 | |
| Person / Time | |
|---|---|
| Issue date: | 11/13/1997 |
| From: | Hoyle J NRC/SECY |
| To: | |
| References | |
| PR-002, 62FR60789 | |
| Download: ML23153A081 (1) | |
Text
DOCUMENT DATE:
TITLE:
CASE
REFERENCE:
KEYWORD:
ADAMS Template: SECY-067 11/13/1997 PR-002 - 62FR60789 - PROCEDURES APPLICABLE TO PROCEEDINGS FOR THE ISSUANCE OF LICENSES FOR THE RECEIPT OF HIGH-LEVEL RADIOACTIVE WASTE AT A GEOLOGIC REPOSITORY PR-002 62FR60789 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete
DOCKET NO. PR-002 (62FR60789)
In the Matter of PROCEDURES APPLICABLE TO PROCEEDINGS FOR THE ISSUANCE OF LICENSES FOR THE RECEIPT OF HIGH-LEVEL RADIOACTIVE WASTE AT A GEOLOGIC REPOSITORY DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 11/07/97 11/06/97 FEDERAL REGISTER NOTICE - PROPOSED RULE 01/12/98 12/31/97 LTR FM DENNIS BECHTEL TO HOYLE REQUESTING 30 TO 60 DAY EXTENSION OF COMMENT PERIOD AND LSSARP MEETING 01/29/98 01/27/98 FEDERAL REGISTER NOTICE:
PROPOSED RULE; EXTENSION OF PUBLIC COMMENT PERIOD 03/25/98 03/25/98 COMMENT OF CLARK COUNTY, NV DEPT. OF COMPREHENSIVE PLANNING (DENNIS A. BECHTEL) (
- 1) 03/27/98 03/25/98 COMMENT OF DEPARTMENT OF ENERGY (LAKE H. BARRETT, ACTING DIRECTOR) (
- 2) 03/30/98 03/26/98 COMMENT OF NYE COUNTY NUCLEAR WASTE REPOSITORY PROJECT OFFICE (MALACHY R. MURPHY) (
- 3) 3/30/98 03/27/98 COMMENT OF NUCLEAR ENERGY INSTITUTE (STEVEN P. KRAFT) (
- 5) 04/01/98 03/31/98 COMMENT OF NATIONAL CONGRESS OF AMERICAN INDIANS (JOANN K. CHASE, EXECUTIVE DIRECTOR) (
- 6) 12/23/98 12/22/98 FEDERAL REGISTER NOTICE - FINAL RULE 03/30/99 03/26/99 FEDERAL REGISTER NOTICE - FINAL RULE:
CORRECTION
00',KE. TEO US RC NUCLEAR REGULATORY COMMISSION)
PlZ._46 10 CFR PART 2
- 99 HAR 0
RIN 3150-AF88 OF_
Ru Procedures Applicable to Proceedings for t~Ulsuance of Licenses-
[7590-01-P]
for the Receipt of High-Level Radioactive Waste at a Geologic Repository; Correction AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule: correction.
SUMMARY
- This document corrects a final rule published in the Federal Register on December 30, 1998 (63 FR 71729), that amended the Nuclear Regulatory Commission's regulations on procedures applicable to proceedings for the issuance of licenses for the receipt of high-level radioactive waste at a geologic repository. The action is necessary to correct a typographical error. ~
31 I qq C/
EFFECTIVE DATE: [SQ days after ~619lisation].
FOR FURTHER INFORMATION CONTACT: Kathryn L. Winsberg, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-1641, e-mail KLW@nrc.gov.
SUPPLEMENTARY INFORMATION:
Section 2.1006 [ corrected]
On page 71738, first column, in Sec. 2.1006, the first sentence of paragraph (a), the reference to"§ 2.1003(c)" should be corrected to read"§ 2.1003(a)(4)."
Dated at Rockville, Maryland, this 26th day of March, 1999.
For the Nuclear Regulatory Commission.
aA ~ht:tlci~
AnnitflVietti-Cook, Secretary of the Commission.
NUCLEAR REGULA TORY COMMISSION 10 CFR PART2 RIN 3150-AF88 DOC1{ETED US [1 1590-01-P]
'98 DEC 23 P 2 :08 OF HU AD..:L Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository AGENCY:
Nuclear Regulatory Commission.
ACTION:
Final rule.
SUMMARY
The Nuclear Regulatory Commission (NRC) is amending its Rules of Practice for the licensing proceeding on the disposal of high-level radioactive waste at a geologic repository (HLW proceeding). The amendments are intended to allow application of technological developments that have occurred after the original rule was adopted in 1989, while achieving the original goals of facilitating the NRC's ability to comply with the schedule for decision on the construction authorization for the repository contained in Section 114(d) of the Nuclear Waste Policy Act, and providing for a thorough technical review of the license applicatio*n and equitable access to information for the parties to the hearing.
~~
- J. C/1 I 'i '11 EFFECTIVE DATE: [99 DAYS AFTE:~ f!'U~LICATIONj.
FOR FURTHER INFORMATION CONTACT: Kathryn L. Winsberg, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-1641, e-mail KLW@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Background On November 13, 1997 (62 FR 60789), the NRC published a proposed rule in the Federal Register that would have amended NRC's regulations in 1 O CFR Part 2, Subpart J. In response to the request of a representative of Clark County, Nevada, the NRC extended the comment period which would have expired on January 27, 1998, until March 30, 1998 (63 FR 5315, February 2, 1998). The proposed rule was intended to maintain the primary functions of P µ/; p tm 1.:2/sa/95 a.%" (# 3 FR 717 :i 9
2 the Licensing Support System (LSS) which are:
(1) Discovery of documents before the license application is filed; (2) Electronic transmission of filings by the parties during the proceeding; (3) Electronic transmission of orders and decisions related to the proceeding; and
( 4) Access to an electronic version of the docket.
The proposed rule would have eliminated the current requirement in 1 O CFR Part 2, Subpart J, for a centralized "Licensing Support System" administered by the NRC and therefore also would have eliminated the requirement for an LSS Administrator to ensure the viability of the central database. To replace these features of the existing rule, the proposed rule would have required that each potential party, including the NRC and the Department of Energy (DOE), make its documentary material available in electronic form to all other participants beginning in the pre-license application phase. For the purposes of this rule, the pre-application phase would have begun on the date that the President submits the site recommendation to Congress. Although the mechanism to implement this requirement is not stated in the proposed rule, the availability of the Internet to link geographically dispersed sites appears to have the potential to satisfy the proposed rule.
Also under the proposed rules, documentary material would have been defined as the material upon which a party intends to rely in support of its position in the licensing proceeding; any material which is relevant to, but does not support, that material or that party's position; and all reports and studies, prepared by or on behalf of the potential party, interested governmental.
participant, or party, including all related "circulated drafts," relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party.
A Pre-License Application Presiding Officer would resolve any disputes over electronic access to documents during the pre-license application phase. Potential parties would be
3 required to certify to the Pre-License Application Presiding Officer that they have complied with the requirement to provide electronic access to their documentary material.
The NRC requested comments on two alternatives regarding the LSS Advisory Review Panel. In the proposed rule, because the concept of the LSS would be replaced, the requirement for an LSS Advisory Review Panel would have been modified so the panel could advise the Secretary of the Commission regarding standards and procedures for electronic access to documents and for maintenance of the electronic docket This would have required renaming of the advisory committee and redrafting of the committee charter. However, the NRC also requested comments, particularly from potential parties to the HLW repository licensing proceeding, on the alternative of replacing the Advisory Review Panel with a more informal users group.
II. Comments on the Proposed Rule The Commission received six comment letters on the proposed rule. Copies of the letters are available for public inspection and copying for a fee at the Commission's Public Document Room located at 2120 L Street, NW (Lower Level), Washington, D.C. The comments on the proposed rule came from the DOE and five other entities which are represented on the LSS Advisory Review Panel. The NRC conducted a meeting of the LSS Advisory Review Panel (LSSARP) in Las Vegas, Nevada, on February 24, 1998, to receive,
comments of the LSSARP members on the proposed rule. The.transcript of this meeting is also available for inspection and copying for a fee at the Commission's Public Document Room as described above. The comment letters and LSSARP meeting comments were generally supportive of the NRC's effort to update Part 2, Subpart J; however, several areas of C?ncem were raised.
4 Definition of "documentary material" § 2.1001 Comment: One commenter requested that the phrase "or is likely to lead to the discovery of relevant material," which is included in the current definition of "documentary materiar be included in the new definition.
Response: NRC believes that the definition of documentary material, as adopted in this final rule, amply defines the body of material that will be important for and most usable for the licensing proceeding. The definition of documentary material, as amplified by the Topical Guidelines, is already very broad. The addition of the identified phrase to add a responsibility to identify and provide electronic access to material "that could lead to the discovery of" materi~I relevant to the entire scope of topics in the licensing proceeding could be an apparently limitless task. Furthermore, this enlargement of the scope of documentary material might only serve to impede the usefulness of electronic access to the relevant material by cluttering the system with extraneous material. Finally, a motion by a party in regard to the omission of relevant material would be entertained by the Presiding Officer. This should be sufficient to ensure that truly relevant materials are made available to the participants. Therefore this comment has not been adopted in the final rule.
Comment The DOE commented that NRC should remove from the definition of documentary material the clause:
and all reports and studies prepared by or on behalf of the potential party, interested govemmert31 participant, or party, including all related 'circulated drafts,' relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and or cited by a party.
The DOE is qoncemed that this clause would capture reports and studies that are irrelevant to the license application, such as reports and studies made for other potential sites and for predecessor agencies.
5 Response: Although it seems implicit, the NRC is willing to clarify that this clause applies only to information that is relevant to the license application. To make this clear in the final rule, the phrase "both the license application and" has been inserted after the words "relevant to" in the phrase cited by DOE.
Comment : Participants in the LSSARP meeting raised the issue that the term being defined, "documentary material," and the text of the proposed definition, both contain the word "material," leading to some confusion about the intended meaning.
Response: The final rule has eliminated the words "material or other" from the proposed definition, leaving the definition to read: "Documentary material means any information upon which a party, potential party... "
Name of System § 2.1001 Comment Several commenters observed that it would be more convenient to continue to have a name, like the current Licensing Support System ( LSS), to use to refer to the combined system to provide electronic access to documentary material in both the pre-license application phase and during the licensing proceeding, including the pre-license application electronic docket and the electronic docket. The participants in the LSSARP meeting generally agreed_ that "Licensing Support Network (LSN)" would be an appropriate name.
Response: The final rule has adopted the suggestion. Because the proposed rule had used the term integrated electronic information generally for this purpose, the final rule substitutes Licensing Support Network (LSN) for integrated electronic information and amends the definition accordingly to refer to the system, rather than the information.
Timing and availability of documentary material and the pre-license application phase
§§ 2.1003, 2.1008, 2.1012(d).
Comment: Many of the participants at the LSSARP meeting observed that because the Licensing Support Network appears more likely to be a World Wide Web-based system, easily
6 accessible by office and horn~ personal computers, rather than a specially designed stand-alone system like the former LSS concept, there is little reason to continue the practice of limiting access to documentary material in the pre-license application phase to potential parties to the licensing proceeding. Instead, this information could be made available to any member of the public. The State of Nevada representative commented that it would be an uncomfortable position for the State, as a potential party, to have more access to information than its citizens. The DOE also points out an internal inconsistency in the proposed rule in that proposed§ 2.1012(d), which states that the Pre-License Application Presiding Officer may suspend or terminate access to the pre-license application electronic docket for non-compliance, is not consistent with the public access in proposed§ 2.1007(a), which says that DOE and NRC must maintain systems to provide electronic access to the integrated electronic information for the public.
Response: NRC agrees that under the final rule, information can be made available to all members of the public, even in the pre-license application phase. Practical considerations, including the operating capacities of the systems, may require that priority be given to potential parties, however these matters may be worked out in consultation with the Advisory Review Panel in the implementation of the final rule. Proposed§ 2.1003(a) has been modified to delete the list of individuals to whom electronic information must be made available beginning in the pre-license application phase, because this information must be made generally available electronically. Proposed § 2.1008 purported to give electronic access to the integrated
~
electronic information to persons who comply with the regulations in Part 2 Subpart J and with the orders of the Pre-license Application Presiding Officer. Therefore, proposed§ 2.1008 has not been adopted because it is by implication not consistent with allowing public access to the electronic information and the pre-license application electronic docket. Proposed § 2.1012( d),
which concerned suspending or terminating access, has not been adopted in the final rule,
(
i 7
because, as noted by the DOE comment, it implies controlled and limited access, rather than open public access to documentary material and to the pre-license application electronic docket and to the electronic docket.
Comment Definition of pre-license application phase and § 2.1003. The State of Nevada commented that the proposed rule's use of the date of the President's recommendation to Congress as the date when all potential parties and interested governmental participants must make documentary information available electronically had the appearance of a presumption that the State of Nevada's objection to the Yucca Mountain site decision would be overridden by Congress. This participant stated that it would be more reasonable to select the date of Congress' resolution of any objection from the State of Nevada in order to be certain that this particular license application is going forward. Other LSSARP participants pointed out that the critical sets of documents that should be available as early as possible are those of the NRC and, particularly, the DOE. The LSSARP meeting discussion suggested that it would not matter if other potential parties did not make their documentary material available until a later time when the Yucca Mountain license application was a certainty. LSSARP meeting participants suggested that DOE and NRC be required to make their documentary material available at an earlier date. Because the DOE and NRC documentary material will constitute the overwhelming majority of the information to be made available in the LSN, it is important that it be accessible as soon as possible to allow preparation for the licensing proceeding.
They suggested that other potential parties and interested governmental participants should be required to make their documentary material available electronically no later than the date that the site selection decision becomes final after review by Congress.
Response: NRC has adopted the suggestion developed at the LSSARP meeting, that NRC and DOE documents should be made available at the earliest practical time, and that all other participants' documents should be made available later. However, in order to allow time
8 for compliance with dates that may be hard to predict in advance, the final rule allows 30 days after the selected milestones before requiring compliance. Therefore, the definition of Pre-license application phase has been revised to state that phase begins 30 days after the date on which DOE submits its site recommendation decision to the President, a date earlier than the date specified in the proposed rule. DOE's latest Program Plan, CM/ian Radioacffve Waste Management Program Plan, Rev. 2, DOE/RW-0504 (July 1998) has scheduled sending the Site.
Suitability Recommendation to the President in July 2001.
Section 2.1003(a) has been revised to require NRC and DOE to make their documentary material available beginning in the pre-license application phase. The final rule requires all other potential parties or interested governmental participants to make their documentary material available no later than 30 days after the date the repository site selection decision becomes final after review by Congress. Section 2.1003 has also been rearranged slightly from the proposed version in order to clarify and improve the parallel structure of the subsections.
Time period for inspection and copying documents§§ 2.1004, 2.1010(c)
Comment: The DOE commented that the two days allowed in both §§ 2.1004 and 2.101 O{ c) for making documents, available for inspection and copying should be extended to ten working days, because reasonable and expeditious efforts to reproduce and make large documents available could easily consume two days. DOE points out that lengthening the time limit would al~o relieve the Presiding Officer of the burden of reviewing requests for minor extensions of these deadlines.
Response: NRC acknowledges that two days may be too brief a period of time to search for and reproduce some large documents. Nevertheless, ten working days is much more time than is needed, or can be spared routinely in the schedule for this licensing proceeding.
Therefore, the deadlines in these two sections have been extended from two to five days.
9
§2.1007(aH3) and (c) Access Comment The DOE notes that proposed§ 2.1007(a)(3) retains the current requirement to make available systems to provide electronic access for members of the public at any NRC and DOE Local Public Document Rooms to be located in Nevada, with specified locations at Las Vegas, Reno, Carson City, Nye County, and Lincoln County. DOE requests that the rule be clarified to specify which of these locations are the responsibility of DOE and which are NRC's.
Response: The best options for providing the required public access to the LSN will need to be explored by DOE and NRC in consultation with the Advisory Review Panel in the implementation of the rule. The NRC position on maintaining Local Public Document Rooms will be changing because of the future planned availability of all agency documents via the Internet accessible from a personal computer from home, office, or a public library. NRC does not believe that it is necessary or practical to add further detail to this portion of the rule at this time.
Comment The DOE states that§ 2.1007(c) appears to require both NRC and DOE to treat docketed documents as agency documents under the Freedom of Information Act (FOIA}.
DOE finds the phrase "if these documents remain under the custody and control of the agency or organization that identified the documents" to be confusing. DOE proposes a clarification that aJI documents entered into the docket, other than those submitted by another agency, are NRC documents for FOIA purposes.
Response: NRC agrees that the text of§ 2.1007(c) is confusing. Furthermore, that text appears to be unnecessary, because§ 2.1007(b) states that the regulations of NRC and DOE regarding availability of copies apply to the respective agencies' records. Therefore, proposed
§ 2.1007(c) has not been adopted.
10 Certification of compliance § 2.1009{b)
Comment The DOE noted that the proposed rule replaces the six month interval for certifying that the procedural requirements have been met with an unspecified interval "upon order of a duly appointed presiding officer." DOE suggests that a regular and prescribed interval for certification would facilitate the success of the system and proposes a twelve-month period as appropriate.
Response: NRC agrees that a regular interval for updating the certification may be beneficial. Therefore, the final rule adopts the suggestion of a twelve month interval for updating the certification of compliance. The DOE will also be required to update its certification at the time It submits its license application to the NRC.
Compliance § 2.1012 Comment One commenter and participant in the LSSARP meeting stated that the Director of NRC's Office of Nuclear Materials Safety and Safeguards (NMSS) should have the responsibility and authority to reject the DOE license application, not only if it is not able to be accessed through the electronic docket but also, if the DOE is not in compliance with all of the requirements of the rule when the license application is submitted. This commenter suggested that the current language of § 2.1011 (d)(6) and (7) be moved to § 2.1012.
Response:. Section 2.1 009(b) has been revised in response to the previously discussed comment to require an updated certification from the DOE at twelve month intervals and at the time of submission of the license application. This final rule also adds a clause to §2.1012 to authorize the Director, NMSS, to find the license application unacceptable for docketing if it is not accompanied by a certification from DOE pursuant to§ 2.1009(b).
Copies of documents for deposition § 2.1019(i)
Comment: The DOE observes that it may be burdensome to provide paper copies of large documents that are not identical (because of subsequent modification or added notations)
11 to those documents that have been made available electronically, as required by proposed
§ 2.1019(i}. DOE suggests that the requirement be clarified to require submission of copies only of the parts of the documents that have been modified.
Response: NRC believes that this suggestion might prove difficult to implement. It would seem especially difficult to isolate and identify changes from the previous documents if the subsequent modifications have been inserted electronically, thereby altering the pagination of the pre-existing text. Isolating the modified sections as separate documents could obscure the overall context and meaning of the changed portion. NRC has not adopted this suggestion.
Retention of the "LSS Administrator" function § 2.1011 Comment The consensus of the LSSARP meeting participants and three of the.written comments supported retention of the LSS Administrator function. One comment asserted that the "LSS Administrator" was needed to contribute to the design and management of the system, to be a "traffic cop", to balance priorities for data input, to organize data, to resolve conflicts, to audit the system, and to add credibility. Another comment stated that the LSS Administrator should be retained and should review participants' readiness to allow access to their documentary material, receive and resolve complaints regarding network problems, perform periodic audits or compliance reviews, assist participants in achieving and maintaining compliance, and coordinate resolution of technical issues.
Response:. The Commission agrees that the "LSS Administrator" function may be useful for the smooth functioning of the LSN to identify and help implement solutions to implementation problems. The final rule contains a new term in § 2.1001, LSN Administrator.
Section 2.1011 ( c) provides for the designation of an LSN Administrator before the start of the pre-license application phase. The LSN Administrator will be responsible to coordinate the functioning of the Licensing Support Network by identifying technical and policy issues related to implementation of the LSN for Advisory Review Panel and NRC consideration. The LSN
12 Administrator will coordinate addressing tne consensus advice of the LSN Advisory Review Panel and resolving problems regarding LSN availability and the integrity of the LSN data. The LSN Administrator will also provide periodic reports to the NRC on the status of LSN functionality and operability.
Maintaining an Advisory Review Panel § 2.101 Hc)
Comment All those who submitted written comments and who commented at the LSSARP meeting preferred continuing to have an advisory review panel, rather than substituting an informal users group. The DOE stated that it was premature to replace the advisory review panel with an informal users group and that the formality of the panel would ensure that each member's concerns about the structure of the electronic docket will be addressed in a documented manner. Two commenters stated that a more informal group would tend to be less effective with higher turnover in participants and less commitment to the objectives of the program.
Response:. The final rule requires the Secretary of the Commission to reconstitute the LSS Advisory Review Panel as the LSN Advisory Review Panel (LSNARP). In view of the many complex implementation issues that must be coordinated among the participants, the continued use of an advisory committee appears to offer the best means to ensure that these issues will be considered and resolved effectively. However, the NRC directs that LSNARP meetings be conducted with the most efficient possible use of resources. Meetings should be conducted taking advantage of teleconf--?rence, video conference, or other electronic communication capabilities to the greatest extent practicable. Because the current membership will be retained, proposed § 2.1011 (d)(2) that specifies the initial membership of the Advisory Review Panel has not been adopted.
13 Membership on the LSNARP § 2.1011 (c}(2)
Comment Two commenters, who are affected units of local government, stated that the proposed rule should be modified to give a separate seat on the LSNARP to each affected unit of local government, rather than specifying one seat for "a coalition of affected units of local government." One commenter stated that there are now 10 counties designated by DOE as "affected" and that the different interests of this group could not be represented by one seat.
One commenter, Nye County, Nevada, stated that its status as the "situs jurisdiction" is significantly different from that of the other counties and requires separate representation: The National Congress of American Indians stated that individual affected tribes from the Yucca Mountain area should be members of the LSNARP.
Response: In order to keep the functioning of the LSNARP manageable, including numbers of participants required for quorums and other operating requirements, NRC believes that it is necessary to continue to treat entities with similar interests as coalitions (e.g., affected units of local government, tribal groups). However, this does not need to affect,recognition of the unique status of individual members of the coalition, nor their opportunity to attend and participate at LSN meetings.
Funding for participants in the LSN Comment Several participants at the LSSARP meeting stated that there was an urgent need for funding to enable small entities to participate fully in the HLW licensing proceeding and the LSNARP, and to fulfill their responsibilities to provide electronic access to documentary material under this rule.
Response: The LSSARP participants did not suggest and NRC has not devised any revisions to the rule to address this problem. As noted at the LSSARP meeting, NRC is prohibited from paying expenses for participants in licensing proceedings by a provision from the Fiscal Year 1993 Energy and Water Development Appropriations Act, which has been
14 codified at 5 U.S.C. 504 note. A Comptroller General's opinion issued December 3, 1980,
_ Opinion No. B-200585, interpreting identical language previously contained in the Energy and Water Development Appropriation Act, 1981 (Pub. Law No.96-367, 94 Stat. 1331), concluded that NRC could not provide to intervenors free copies of transcripts or free copying and service of intervenors' documents. Therefore, although the supplementary information of the proposed rule notice suggested that there might be an option for participants to provide their documentary materials to NRC or DOE to allow NRC or DOE to maintain electronic availability of the participants' documents, NRC has concluded that this action may not be permissible.under the statutory prohibition.
NRC recognizes that this revised rule places responsibility for document conversion, loading, and maintaining and operating a web server on each of the individual parties or potential parties. NRC believes there is an approach to help the smaller parties and potential parties mitigate the funding requirements of participation under this rule. Affected units of local
- government (AULG) and other parties and potential parties could utilize a portion of grant funds typically provided to the AULG by DOE in the past. Although in FY 1997 no grants were forthcoming from DOE and many of the county governments had to cancel or severely curtail their activities for the year, funding was available in FY 1998 and should be available in FY 1999.
Tribal Government participation - definition of "party" and§ 2.715.
Comment The National Congress of American Indians (NCAI) stated that NRC should set up a process to determine which tribes are interested in representation in the licensing proceeding to ensure that all interested federally recognized tribes are included as parties to the licensing proceeding. The NCAI also expressed a concern that tribal governments do not appear to be included in the provisions of§ 2.715 which allow representatives of State or local governments to participate in a proceeding without being required to take a position on the
15 issues. NCAI recognizes that this matter may not be within the purview of this rulemaking but requests that it be addressed in the appropriate forum.
Response: The definition of "party" includes "affected Indian Tribe as defin~ in section 2 of the Nuclear Waste Policy Act of 1982." If a tribe which did not meet that definition wished to participate as a party, it would still be able to seek intervention under § 2.1014.
With regard to §2. 715, because this issue is outside the scope of the current rulemaking, the NRC intends to undertake a separate rulemaking to amend that section to include federally recognized Native American tribal governments. This task has been added to the NRC's Rulemaking Activity Plan (SECY 98-168). However, the straightforward and procedural nature of such a rule change should make it possible to proceed without undcie delay.
Additional matters regarding "documentary material" and electronic availability § 2.1003 The definition of "documentary material" has been amended to make clear that the duty to identify "information that is relevant to, but does not support, that information or that party's position" is limited to information "that is known to, and in the possession of, or developed by the party."
The NRC staff has become aware through informal discussions with commenters on this rulemaking that the proposed rule language did not clearly retain the requirement for an electronic bibliographic header to be made available with each item of documentary material made available under § 2.1003. An electronic bibliographic header is necessary to allow effective and efficient use of an electronic full text search capability. Therefore, § 2.1003(a)(1) has been amended to clarify the requirement to submit an electronic bibliographic header along with each item of documentary material.
16 Ill. Section-by-Section Description of Final Rule In § 2.1000, the reference to§ 2.709 is removed because it requires compliance with
§ 2. 708 which does not apply to this subpart.
In § 2.1001, the following definitions are added, amended, or removed:
ASCII File. This definition is removed and no longer used in the rule. Prescriptive references to specific technical standards have been removed to allow flexible implementation consistent with developing technology.
Documentary material. The definition of documentary material is revised to cover information upon which a party, potential party, or interested governmental participant intends to rely and/or cite in support of its position in the licensing proceeding; any information known to, and in the possession of, or developed by the party which is relevant to, but does not support; that information or that party's position; and all reports and studies, prepared by or on behalf of the potential party, interested governmental participant, or party, including all related "circulated drafts," relevant to both the license application and the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. This definition is used in the rule in § 2.1003 to define what material must be provided in electronic form for access beginning in the pre-license application phase.
Therefore, the term "documentary material" is intended to describe the most important body of material and would be defined clearly to require that all parties include electronic access to any relevant information in their possession that does not support their position in the licensing proceeding, as well as providing access to the information that does support their position, and any reports and studies prepared by the party relevant to the application on issues described in the Topical Guidelines, regardless of whether or not they would be relied upon or cited by the party. The scope of the documentary material is still governed by the topical guidelines.
Electronic docket. A new definition is added to describe NRC's electronic information
17 system to receive, distribute, store, and maintain NRC adjudicatory docket materials in the licensing proceeding.
Licensing Support Network (LSN). A new definition would be added to describe the combined system to make documentary material and the NRC pre-license application docket and licensing docket available in electronic form to potential parties, parties, interested governmental participants, or the public for the licensing proceeding of the high-level waste geologic repository, either as part of the NRC's pre-license application electronic docket or electronic docket or pursuant to electronic access to documentary material made available by individual potential parties, parties, and interested governmental participants. This is a term that replaces the LSS in this rule.
LSS Administrator. This term is eliminated from the rule because the concept of the LSS is also removed. The Pre-license Application Presiding Officer will resolve disputes about electronic access to documents in the pre-license application phase. This rule creates a new*
term "LSN Administrator" which is described below.
LSN Administrator. This new term describes the individual who will coordinate access to, and the functioning of, the Licensing Support Network, as well as the resolution of problems regarding the functionality and availability of the system.
.Efil!y. This definition is revised to add "affected unit of local government", as that term is defined in the Nuclear Waste Policy Act of 1982, as amended, and also to refer to that statute for the definition of affected Indian Tribe. In addition, any affected unit of local government, the host State, and any affected Indian Tribe would be required to file a list of contentions.
Potential party. This definition is revised to remove the reference to the LSS and to substitute the term Licensing Support Network to describe the material to which the potential party will be given access.
18 Pre-license application electronic docket. A new definition is added to describe NRC's electronic information system to receive, distribute, store, and maintain NRC pre-license application docket materials during the pre-license application phase.
Pre-license application phase. This definition is being specified for the purposes of this rule to begin 30 days after the date the DOE submits its site suitability decision to the President.
This term is used in § 2.1003 to specify the date by which the DOE and the NRC must make their documentary material available electronically. This date has been chosen to allow access to the largest body of the most important NRC and DOE documentary material sufficiently in advance of the filing of the license application to aJlow advance preparation of contentions and discovery requests before the application is filed but late enough in the repository development process to provide meaningful information.
Searchable full text. This definition is revised to remove references to ASCII and to the LSS.
Topical Guidelines. A new definition is added to describe the set of topics set forth in Regulatory Guide 3.69 that are intended to guide the scope of documentary material under this subpart.
Section 2.1002 is removed because creation of the LSS is no longer required. Access to the Licensing Support Network will provide the major functions which the LSS was de~igned to provide. Paragraphs (c) and (d), which state that participation by the host State in the pre-application phase will not affect its disapproval rights and that this subpart shall not affect any participant's independent right to receive information, are now incorporated in the revised
§ 2.1003 as paragraphs (c) and (d).
Section 2.1003 is revised to describe information that is required to be made available electronically by all potential parties, parties, and interested governmental participants (including the NRC and DOE). This information must be made electronically available by NRC
19 and DOE beginning in the pre-license application phase, which starts 30 days after the date the DOE submits its site recommendation to the President. Other potential parties and interested governmental participants would be required to make their documentary material available no later than 30 days after the date the repository site selection decision becomes final after review by Congress. The requirements of the rule are simplified to require only that access to an electronic file and bibliographic header be provided. All references to specific formats are removed to allow flexibility in implementation.
Although the rule sets deadlines for requiring all potential parties and interested governmental participants to make their documentary material available electronically, the NRG would encourage the earliest feasible availability of documentary material in order to enhance the future smooth operation of the licensing proceeding. The paragraphs relating to evaluations and certifications by the LSS Administrator are removed because the LSS (and LSSA) concept is removed. Section 2.101 O states that the Pre-License Application Presiding Officer will resolve any disputes relating to electronic access to documents in the pre-license appiication phase. Accordingly, the paragraphs which stated that the-application would have to be -
docketed under Subpart G if the LSSA did not certify compliance have been removed.
Subpart J (including specifically referenced sections of Subpart G) unconditionally presents the rules of procedure applicable for the HLW licensing proceeding.
Section 2.1004 is revised to provide procedures for providing access to a document that has not previously been provided.in electronic form, to delete previous references to the LSS and the LSSA, and to extend the period of time for providing access to a document from two days to five days.
Section 2.1005 is revised to delete reference to the LSS and to add an exclusion of readily available references, such as journal articles or proceedings, which may be subject to copyright.
20 Section 2.1006 is revised to refer to providing a document in electronic form and to delete references to the LSS and the LSSA.
Section 2.1007 is revised to refer to providing systems for access to the Licensing Support Network rather than providing terminals for access to the LSS. Paragraph (c} is deleted because the text was confusing and not needed.
Section 2.1008 is removed and reserved. The requirements for petitioning for access during the pre-license application phase are not consistent with allowing public access to the electronic information.
Section 2.1009 is revised to delete references to the LSS and the LSSA, and to refer instead to the responsibility to provide electronic files. The responsible official for each potential party is required to certify to the Pre-License Presiding Officer ~at procedures to comply with
§ 2.1003 have been implemented and that its documentary material has been made electronically available. A requirement for all participants to update the certification at twelve month intervals and for DOE to update its certification at the time of submission of the license application replaces a previous requirement to provide this certification at six month intervals.
Section 2.101 O is revised to delete references to the LSS and the LSSA and to refer instead to electronic access. The reference to petitions for access is removed to cont arm to removal of this requirement. The time period for providing access to documents is extended from two days to five days.
Section 2.1011 is revi~ed to reflect that the electronic availability of documentary material that is specified in this rule no longer requires special equipment. The Secretary of the Commission is directed to reconstitute the LSS Advisory Review Panel as the LSN Advisory Review Panel. The functions of the panel have been amended to delete the reference to the LSS and to substitute the purpose of arriving at standards and procedures to facilitate the electronic access to documentary material and to the electronic docket established for the HLW
J 21 geologic repository licensing proceeding. Because of the broad and non-prescriptive requirements regarding providing electronic files in this rule, the LSN Advisory Review Panel will be very useful in discussing standards and procedures to ensure that all participants are able to access the electronic information. Because the LSS concept is replaced, the name and functions of the LSS Administrator have been changed to "LSN Administrator" and to include coordinating the functions of the Licensing Support Network. The LSN Administrator will be responsible for identrfying technical and policy issues related to implementation of the LSN for
.LSSARP and NRC consideration, addressing the consensus advice of the LSN Advisory Review Panel, and for coordinating the resolution of problems experienced by participants regarding LSN availability and the integrity of the LSN data. The LSN Administrator will 'also provide periodic reports to the NRG on the status of LSN functionality and operability. Similarly, the name and functions of the LSS Advisory Review Panel have been modified in the final rule to accommodate a new purpose.
Section 2.1012(a) is revised to allow the Director of the NRG Office of Nuclear Material Safety and Safeguards (NMSS) to determine that tlie application would not be acceptable if it is not able to be accessed through the electronic docket or if it is not accompanied by a certification of compliance with the rule pursuant to§ 2.1009(b). Section 2.1012(b)(1) is revised to substitute Licensing Support Network for Licensing Support System so that a person who has had access to the Licensing Support Network would not be granted party status in the licensing proceeding if it cannot demonstrate compliance with the requirements of § 2.1003.
Section 2.1012 (d) has been removed because the provision for suspending or terminating access to the pre-license application electronic docket or the electronic docket is inconsistent with allowing public access to the LSN.
Section 2.1013 is revised to delete references to the LSS and LSSA and refers to the V
provision of information in electronic form. The requirement in§ 2.1013(c}(5} to file one signed
22 paper copy of each filing with the Secretary, NRC, is removed because the electronic docket will not require signed paper copies. However, use of the electronic docket will require the development of electronic signature procedures, which will be devised in the implementation of the rule.
Section 2.1014(c)(4) has been revised to delete a reference to the LSS and make the failure of a petitioner to participate in the pre-license application phase a criterion in considering whether to grant a petition to intervene.
Section 2.1017 has been revised to use the unavailability of the electronic docket instead of the LSS as a justification for extending the computation of time in the proceeding.
Sections 2.1018 and 2.1019 are revised to delete references to the LSS and instead to refer to providing documents electronically.
In addition, minor editorial changes have been made throughout the final rule to improve readability.
Environmental Impact: Categorical Exclusion The NRC has determined that this regulation is the type of action described in categorical exclusion 1 0 CFR 51.22(c)(1 ). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this regulation.
Paperwork Reduction Act Statement This rule contains no information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Regulatory Analysis To address the regulatory problem of adapting the existing rule to technological developments that have occurred, several alternative approaches to amending the regulations in Subpart J of Part 2 were considered.
23 Option 1: Existing rule.
This approach would not take advantage of current and future technology. It would require an enormously expensive custom designed system to be developed using old assumptions about technological standards and the universe of "relevant" material. At the time of the development of the existing rule, the cost of the LSS was estimated by DOE to be in the
$200 million range. Furthermore, because the large backlog contains many documents that may no longer be relevant due to the unanticipated delay in developing the LSS as initially designed in 1988, there is a $ubstantial chance that it would be impossible for the DOE to achieve and for the LSSA to certify compliance with the provisions of the current rule. In this case, under the current rules, the proceeding would have to be conducted under 10 CFF¥-Part 2, Subpart G, and could result in a protracted discovery phase. The additional costs of using this approach are difficult to quantify. However, the lengthened discovery phase could prevent the NRC from meeting the statutory deadline for decision on the application for a geologic repository license.
Option 2: 10 CFR Part 2, Subpart G.
Because th~ NRC is developing a new system called the Agency-wide Documents Access and Management System (ADAMS), that will provide an agency-wide electronic docket, it would be possible to rely on existing adjudicatory procedure rules in 1 O CFR Part 2, Subpart G, which will have to be updated to reflect the electronic docket to conduct the licensing proceeding. This approach would not provide pre-license application access to documents and could result in a protracted discovery phase. The costs of using this approach are difficult to quantify. However, the lengthened discovery phase could prevent the NRC from meeting the statutory deadline for decision on the application.
24 Option 3: Existing rule using a distributed system.
This approach would allow using linked individual Internet sites to serve as the LSS.
However, this approach does not solve the problem discussed in Option 1 concerning the requirement to capture a huge backlog of material that may not have been maintained in a manner that would ever permit compliance with the rule and may not all be relevant to the future license application. Therefore, the costs of this approach, as in Option 1, would indude the possibility that the LSS rule compliance finding could not be made and the proceeding would have to be conducted under 1 O CFR Part 2, Subpart G. A lengthened discovery phase could prevent the NRC from meeting the statutory deadline for decision on the application.
Option 4: Revised rule with tnore realistic document discovery approach.
This approach will remove the requirement for a central LSS system and LSS Administrator, but will require each potential party to provide for the electronic availability of both the material it intends to rely upon to support its position, any material which does not support that material or that position, and any reports or studies prepared by or for the party, beginning in the pre-application phase (presided over by a Pre-License Application Presiding Officer). This definition of documentary material will provide pre-application access to a more focused set of the materials most important to the licensing proceeding. It will not require electronic access to the entire backlog of DOE and other parties' material, some of which may no longer be relevant to the licensing proceeding. The electronic docket functionality of the LSS will be provided by the NRC agency-wide system with supervision of the Presiding Officer.
Participation in the pre-license application phase will be one criterion for participating in the hearing. After the application is filed, in addition to the electronically available material, discovery will be limited to interrogatories and depositions as in the current rule. The specific method of providing electronic access to documentary material will not be specified, which will allow flexibility to accommodate current and future technology advances. Because this rule will
25 unconditionally provide the procedural rules for document management for the HLW licensing proceeding, there would be no last minute danger that discovery would have to be conducted under 10 CFR Part 2, Subpart G.
The NRC believes that Option 4 provides the most effective solution for maintaining the basic functionality of the LSS conceptual design and accommodates current and future technological developments. This constitutes the final regulatory analysis for this rule.
Regulatory Flexibility Certification The amendments will modify the NRC's rules of practice and procedures. The rule is amended to allow more widely available electronic access to infonnation before the license application is filed. Participants will be required to make their own documentary material* -
available electronically. This final rule will not have a significant economic impact upon a substantial number of small entities. The license applicant for the HLW repository will be the Department of Energy. DOE does not fall within the definition of a "small entity" in the NRC's size standards (10 CFR 2.810). Although a few of the intervenors in the HLW proceeding would likely qualify as small entities, the impact on intervenors or potential intervenors will not be significant. The requirement for participants to make their own documentary material available electronically is stated in a manner that will allow flexibility in implementation.
Furthermore, it is consistent with current business practice to create documents electronically.
Although the exact additional costs to small entities involved in making the documentary materials available electronically are difficult to quantify, to avoid those costs, participants may have the option of utilizing funds provided by DOE to affected units of local government. Thus, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the NRC hereby certifies that this final rule will not have a significant economic impact upon a substantial number of small entities.
26 Backfit Analysis ljle NRC has determined that a backfit analysis is not required for this final rule because these amendments do not include any provisions that would require backfits as defined in 1 O CFR Chapter I.
Small Business Regulatory Enforcement Fairness Act In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of 0MB.
List of Subjects in 1 O CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954; as amended, the Energy Reorganization Act of 1974, as amended; and 5 U.S.C.
553; the Nuclear Regulatory Commission is adopting the following amendments to 1 O CFR Part
- 2.
PART 2-RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS
- 1. The authority citation for Part 2 continues to read as follows:
AUTHORITY: Secs. 161, 181, 68 Stat. 948, 953, as amended {42 U.S.C. 2201, 2231 );
sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C. 2241}; sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841 ); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930,932,
27 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135);
sec. 114(f), Pub. L.97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2. 721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued under Pub. L. ~7-415, 96 Stat. 2073 (42 U.S.C. 2239}.
Sections 2.200-2.206 also issued under secs. 161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o), 2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Section 2.2050) also issued under Pub. L. 101-41 0, 104 Stat. 890, as amended by Section 31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note.) Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C.
4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.TT0, 2.780 also issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec.
103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec.
189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154).
Subpart L also issued under sec. 189, 68 Stat. 955 (42* U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135).
- 2. Section 2.1 000 is revised to -read as follows:
§ 2.1000 Scope of subpart.
The rules in this subpart govern the procedure for applications tor a license to receive and possess high-level radioactive waste at a geologic repository operations area noticed pursuant to§ 2.101 (f)(8) or§ 2.105(a)(5). The procedures in this subpart take precedence over
28 the 1 0 CFR Part 2, subpart G, rules of general applicability, except for the following provisions:
§§ 2.702, 2.703, 2.704, 2.707, 2.711, 2.713, 2.715, 2.715a, 2.717, 2.718, 2.720, 2.721, 2.722, 2.732, 2.733, 2.734, 2.742, 2.743, 2.750, 2.751, 2.753, 2.754, 2.755, 2.756, 2.757, 2.758, 2.759, 2.760, 2.761, 2.763, 2.770, 2.771, 2.772, 2.780, 2.781, 2.786, 2.788, and 2.790.
- 3. Section 2.1001 is amended by removing the definitions of ASCII File and LSS Administrator; adding definitions of Electronic docket, Licensing Support Network, LSN Administrator, Pre-license application electronic docket, and Topical Guidelines; and revising the definitions of Documentary material, ~. PotentiaJ party, Pre-license application phase, and Searchable full text, to read as follows:
§ 2.1001 Definitions.
Documentary material means (1} any information upon which a party, potential party, or interested governmental participant intends to rely and/or to cite in support of its position in the proceeding for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter; (2) any information that is known to, and in the possession of, or developed by the party that is relevant to, but does not support, that information or that party's position; and (3) all reports and studies, prepared by or on behalf of the potential party, interested governmental participant, or party, including all related "circulated drafts," relevant to both the license application and the issues set forth in the Topical Guidelines in Regulatory Guirle 3.69, regardless of whether they will be relied upon and/or cited by a party. The scope of documentary material shall be guided by the topical guidelines in the applicable NRG Regulatory Guide.
Electronic docket means the NRG information system that receives, distributes, stores, and retrieves the Commission's adjudicatory docket materials.
29 Licensing Support Network means the combined system that makes documentary material available electronically to parties, potential parties, and interested governmental participants to the proceeding for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter, as part of the electronic docket or electronic access to documentary*material, beginning in the pre-license application phase.
LSN Administrator means the person within the U.S. Nuclear Regulatory Commission responsible for coordinating access to and the integrity of data available on the Licensing Support Network. The LSN Administrator shall not be in any organizational unit that either represents the U.S. Nuclear Regulatory Commission staff as a party to the high-level waste repository licensing proceeding or is a part of the management chain reporting to the Director, Office of Nuclear Material Safety and Safeguards. For the purposes of this subpart, the organizational unit within the NRC selected to be the LSN Administrator shall not be considered to be a party to the proceeding.
~
for the purpose of this subpart means the DOE, the NRC staff, the host State, any affected unit of local government as defined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), any affected Indian Tribe as defined in section 2 of the Nuciear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), and a person admitted under § 2.1014 to the proceeding on an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter; provided that a host State, affected unit of local government, or affected Indian Tribe shall file a list of contentions in accordance with the provisions of §§ 2.1014{a)(2) (ii) and (iii).
30 Potential party means any person who, during the period before the issuance of the first pre-hearing conference order under§ 2.1021 (d), is given access to the Licensing Support Network and who consents to comply with the regulations set forth in subpart J of this part, including the authority of the Pre-License Application Presiding Officer designated pursuant to
§2.1010.
Pre-license application electronic docket means the NRC's electronic information system that receives, distributes, stores, and maintains NRC pre-license application docket materials during the pre-license application phase.
Pre-license application phase means the time period before the license application to receive and possess high-level radioactive waste at a geologic repository operations area is docketed under § 2.101 (f)(3). For the purpose of this subpart, this period begins 30 days after the date the DOE submits the site recommendation to the President pursuant to section 114(a) of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10134(a)).
Searchable full text means the electronic indexed entry of a document that allows the identification of specific words or groups of words within a text file.
Topical Guidelines means the set of topics set forth in Regulatory Guide 3.69, Topical Guidelines for the Licensing Support System, which are intended to serve as guidance on the scope of "documentary materiar.
- 4. Section 2.1002 is removed and reserved.
§2.1002 [Removed]
- 5. Section 2.1003 is revised to read as follows:
§ 2.1003 Availability of material.
(a) Subject to the exclusions in§ 2.1005 and paragraphs (b) and (c) of this section, NRC and DOE shall make available, beginning in the pre-license application phase, and each other
31 potential party, interested governmental participant or party shall make available no later than 30 days after the date the repository site selection decision becomes f.inal after review by Congress--
(1) An electronic file including bibliographic header for all documentary material (including circulated drafts but excluding preliminary drafts) generated by, or at the direction of, or acquired by, a potential party, interested governmental participant, or party. Concurrent with the production of the electronic file will be an authentication statement that indicates where an authenticated image copy of the document can be obtained.
(2) In electronic image form, subject to the claims of privilege in § 2.1006, graphic-oriented documentary material that includes raw data, computer runs, computer<
programs and codes, field notes, laboratory notes, maps, diagrams and photographs which have been printed, scripted, or hand written. Text embedded within these documents need not be separately entered in searchable full text. Graphic-oriented documents may include-(i) Calibration procedures, logs, guidelines, data and discrepancies; (ii) Gauge, meter and computer settings; (iii) Probe locations; (iv) Logging intervals and rates; (v) Data logs in whatever form captured; (vi) Text data sheets; (vii) Equations and sampling rates; (viii) Sensor data and procedures; (ix) Data Descriptions; (x) Field and laboratory notebooks; (xi) Analog computer, meter or other device print-outs; (xii) Digital computer print-outs;
32 (xiii) Photographs; (xiv) Graphs, plots, strip charts, sketches; (xv) Descriptive material related to the information identified in paragraph (b)(1) of this section.
(3) In an electronic file, subject to the claims of privilege in § 2.1006, only a bibliographic header for each item of documentary material that is not suitable for image or searchable full text.
(4) An electronic bibliographic header for each documentary material-(i) For which a claim of privilege is asserted; (ii) Which constitutes confidential financial or commercial information; or (iii) Which constitutes safeguards information under§ 73.21 of this chapter.
{b) Basic licensing documents generated by DOE, such as the Site Characterization Plan, the Environmental Impact Statement, and the license application, or by NRC, such as the Site Characterization Analysis, and the Safety Evaluation Report, shall be made available in electronic form by the respective agency that generated the document.
(c) The participation of the host State in the pre-license application phase shall not affect the State's ability to exercise its disapproval rights under section 116(b )(2) of the Nuclear Waste Policy Act, as amended, 42 U.S.C. 10136(b)(2}.
(d) This subpart shall not affect any independent right of a potential party, interested governmental participant or party to receive information.
- 6. Section 2.1004 is revised to read as follows:
§ 2.1004 Amendments and additions.
Any document that has not been provided to other parties in electronic form must be identified in an electronic notice and made available for inspection and copying by the potential party, interested governmental participant, or party responsible for the submission of the
33 document within five days after it has been requested unless some other time is approved by the Pre-License Application Presiding Officer or the Presiding Officer designated for the high-level waste proceeding. The time allowed under this paragraph will be stayed pending Officer action on a motion to extend the time.
- 7. Section 2.1005 is revised to read as follows:
§ 2.1005 Exclusions.
The following material is excluded from the requirement to provide electronic access, either pursuant to § 2.1003, or through derivative discovery pursuant to § 2.1019(i)--
(a) Official notice materials; (b) Reference books and text books; (c) Material pertaining exclusively to administration, such as material related to budgets, financial management, personnel, office space, general distribution memoranda, or procurement, except for the scope of work on a procurement related to repository siting, construction, or operation, or to the transportation of spent nuclear fuel or high-level waste; (d) Press clippings and press releases; (e) Junk mail; (f) References cited in contractor reports that are readily available; (g) Classified material subject to Subpart I of this part; (h) Readily available references, such as journal articles and proceedings, which may be subject to copyright.
- 8. Section 2.1006 is revised to read as follows:
§ 2.1006 Privilege.
(a) Subject to the requirements in § 2.1003(c), the traditional discovery privileges recognized in NRC adjudicatory proceedings and the exceptions from disclosure in§ 2.790 may be asserted by potential parties, interested governmental participants, and parties. In addition to
34 Federal agencies, the deliberative process privilege may also be asserted by State and local government entities and Indian Tribes.
(b) Any document for which a claim of privilege is asserted, but is denied in whole or in part by the Pre-License Application Presiding Officer or the Presiding Officer, mu9t be provided I
in electronic form by the party, interested governmental participant, or potential party that asserted the claim to-( 1) The other participants; or (2) To the Pre-License Application Presiding Officer or to the Presiding Officer, for entry into a Protective Order file, if the Pre-License Application Presiding Officer or the Presiding Officer so directs under§§ 2.1010(b) or 2.101 S(c).
(c) Notwithstanding any availability of the deliberative process privilege under paragraph {a) of this section, circulated drafts not otherwise privileged shall be provided for electronic access pursuant to§ 2.1003(a).
- 9. Section 2.1007 is revised to read as follows:
§ 2.1007 Access.
(a)(1) A system to provide electronic access to the Licensing Support Network shall be provided at the headquarters of DOE, and at all DOE Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, beginning in the pre-license application phase.
(2) A system to provide electronic access to the Licensing Support Network shall be provided at the headquarters Public Document Room of NRC, and at all NRC Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, and at the NRC Regional Offices beginning in the pre-license application phase.
(3) The systems for electronic access specified in paragraphs (a)(1) and (a){2) of this section shall include locations at Las Vegas, Nevada; Reno, Nevada; Carson City, Nevada; Nye
35 County, Nevada; and Lincoln County, Nevada.
(b) Public availability of paper and electronic copies of the records of NRC and DOE, as well as duplication fees, and fee waiver for those records, is governed by the regulations of the respective agencies.
- 10. Section 2.1008 is removed and reserved:
§ 2.1008
[Removed]
- 11. Section 2.1009 is revised to read as follows:
§ 2.1009 Procedures.
(a) Each potential party, interested governmental participant, or party shall-(1) Designate an official who will be responsible for administration of its responsibility to provide electronic files of documentary material ;
(2) Establish procedures to implement the requirements in § 2.1003; (3) Provide training to its staff on the procedures for implementation of the responsibility to provide electronic files of documentary material; (4) Ensure that all documents carry the submitters unique identiffoation number; (5) Cooperate with the advisory review process established by the NRC under
§ 2.1011(d).
(b) The responsible official designated pursuant to paragraph (a)(1) of this section shall certify to the Pre-License Application Presiding Officer that the procedures specified in paragraph (a){2) of this section have been implemented, and that to the best of his or her knowledge, the documentary material specified in § 2.1003 has been identified and made electronically available. The responsible official shall update this certification at twelve month intervals. The responsible official for the DOE shall also update this certification at the time of submission of the license application.
- 12. Section.2.101 O is revised to read as follows:
36
§ 2.1010 Pre-License Application Presiding Officer.
(a)(1) The Commission may designate one or more members of the Commission, or an atomic safety and licensing board, or a named officer who has been delegated final authority on the matter to serve as the Pre-License Application Presiding Officer to rule on disputes over the electronic availability of documents during the pre-license application phase, including disputes relating to privilege, and disputes relating to the implementation of the recommendations of the Advisory Review Panel established under § 2.1011 ( d).
(2) The Pre-License Application Presiding Officer shall be designated before the Licensing Support Network is scheduled to be available.
(b) The Pre-License Application Presiding Officer shall rule on any claim of document withholding to determine-(1} Whether it is documentary material within the scope of this subpart; (2) Whether the material is excluded under §2.1005; (3) Whether the material is privileged or otherwise excepted from disclosure under
§ 2.1006; (4) If privileged, whether it is an absolute or qualified privilege; (5) If qualified, whether the document should be disclosed because it is necessary to a proper decision in the proceeding; (6) Whether the material should be disclosed under a protective order containing such protective terms and conditionc:; (including affidavits of nondisclosure) as may be necessary and appropriate to limit the disclosure to potential participants, interested governmental participants and parties in the proceeding, or to their qualified witnesses and counsel. When Safeguards Information protected from disclosure under section 147 of the Atomic Energy Act of 1954, as amended, is received and possessed by a potential party, interested governmental participant, or party, other than the Commission staff, it shall also be protected according to the
37 requirements of § 73.21 of this chapter. The Pre-License Application Presiding Officer may also prescribe such additional procedures as will effectively safeguard and prevent disclosure of Safeguards Information to unauthorized persons with minimum impairment of the procedural rights which would be available if Safeguards Information were not involved. In addition to any other sanction that may be imposed by the Pre-License Application Presiding Officer for violation of an order pertaining to the disclosure of Safeguards Information protected from disclosure under section 147 of the Atomic Energy Act of 1954, as amended, the entity in violation may be subject to a civil penalty imposed pursuant to § 2.205. For the purpose of imposing the criminal penalties contained in section 223 of the Atomic Energy Act of 1954, as amended, any order issued pursuant to this paragraph with respect to Safeguards Information shall be deemed fo be an order issued under section 161 b of the Atomic Energy Act of 1954, as amended.
(c) Upon a final determination that the material is relevant, and not privileged, exempt from disclosure, or otherwise exempt from production under § 2.1005, the potential party, interested governmental participant, or party who asserted the claim of withholding must make the document available in accordance with the provisions of this subpart within five days.
(d) The service of all pleadings and answers, orders, and decisions during the pre-license application phase shall be made according to the procedures specified in
§ 2, 1013(c) and entered into the pre-license application electronic docket.
( e) The Pre-License Application Presiding Officer shall possess all the general powers specified in§§ 2.721{c) and 2.718.
(f) The Commission, in designating the Pre-License Application Presiding Officer in accordance with paragraphs (a) (1) and (2) of this section, shall specify the jurisdiction of the Officer.
- 13. Section 2.1011 is revised to read as follows:
38
§ 2.1011 Management of electronic information.
(a) Electronic document production and the electronic docket are subject to the provisions of this subpart.
(b) The NRC, DOE, parties, and potential parties participating in accordance with the provisions of this subpart shall be responsible for obtaining the computer system necessary to comply with the requirements for electronic document production and service.
(c) The Licensing Support Network shall be coordinated by the LSN Administrator, who shall be designated before the start of the pre-license application phase. The LSN Administrator shall have the responsibility to--
( 1) Identify technical and policy issues related to implementation of the LSN for LSN Advisory Review Panel and Commission consideration; (2) Address the consensus advice of the LSN Advisory Review Panel under paragraph (e)(1) of this section that is consistent with the requirements of this subpart; (3) Coordinate the resolution of problems experienced by participants regarding LSN availability, including the availability of individual participants' data; (4) Coordinate the resolution of problems regarding the integrity of the documentary material certified in accordance with§ 2.1009(b) by the participants to be in the LSN; and (5) Provide periodic reports to the Commission on the status of LSN functionality and operability.
(d) The Secretary of the Commission shall reconstitute the LSS Advisory Review Panel as the LSN Advisory Review Panel, composed of the interests currently represented on the LSS Advisory Review Panel. The Secretary of the Commission shall have the authority to appoint additional representatives to the LSN Advisory Review Panel consistent with the requirements of the Federal Advisory Committee Act, 5 U.S.C. app. I, giving particular consideration to potential parties, parties, and interested governmental participants who were not members of
39 the NRG HLW Licensing Support System Advisory Review Panel.
(e)(1) The LSN Advisory Review Panel shall provide advice to-(i) NRG on the fundamental issues of the type of computer system necessary to access the Licensing Support Network effectively under paragraph (b) of this section; and (ii) The Secretary of the Commission on the operation and maintenance of the electronic docket established for the HLW geologic repository licensing proceeding under the I
Commission's Rules of Practice (10 CFR Part 2).
(iii) The LSN Administrator on solutions to improve the functioning of the LSN; (2) The responsibilities of the LSN Advisory Review Panel shall include advice on-(i) Format standards for providing electronic access to the documentary material*
certified by each participant to be made available in the LSN to the other parties, interested governmental participants, or potential parties; (ii) The procedures and standards for the electronic transmission of filings, orders, and decisions during both the pre-license application phase and the high-level waste licensing proceeding; (iii) Other duties as specified in this subpart or as directed by the Secretary of the Commission.
- 14. In§ 2.1012, paragraphs (a) and (b)(1) are revised to read as follows, and paragraph {d) is removed:
§ 2.1012 Compliance.
{a) In addition to the requirements of§ 2.101 (f), the Director of the NRC's Office of Nuclear Materials Safety and Safeguards may determine that the tendered application is not acceptable for docketing under this subpart if the Secretary of the Commission determines that it cannot be effectively accessed through the Commission's electronic docket system or if the application is not accompanied by an updated certirication pursuant to§ 2.1009(b).
40 (b}(1) A person, including a potential party given access to the Licensing Support Network under this subpart, shall not be granted party status under § 2.1014, or status as an interested governmental participant under§ 2.715(c), if it cannot demonstrate substantial and timely compliance with the requirements of § 2.1003 at the time it requests participation in the high-level waste licensing proceeding under§ 2.1014 or§ 2.715(c).
- 15. Section 2.1013 is revised to read as follows:
§ 2.1013 Use of the electronic docket during the proceeding.
(a){1) Pursuant to § 2. 702, the Secretary of the Commission will maintain the official docket of the proceeding on the application for a license to receive and possess waste at a geologic repository operations area.
{2) Commencing with the docketing in an electronic form of the license application to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter, the Secretary of the Commission, upon determining that the application can be properly accessed under the Commission's electronic docket rules, will establish an electronic docket to contain the official record materials of the high-level radioactive waste licensing proceeding in searchable full text, or, for material that is not suitable for entry in searchable full text, by header and image, as appropriate.
(b) Absent good cause, all exhibits tendered during the hearing must have been made available to the parties in electronic form before the commencement of that portion of the hearing in which the exhibit will be offered. The electronic docket will contain a list of all exhibits, showing where in the transcript each was marked for identification and where it was received into evidence or rejected. Transcripts will be entered into the electronic docket on a daily basis in order to provide next-day availability at the hearing.
(c)(1) All filings in the adjudicatory proceeding on the license application to receive and
41 possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter shall be transmitted electronically by the submitter to the Presiding Officer, parties, and the Secretary of the Commission, according to established format requirements.
Parties and interested governmental participants will be required to use a password security code for the electronic transmission of these documents.
(2) Filings required to be served shall be served upon either the parties and interested governmental participants, or their designated representatives. When a party or interested governmental participant has appeared by attorney, service must be made upon the attorney of record.
(3) Service upon a party or interested governmental participant is completed when the sender receives electronic acknowledgment ("delivery receipn that the electronic submission has been placed in the recipient's electronic mailbox.
(4) Proof of service, stating the name and address of the person on whom served and the manner and.date of service, shall be shown for each document filed, by-(i) Electronic acknowledgment ("delivery receipr);
(ii) The affidavit of the person making the service; or (iii} The certificate of counsel.
(5) All Presiding Officer and Commission issuances and orders will be transmitted electronically to the parties and interested governmental participants.
(d) Online access to the electronic docket, including a Protective Order File if authorized by a Presiding Officer, shall be provided to the Presiding Officer, the representatives of the parties and interested governmental participants, and the witnesses while testifying, for use during the hearing. Use of paper copy and other images will also be permitted at the hearing.
- 16. In§ 2.1014, paragraph (c)(4) is revised to read as follows:
42
§ 2.1014 Intervention.
{c)
( 4) The failure of the petitioner to participate as a potential party in the pre-license application phase.
- 17. Section 2.1017 is r~vised to read as follows:.
§ 2.1017 Computation of time.
In computing any period of time, the day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period so computed is included _unless it is a Saturday, Sunday, or legal holiday at the place where the action or event is to occur, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor holiday. Whenever a party, potential party, or interested governmental participant, has the right or is required to do some act within a pr_escribed period after the service of a notice or other document upon it, one day shall be added to the prescribed period.
If the electronic docket is unavailable for more than four access hours of any day that would be counted in the computation of time, that day will not be counted in the computation of time.
- 18. In § 2.1018, paragraph { a)( 1) and the introductory text of paragraph ( e) are revised to read as follow.;;:
§ 2.1018 Discovery.
(a)(1) Parties, potential parties, and interested governmental participants in the high-level waste licensing proceeding may obtain discovery by one or more of the following methods:
(i)
Access to the documentary material made available pursuant to § 2.1003 ;
(ii)
-Entry upon land for inspection, access to raw data, or other purposes pursuant to
43
§ 2.1020;
{iii)
Access to, or the production of, copies of documentary material for which bibliographic headers only have been submitted pursuant to § 2.1003(a);
(iv)
Depositions upon oral examination pursuant to § 2.1019; (v)
Requests for ~dmission pursuant to§ 2.742;
{vi)
Informal requests for information not made electronically available, such as the names of witnesses and the subjects they plan to address; and
{vii)
Interrogatories and depositions upon written questions, as provided in paragraph
\\
(a){2) of this section.
(e)
A party, potential party, or interested governmental' participant who has made available in electronic form all material relevant to any dis_covery request or who has responded to a request for discovery with a response that was complete when made is under no duty to supplement its response to include information thereafter acquired, except as follows:
- 19. In§ 2.1019, paragraphs (d), (e), and (i) are revised to read as follows:
§ 2.1019 Depositions.
( d) When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and signature unless the deponent is ill or cannot be found or refuses to sign. The officer shall certify the deposition or, if the deposition is not signed by the deponent, shall certify the reasons for the failure to sign, and shall promptly transmit an electronic copy of the deposition to the Secretary of the Commission for entry into the electronic docket.
(e) Where the deposition is to be taken on written questions as authorized under
44
§ 2.1018(a)(2J, the party or interested governmental participant taking the deposition shall electronically serve a copy of the questions, showing each question separately and consecutively numbered, on every other party and interested governmental participant with a notice stating the name and address of the person who is to answer them, and the name, description, title, and address of the officer before whom they are to be asked. Within ten days after service, any other party or interested governmental participant may serve cross-questions.
The questions, cross-questions, and answers shall be recorded and signed, and the deposition certified, returned, and transmitted in electronic form to the Secretary of the Commission for entry into the electronic docket as in the case of a deposition on oral examination.
(i){1) After receiving written notice of the deposition under paragraph (a) or paragraph (e) of this section, and ten days before the scheduled date of the deposition, the deponent shall submit an electronic index of all documents in his or her possession, relevant to the subject matter of the deposition, including the categories of documents set forth in paragraph (i)(2) of this section, to all parties and interested governmental participants. The index shall identify those records which have already been made available electronically. All documents that are not identical to documents already made available electronically, whether by reason of subsequent modification or by the addition of notations, shall be treated as separate documents.
(2} The following mat~rial is excluded from the initial requirements of § 2.1003 to be made available electronically, but is subject to derivative discovery under paragraph (i)(1) of this section-(i) Personal records; (ii) Travel vouchers; (iii) Speeches;
45 (iv) Preliminary drafts; (v) Marginalia.
(3) Subject to paragraph (i)(6) of this section, any party or interested governmental participant may request from the deponent a paper copy of any or all of the documents on the index that have not already been provided electronically.
(4) Subject to paragraph {i)(6) of this section, the deponent shall bring a paper copy of all documents on the index that the deposing party or interested governmental participant requests that have not already been provided electronically to an oral deposition conducted pursuant to paragraph (a) of this section, or in the case of a deposition taken on written questions pursuant to paragraph (e) of this section, shall submit such documents with the certified deposition.
(5) Subject to paragraph {i)(6) of this section, a party or interested governmental participant may request that any or all documents on the index that have not already been provided electronically, and on which it intends to rely at hearing, be made electronically available by the deponent.
(6) The deposing party or interested governmental participant shall assume the responsibility for the obligations set forth in paragraphs (i)(1 ), (i)(3), (i)(4), and (i)(5) of this section when deposing someone other than a party or interested governmental participant.
,- '),..
Dated at Rockville, Maryland, this.;/,,1,,..,...day of December, 1998.
For the Nuclear Regulatory Commission.
Joh
. Hoyle, Se etary of the Commission.
National Congress of American Indians DOCKETED USNRC.11 i~ lf: I'-/ /r8 "98 APR -l A~
Executive Committee President W. Ron Allen Jamestown S'Klallam Tribe First Vice President Ernie Stevens, Jr.
Oneida Nation of Wisconsin Recording Secretary Lela Kaskalla Nambe Pueblo Treasurer Russell (Bud) Mason Three Affiliated Tribes ice Presidents
.en Area cl M. Clifford Oglala Sioux Albuquerque Area Joe A. Garcia Ohkay Owingeh San Juan Pueblo Anadarko Area Gary McAdams Wichita & Affiliated Tribes Billings Area Earl Old Person Blackfeet Tribe Juneau Area Steve Ginnis Nattve Village of Fort Yukon Minneapolis Area
- a Churchill acs Band of Ojibwe gee Area S. Diane Kel ly Cherokee Nation Northeast Area Michael W. Schindler Seneca Nation of Indians Phoenix Area Ivan Makil Salt River Pima-Maricopa Portland Area Henry Cagey Lummi Nation Sacramento Area Cheryl A. Seidner Table *Bluff Reservation-Wiyot Southeast Area A. Bruce Jones Lumbee Tribe Executive Director JoAnn K. Chase Mandan, Hidatsa & Arikara 2010 Massachusetts Ave., NW Second Floor Washington, DC 20036 202.466.7767 202.466.7797 facsimile March 31, 1998 Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Attention: Rulemakings and Adjudication Staff DOCKET PROPOSED
- /.
( b f1 Fl<. IP07 8C/)
Thank you for the opportunity for the National Congress of American Indians to provide comments to the proposed rule to amend the Nuclear Regulatory Commission Rules of Practice for the licensing proceeding on the disposal of high-level radioactive waste at a geologic repository. The NCAI is a member of the NRC Licensing Support System Advisory Review Panel.
As the oldest largest national Indian advocacy organization in the country the NCAI has a membership of 225 American Indian and Alaska Native governments.
Thank you for accepting into the record our comments on this important issue. We look forward to implementation of the comments into the proposed rule changes by the Nuclear Regulatory Commission. If you have any questions regarding our comments, please call Robert Holden, Director of the NCAI Nuclear Waste Program, (202) 466-7767, fax 466-7797.
Attachment A owledged by card.. ~ - 1 1998
U.S. NUCLEAR REGULATORY COMMISSION RULEMAKINGS & ADJUDICATIONS STAFF OFFICE OF THE SECRETARY OF THE COMMISSION Doc
National Congress of American Indians Comments of the National Congress of American Indians Executive Committee President W. Ron Allen Jamestown S'Klallam Tribe First Vice President Ernie Stevens, Jr.
Oneida Nation of Wisconsin Recording Secretary Lela Kaskalla Nambe Pueblo Treasurer Russell (Bud) Mason Three Affiliated Tribes ice Presidents en Area M. Clifford Ogla/a Sioux Albuquerque Area Joe A. Garcia Ohkay Owingeh San Juan Pueblo Anadarko Area Gary McAdams Wichita & Affiliated Tribes Billings Area Earl Old Person Blackfeet Tribe Juneau Area Steve Ginnis Native Village of Fort Yukon Minneapolis Area
- a Churchill C5 Band of Ojibwe gee Area S. Diane Kelly Cherokee Nation Northeast Area Michael W. Schindler Seneca Nation of Indians Phoenix Area Ivan Makil Salt River Pima-Maricopa Portland Area Henry Cagey Lummi Nation Sacramento Area Cheryl, A, Seidner Table Bluff Reservation-Wiyot Southeast Area A. Bruce Jones Lumbee Tribe Executive Director JoAnn K. Chase Mandan, Hidatsa & Arikara 2010 Massachusetts Ave., NW Second Floor Washington, DC 20036 202.466.7767 202.466.7797 facsimile on the U.S. Nuclear Regulatory Commission Proposal to Amend the Rules of Practice for Issuance of Licenses for a High-Level Radioactive Waste Geologic Repository March 31, 1998 The following comments reflect initial concerns of the National Congress of American Indians on the U.S. Nuclear Regulatory Commission proposal to amend the Rules of Practice for Issuance of Licenses for a high-level radioactive waste geologic repository.
Additional comments will be provided as this action proceeds.
- 1. Tribal governments and peoples in the area are impacted by site characterization of Yucca Mountain and will indeed be impacted by placement of a geologic repository at Yucca Mountain. We are concerned that tribal governments indigenous to the area for hundreds of years before the contemporary governments and populations moved to the area, may not be included as parties to the licensing proceedings.
In regard to Section 2.715, tribal governments are not specifically included. The NCAI urges a broad interpretation affording tribal representatives an opportunity to be a party. This is perhaps not withi°n the purview of the proposed rulemaking, but the matter should be addressed in either a policy decision or another formal rulemaking.
The NCAI plays a national role providing feedback on various issues and dissemination of information, but in the scope of government to government protocol and standing, those tribal governments directly impacted by the NRC licensing activities should be active participants. The NRC may be aware the State of Nevada and some county governments are supportive of meaningful tribal participation. We are mindful of budgetary and other constraints, but the process will remain one of inequity if the State of Nevada and selected counties are deemed parties to the licensing process while tribes continue to be excluded. Several federally recognized tribes have been working with the Department of Energy on cultural resource management issues. These tribes are designated as "impacted", which has no legal or political meaning, but more a descriptive term for the DOE. The NCAI recommends that the NRC set up a process to work with federally recognized Indian nations to determine which tribes are interested in representation and will be part of an interactive process on licensing issues.
- 2. The NCAI believes the Licensing Support System Advisory Review Panel should continue to function in its advisory capacity with the addition of
tribal government members. The NCAI is appreciative of its membership and will continue to serve as a member of the NRC Licensing Support System Advisory Review Panel. The NCAI supports and encourages individual Indian nation participation on the LSSARP to include tribes in the Yucca Mountain area. Several local units of government serve on the LSSARP but tribal governments with a closer nexus for trust responsibility protection by federal government are not members. We believe a process for inclusion should be made for membership of tribes. The National Congress of American Indians supports the notion that Yucca Mountain area tribes should be included as parties to the licensing activities and proceedings.
The Foreword of a 1990 DOE supported study states, "Yucca Mountain symbolizes the cultural diversity and conflicting values in America. To some government officials, state and federal, it is a vast, useless landscape fit only for the toxic waste of modern society. It has an owner who has the right to define how it is used. To the Southern Paiute, Owens Valley Paiute, Western Shoshone, and other groups of Native Americans in the Las Vegas area, Yucca Mountain is a bountiful harvest of plants, animals, and cultural remembrances. It means food, medicine, religious inspiration, and cultural history. It is a living place without ownership; it is there for all to use as needed. The contrast in attitudes between western civilization and Native American cultures is stark and immediate." (Native American Cultural Resources Resource Studies at Yucca Mountain, Nevada; Stoffle, Halmo, Olmsted, and Evans; Institute for Social Research, University of Michigan; 1990).
Indian tribes have a government to government relationship with the United States grounded in the U.S. Constitution and solemn and extant treaties which bind the parties to this day. Indeed, from the earliest days of the U.S., tribal sovereignty has been recognized. As far back as 1832 the United States Supreme Court ruled that the Indian tribes are "distinct, independent public communities." (Worcester v. Georgia, 31 U.S. (6 Pet.) 559 (1832)).
On April 24, 1994, President Clinton issued a "Memorandum for the Heads of Executive Departments and Agencies on Government to Government Relations With Native American Tribal Governments." The Memorandum states that in order to ensure the rights of sovereign tribal governments are fully respected, executive branch activities shall be guided by the following [excerpts]: (a) The head of each executive department and agency shall be responsible for ensuring that the department or agency operates within a government to government relationship with federally recognized tribal governments. (b) Each executive department and agency shall consult, to the greatest extent practicable and to the extent permitted by law, with tribal governments prior to taking actions that affect federally recognized tribal governments. All such consultations are to be open and candid so that all interested parties may evaluate for themselves the potential impact of relevant proposals. (c) Each executive department and agency shall assess the impact of Federal Government plans, projects, programs and activities on tribal trust resources and assure that tribal government rights and concerns are considered during the development of such plans, projects, programs and activities.
- 3. We have stated in the past and we again restate to the Nuclear Regulatory Commission that it should adhere to a consistent federal policy based on treaties, federal law, and the
NRC's responsibilities as a federal agency to ensure that tribal rights and interests are identified and fully considered in decision-making regulatory processes. Thank you for the opportunity for the National Congress of American Indians to provide comments on the proposed rulemaking.
A statement from an unnamed tribal chairperson contained in the cultural resources study mentioned above will serve as closing remarks :
" The best thing that could happen to the United States of America is for a group of us Indian people to be elected to address the Supreme Court. Because there are so many things that they don't really understand. It is like this black thing I am holding. Where did it come from? The earth, right, because all material is from the earth. Who is to say that this part [pointing to one part of the object] is more important than that one over there [pointing to another part of the object]. We have to put these things into perspective. It is like this thing [the high-level waste proposal] that came out. They are saying, "We are not damaging that, all we are going to do is to cut down that tree." As an Indian person I feel I am important, but am I more important than that tree or is that tree more important than me? We are on this earth, we are insignificant. Indian people say, "What's more important; the earth that we stand on, the air that we breathe, or the water that we drink?" They all have their reason to be here and that is what we have to get over to the United States Supreme Court. We are nothing, but to put it all together it forms a circle.
And we all have to live together no matter what, because it's our earth. These things are here, we didn't put them here, so who are we to move them. We didn't create them, but we are here to protect them." (Native American Cultural Resources Resource Studies at Yucca Mountain, Nevada; Stoffle, Halmo, Olmsted, and Evans; Institute for Social Research, University of Michigan; 1990).
Nuclear Regulatory Commission Office of the Secretary Attn: John Hoyle DOCKETED USHRC
'98 APR -1 A 7 :so OF,_
C;:*r,
i.\\.
L 1..1t-
\\.11, RULL.\\. ',.
I
SUBJECT:
CITY OF LAS VEGAS COMMENTS ON PROPOS~WANGE: TO me=
LSS RULE (10 CFR PART 2 SUBPART J)
Dear John:
The following are our comments on the proposed LSS Rule Change. I hope these reach you in time to make the March 31, 1998 cut-off and I apologize for being so late with my input. I think the meeting of February 24th and 25th accomplished a lot towards airing the concerns of many of the parties in attendance, so my comments will be brief.
I think the proposal to use the Internet to access documents related to licensing is a good idea. The Internet provides wide public access which will make the information available to more of the affected parties and the public in general, and certainly the technology of the Internet will continue to improve and expand and become even more user friendly.
The City of Las Vegas has concerns about the elimination of the LSSARP and, in fact, supports the retention of the committee for the foreseeable future. The rule change would replace the LSSARP with an informal committee. This committee would be made up of users and, I would assume, all the current parties. The City would have to agree with many of the comments made at the meeting that once a formal committee becomes established and then becomes replaced with some sort of informal arrangement, the participation and commitment to the committee would diminish. I felt that the meeting in February of the committee was quite informative, and I am not certain that the turn-out, the information, and opinion exchange would be the same. In short, we recommend that the LSSARP as currently structured be retained.
The proposed rule eliminates the position of LSS Administrator and replaces that position with a Pre-License Application Presiding Officer. It is my understanding that the LSS Administrator's responsibility is basically to manage the system, be the watch dog that ensures all affected parties can provide documentation and have access to all documentation and information on the LSS. We view the LSSA as the man in charge to protect the interests of all parties involved in the process, whether they be large federal agencies, like DOE and NRC, or smaller entities and tribes in Nevada or elsewhere.
In previous meetings of the LSSARP and discussions of the duties of the LSSA, it was envisioned that the LSSA would be a responsible position filled by a highly qualified individual from the NRC. We feel that replacing the LSSA with another position creates a gray area and I believe fails to fulfill what affected parties had envisioned in that E-/Jiqi I APR l 1998
---~...... ~~"
U.S. 1-.uv1u;rv, R A
10 IUSIAKINGS &
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position.
Having reviewed the rest of the proposed rule change, the City is generally supportive of the changes to the rule. The question of the LSSA and the LSSARP are two areas that we do not support.
Again, John, I apologize for being so late with these comments.
PC:dh:3/30/98 NW\\comentN RC-LSSrule Commenter:
Pete Cummings March 31, 1998
From:
To:
Date:
Subject:
John:
Pete Cummings < PCUMMINGS@ci.las-vegas.nv.us >
"'JCH@NRC.gov'" <JCH@NRC.gov>
3/31/98 4:21pm City of Las Vegas Comments on Proposed Change to the LSS Rule Attached for your use are the City of Las Vegas comments on the proposed change to the LSS Rule.
From:
To:
Date:
Subject:
"LA FA YE, Miriam" <mdl@nei.org>
"'cag@nrc.gov"' <cag@nrc.gov>
3/27/98 3:43pm Comments DOCKETED USNRC "98 MAR 30 P 2 :JS Attached please find the Nulear Energy Institute (NEI) comments on l (DFF1:.:, 1_,.,F S[:C'~
rv CFR Part 2, Procedures Applicable to Proceedings for the Issuance of A RULt:rv*: mr_.
D Licenses for the receipt of High-Level Radioactive Waste at a Geologic DJUOIC,.. 11 : ',\\J ~
IAFF Repository; Proposed Rule (62 Fed. Reg. 60,789, November 13, 1997)
If you have any question, please feel free to call.
APR -: 1 1998 Acknowledged b cmd....----.................
March 27, 1998 DOCKETED USNRC "96 MAR 30 P 2 :35 OF I' ~ 1' f
Secretary R tb, r: ~'
- 1 U.S. Nuclear Regulatory Commission ADJUCICA,k.,~,,/;rF Washington, D.C. 20555-0001 Attention: Rulemakings and Adjudication Staff Steven P. Kraft
- DIRECTOR, Spent Nuclear Fuel Management
Subject:
1 O CFR Part 2, Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository; Proposed Rule (62 Fed. Reg. 60,789, November 13, 1997)
Gentlemen:
On behalf of the nuclear energy industry, the Nuclear Energy Institute (NEl)1 is pleased to submit these comments on proposed changes to the procedures for licensing high-level waste and spent nuclear fuel repositories. In general, NEI endorses the proposed changes.
The current procedures (promulgated on April 24, 1989 [54 Fed. Reg. 14,925]) were developed by the Nuclear Regulatory Commission (NRC) through a negotiated rulemaking process in which the nuclear industry was represented. The Licensing Support System (LSS) - required by the current rule - was intended to be a stand-alone, electronic document storage and retrieval system for (1) discovery of documents before the license application is filed; (2) electronic transmission of filings by the parties during the proceeding; (3) electronic transmission of orders and decisions related to the proceeding; and (4) access to an electronic version of the docket. Also included were procedures intended to provide for an efficient repository licensing proceeding aimed at assisting NRC in meeting the three to four year licensing requirement contained in Section 114 (d) of the Nuclear Waste Policy Act of 1982 (NWPA).
The proposed changes would upgrade the current procedures to take advantage of developments since 1989 in electronic document storage, retrieval, transmission, etc.,
especially the Internet. These changes are appropriate and help to resolve the industry's concerns with the LSS as originally conceived. In 1989, the industry 1 NEI is the organization responsible for establishing unified nuclear industry policy on matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEI's members include all utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect/engineering firms, fuel fabrication facilities, materials licensees, and other organizations and individuals involved in the nuclear energy industry.
questioned the cost-benefit of a stand-alone LSS (then estimated at $200 million) given the changes that were beginning to occur in electronic document handling and are now being realized. The revised procedures would allow the use of improving technologies by the parties as the technologies become available without further changes to the rule.
The changes will also save significant costs, because the requirement to design, build and maintain a stand-alone LSS is eliminated.
The proposed changes would not diminish, but rather assist in providing an efficient repository licensing proceeding, thereby helping NRC meet the three to four year licensing requirement as required by the NWPA. The parties will be better able to access licensing documentation and more easily participate in the proceeding. In addition, interested members of the general public will have more convenient access through the Internet. Thus, the proposed changes further the principles that underlie the purpose for which the LSS was created.
There were a number of important issues related to the proposed changes discussed at the February 24, 1998 LSS Advisory Review Panel (LSSARP) meeting, including the definition of documentary material, cost and equity concerns, compliance, and the need for the LSS Administrator and the LSSARP. Of these, only the definition of documentary material required additional, significant input. Several LSSARP members indicated that they would submit recommended definitions prior to the close of the comment period. It is recommended that NRC issue for comment a draft of the new definition, while the rest of the rule is issued as final. The rule can then be modified once the definition of documentary material is finalized. This approach would minimize any delay in implementing the revised rule pending the finalization of the definition of documentary material.
NEI appreciates the opportunity to comment on these needed proposed changes. If you have any questions, please do not hesitate to contact us.
Sincerely, Steven P. Kraft
March 30. 1998 NOTE TO:
Emile Juli an FROM:
Chief, Docketing and Services Branch Carol Gallagher fl.,P, ~
ADM. DAS
~
SUBJECT:
DOCKETING OF COMMENT ON PROPOSED 10 CFR PART 2 RULEMAKING Attached for docketing is a comment related to the Proposed Rulemaking on Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository. This comment was received via e-mail on March 27. 1998.
The commenter's name is Steven P. Kraft. Nuclear Energy Institute. Please send a copy of the docketed comment to Kathryn L. Winsberg (mai l stop 015-8-18) for her records.
Attachment:
As stated cc w/o attachment:
K. Winsberg
1014 Carlyon Avenue SE Olympia, WA 98501 Secretary U.S. Nuclear Regulatory Commission Washington D.C. 20555-0001 Attn: Rulemakings and Adjudications Staff Re: 10CFR 2, Subpart J RIN 3150-AF 88
'98 MAR 30 P 2 :48 (360) 943-5610 FAX (360) 943-5648 March 26, 1998
( t,~ FR '1078'1)
Enclosed please find the final comments of Nye County, Nevada on the proposed changes to 10 CFR 2, Subpart J (The LSS Rule). The comments have also been transmitted by E-mail to Ms. Carol Gallagher on this date.
Thank your for your assistance.
Yours very truly, cc: Les Bradshaw Nick Stellavato
~~~
Regulatory & Licensing Advi r Nye County Nuclear Waste Re sitory Project Office Aeknowtaog b
APR 1 1998
U.S. NUCLEAR REGULATORY COMM1..,,
AULEMAKINGS & ADJUDICATIONS ST OFFICE OF THE SECRETARY OF THE COMMISSION OoclYTI t StP *sti Postmark Date
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NYE COUNTY'S COl\\tMENTS ON PROPOSED CHANGES TO 10 CFR 2, SUBPART J After reviewing the summary and transcript of that meeting, the Nye County Nuclear Waste Repository Project Office reaffirms the comments made orally by its representatives at the Advisory Review Panel (ARP) meeting in Las Vegas on February 24 & 25, 1998. These final comments are offered primarily for purposes of emphasis.
General Approach We fully agree with the general approach of moving the LSS to an Internet based system. Clearly, as the Supplementary Information states, and as the ARP members agreed, technology has long since overtaken the LSS development process, and the centralized LSS, while perhaps not entirely "obsolete", can no longer be economically justified. We also agree with the proposed approach to allow flexibility to incorporate innovations in information management technology as they become available. We can simply never play "catch-up", especially in view of the ponderous nature of the rulemaking and government procurement proces*ses. Participants must be free to take advantage of technological advances as they become available without fear of finding themselves in violation of a rule which could become obsolete with the introduction of each new generation of software or hardware.
As stated at the ARP meeting, however, even an Internet based, flexible system should have a name. LSNet, or LSN, seemed to be generally accepted by the participants at the ARP meeting, and we thus recommend it formal adoption and incorporation into the final rule changes.
Documentary Material & Relevancy The definition of "Documentary material" is much improved over an earlier proposal, and coupled with the treatment of what we once called "raw data", or graphic oriented material, as well as the rules applying to derivative discovery in §2.1019, is a good start. Along with, we believe, a majority of the ARP, Nye recommends that the language "or is likely to lead to the discovery of relevant information" be reinserted from the current rule. This would make the LSNet loading requirements more consistent with current discovery practices, yet, with the exclusions which the rule incorporates would in our view keep the burden on the participants, principally of course the DOE, at a workable level. Additionally, the rule itself, and its supplementary information, should clearly provide that the definition applies to
documents which will be used only in the DOE EIS, and/or the NRC's consideration of whether or not to adopt that EIS, and not just to the more narrow (on its face at least) scope of the License Application.
Compliance We agree with the views expressed at the ARP meeting to the effect that, regardless of where within the NRC the position is located, or what its title may be, certain functions of the current LSS Administrator should be retained, and reside with a single officer or organization. Where that officer or entity is located is really an internal matter, so long as the functions and authority clearly exist. Among the functions, as pointed out by the ARP members, should be the ability and authority to review participants readiness to allow access to their documentary material; receive and resolve complaints regarding network problems; perform periodic audits or compliance reviews; assist participants in achieving and maintaining compliance; and coordinate technical issues such as standards for search engines.
Additionally, the Director of NMSS should have the authority, indeed the responsibility, not only to reject the DOE License Application if it is not able to be accessed through the electronic docket. That almost goes without saying. The authority should clearly extend to rejection of the LA if all requirements of the rule are not met at the time the LA is submitted. This can be accomplished be retaining the language of the current §2.101l(d)(6)&(7), and moving those provisions into §2.1012. Furthermore the revised rule should not abandon entirely the concept of some form of independent audit, or compliance assessment program, similar to what was previously proposed, and discussed at the LSSARP meeting in October of 1993.
Advisory Review Panel We appreciate the desire on the part of the NRC to reduce the number of formal advisory committees in keeping with the administration's policy in that area, but Nye, like other members of the ARP, strongly opposes reducing the LSSARP to a mere "informal users group". We thus much prefer the alternative expressed in the draft of a revised rule. Even that draft requires further revision, however. The State of Nevada and each affected unit of local government should be separately represented, rather than through any form of coalition, as §2.101l(c)(2) now calls for. That coalition language is an artifact of the original negotiating committee, and in practice has never been followed. Each unit of local government has had separate representation, as a matter of practice, on the LSSARP. The revised rule should acknowledge and formalize that reality. This is particularly true for Nye County, which has had its status as the situs jurisdiction recognized formally by the Congress in the NWPA, and* whose interests,
position of neutrality, and level of activity in the program, are significantly different from other affected local governments. We believe there was strong support for this position, if not and outright commitment, expressed by the NRC representatives at the ARP meeting.
Mr. John C. Hoyle Secretary Department of Energy Washington, DC 20585 March 25, 1998 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Attention: Rulemakings and Adjudications Staff Re: Comments on Proposed Revision to 10 CFR Part 2, Subpart J
Dear Mr. Hoyle:
DOCKETED U RC "96 MAR 27 A 7 :sa The Department of Energy is pleased to submit comments on the Nuclear Regulatory Commission's Notice of Proposed Rulemaking for amendments to 10 CFR Part 2, Subpart J, Proc;iures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository.
The intent of Subpart J is to reduce the time normally spent on the discovery process by using an electronic information management system to make relevant information available to all parties during the repository prelicensing phase, as well as during any adjudicatory process. The existing rule envisions use of a stand-alone computer, the Licensing Support System (LSS). The proposed amendments address two main assumptions: (1) emerging information management technologies can accomplish this function more effectively and with less cost than the LSS, and (2) there exists a substantial backlog of irrelevant materials that may not have been identified or properly maintained, yet must be included in the LSS under the current rule. The proposed amendments would replace the LSS with an integrated electronic information system using web-based technology and modify the scope of documentary material to be included in the LSS.
The Department is highly supportive of the proposed use of new information management technologies. Our principal comment on the revision is that the scope of documentary material has not been sufficiently narrowed to exclude irrelevant material. Our detailed comments are provided in the attachment to this letter.
Should you have questions, please contact Nancy Slater at 202-586-9322 or Claudia Newbury at 702-794-1361.
Attachment Sincerely,
~~a-~
_Ly Lake H. Barrett, Acting Director p
Office of Civilian Radioactive Waste Management APR - l 199
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U.S. NUCLEAR REGULATORY COMM! SION RULEMl!lKINl~S &ADJUDlCATIONS STAFF OfRCEOFTHESECRETARY OF THE COMMI SION
Office of Civilian Radioactiv\\e Waste Management U.S. Department of Energy Comments on the Proposed Rule at 10 CFR Part 2, Subpart J Attachment Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository SUBSTANTIVE COMMENTS
- 1.
§ 2.1001 Definitions The proposed definition of"documentary material" is unnecessarily broad. One of the main reasons cited by NRC for proposing the rule change is that there exists a substantial backlog of irrelevant documents that may not have been identified or properly maintained, yet which must be included in the LSS under the current rule. NRC noted that this backlog would not allow timely certification of the LSS. DOE proposes the following modifications to the definition to more completely address this concern:
Delete the proposed third class of documentary material, "all reports and studies, prepared by or on behalf of the potential party, interested governmental participant, or party, including all related "circulated drafts," relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party."
The DOE believes that the first two classes of documentary material are defined broadly enough to capture all relevant materials. DOE is concerned that the NRC-proposed definition would encompass reports and studies irrelevant to the specific license application, for example, reports and studies made for other sites and for predecessor agencies.
- 2.
§ 2.1004 Amendments and Additions, and§ 2.1010 Pre-License Application Presiding Officer This section allows two working days to make available for inspection and copying any document that has not been provided to other parties in electronic form. The same type of two-day limit is also imposed in § 2.1010( c) regarding material determined to be relevant and not privileged or exempt. Noting that reasonable and expeditious efforts to reproduce and make documents, particularly large documents, available could easily consume two days, the DOE suggests that these time limits (in§ 2.1004 and§ 2.1010(c)) be changed from two working days to ten working days. Such a change in the rule would also relieve 1
the Presiding Officer of the burden of evaluating and granting minor extensions of time, where these are likely to result mainly from the time necessary for clerical and administrative processing.
- 3.
§ 2.1007(a)(3) Access The proposed rule retains requirements for electronic access systems in Las Vegas, Reno, Carson City, and Nye and Lincoln Counties(§ 2.1007(a)(3)). However, the proposal does not specify which locations are the responsibility of the NRC or DOE. The DOE requests that the rule be clarified to assign responsibility for the systems in each of the locations specified.
- 4.
§ 2.1007(c) Access Subsection ( c) appears to require both the NRC and the DOE to treat docketed documents as agency documents under FOIA. However, it is unclear which agency must treat which documents as its own in response to requests for information. The final phrase of the first sentence "if these documents remain under the custody and control of the agency or organization that identified the documents" is confusing. The DOE proposes clarifying the responsibility under this provision by specifying that all documents entered into the docket pursuant to § 2. 702, other than those submitted by another Federal agency, are NRC documents for the purposes ofFOIA.
- 5.
§ 2.1009 Procedures The proposed rule replaces the six month intervals for certifying that the procedural requirements have been met with an unspecified interval "upon order of a duly appointed presiding officer." The DOE believes that regular and prescribed certification will help
- ensure the success of the electronic docket system and suggests that a twelve-month period would be appropriate.
- 6.
§ 2.1010 Pre-License Application Presiding Officer Subsection (a)(l) should be clarified as to who may serve as the "Pre-License Application Presiding Officer." The first sentence appears to consider only the "named officer who has been delegated final authority on the matter" as the "(Pre-License Application Presiding Officer)." As written, the other references to the Commission members and the atomic safety and licensing board are not direGtly connected to the referenced Officer. If the Officer is to be designated from among the Commission, the atomic safety and licensing board, or a named officer, the sentence should be revised. The DOE proposes that the introductory phrase be revised as:
"The Commission may designate one or more members of the Commission, or of an atomic safety and licensing board, or a named officer who has been delegated 2
final authority on the matter, to serve as the Pre-License Application Presiding Officer to rule on disputes over the electronic availability of documents during the pre-license application phase... ".
- 7.
§ 2.l0ll(c) Management of Electronic Information The DOE supports the proposed idea of modifying the role of the Advisory Review Panel (ARP) that advises the NRC and the Secretary of the Commission. Regarding the alternative, discussed in 62 FR 60791, of replacing this panel with a more informal users group, the DOE believes that it is premature to replace the panel with such a users group.
A more formal technical group still appears appropriate for providing the advice specified in§ 2.101 l(d), because the formality will ensure that each ARP member's concerns about the structure of the electronic docket will be addressed in a documented manner.
- 8.
§ 2.1012(d) Compliance The proposed rule states that the Pre-License Application Presiding Officer may suspend or terminate access to the pre-license application electronic docket for a party who is not in compliance. While control of access could be appropriate, such control contradicts the recognition that the information is publicly available, per§ 2.1007(a)(l), and could be made available universally through the Internet. The notion of controlled access suggests that the NRC does not intend to require an Internet-based system with the level of public access generally associated with the Internet. The DOE suggests that the NRC clarify the purpose and method of access control.
- 9.
§ 2.1017 Computation of Time Because access to the electronic docket may be unavailable for many reasons, such as the computer being used by a party is unavailable due to routine maintenance or a power failure, etc., it may be useful to define what is meant by unavailable or to require prompt notice if the unavailability of the system is due to a local cause.
- 10.
§ 2.1019 Depositions Section 2.1019(i) requires deponents to submit an electronic index of all documents in the deponent's possession relevant to the subject matter of the deposition. This section further states that "documents that are not identical to documents already made available electronically, whether by reason of subsequent modification or by the addition of notations, shall be treated as separate documents" and that a paper copy of all documents not already made available electronically shall be brought to the oral deposition or accompany a written deposition.
The DOE recognizes that the documents potentially subject to this requirement could be 3
large. It may better serve the needs of those using the system if this requirement were clarified to recognize that modifications and notations could be made on only small parts of large documents, and therefore, only the affected parts of the documents would be submitted as separate documents under§ 2.1019(i)(l).
EDITORIAL COMMENTS
- 11.
§ 2.1005 Exclusions The word "Preferences" in§ 2.1005(f) should be changed to "References."
- 12.
§ 2.1010 Pre-License Application Presiding Officer The word "prvliged" in § 2.101 0(b )(3) should be change to "privileged."
4
Department of Comprehensive Planning Mission Statement: " To serve and protect the community by guiding development, enhancing the living environment, and promoting innovative ways to conserve natural resources."
COMMISSIONERS Yvonne Atkinson Gates, Chair Lorrln T. Hunt, Vice-Chair Erin Kenny Mary J. Kincaid Lance M. Matone Myrna Williams Brue L Woodbury Dale W. Askew, County Manager Director Richard B. Holmes March 25, 1998 500 S. Grand Central Parkway, Suite 3012 PO Box 551741 Las Vegas, NV 89155-1741 (702) 455-4181 Fax: (702) 385-8940 Secretary U.S. Nuclear Regulatory Commission Mail Stop 016G 15 Washington, D.C. 20555-0001 Attention: Rulemakings and Adjudications Staff
Subject:
COMMENTS BY THE CLARK COU TY DEPARTMENT OF COMPREHENSIVE PLAN ING, NUCLEAR W 1 STE D1VISION TO REVISED 10 CFR PART 2 SUBPART J (THE "LICENSING SUPPORT SYSTEM") RULE To whom it may concern:
Clark County appreciates the opp01iunity to comment on the proposed revisions to 10 CFR Part 2 Subpart J (The "Licensing Support System") Rule. Clark County also welcomed the opportunity to discuss the proposed revisions at the February 24,
- 1998 meeting of the Licensing Support System dvisory Review Panel (LSSARP) in Las Vegas. The meeting provided for some excellent interactions on issues associated with !he proposed changes.
The following are our comments to the proposed Rule:
The Proposed "Licensing Support System" We support the NRC proposal to utilize the Internet to facilitate the review of information that will be used to support the licensing application. It is important to take advantage of the advances in technology that have transpired since the original Rule was promulgated in the late l 980's. The increased sophistication of Internet and the reduced cost of high-speed computers can facilitate access to relevant documents and information. While we are supportive of this change in the Rule, several issues related to the use of the Internet still need to be addressed.
Provision must be made, for example, to enable the public and other stakeholders without computers to have access to the information. The use of Department of Energy (DOE) and NRC reading rooms, along with Internet availability at local libraries, will assist interested residents in the Las Vegas area. In the smaller towns and rural locations of the affected units oflocal government (AULG), however, other (l)
U.S. NUCLEAR REGULATORY COMMISSION RULEMAKINGS & ADJUDICATIONS STAFF OFFICE OF THE SECRETARY OF THE COMMISSION Do;::ument Statistics Postmark Date 3/:]s/'f i
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Clark County, Nevada Comments to Revised Subpart J March 20, 1998 Page 2 provisions may need to be made to enable the public involvement. The NRC should survey the AULG and other public groups to determine if there will be problems and to discuss how potential information retrieval issues can be resolved.
Also, thought needs to be given to ensuring that the inforn1ation available on the Internet is organized and indexed to facilitate access. Having a Home Page, perhaps using the existing LSS Homepage, with a descriptive tutorial explaining how data and information could be retrieved would be one way to assist reviewers in initiating search queries.
The Licensing Support System Advisory Review Panel (LSSARP)
Clark County supports a LSSARP organized under the provisions of the Federal Advisory Committee Act (Public Law 92-463), and :.ipplicab e regulations (DOE Order 1130.6, with Change 1). Retaining formal d~signation will assist in providing a more stable committee to advise DOE and NRC on licensing issues. Continuity is needed and desirable due to the complexity of the issues associated with licensing.
It is also important for the parties potentially impacted by the Yucca Mountain Program to have an advisory committee with the authority to provide needed recommendations to the NRC.
Informal, ad hoc committees without a strong entitlement or basis for existence have a tendency over time to become ineffective. Turnover in participants is often high and there may be less commitment to the objectives of the program.
A second issue has to do with representation on the LS SARP. When the LS SARP was first organized there were two seats for affected governments. Nye County and a Coalition of affected governments both had seats. At the time, however, Clark, Lincoln and Nye counties were the only the three affected units of local government (AULG),. Since that time seven additional counties, for a total of ten counties, have been designated as affected by DOE.
Since each AULG has an official mission defined in The Nuclear Waste Act and amendments, it is important that each be allowed a seat on an LSSARP. Each county has a different perspective on Yucca Mountain issues and each should be afforded an
Clark County, Nevada Comments to Revised Subpart J March 20, 1998 Page3 opportunity to bring their perspective to the table. A coalition of AULG would not be able to provide one consensus viewpoint.
Topical Guidelines Reference is made in the Proposed Rules to Topical Guidelines in Regulatory Guide 3.69. Having reviewed the Topical Guidelines subsequent to the February 24, 1998 meeting I believe that those concerns expressed by Clark County and others at earlier meetings have been resolved.
For the record, we have expressed concern that the version of the Topical Guidelines had excluded a category of information important to Clark County and others during the pre-licensing phase of the program. Socioeconomics, or in the case of the Yucca Mountain Program the effects of Yucca Mountain program activities on the communities potentially impacted, had been eliminated as a topic of concern.
Socioeconomics had been included as a result of the negotiations that transpired during the development of the original Rule. We're pleased that the current version has once again has included Socioeconomics.
We have also strongly supported the NRC inclusion of Transportation and Environment as topical issues as well as the reference to the Environmental Impact Statement in the Guidelines.
Licensing Support Systems Administrator The need for organization and management of the large amounts of information considered during the licensing application review phase provides a strong rationale for retaining the position of Systems Administrator. The revised Rule, however, proposes to eliminate the NRC Systems Administrator :(LSSA) position. What remains is a Pre-Licensing Application Presiding Officer. While the Presiding Officer can, undoubtedly, perform some of the functions intended for a LSSA (e.g., acting as an arbitrator for debates about what known information can be incorporated into the system) other duties envisioned for the LSSA would not be served.
An important role for the LSSA, for example, was to contribute to the design and management of the LSS. The LSSA would also act as a "traffic cop" to ensure that the interests of all parties in licensing would be accommodated (including, significantly, the public). The LSSA, in this case, could serve to balance the priorities
Clark County, Nevada Comments to Revised Subpart J March 20, 1998 Page4 for data input into the system.
Another function of a LSSA would be to assist in organizing the universe of documents important for licensing to facilitate review by all parties. The small entities, as the AULG and public are termed in the text of the Rule, will not have the time nor the resources to determine whether all info1mation important to their specific licensing interests has been captured. Having an LSSA w,mld be particularly important to facilitate the review of the many small entities that may be involved in reviewing particular aspects of the license application.
An LSSA will obviously not be able to resolve all the licensing review problems. It can, however, serve to audit the system to ensure that the review process is operating as intended and meets the needs of all parties. It can add credibility to the review process.
The statement by Mr. Cotter at the February 24, 1998 LSSARP meeting in Las Vegas provides a strong statement about the ne~d for an Administrator. "Now, you 're taking a known system and you 're replacing it with a system which is being created as we speak and with which none of us have any experience.... You need to have an LSS administrator who has a defined responsibility... whose purpose is to take care of this need full time for a period of four years. "
As a final point the LS SARP can play a strong role in defining the responsibilities of a LSSA.
Public Participation There was some discussion at the February 24, 198 meeting about the scope of the data available for the public review, particularly during the pre-licensing phase. The public and other stakeholders should have the opportunity to review all available information on licensing. It is important that all information available to groups such as the LSSARP should be made available to the public at the same time.
Environmental Impact Statement (EIS)
A key document for all affected governments will be the EIS. The EIS, which is to be released in the summer of 1999, must be made available in electronic format as early as. Since a 90 day review period, standard for stakeholder review of an EIS
Clark County, Nevada Comments to Revised Subpart J March 20, 1998 Page5 does not appear to be much time for the review of what will probably be an incredibly large document, it is important that the EJS be available for review in electronic format as individual sections are completed. Because of the importance of the document, this will facilitate review.
Summary There are obviously many advantages to all parties, thanks to advances in technology, to the proposed revisions. The complexity of the program as well as the importance of the decisions being made, still necessitate, however, a system that must be designed and managed. Creating a totally laissez.faire system, however, leaves much to chance. Restoring a number of the provisions of the original rule, however, the LSSA position and the LSSARP will assist in enabling all stakeholders to be actively involved in the licensing review.
Thank you again for the opportunity to comment. Clark County will continue to be an active participant on the LSSARP and in licensing review.
If there are questions please contact me at (702) 455-5175.
cc:
John Hoyle, Secretary Richard B. Holmes Board of Count Commissioners Affected Units of Local Government State of Nevada lssrulc8.ml8
AGENCY:
ACTION:
DOCKET PROPOSED RULE -- -
( (,A Fl f,o 1 gq NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 RIN 3150-AF88 Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository Nuclear Regulatory Commission.
Extension of public comment period.
DOCKETED USNRC
SUMMARY
On November 13, 1997 (62 FR 60789), the NRC published for public comment a proposed rule to amend the Rules of Practice for the licensing proceeding on the disposal of high-level radioactive waste at a geologic repository (HLW proceeding). The comment period for this proposed rule was scheduled to expire on January 27, 1997. In a letter dated December 31, 1997, and received by NRC on January 12, 1998, a representative of Clark County, Nevada, requested a 30 to 60-day extension of the comment period. This extension is requested to allow Clark County, Nevada, and other affected units of local government, whose funding for participation in the HLW proceeding has only recently been restored, sufficient time to review the proposed rule and submit comments. In response to this request, the NRC has decided to extend the comment period for 60 days.
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2 DATES:
The comment period has been extended 60 days and will now expire on March 30, 1998. Comments submitted after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except for comments received on or before this date.
ADDRESSES:
Send comments by mail addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Attention: Rulemakings and Adjudications Staff.
Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:30 am and 4: 15 pm on Federal workdays.
You may also provide comments via the NRC's interactive rulemaking web site through the NRC home page (http://www.nrc.gov). This site provides the availability to upload comments as files (any format), if your web browser supports that function. For information about the interactive rulemaking site, contact Ms. Carol Gallagher, (301) 415-5905; e-mail CAG@nrc.gov.
Documents related to this rulemaking, including comments received, may be examined at the NRC Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC. These same documents also may be viewed and downloaded electronically via the interactive rulemaking website established by NRC for this rulemaking.
3 FOR FURTHER INFORMATION CONTACT:
Kathryn L. Winsberg, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-1641, e-mail KLW@nrc.gov.
Dated at Rockville, Maryland, this 27th day of January, 1998.
For the Nuclear Regulatory Commission.
~
v.c~ -Co.A Annette Vietti-Cook, Acting Secretary of the Commission.
Department of Comprehensive Planning Mission Statement: "To serve and protect the community bi; guiding development, enhancing the livPgOUCSK ERIC£ D environment, and promoting innovative ways to conserve natural resources."
COMMISSIONERS Yvonne Atkinson Gates, Chair Lorraine T. Hunt, Vice-Chair Erin Kanny Mary J. Kincaid Lance M. Malone Myrna WIiiiams Bruce L Woodbury Dale W. Ask-, County Manager Director Richard B. Holmes "98 JAN 12 A10 :43 500 S. Grand Central Parkway, Suite 3012 PO Box 551741 Las Vegas, NV 89155-1741 (702) 455-4181 Fax: (702) 385-8940 December 31, 1997 Mr. John Hoyle Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DOCKET PROPOSED RULE
- l
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Subject:
RESOLUTION OF LICENSING SUPPORT SYSTEM (LSS)
ISSUES AND DRAFT PROPOSED RULE, 10 C.F.R. PART 2, SUBPART J
Dear Mr. Hoyle:
This is in reference to the draft Rule, 10 C.F.R. Part 2, Subpart J, and related Licensing Support System (LSS) issues, that was released by the Nuclear Regulatory Commission (NRC) for review in November of 1997.
As you are aware, representatives from the affected units of local government (AULG), the State of Nevada and others as members of the LSS Advisory Review Panel (LSSARP) have had the opportunity both to participate in the negotiations that resulted in the original Subpart J Rule and, more recently, to consider options to implement the LSS.
With the deadline for comments fast approaching, I would like to propose several options for your consideration. The loss of funding for AULG for FY 1996 and 1997, of course, has severely hindered the abilily of local governments to actively participate in Yucca Mountain activities, including issues associated with the LSS.
Although AULG funding for FY 1998 has been restored, the January 27, 1998 deadline for comments on the proposed Rule will be difficult for most AULG to meet since most will be reconstituting their Programs in early January. For these reasons I am, therefore, requesting that the NRC give consideration to extending the current deadline 30 to 60 days to provide the AULG with additional time to review the proposed Rule.
U.S. NUCLEAR REGULATORY COMMtsc::* N RULEMAKINGS & ADJUDICATIONS STA :
OFFICE OF THE SECRETARY OF THE COMMISSION Ooalnent Statistics Posbnmtt Date
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Letter to John Hoyle December 31, 1997 Page2 Also, because of the effort devoted by a number of parties both in the negotiations and implementation phases, I think it is also important to have a meeting of the LSSARP before the Rule is finalized. Because of the importance of the issues to Nevadans, I would suggest having the meeting in Nevada ( either Reno or Las Vegas). One option would be to schedule a LSSARP meeting around a planned AULG/DOE meeting on Friday, January 23, 1998. Realizing that the time frame is tight perhaps the LS SARP could meet on Thursday, January 22, 1998. I would be glad to assist in arranging for a room in the Clark County Government Center for the meeting.
Thank you for your consideration of this matter. I would be happy to discuss this further with you at your convenience.
cc: Affected Unit of Local Government Representatives Richard B. Holmes nrclss7
I.
AGENCY:
ACTION:
DOCKET '11 BER PROPO~t:
I,l;
- d :t C ft;:i ~~1,01~9)
NUCLEAR REGULA TORY COMMISSION 10 CFR PART 2 oocw~,f-01-PJ USNRC "97 NOV -7 P2 :Ql
.RIN 31 S0-AFSS OFF!Ci OF SECI*, T '.RY RULF,iL~? l
- t iC)
ADJUDICAI 1(::-':-j~,.) fAFF Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository Nuclear Regulatory Commission.
Proposed rule.
SUMMARY
The Nuclear Regulatory Commission is proposing to amend its Rules of Practice for the licensing proceeding on the disposal of high-level radioactive waste at a geologic repository (HLW proceeding). The proposed amendments are intended to allow application of technological developments that have occurred since the original rule was adopted in 1989, while achieving the original goals of facilitating the Commission's ability to comply with the schedule for decision on the construction authorization for the repository contained in Section 114(d) of the Nuclear Waste Policy Act, and providing for a thorough technical review of the license application and equitable access to information for the parties to the hearing.
a.,,_.1...A~d~
(I'-'_~... T. -, ~ 19 'I 8' DATES: Submit comments by ps EWfS AFfl!~ PU!LICM"ION]. Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date.
ADDRESSES: Send comments by mail addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Attention: Rulemakings and Adjudications Staff.
Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:30 am and 4: 15 pm on Federal workdays.
Y<:>u may also provide comments via the NRC's interactive rulemaking web site
2 through the NRC home page (http://www.nrc.gov). This site provides the availability to upload comments as files (any format), if your web browser supports that function. For information about the interactive rulemaking site, contact Ms. Carol Gallagher, (301) 415-5905; e-mail CAG@nrc.gov.
Documents related to this rulemaking, including comments received, may be examined at the NRC Public Document Room, 2120 L Street NW., (Lower Level),
Washington, DC. These same documents also may be viewed and downloaded electronically via the interactive rulemaking website established by NRC for this rulemaking.
FOR FURTHER INFORMATION CONTACT: Kathryn L. Winsberg, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301)415-1641, e-mail KLW@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Background The existing procedures for licenses to receive high-level radioactive waste at a geologic repository were developed to address the Nuclear Regulatory Commission's concern regarding how best to review the U.S. Department of Energy (DOE) license application for a first-of-a-kind high-level radioactive waste (HLW) repository during the 3-year time period dictated by Section 114(d) of the Nuclear Waste Policy Act. The Commission believed it necessary to reduce the time normally spent on the discovery process at the start of a licensing proceeding and the time-consuming service of documents during the proceeding if the Commission were to reach its decision within the allotted time. The Licensing Support System (LSS) concept, an electronic information management system, was created to achieve this time reduction by making the information and data supporting a DOE application available simultaneously in a centralized database to all interested parties before the application is submitted and formal NRC review begins. Emerging information management
I I 3
technologies for issue identification, electronic storage and retrieval, and electronic mail were recommended for these functions to help achieve the objectives of more effective and efficient review.
The Commission employed the technique of negotiated rulemaking to develop the regulations governing the development and use of the LSS. Negotiated rulemaking is the process by which the agency and the interests affected by a rulemaking meet to attempt to reach a consensus on a draft iproposed rule. If a consensus is reached, the agency publishes the negotiated rule as the agency's proposed rule. The Commission selected the negotiated rulemaking approach to address the LSS issue for several reasons. In 1987, the idea of use of an electronic information management system in a Commission adjydicatory proceeding was novel, not only for the Commission, but in general. Therefore, the I
development of the rules for the use of such a system would benefit from discussion and joint problem solving by those who might ultimately use the system and had experience with the Commission's traditional adjudicatory process. Furthermore, the potential users of the LSS possessed unique information that would be important to the design of the system, such as their computer capability and the amount and types of relevant documents that they might generate. In addition, the potential for consensus was enhanced by the fact that the LSS rule focused on procedures for conducting the licensing process that might benefit all parties, rather than focusing on substantive technical criteria for a licensing process. Finally, the success of the LSS concept depended upon potential parties voluntarily complying with the licensing process for document identification and submission i!'l the period before the DOE license application was submitted. Therefore, the involvement of interested parties in the development of the provisions to govern the use of the LSS was essential.
The Commission initiated the negotiated rulemaking in August 1987. The negotiating
4 committee, composed of State, local, and tribal governments, industry representatives, NRC, DOE, and environmental groups, completed its work in July 1988. Except for the-industry coalition, all the parties on the negotiating committee agreed on the text and supplementary information of a draft proposed rule. However, even the one dissenting party, the industry representative, had been a full and active participant in the drafting of the regulatory text and supporting information. Industry did not join the final consensus at the end of the process based on its belief that the use of a new technology in the licensing process would not prove cost-beneficial. At that time, the cost of the *LSS was estimated by DOE to be in the $200 million range. The Commission, recognizing the agreement among the other parties on the negotiating committee, decided to publish the negotiated draft proposed rule as the Commission's proposed rule in November 1988. Because of this effort, the final LSS rule (10 CFR Part 2, Subpart J), "Procedures Applicable to Proceeding for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository", was promulgated on April 24, 1989 (54 FR 14925).
The LSS rule assigned the LSS Administrator (LSSA) function to the NRC which, would be responsible for the management, administration, operation, and maintenance of the LSS; pursuant to DOE's agreement, gave DOE responsibility for the design, development, and implementation of the LSS; and established the charter of the LSS Advisory Review Panel (LSSARP) to provide consensus guidance on the design and development of the LSS _
to both NRC and DOE. The LS~ was intended to provide a central, shared, federally funded database of licensing information beginning in 1995, the year DOE was expected to submit its application for a construction permit for the repository. The Commission adopted minor amendments further clarifying these procedures in a final rule published on February 26, 1991 (56 FR 7787).
f '
5 The Licensing Support System Administrator (LSSA) was appointed in January 1989.
The LSSARP was formed, holding its first meeting In December 1989. Also in December 1989, well before any serious development work could be started on the LSS, the Department of Energy revised its repository program.schedule to extend its anticipated license application date from 1995 to 2001. Consequently, the LSS development schedule was extended.
II. Discussion The development of the LSS that was devised in the original procedural rules in 10 CFR Part 2, Subpart J, has not been accomplished during the time that has passed since adoption of the rule. Many delays and changes in personnel and program structure have attended the Department of Energy's efforts to develop the LSS. Budgetary shortfalls and the unanticipated length of time that it has taken to develop the licensing application for the repository not only delayed the development of the LSS, but also resulted in several additional years' accumulation of potential licensing information.
Because of the length of time involved and the narrowing of the repository development program, much of the early material thought to be relevant at the time_ the rule was developed may no longer be relevant to the actual licensing proceeding that may not begin until about 2002. Also because of the extended period of time it has taken to develop the LSS for DOE's use as a document management system, it appears that all accumulated documents may not have been identified and maintained pro~erty for tracking of important repository development decisions. In addition, because document capture may now Involve much larger backlogs than originally contemplated, the risk of failing to capture all the material originally required to be placed in the LSS is substantially larger than originally assumed. In order for the current Subpart J rules to apply, the LSSA must certify that the
6 DOE has complied with the requirement to enter all relevant documents in the LSS.
Therefore, all of these factors combine to produce the high likelihood that the current rule cannot be implemented as originally envisioned. If not, then 10 CFR Part 2, Subpart J, will no longer apply. Instead, Subpart G, the generally applicable procedures for licensing proceedings, will apply. This means that there would be no pre-license application access to documents.
Although the development of the LSS has remained stalled, the state of technology in document automation and retrieval has overtaken the 1986 technology an which the original LSS was to be based. The use of computers to generate and maintain the complex documents of a party in litigation is widespread and commonplace. The Internet is universally available to tie disparate and geographically dispersed systems together. Readily available commercial software applications can perform the document management functions of the LSS. Therefore, the.centralized LSS envisioned at the time the LSS. rule was developed has become obsolete. The enormous expense of designing and maintaining a stand-alone system required by the current rules appears to be an unjustified expense, especially when it appears unlikely that the rule will be able to be implemented successfully even if the LSS is created.
Consequently, the Commission is proposing to amend its rules to allow more flexibility to incorporate the advantages of new information management technologies in the procedural rules for the licensing of the geologic repository. This would eliminate the LSS as a uniquely designed stand-alone system, while still maintaining the following primary functions of the LSS as a mechanism for the:
(1) Discovery of documents before the license application is filed; (2) Electronic transmission of filings by the parties during the proceeding;
7 (3) Electronic transmission of orders and decisions related to the proceeding; ~d (4) Access to an electronic version of the docket n,
The Commission believes that the proposed rule would continue to support the model schedule for conducting the licensing proceeding within the 3-year statutory period that was published in the Statement of Considerations for the original 10 CFR Part 2, Subpart J, rule published on April 14, 1989 (54 FR 14925, 14939}.
,1 The proposed rule would eliminate the current prescriptive requirement In 1 O CFR Part 2, Subpart J, for a centralized "Licensing Support System" administered by the NRC and therefore also would eliminate the requirement for an LSS Administrator to ensure the_
viability of the central database. To replace these features of the existing rule, the proposed rule would require that all potential parties, Including the NRC and DOE, make their documentary material available In electronic form to all other participants beginning in the pre-license application phase. This requirement is stated without unduly restrictive technological specifications, In order to accommodate flexible implementation consistent with current or future technological developments.
Documentary material would be defined as the material upon which a party intends to rely in support of its position in the licensing proceeding; any material which Is relevant to, but does not support, that material or that party's position; and all reports and studies, prepared by or on behalf of the potential party, interested governmental participant, or party, Including all related *circulated drafts,* relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of \\,Yhether they will be relied upon and/or cited by a party. For the purposes of this rule, the pre-application phase would begin.on the date that the President submits the site recommendation to Congress. This timing would allow access to the parties' documentary material enough before DOE submits the license
8 application to allow advance preparation of contentions and discovery requests before the license application, but late enough in the repository development process.to provide meaningful information.
A Pre-License Application Presiding Officer would resolve any disputes over electronic access to documents during the pre-license application phase. Potential parties would be required to certify to the Pre-License Application Presiding Officer that they have complied with the requirement to provide electronic access to their documentary material. The requirements of the current rule for an electronic hearing docket would be retained, as well as the limitations on the permissible forms of discovery after the application is filed.
The Commission is considering two alternatives regarding the LSS Advisory Review Panel. In this proposed rule, because the concept of the LSS would be replaced, the requirement for an LSS Advisory Review Panel would be modified so the panel can advise the Secretary of the Commission regarding standards and procedures for electronic access to documents and for maintenance of the electronic docket. This would require renaming of the advisory committee and redrafting of the committee charter. However, the Commission is also considering the alternative of replacing the Advisory Review Panel with a more informal users group, and particularly requests comments from potential parties to the HLW repository licensing proceeding re*garding these two alternative arrangements.
Ill. Section-by-Section Description of Changes In § 2.1000, the reference to § 2. 709 would be removed because it would require compliance with § 2. 708 that would not apply to this subpart.
In§ 2.1001, the following definitions would be added, amended, or removed:
ASCII File. This definition would be removed and no longer used in the rule.
Prescriptive references to specific technical standards would be removed to allow flexible
I.
9 implementation consistent with developing technology.
Documentary material. The definition of documentary material would be revised to cover material upon which a party, potential party, or interested governmental participant intends to rety and/or cite in support of its position in the licensing proceeding; any material or other information which is relevant to, but does not support, that material or information or that party's position; and all reports and studies, prepared by.or on behalf of the potential party, interested governmental participant, or party, including all related *circulated drafts,"
relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. This definition would be used in the rule in § 2. 1003 to define what material must be provided in electronic form for access beginning in the pre-license application phase. Therefore the term "documentary material" would be intended to describe the most important body of material and would be defined clearly to require that all patties Include electronic access to any relevant material in their possession that does no~ support their position in the licensing proceeding, as well as providing access to the material that does support -their position, and any reports and studies prepared by the party on issues described in the Topical Guidelines, regardless of whether or not they would be relied upon or cited by the party. The scope of the documentary material would still be governed by the topical guidelines.
Electronic docket. A new definition would be added to describe NRC's electronic Information system to receive, distribute, store, and maintain NRC adjudicatory docket materials in the licensing proceeding.
Integrated electronic information. A new definition would be added to describe material made available in electronic form to potential parties, parties, or interested governmental participants to the licensing proceeding for the high-level waste geologic
10 repository, either as part of the NRC's pre-ticenae application electronic docket or electronic docket or pursuant to electronic access to documentary material made avallable by individual potential parties, parties, and interested governmental participants. This is a term for the information access that would replace the LSS in this rule.
LSS Administrator. This term would be eliminated from the rule because the concept of the LSS would also be removed. The Pre-ticense Application Presiding Officer will resolve disputes about electronic access to documents In the pre-license application phase.
~- This definition would be revised to add *affected unit of local govemrnenr, as that term is defined in the Nuclear Waste Policy Act of 1982, as amended, and also to refer
- to that act for the definition of affected Indian tribe. In addition, any affected unit of local government, the host State, and any affected Indian Tribe would be required to file a list of contentions.
Potential party. This definition.would be revised to remove the reference to the LSS, and to substitute th&i term integrated electronic lnformatlQn to describe the material to which the potential party will be given access.
Pre-license application eJectronlc docket. A new definitionwould be added to describe NRC's electronic information system to receive, distribute, store, and maintain NRC pre.
license application docket materials during the pre-license application phase.
Pre-Hcenae appHcation phase. This definition is being specified for the purposes of this rule to begin on the date that the President submits the site recommendation to the Congress. This date has been chosen to allow access to the potential parties' documentary material enough before the license application to allow advance preparation of contentions and discovery requests before the application is filed, but late enough in the repository development process to provide meaningful Information.
11 Searchable full text. This definition would be revised to remove references to ASCII and to the LSS.
Topical Guidelines. A new definition would be added to describe the set of topics set forth In Regulatory Guide 3.69 that are intended 'to guide the scope of documentary-material under this subpart.
Section 2.1002 would be removed because the LSS would no longer be required.
Access to Integrated electronic information would provide the major functions which the LSS was designed to provide. Paragraphs (c) and (d), which state that participation by the host State in the pre-application phase will not affect Its disapproval rights, and that this subpart shall not affect any participant's independent right to receive information, would be incorporated in the revised § 2.1003 as paragraphs (a)(2) and (3).
Section 2.1003 would be revised to describe information that would be required to be
- made available electronically by all potential parties, parties, and interested.govemmental participants (including the NRC and DOE). This information would have to be made available to all other participants beginning in the pre-license application phase, which starts at the date of the President's submission of the site recommendation to the Congress. The requirements of the rule would be simplified to require only that access to an electronic file be provided. All references to specific formats would be removed to allow flexibility in implementation.- The Commission intends that a potential party, party, or interested govemmental participant might offer electronic access to Its documentary material in a number of different ways, including by providing its documents In electronic form either to the NRC or to the DOE, to have the NRC or the DOE maintain the documents for electronic access.
Although the draft rule would require that documentary material be made available
12 electronically beginning on the date of the President's site recommendation to the Congress, the Commission would encourage the earliest feasible availability of documentary material in order to enhance the future smooth operation of the licensing proceeding. The paragraphs relating to evaluations and certifications by the LSS Administrator would be removed because the LSS (and LSSA) concept would be removed. Section 2.1010 states that the Pre-License Application Presiding Officer will resolve any disputes relating to electronic access to documents in the pre-license application phase. Accordingly, the paragraphs which stated that the ~pplica~on would have to be docketed under Subpart G if the LSSA did not certify compliance would be removed, and Subpart J 0ncJuding specifically referenced sections of Subpart G) would unconditionally embody the rules of procedure for the HLW licensing proceeding.
Section 2.1004 would be revised to provide procedures for providing access to a document that has not previously bee11 provided in electronic form and to delete previous references to the LSS and the LSSA.
Section 2.1005 would be revised to delete reference to the LSS and to add an exclusion of readily available references, such as journal articles or proceedings, which may be subject to copyright.
Section 2.1006 would be revised to refer to providing a document in electronic form and to delete references to the LSS and the LSSA.
Section 2.1007 would be revised to refer to providing systems for access to integrated electronic information rather than providing terminals for access to the LSS. These systems must be maintained by DOE and NRC at the locations specified in the current version of the rule (except for the Uranium Recovery Field Office which no longer exists), beginning in the pre-license application phase.
13 Section 2.1008 would be revised to allow electronic access to the integrated electronic information to any person who complies with the requirements of Subpart J, including the I
requirement in § 2.1003 to make documentary material available, and who agrees to comply with the orders of the Pre-license Application Presiding Officer. The previous requirement to petition to the Pre-license Application Presiding Officer would be removed.
. Section 2.1009 would be revised to delete references to the LSS and the LSSA, and to refer instead to the responsibility to provide electronic files. The responsible official for each potential party would be required to certify to the Pre-License Presiding Officer that procedures to comply with § 2.1003 have been implemented and that its documentary material has been made electronically available. A new requirement to update the certification at the request of the presiding officer would be added to replace a previous requirement to provide this certification at 6 month intervals.
Section 2.1010 would be revised to delete references to the LSS and the LSSA and to refer instead to electronic access. The reference to-petitions for access would be removed to conform to removal of this requirement.
Section 2.1011 is being considered for revision in either of two alternative ways and the Commission requests specific comments on these alternatives. This proposed rule would revise §2.1011 to reflect that the electronic availability of documentary material that is
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specified in this rule nd longer requires special equipment. The name and functions of the LSS Advisory Review Panel would be amended to delete the reference to the LSS and substitute the purpose of arriving at standards and procedures to facilitate the electronic access to material and to the electronic docket. Because of the broad and non-prescriptive requirements regarding providing electronic files In this proposed rule, the Advisory Review Panel would be very useful in discussing standards and procedures to ensure that all
14 participants are able to access the electronic information. Because the LSS concept would be replaced, and the requirement for an LSS Advisory Review Panel woul<;I be modified in the proposed rule to accommodate a new purpose, the advisory committee would have to be renamed and the committee charter would have to be redrafted.
However, the Commission is also considering the alternative of eliminating the requirement for an advisory committee chartered under the Federal Advisory Committee Act, and substituting a more informal voluntary users group to perform the functions of discussing electronic format standards, procedures, and *other details. If this option were adopted, the final rule would be revised to refer to the users group. This group would be able to interact using Internet discussion areas ~ike LSSNet) as well as meetings, video conferences, or teleconferences.
- This users group would ideally make use of the current LSSARP members' knowledge and experience. The Commission is particularly requesting comment from potential parties to the HLW repository.concerning their interest and suppo~ for the informal users group alternative.
Section 2.1012(a) would be revised to allow the Director of the NRC Office of Nuclear Material Safety and Safeguards (NMSS) to determine that the application would not be acceptable if it is not able to be accessed through the electronic docket. Section 2.1012(b)(1) would be revised to substitute jntegrated electronic information for Licensing Support System so that a person who has had access to the integrated electronic information would not be granted party status in the licensing p~ceeding if it cannot demonstrate compliance with the requirements of§ 2.1003. Section 2.1012 {d) would be revised to substitute pre-license application electronic docket or electronic docket for Licensing Support System to indicate that access to either the pre-license application electronic docket or the electronic docket may be suspended or terminated for failure to comply with the orders of the
15 Pre-License Application Presiding Officer or the Presiding Officer.
Section 2.1013 would be revised to delete references to the LSS and LSSA and would refer to the provision of information in electronic form. The requirement in
§ 2.1013(c)(5) to file one signed paper copy of each filing with the Secretary, NRC, would be removed because the electronic docket would not require signed paper copies.
Section 2.1014(c)(4) would delete a reference to the LSS and make the failure of a petitioner to participate in the pre-license application phase a criterion in considering whether to grant a petition to intervene.
Section 2.1017 would use the unavailability of the electronic docket instead of the LSS as a justification for extending the computation of time in the proceeding.
Sections 2.1018 and 2.1019 would be revised to delete references to the LSS and instead to refer to providing documents electronically.
In addition, minor editorial changes have been made throughout the.proposed rule to improve readability.
Environmental Impact: categorical Exclusion The NRC has determined that this proposed regulation is the type of action d~scribed in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed regulation.
Paperwork Reduction Act Statement This proposed rule contains no information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
- Regulatory Analysis The history of the development of the existing rule, 10 CFR Part 2, Subpart J, and the
16 current regulatory problem are described in the Background and Discussion sections of this notice. To address the regulatory problem, several alternative approaches.to amending the regulations in Subpart J of Part 2 were considered.
Option 1: Existing rule.
. This approach would not take advantage of current and future technology. It would require an enonnously expensive custom designed system to be developed using old assumptions about technological standards and the universe of "relevant" material. At the time of the development of the existing rule, the cost of the LSS was estimated by DOE to be in the-$200 million range. Furthennore, given the large backlog that contains a substantial amount of documents that may no longer be relevant because of the unanticipated delay in developing the LSS as initially designed in 1988, there is a substantial chance that It would be impossible for th& DOE to achieve, and for the LSSA to certify, compliance with the provisions of the current rule. In this case, the proceeding would have to ~ conducted under 10 CFR Part 2, Subpart G, and could result in a protracted discovery phase. In addition to the very costly and ineffective system, the further costs of using this approach are difficult to quantify, however the lengthened discovery phase could prevent the Commission from meeting the statutory deadline for decision on the application. This delay could also result in possible increased spent fuel storage costs for the additional length of the licensing proceeding.
Option 2: 10 CFR Part 2, Subpart G.
Because the NRC is developing a new system called the Agency-wide Documents Access and Management System (ADAMS), which will provide an agency-wide electronic docket, it would be possible to rely on existing adjudicatory procedure rules in 10 CFR Part 2, Subpart G (which will have to be updated to reflect the electronic docket) to conduct the
I.
17 licensing proceeding. However, this approach would not provide pre-license application access to documents and could result in a protracted discovery phase. The costs of using this approach are difficult to quantify. However the lengthened discovery phase could prevent the Commission from meeting the statutory deadline for decision on the application and result in po~sible increased spent fuel storage costs, as in Option 1.
Option 3: Existing rule using a distributed system.
This approach would allow using linked individual Internet sites to serve as the LSS.
However, this approach does not solve the problem discussed in Option 1 concerning the requirement to capture a huge backlog of material that may not have been maintained in a manner that would ever permit compliance with the rule, and which may not all be relevant to the Mure license application. Therefore, the costs of this approach, as in Option 1, would include the possibility that the LSS rule compliance finding could not be made and the proceeding would have to t?e conducted under 1 o CFR Part 2, Subpart G. A lengthened discovery phase could prevent the Commission from meeting the ~tutory deadline for decision on the application and result in possible increased spent fuel storage costs, as in Option 1.
Option 4: Revised rule with more realistic document discovery approach.
This approach would remove the requirement for a central LSS system and LSS Administrator, but would require each potential party to provide for the electronic availability of both the material it intends to rely upon to support its position, any material which does not support that material or that position, and.any reports or studies prepared by or for the party, beginning in the pre-application phase (presided* over by a Pre-License Application Presiding Officer). This definition of documentary material would provide pre-application access to a more focussed set of the materials most important to the licensing proceeding. It would not
18 require electronic access to the entire backlog of DOE and other parties' material, some of which may no longer be relevant to the licensing proceeding. The electroni_c docket functionality of the LSS would be provided by the NRC agency-wide system with supervision of the Presiding Officer. Participation in the pre-license application phase would be one criterion for participating in the hearing. After the application is filed, in addition to the electronically available material, discovery would be limited to interrogatories and depositions as In the current rule. The specific method of providing electronic access to documentary would not be specified, which would allow flexibility to accommodate current and future technology advances. Individual parties may give their documents in electronic form to NRC or DOE in order to provide electronic access. Because this rule would unconditionally provide the procedural rules for the HLW licensing proceeding, there would be no last minute danger that the proceeding would have to be conducted under 10 CFR Part 2, Subpart G.
The Commission believes that (?ptlon 4 provides the most effective solution for maintaining the basic functionality of the LSS conceptual design, while most flexibly accommodating current and Mure technological developments. The Commission requests public comment on the draft regulatory analysis. Comments on the draft analysis may be submitted to the NRC as indicated under the Addresses heading.
Regulatory Flexibility Certification The amendments would modify the Commission's rules of practice and procedures.
The rule would be amended to allow more widely available electronic access to information before the license application is filed. Participants would be required to make their own documentary matf3rial available electronically. This proposed rule would not have a significant economic Impact upon a substantial number of small entitles. The license applicant for the HLW repository would be the Department of Energy. DOE would not fall
19 within the definition of a "small entity" in the NRC's size standards (10 CFR 2.810).
Although a few of the intervenors in the HLW proceeding would likely qualify as small entities, the impact on intervenors or potential intervenors would not be significant. The requirement for participants to make their own documentary material available electronically is stated in a manner that would allow flexibility in implementation. Furthermore, it is consistent with current business practice to create documents electronically. ~erefore, the exact additional costs involved in making the documentary materials available electronically are difficult to quantify. However, to avoid those costs, participants would have the option of providing their documents to NRC or DOE to maintain electronic availability. Thus, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the NRC hereby certifies that this proposed rule would not have a significant economic impact upon a substantial number of small entities.
Backfrt Analysis The NRC has determined that the backfit rules in 10 CFR Chapter 1, §§ 50.109, 72.62, and 76.76, do not apply to this rule, and therefore, a backfit analysis is not required because these amendments do not involve any provisions that would impose backfits as defined in those rules.
List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954; as amended, the Energy Reorganization Act of 1974, a& amended; and 5 U.S.C.
20 553; the Nuclear Regulatory Commission is proposing to adopt the following amendments to 10 CFR Part 2.
PART 2-RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS
- 1. The authority citation for Part 2 continues to read as follows:
AUTHORITY: Secs. 161, 181, 68 Stat. 948, 953, as amended (42'tf.S.C. 2201, 2231);
sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C. 2241); sec. 201, 88 Stat.
1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114{f), Pub. L.97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec.
102, Pub. L.91-190, 83 Stat. 853, as amended {42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued unde.r secs. 102, 103, 104, 105, 183, 189, 68 Stal 936; 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also Issued under Pub. L.97-415, 96 Stat. 2073 {42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o), 2236, 2282); sec.
206, 88 Stat 1246 (42 U.S.C. 5846). Section 2.2050) also issued under Pub. L. 101-410, 104 Stat. 890, as amended by Section 31001(s), Pub. L. 104-134, 110 Stal 1321-373 (28 U.S.C. 2461 note.) Sections 2.600-2.606 al~ issued under sec. 102, Pub. L. 91,-190, 83 Stat. 853, as amended (42 U.S.C. 4332). ~ections 2.700a, 2.719 also issued under 5 U.S.C.
554. Sections 2.754, 2.760, 2.no, 2.780 also issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 135, 141, Pub. L.97-425, 96 Stal 2232, 2241 (42 U.S.C. 10155, 10161).
Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5
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r 21 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L. 85--256, 71 Stat. 579, as amended (42 U.S.C.
2039). Subpart K also issued under sec. 189, 68 StaJ. 955 (42 U.S.C. 2239); sec. 134, Pub.
L.97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued under sec. 189, 68 Stat.
955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 u.s.c. 2135).
- 2. Section 2.1000 is revised to read as follows:
§ 2.1000 Scope of subpart.
The rules in this subpart govern the procedure for applications for a license to receive and possess high-level radioactive waste at a geologic repository operations area noticed pursuant to § 2.101 (f)(8) or § ?.105(a)(5). The procedures in this subpart take precedence over the 10 CFR Part 2, subpart G, rules of general applicability, except for the following provisions:§§ 2.702, 2.703, 2.704, 2.707, 2.711, 2.713, 2.715, 2.715a, 2.7~7. 2.718, 2.720, 2.721, 2.722, 2.732, 2.733, 2.734, 2.742, 2.743, 2.750, 2.751, 2.753, 2.754, 2.755, 2.756, 2.757, 2.758, 2.759, 2.760, 2.761, 2.763, 2.770, 2.771, 2.772, 2.780, 2.781, 2.786, 2.788, and 2.790.
- 3. Section 2.1001 is amended by removing the definitions of ASCII File and LSS Administrator. adding definitions of Electronic docket. Integrated electronic information, Pre-Ucense application electronic docket. and Topical Guidelines; and revising the definitions of Documentary material, ~
Potential party. Pre-license application phase, and Searchable full text, to read as follows:
22
§ 2.1001 Definitions.
Documentary material means any material or other information upon which a party, potential party, or interested governmental participant intends to rely and/or to cite in support of its position in the proceeding for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter; any material or other information that is relevant to, but does not support, that material or information or that party's position; and all reports and studies, prepared by or on behatf of the potential party, interested governmental participant, or party, including all related "circulated drafts,* relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. The scope of documentary material shall be guided by the topical guidelines in the applicable NRC Regulatory Guide.
Electronic docket means the NRC information system that receives. distributes, stores, and retrieves the Commission's adjudicatory docket materials.
Integrated electronic information means the material that is made available electronically to parties, potential parties, and interested governmental participants to the proceeding for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter, as part of the electronic docket or electronic access to documentary material, beginning in the pre-license application phase.
ffilty_ for the purpose of this subpart means the DOE, the NRC staff, the host State,
I.
23 any affected unit of local government as defined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), any affected Indian Tribe as defined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), and a person admitted under § 2.1 0 14 to the proceeding on an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter; provided that a host State, affected unit of local government, or affected Indian Tribe shall file a list of contentions in accordance with the provisions of
§§ 2.1014(a)(2) (ii) and (iii).
Potential party means any person who, during the period before the issuance of the first pre-hearing conference order under § 2.1021(d), is given access to the integrated electronic information and who consents to comply with the regulations set forth in subpart J of this part, Including the authority of the Pre-License Application Presiding 9fficer designated pursuant to § 2.1010.
Pre-license application electronic docket means the NRC's electronic information system that receives, distributes, stores, and maintains NRC pre-license application _?ocket materials during the pre-license application phase.
Pre-license application phase means the time period before the license application to receive and possess high-level radioactive waste at a geologic repository operations area is docketed under§ 2.101(1)(3). For the purpose of this subpart, this period begins on the date that the President submits the site recommendation Jo the Congress pursuant to section 114(a)(2)(A) of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10134(a)(2)(A))..
24 Searchable full text means the electronic indexed entry of a document that allows the identification of specific words or groups of words within a text file.
Topical Guidelines means the set of topics set forth in Regulatory Guide 3.69, Topical Guidelines for the Licensing Support System, wtiich are intended to guide the scope of "documentary material*.
- 4. Section 2.1002 is removed and reserved.
§2.1002 [Removed]
- 5. Section 2.1003 is revised to read as follows:
§ 2.1003 Availability of material.
(a) Beginning in the pre-license application phase, subject to the exclusions in
§ 2.1005 and paragraphs (b) and (c) of this section, each potential party, interested governmental participant or party, shall make available to other potential parties, interested government participants or parties -
(1) An electronic file for all documentary material (including circulated drafts but excluding preliminary drafts) generated by, or at the direction of, or acquired by, a potential party, interested governmental participant, or party. Concurrent with the production of the electronic file will be an authentication statement that Indicates where an authenticated image copy of the document can be obtained.
(2) The participation of the host State in the pre-license application phase shall not affect the State's ability to exercise its disapproval rights under section 116(b)(2) of the Nuclear Waste Policy Act, as amended, 42 U.S.C. 10136{b)(2).
(3) This subpart shall not affect any independent right of a potential party, interested governmental participant or party to receive information.
(b)(1) Each potential party, interested governmental participant, or party shall make
25 available in electronic image fonn, subject to the claims of privilege in § 2.1006, graphic-oriented documentary material that includes raw data, computer runs, computer programs and codes, field notes, laboratory notes, maps, diagrams and photographs which have been printed, scripted, or hand written. Text embedded within these documents need not be separately entered in searchable full text. Graphic-oriented documents may include-(!) calibration procedures; logs, guidelines, data and discrepancies;
{ii) Gauge, meter and computer settings; (Iii) Probe locations; (Iv) Logging intervals and rates; (v) Data logs in whatever fonn captured; (vi) Text data sheets; (vii) Equations and sampling rates; (viii) Sensor data and procedures; (ix) Data Descriptions; (x) Fteld and laboratory notebooks; (xi) Analog computer, meter or other device print-outs; (xii) Digital computer print-outs; (xiii) Photographs; (xiv) Graphs, plots, strip charts, sketches; (xv) Descriptive material related to the lnfo"!11ation identified in paragraph (b)(1) of this section.
(2) Each potential party, interested governmental participant, or party shall make available in an electronic file, subject to the claims of privilege In § 2.1006, only a bibliographic header for each item of documentary material that is not suitable for Image or
26 searchable full text.
(c) Each potential party, interested governmental participant, or party shall make availabte electronically a bibliographic header for each documentary material-(1) For which a claim of privilege is asserted; (2) Which constitutes confidential financial or commercial Information; or (3} Which constitutes safeguards information under§ 73.21 of-this chapter.
(d} Basic licensing documents generated by DOE, such as the Site Characterization Plan, the Environmental Impact Statement, and the license application, or by NRC, such as the Site Characterization Analysis, and the Safety Evaluation Report, shall be made available in electronic form by the respective agency that generated the document.
- 6. Section 2.1004 is revised to read as follows:
§ 2.1004 Amendments and additions.
Any document that has not been provided to other parties in electro11ic form must be identified in an electronic notice and made available for inspection and copying by the potential party, interested governmental participant, or party responsible for the submission of the document within two days after it has been requested unless some other time is approved by the Pre-License Application Presiding Officer or the Presiding Officer designated for the high-level waste proceeding. The time allowed under this paragraph will be stayed pending Officer action on a motion to extend the time.
- 7. Section 2.1005 is revised to read as follows:
§ 2.1005 Exclusions.
The following material is excluded from the requirement to provide electronic access,
either pursuant to § 2.1003, or through derivative discovery pursuant to § 2.1019(i}-
(a) Official notice materials;
27 (b) Reference books and text books; (c) Material pertaining exclusively to administration, such as material related to budgets, financial management, personnel, office space, general distribution memoranda, or procurement, except for the scope of work on a procurement related to repository siting, construction, or operation, or to the transportation of spent nuclear fuel or high-level waste; (d) Press clippings and press releases; (e) Junk mail; (f) Preferences cited in contractor reports that are readily available; (g) Classified material subject to Subpart I of this part;
.si (h) Readily available references, such as juumal articles and proceedings, which may be subject to copyright.
- 8. Section 2.1006 is revised to read as follows:
§ 2.1006 Privilege.
(a) Subject to the requirements in§ 2.1003(c), the traditional discovery privileges recognized in NRC adjudicatory proceedings and the exceptions from disclosure in § 2. 790 may be asserted by potential parties, interested govemmental participants, and parties. In addition to Federal agencies, the deliberative process privilege may also be asserted by State and local govemment entities and Indian Tribes.
(b) Any document for which a claim of privilege is asserted, but Is denied in whole or in part by the Pre-License Application Presiding Officer or the Presiding Officer, must be provided in electronic form by the party, interested govemmental participant, or potential party that asserted the claim *to-(1) The other participants; or
_)
28
{2) To the Pre-License Application Presiding Officer or to the Presiding Officer, for entry into a Protective Order file, if the Pre-License Application Presiding Officer or the Presiding Officer so directs under§§ 2.1010(b) or 2.1018(c).
(c) Notwithstanding any availability of the deliberative process privilege under paragraph (a) of this section, circulated drafts not otherwise privileged shall be provided for electronic access pursuant to § 2.1003(a).
- 9. Section 2.1007 is being revised to read as follows:
§ 2.1007 Access.
(a)(1) A system to provide electronic access to the integrated electronic information shall be provided at the headquarters of DOE, and at all DOE Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, beginning in the pre-license application phase.
(2} A system to provide electronic access to the integrated electronlp information shall be provided at the headquarters Public Document Room of NRC, and at all NRC Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, and at the NRC Regional Offices beginning in the pre-license appliation phase.
(3) The systems for electronic access specified in paragraphs (a)(1) and (a)(2) of this section shall include locations at Las Vegas, Nevada; Reno, Nevada; carson City, Nevada; Nye County, Nevada; and Lincoln County, Nevada.
(b) Public availability of paper and electronic copies of the records, as well as duplication fees, and fee waiver for those records, is governed by the Freedom of Information Act (FOIA) regulations of the respective agencies.
(c) Documents to which electronic access has been provided by other parties,
29 potential parties, or interested governmental participants pursuant to this subpart shall not be considered as agency records of the Nuclear Regulatory Commission or the Department of Energy unless and until they have been entered into the dock.et of the proceeding pursuant to
§2.702 for purposes of the FOIA, 5 U.S.C. 552, if these documents remain under the custody and control of the agency or organization that identified the documents. Requests for access pursuant to the FOIA to documents submitted by a Federal agency shall be transmitted to that Federal agency.
- 10. Section 2.1008 is revised to read as follows:
§ 2.1008 Potential parties.
Any person who complies with the regulations in this subpart, Including § 2.1 Q03, and
~grees to comply with the orders of the Pre-License Application Presiding Officer designated under§ 2.1010, may have electronic access to the integrated electronic information made available pursuant to this subpart In the pre--license application phase.
- 11. Section 2. 1009 is revised to read as follows:
§ 2.1009 Procedures.
(a) Each potential party, interested governmental participant, or party shall- -
(1) Designate an official who win be responsible for admlnlstratlon of Its responsibility to provide electronic files of documentary material ;
(2) Establish procedures to implement the requirements In § 2.1003; (3) Provide training to Its staff on the procedures for implementation of the responsibility to provide electronic files of documentary material; (4) Ensure that all documents carry the submitter:'s unique Identification number; (5) Cooperate with the advisory review process established by the NRC under
§ 2.1011(c).
30 (b) The responsible official designated pursuant to paragraph (a)(1) of this section shall certify to the Pre-License Application Presiding Officer that the procedures specified in paragraph (a)(2) of this section have been implemented, and that to the best of his or her knowledge, the documentary material specified in § 2.1003 has been identified and made electronically available. Upon order of a duly appointed presiding officer, the responsible official shall update this certification.
- 12. Section 2.1010 is revised to read as follows:
§ 2.1010 Pre-License Application Presiding Officer.
(a)(1) The Commission may designate one or more members of the Commission, or an atomic safety and licensing board, or a named officer who has been delegated final authority on the matter (Pre-License Application Presiding Officer) to rule on disputes over the electronic availability of documents during the pre-license application phase, including disputes relating to privilege, and disputes relating to the implementation of. the recommendations of the Advisory Review Panel established under§ 2.1011(e).
(2) The Pre-License Application Presiding Officer shall be designated before the integrated electronic information is scheduled to be available.
{b) The Pre-License Application Presiding Officer shall rule on any claim of document withholding to determlne-(1) Whether It is documentary material within the scope of this subpart;
{2) Whether the material is excluded under §2.1005; (3) Whether the material Is prvileged or otherwise excepted from disclosure under
§ 2.1006; (4) If privileged, whether it is an absolute or qualified privilege; (5) If qualified, whether the document should be disclosed because It is necessary to
31 a proper decision in the proceeding; (6) Whether the material should be disclosed under a protective order containing such protective terms and conditions (including affidavits of nondisclosure) as may be necessary and appropriate to limit the disclosure to potential participants, interested governmental participants and parties in the proceeding, or to their qualified witnesses and counsel. When Safeguards Information protected from disclosure under section 147 of the Atomic Energy Act of 1954, as amended, is received and possessed by a potential party, interested governmental participant, or party, other than the Commission staff, it shall also be protected according to the requirements of § 73.21 of this chapter. The Pre-License Application Presiding Officer may also prescribe such additional procedures as will effectively safeguard and prevent disclosure of Safeguards Information to unauthorized persons with minimum impairment of the procedural rights which would be available if Safeguards Information were not involved. In addition to any other sanction that may be imposed by the Pre-License Application Presiding Officer for violation of an order pertaining to the disclosure of Safeguards Information protected from disclosure under section 147 of the Atomic Energy Act of 1954, as amended, the entity in violation may be subject to a civil penalty imposed pursuant to § 2.205. For the purpose of imposing the criminal penalties contained in section 223 of the Atomic Energy Act of 1954, as amended, any order issued pursuant to this paragraph with respect to Safeguards Information shall be deemed to be an order issued under section 161b of the Atomic Energy Act of 1954, as amended.
(c) Upon a final determination that the material is relevant, and not privileged, exempt from disclosure, or otherwise exempt from production under§ 2.1005, the potential party, interested governmental participant, or party who asserted the claim of withholding must make the document available in accordance with the provisions of this subpart within two
32 days.
(d) The service of all pleadings and answers, orders, and decisions.during the pre-license application phase shall be made according to the procedures specified in
§ 2.1013(c) and entered into the pre-license application electronic docket.
(e) The Pre-License Application Presiding Officer shall possess all the general powers specified in§§ 2.721(c) and 2.718.
(f) The Commission, in designating the Pre-License Application Presiding Officer in accordance with paragraphs (a) (1) and (2) of this section, shall specify the jurisdiction of the Officer.
- 13. Section 2.1011 is revised to read as follows:
§ 2.1011 Management of electronic information.
(a) Electronic document production and the electronic docket are subject to the provisions of this subpart.
(b) The NRC, DOE, parties, and potential parties participating in accordance with the provisions of this subpart shall be responsible for obtaining the computer system necessary to comply with the requirements for electronic document production and service.
(c)(1) The Secretary of the Comm~ion shall establish an Advisory Review Panel composed of the Advisory Committee members identified in paragraph (c)(2) of this section who wish to serve. The Secretary of the Commission shall have the authority to appoint additional representatives to the Advisory Review Panel consistent with the requirements of the Federal Advisory Committee Act, 5 U.S.C. app. I, giving particular consideration to potential parties, parties, and Interested governmental participants who were not members of the NRC HLW Licensing Support System Advisory Committee.
(2) The Advisory Committee membership will Initially Include the State of Nevada, a
33 coalition of affected units of local government in Nevada who were on the NRC High-Level Waste Licensing Support System Advisory Committee, DOE, NRC, the National Congress of American Indians, the coalition of national environmental groups who were on the NRC High-Level Waste Licensing Support System Advisory Committee and such other members as the Commission may from time to time designate to perfonn the responsibilities in paragraph (d} of this section.
(d)(1) The Advisory Review Panel shall provide advice to-(i) NRC on the fundamental issues of the type of computer system necessary to access the integrated electronic infonnation effectively under paragraph (b) of this section; and (ii) The Secretary of the Commission on the operation and maintenance of the electronic docket under the Commission's Rules of Practice (10 CFR Part 2).
(2) The responsibilities of the Advisory Review Panel shall include advice on-(i) Fonnat standards for providing electronic access to documentary material to the parties, interested governmental' participants, or potential parties; (ii) The procedures and standards for the electronic transmission of filings, orders, and decisions during both the pre-license application phase and the high-level waste licensing proceeding;
{iii) Other dutie.s as specified in this subpart or as directed by the Secretary of the Commission.
- 14. In § 2.1012, paragraphs (a), (b)(1 ), and (d) are revised to read as follows:
§ 2.1012 Compliance.
(a) In addition to the requirements of§ 2.101 (f), the Director of the NRC's Office of Nuclear Materials Safety and Safeguards may detennine that the tendered application is not
34 acceptable for docketing under this subpart If the Secretary of the Commission determines that it cannot be effectively accessed through the Commission's electronic docket.
(b)(1) A person, including a potential party given access to the integrated electronic information under this subpart, shall not be granted party status under§ 2.1014, or status as an interested governmental participant under§ 2.715(c), if it cannot demonstrate substantial and timely compliance with the requirements of § 2.1003 at the time it requests participation in the high-level waste licensing proceeding under § 2. 1'014 or§ 2.715(c).
(d)
Access to the pre-license application electronic docket or electronic docket may be suspended or terminated by the Pre-License Application Presiding Officer or the Presiding Officer for any potential party, interested governmental participant or party who is in noncompliance with any applicable order of the Pre-License Application Presiding Officer or the Presiding Officer or the requirements of this subpart.
- 15. Section 2.1013 is revised to read as follows:
§ 2.1013 Use of the electronic docket during the proceeding.
(a)(1) Pursuant to§ 2.702, the Secretary of the Commission will maintain the official docket of the proceeding on the application for a license to receive and possess waste at a geologic repository operations area.
(2) Commencing with the docketing In an electronic form of the license application to receive and possess high-level radioactive waste at a_geologlc repository operations area pursuant to part 60 of this chapter, the Secretary of the Commission, upon determining that the application can be proper1y accessed under the Commission's electronic docket rules, will establish an electronic docket to contain the official record materials of the high-level radioactive waste licensing proceeding In searchable full text, or for material that is not
I.
35 suitable for entry in searchable full text, by header and image, as appropriate.
(b) Absent good cause, all exhibits tendered during the hearing must have been made available to the parties in electronic form before the commencement of that portion of the hearing in which the exhibit will be offered. The electronic docket contains a list of all exhibits, showing where in the,transcript each was marked for identification and where it was received into evidence or rejected. Transcripts will be entered into the electronic docket on a daily basis in *order to provide next-day availability at the hearing.
(c)(1) All filings in the adjudicatory proceeding on the license application to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter shall be transmitted electronically by the submitter to the Presiding Officer, parties, and the Secretary of the Commission, according to established format requirements.
Parties and interested governmental participants will be required to use a password security code for the electronic transmission of these documents..
(2)
Filings required to be served shall be served upon either the parties and interested governmental participants, or their designated representatives. When a party or interested governmental participant has appeared by attorney, service must be made upon the attorney of record.
(3) Service upon a party or interested governmental participant is completed when the sender receives electronic acknowledgment ("delivery receipt that the electronic submission has been placed in the recipient's electronic m~ilbox.
(4) Proof of service, stating the name and address of the person on whom served and the manner and date of service, shall be shown for each document filed, by-
- 0) Electronic acknowledgment f'delivery receiptj; (ii) The affidavit of the person making the service; or
36 (iii) The certificate of counsel.
(5) All Presiding Officer and Commission issuances and orders will be transmitted electronically to the parties and interested governmental participants.
(d) Online access to the electronic docket, including a Protective Order File if authorized by a Presiding Officer, shall be provided to the Presiding Officer, the representatives of the parties and interested governmental participants, and the witnesses while testifying, for use during the hearing. Use of paper copy and other images will also be permitted at the hearing.
- 16. In § 2.1014, paragraph (c)(4) is revised to read as follows:
§ 2.1014 Intervention..
(c)
(4) The failure of the J5etitioner.to participate as a potential party in the pre-license application phase.
- 17. Section 2.1017 is revised to read as follows:
§ 2.1017 Computation of time.
In computing any period of time, the day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period so computed is included unless it is a Saturday, Sunday, or legal holiday at the place where the action or event is to occur, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor holiday. Whenever a party, potential party, or interested governmental participant, has the right or is required to do some act within a prescribed period after the service of a notice or other document upon it, one day shall be added to the
37 prescribed period. If the electronic docket is unavailable for more than four access hours of any day that would be counted in the computation of time, that day will not be counted in the computation of time.
- 18. In § 2.1018, paragraph (a)(1) and the introductory text of paragraph (e) are revised to read as follows:
§ 2.1018 Discovery.
(a)(1) Parties, potential parties, and interested governmental participants in the high-level waste licensing proceeding may obtain discovery by one or more of the following methods:
(i)
Access to the documentary material made available pursuant to § 2.1003 ;
(ii)
Entry upon land for inspection, access to raw data, or other purposes pursuant to§ 2.1020; (iii)
Access to, or the production of, copies of documentary material for which bibliographic headers only have been submitted pursuant to§ 2.1003 (b) and (c);
(iv)
. Depositions upon oral examination pursuant to § 2.1019; (v)
Requests for admission pursuant to § 2. 7 42;
{vi)
Informal requests for information not made electronically available, such as the names of witnesses and the subjects they plan to address; and
{vii)
Interrogatories and depositions upon written questions, as provided in paragraph (a){2) of this section.
(e)
A party, potential party, or interested governmental participant who has made available in electronic form all material relevant to any discovery request or who has responded to a request for discovery with a response that was complete when made is under
38 no duty to supplement its response to include information thereafter acquired, except as follows:
- 19. In§ 2.1019, paragraphs (d), (e), and (i) are revised to read as follows:
§ 2.1019 Depositions.
(d) When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and signature unless the deponent is ill or cannot be found or refuses to sign. The officer shall certify the deposition or, if the deposition is not signed by the depoF1ent, shall certify the reasons for the failure to sign, and shall promptly transmit an electronic copy of the deposition to the Secretary of the Commission for entry into the electronic docket.
(e) Where the deposition is to be taken on written questions as auth~rized under
§ 2.1018(a)(2), the party or interested governmental participant taking the deposition shall
\\
serve a copy of the questions, showing each question separately and consecutively numbered, on every other party and interested governmental participant with a notice stating the name and address of the person who is to answer them, and the name, description, title, and address of the officer before whom they are to be asked. Within ten days after service, any other party or interested governmental participarrt may serve cross-questions. The questions, cross-questions, and answers shall be rec;orded and signed, and the deposition certified, returned, and transmitted In electronic form to the Secretary of the Commission for entry into the electronic docket as in the case of a deposition on oral examination.
(i)(1) After receiving written notice of the deposition under paragraph (a) or paragraph
I.
39 (e) of this section, and ten days before the scheduled date of the deposition, the deponent shall submit an electronic index of all documents in his or her possession, relevant to the subject matter of the deposition, including the categories of documents set forth in paragraph (i)(2) of this section, to all parties and interested governmental participants. The index shall identify those records which have already been made available electronically. All documents that are not identical to documents already made available electronically, whether by reason of subsequent modification or by the addition of notations, shall be treated as separate documents.
(2) The following material is excluded from the initial requirements of§ 2.1003 to be made available electronically, but is subject to derivative discovery under paragraph (i)(1) of this section-(i) Personal records; (ii) Travel vouchers; (iii) Speeches; (Iv) Preliminary drafts;
{v) Marginalia.
(3) Subject to paragraph 0)(6) of this section, any party or interested governmental participant may request from the deponent a paper copy of any or all of the documents on the index that have not already been provided electronically.
(4) Subject to paragraph (1)(6) of this section, the deponent shall bring a paper copy of all documents on the index that the deposing party or interested governmental participant requests that have not already been provided electronically to an oral deposition conducted pursuant to paragraph (a) of this section, or in the case of a deposition taken on written questions pursuant to paragraph (e) of this section, shall submit such documents with the
40 certified deposition.
(5) Subject to paragraph (1)(6) of this section, a party or interested governmental participant may request that any or all documents on the Index that have not already been provided electronically, and on which it intends to*reJy at hearing, be made electronically available by the deponent.
(6) The deposing party or interested governmental participant shaft assume the responsibility for the obligations set forth in paragraphs (1)(1 ), (1)(3), (1)(4), and (i)(S) of this se~on when deposing someone other than a party or interested governmental participant.
Dated at Rockville, MD, this /., e_ day of November, 1997.
For the Nuclear Regulatory Commission.
I the Commission.
Proposed Rules This section of the FEDERAL REGISTER contains notices to the public of the proposed Issuance of rules and regulations. The purpose of these notices Is to give Interested persons an opportunity to participate in the rule making prior to the adoption of the final rules.
NUCLEAR REGULATORY COMMISSION 10 CFR Part2 RIN 3150-AF88 Procedures Appllcable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
SUMMARY
- The Nuclear Regulatory Commission is proposing to amend its Rules of Practice for the licensing proceeding on the disposal of high-level radioactive waste at a geologic repository (I-Il.,W proceeding). The proposed amendments are intended to allow application of technological developments that have occurred since the original rule was adopted in 1989, while achieving the original goals of facilitating the Commission's ability to comply with the schedule for decision on the construction authorization for the repository contained in Section 114(d) of the Nuclear Waste Policy Act, and providing for a thorough tecbnical review of the license application and equitable access to information for the parties to the hearing.
DATES: Submit comments by January 27, 1998. Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date ADDRESSES: Send comments by mail addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Attention: Rulemakings and Adjudications Staff.
Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:30 am and 4:15 pm on Federal workdays.
You may also provide comments via the NRC's interactive rulemaking web site through the NRC home page (http*/
/www.nrc.gov) This site provides the availability to upload comments as files (any format), if your web browser supports that function. For information about the interactive rulemaking site, contact Ms. Carol Gallagher, (301) 415-5905; e-mail CAG@nrc.gov.
Documents related to this rulemaking, including comments received, may be examined at the NRC Public Document Room, 2120 L Street NW., (Lower Level), Washington, DC. These same documents also may be viewed and downloaded electronically via the interactive rulemaking website established by NRC for this rulemaking.
FOR FURTHER INFORMATION CONTACT:
Kathryn L. Winsberg, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-1641, e-mail KLW@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Background The existing procedures for licenses to receive high-level radioactive waste at a geologic repository were developed to address the Nuclear Regulatory Commission's concern regarding how best to review the U.S Department of Energy (DOE) license application for a first-of-a-kind high-level radioactive waste (HLW) repository during the 3-year time period dictated by Section 114 (d) of the Nuclear Waste Policy Act.
The Commission believed it necessary to reduce the time normally spent on the discovery process at the start of a licensing proceeding and the time-consuming service of documents during the proceeding if the Commission were to reach its decision within the allotted time. The Licensing Support System (LSS) concept, an electronic information management system, was created to achieve this time reduction by making the information and data supporting a DOE application available simultaneously in a centralized database to all interested parties before the application is submitted and formal NRC review begins. Emerging information management technologies for issue identification, electronic storage and retrieval, and electronic mail were recommended for these functions to help achieve the objectives of more effective and efficient review.
The Commission employed the technique of negotiated rulemaking to develop the regulations governing the development and use of the LSS.
Negotiated rulemaking is the process by Federal RegWer Vol. 62, No. 219 Thursday, November 13, 1997 60789 which the agency and the interests affected by a rulemaking meet to attempt to reach a consensus on a draft proposed rule. If a consensus is reached, the agency publishes the negotiated rule as the agency's proposed rule. The Commission selected the negotiated rulemaking approach to address the LSS issue for several reasons. In 1987, the idea of use of an electronic information management system in a Commission adjudicatory proceeding was novel, not only for the Commission, but in general.
Therefore, the development of the rules for the use of such a system would benefit from discussion and joint problem solving by those who might ultimately use the system and had experience with the Commission's traditional adjudicatory process.
Furthermore, the potential users of the LSS possessed unique information that would be important to the design of the system, such as their computer capability and the amount and types of relevant documents that they might generate. In addition, the potential for consensus was enhanced by the fact that the LSS i:ule focused on procedures for conducting the licensing process that might benefit all parties, rather than focusing on substantive technical criteria for a licensing process Finally, the success of the LSS concept depended upon potential parties voluntarily complying with the licensing process for document identification and submission in the period before the DOE license application was submitted. Therefore, the involvement of interested parties in the development of the provisions to govern the use of the LSS was essential.
The Commission initiated the negotiated rulemaking in August 1987 Toe negotiating committee, composed of State, local, and tribal governments, industry representatives, NRC, DOE, and environmental groups, completed its work in July 1988. Except for the industry coalition, all the parties on the negotiating committee agreed on the text and supplementary information of a draft proposed rule. However, even the one dissenting party, the industry representative, had been a full and active participant in the drafting of the regulatory text and supporting information. Industry did notjoin the final consensus at the end of the process based on its belief that the use of a new technology in the licensing process I
60790 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules would not prove cost-beneficial. At that time, the cost of the LSS was estimated by DOE to be in the $200 million range.
The Commission, recognizing the agreement among the other parties on the negotiating committee, decided to publish the negotiated draft proposed rule as the Commission's proposed rule in November 1988. Because of this effort, the final LSS rule (10 CFR part 2, subpart], "Procedures Applicable to Proceeding for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository", was promulgated on April 24, 1989 (54 FR 14925).
The LSS rule assigned the LSS Administrator (LSSA) function to the NRC which would be responsible for the management, administration, operation, and maintenance of the LSS; pursuant to DOE's agreement, gave DOE responsibility for the design, development, and implementation of the LSS; and established the charter of the LSS Advisory Review Panel (LSSARP) to provide consensus guidance on the design and development of the LSS to both NRC and DOE. The LSS was intended to provide a central, shared, federally funded database of licensing infonnation beginning in 1995, the year DOE was expected to submit its application for a construction permit for the repository. The Commission adopted minor amendments further clarifying these procedures in a final rule published on February 26, 1991 (56 FR 7787).
The Licensing Support System Administrator (LSSA) was appointed in January 1989. The LSSARP was formed, holding its first meeting in December 1989. Also in December 1989, well before any serious development work could be started on the LSS, the Department of Energy revised its repository program schedule to extend its anticipated license application date from 1995 to 2001. Consequently, the LSS development schedule was extended IL Discussion The development of the LSS that was devised in the original procedural rules in 10 CFR Part 2, Subpart J. has not been accomplished during the time that has passed since adoption of the rule. Many delays and changes in personnel and program structure have attended the Department of Energy's efforts to develop the LSS. Budgetary shortfalls and the unanticipated length of time that it has taken to develop the licensing application for the repository not only delayed the development of the LSS. but also resulted in several additional years' accumulation of potential licensing information.
Because of the length of time involved and the narrowing of the repository development program, much of the early material thought to be relevant at the time the rule wa.s developed may no longer be relevant to the actual licensing proceeding that may not begin until about 2002. Also because of the extended period of time it has taken to develop the LSS for DOE's use as a document management system, it appears that all accumulated documents may not have been identified and maintained properly for tracking of important repository development decisions. In addition, because document capture may now involve much larger backlogs than originally contemplated, the risk of failing to capture all the material originally required to be placed in the LSS is.
substantially larger than originally assumed. In order for the current Subpart J rules to apply, the LSSA must certify that the DOE has complied with the requirement to enter all relevant documents in the LSS. Therefore, all of these factors combine to produce the high likelihood that the current rule cannot be implemented as originally envisioned. If not, then 10 CFR part 2, subpart J, will no longer apply. Instead, subpart G, the generally applicable procedures for licensing proceedings, will apply. This means that there would be no pre-license application access to documents Although the development of the LSS has remained stalled, the state of technology in document automation and retrieval has overtaken the 1986 technology on which the original LSS was to be based. The use of computers to generate and maintain the complex documents of a party in litigation is widespread and commonplace. The Internet is universally available to tie disparate and geographically dispersed systems together Readily available commercial software applications can perform the document management functions of the LSS. Therefore, the centralized LSS envisioned at the time the LSS rule was developed has become obsolete. The enormous expense of designing and maintaining a stand-alone system required by the current rules appears to be an unjustified expense, especially when it appears unlikely that the rule will be able to be implemented successfully even if the LSS is created.
Consequently, the Commission is proposing to amend its rules to allow more flexibility to incorporate the advantages of new information management technologies in the procedural rules for the licensing of the geologic repository. This would eliminate the LSS as a uniquely designed stand-alone system, while still maintaining the following primary functions of the LSS as a mechanism for the:
(1) Discovery of documents before the license application is flled; (2} Electronic transmission of filings by the parties during the proceeding; (3) Electronic transmission of orders and decisions related to the proceeding; and (4} Access to an electronic version of the docket.
The Commission believes that the proposed rule would continue to support the model schedule for conducting the licensing proceeding within the 3-year statutory period that was published in the Statement of Considerations for the original 10 CFR part 2, subpart], rule published on April 14, 1989 (54 FR 14925, 14939).
The proposed rule would eliminate the current prescriptive requirement in 10 CFR part 2, subpart J. for a centralized "Licensing Support System" administered by the NRC and therefore also would eliminate the requirement for an LSS Administrator to ensure the viability of the central database. To replace these features of the existing rule, the proposed rule would require that all potential parties, including the NRC and DOE, make their documentary material available in electronic form to all other participants beginning in the pre-license application phase. This requirement is stated without unduly restrictive technological specifications, in order to accommodate flexible implementation consistent with current or future technological developments Documentary material would be defined as the material upon which a party intends to rely in support of its position in the licensing proceeding; any material which is relevant to, but does not support, that material or that party's position; and all reports and studies, prepared by or on behalf of the potential party. interested governmental participant, or party, including all related "circulated drafts," relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party For the purposes of this rule, the pre-application phase would begin on the date that the President submits the site recommendation to Congress This timing would allow access to the parties' documentary material enough before DOE submits the license application to allow advance preparation of contentions and discovery requests before the Hcense
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60791 application, but late enough in the repository development process to provide meaningful information.
A Pre-License Application Presiding Officer would resolve any disputes over electronic access to docwnents during the pre-license application phase.
Potential parties would be required to certify to the Pre-License Application Presiding Officer that they have complied with the requirement to provide electronic access to their documentary material. The requirements of the current rule for an electronic hearing docket would be retained, as well as the limitations on the permissible forms of discovery after the application ls filed.
The Commission ls considering two alternatives regarding the LSS Advisory Review Panel. In this proposed rule, because the concept of the LSS would be replaced, the requirement for an LSS Advisory Review Panel would be modified so the panel can advise the Secretary of the Commission regarding standards and procedures for electronic access to documents and for maintenance of the electronic docket.
This would require renaming of the advisory committee and redrafting of the committee charter. However, the Commission is also considering the alternative of replacing the Advisory Review Panel with a more informal users group, and particularly requests comments from potential parties to the HL W repository licensing proceeding regarding these two alternative arrangements *
- m. Section-by-Section Description of Changes In§ 2.1000, the reference to§ 2.709 would be removed because it would require compliance with§ 2.708 that would not apply to this subpart.
In § 2.1001, the following definitions would be added, amended, or removed:
ASCII File This definition would be removed and no longer used in the rule.
Prescriptive references to specific technical standards would be removed to allow flexible implementation consistent with developing technology.
Documentary Material The definition of documentary material would be revised to cover material upon which a party, potential party, or interested governmental participant intends to rely and/or cite in support of its position in the licensing proceeding; any material or other information which is relevant to, but does not support, that material or information or that party's position; and all reports and studies, prepared by or on behalf of the potential party, interested governmental participant, or party, including all related "circulated drafts," relevant to the issues set forth in the Topical Guidelines 1n Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. This definition would be used in the rule in § 2.1003 to define what material must be provided in electronic form for access beginning in the pre-license application phase. Therefore the term "documentary material" would be intended to describe the most important body of material and would be defined clearly to require that all parties include electronic access to any relevant material in their possession that does not support their position in the licensing proceeding, as well as providing access to the material that does support their position, and any reports and studies prepared by the party on issues described in the Topical Guidelines, regardless of whether or not they would be relied upon or cited by the party. The scope of the documentary material would still be governed by the topical guidelines.
Electronic Docke_t A new definition would be added to describe NRC's electronic information system to receive, distribute, store, and maintain NRC adjudicatory docket materials in the licensing proceeding Integrated Electronic Information A new definition would be added to describe material made available in electronic form to potential parties, parties, or interested governmental participants to the licensing proceeding for the high-level waste geologic repository, either as part of the NRC's pre-license application electronic docket or electronic docket or pursuant to electronic access to documentary material made available by individual potential parties, parties, and interested governmental participants. This is a term for the information access that would replace the LSS in this rule.
LSS Admlnlstrator This term would be eliminated from the rule because the concept of the LSS would also be removed. The Pre-hcense Application Presiding Officer will resolve disputes about electronic access to documents in the pre-license application phase.
Party This definition would be revised to add "affected unit of local government",
as that term is defined in the Nuclear Waste Polley Act of 1982, as amended, and also to refer to that act for the definition of affected Indian tribe. In addition, any affected unit of local government, the host State, and any affected Indian Tribe would be required to file a list of contentions.
Potential Party This definition would be revised to remove the reference to the LSS, and to substitute the term integrated electronic lnfonnadon to describe the material to which the potential party will be given access.
Pre-license Application Electronic Docket A new definition would be added to describe NRC's electronic information system to receive, distribute, store, and maintain NRC pre-license application docket materials during the pre-license application phase.
Pre-License Application Phase This definition is being specified for the purposes of this rule to begin on the date that the President submits the site recommendation to the Congress. This date has been chosen to allow access to the potential parties' documentary material enough before the license application to allow advance preparation of contentions and discovery requests before the application is filed, but late enough in the repository development process to provide meaningful information.
Searchable Full Text This defmltlon would be revised to remove references to ASCII and to the LSS.
Topical Guidelines A new definition would be added to describe the set of topics set forth in Regulatory Guide 3.69 that are intended to guide the scope of documentary material under this subpart.
Section 2.1002 would be removed because the LSS would no longer be required. Access to integrated electronic information would provide the major functions which the LSS was designed to provide Paragraphs (c) and (d),
which state that participation by the host State in the pre-application phase will not affect its disapproval rights, and that this subpart shall not affect any participant's independent right to receive information, would be incorporated in the revised § 2 1003 as paragraphs (a) (2) and (3)
Section 2. 1003 would be revised to describe information that would be required to be made available electronically by all potential parties, parties, and interested governmental
60792 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 I Proposed Rules participants (including the NRC and DOE). This information would have to be made available to all other participants beginning in the pre-license application phase, which starts at the date of the President's submission of the site recommendation to the Congress.
The requirements of the rule would be simplified to require only that access to an electronic fl.le be provided. All references to specific formats would be removed to allow flexibility in implementation. The Commission intends that a potential party, party, or interested governmental participant might offer electronic access to its documentary material in a number of different ways, including by providing its documents in electronic form either to the NRC or to the DOE, to have the NRC or the DOE maintain the documents for electronic access.
Although the draft rule would require that documentary material be made available electronically beginning on the date of the President's site recommendation to the Congress, the Commission would encourage the earliest feasible availability of documentary material in order to enhance the future smooth operation of the licensing proceeding. The paragraphs relating to evaluations and certifications by the LSS Administrator would be removed because the LSS (and LSSA) concept would be removed.
Section 2.1010 states that the Pre-License Application Presiding Officer will resolve any disputes relating to electronic access to documents in the pre-license application phase.
Accordingly, the paragraphs which stated that the application would have to be docketed under Subpart G if the LSSA did not certify compliance would be removed, and Subpart J (including specifically referenced sections of Subpart G) would unconditionally embody the rules of procedure for the HL W licensing proceeding.
Section 2.1004 would be revised to provide procedures for providing access to a document that has not previously been provided in electronic form and to delete previous references to the LSS and the LSSA.
Section 2.1005 would be revised to delete reference to the LSS and to add an exclusion of readily available references, such as Journal articles or proceedings, which may be subject to copyright Section 2.1006 would be revised to refer to providing a document in electronic form and to delete references to the LSS and the LSSA.
Section 2.1007 would be revised to refer to providing systems for access to integrated electronic information rather than providing terminals for access to the LSS. These systems must be maintained by DOE and NRC at the locations specified in the current version of the rule (except for the Uranium Recovery Field Office which no longer exists), beginning in the pre-license application phase.
Section 2.1008 would be revised to allow electronic access to the integrated electronic information to any person who complies with the requirements of Subpart], including the requirement in
§ 2.1003 to make documentary material available, and who agrees to comply with the orders of the Pre-license Application Presiding Officer. The previous requirement to petition to the Pre-license Application Presiding Officer would be removed.
Section 2.1009 would be revised to delete references to the LSS and the LSSA, and to refer instead to the responsibility to provide electronic files.
The responsible official for each potential party would be required to certify to the Pre-License Presiding Officer that procedures to comply with
§ 2.1003 have been implemented and that its documentary material has been made electronically available. A new requirement to update the certification at the request of the presiding officer would be added to replace a previous requirement to provide this certification at 6 month intervals.
Section 2.1010 would be revised to delete references to the LSS and the LSSA and to refer instead to electronic access. The reference to petitions for access would be removed to conform to removal of this requirement.
Section 2.1011 is being considered for revision in either of two alternative ways and the Commission requests specific comments on these alternatives.
This proposed rule would revise
§2.1011 to reflect that the electronic availability of documentary material that is specified in this rule no longer requires special equipment. The name and functions of the LSS Advisory Review Panel would be amended to delete the reference to the LSS and substitute the purpose of arriving at standards and procedures to facilitate the electronic access to material and to the electronic docket Because of the broad and non-prescriptive requirements regarding providing electronic files in this proposed rule, the Advisory Review Panel would be very useful in discussing standards and procedures to ensure that all participants are able to access the electronic information. Because the LSS concept would be replaced, and the requirement for an LSS Advisory Review Panel would be modified in the proposed rule to accommodate a new purpose, the advisory committee would have to be renamed and the committee charter would have to be redrafted.
However, the Commission is also considering the alternative of eliminating the requirement for an advisory committee chartered under the Federal Advisory Committee Act, and substituting a more informal voluntary users group to perform the functions of discussing electronic format standards, procedures, and other details. If this option were adopted, the final rule would be revised to refer to the users group. This group would be able to interact using Internet discussion areas (like LSSNet) as well as meetings, video conferences, or teleconferences. This users group would ideally make use of the current LSSARP members' knowledge and experience. The Commission is particularly requesting comment from potential parties to the HLW repository concerning their interest and support for the informal users group alternative Section 2.1012(a) would be revised to allow the Director of the NRC Office of Nuclear Material Safety and Safeguards (NMSS) to determine that the application would not be acceptable if it is not able to be accessed through the electronic docket. Section 2.1012(b)(l) would be revised to substitute integrated electronic inforrnaUon for Licensing Support System so that a person who has had access to the integrated electronic information would not be granted party status in the licensing proceeding if it cannot demonstrate compliance with the requirements of§ 2.1003. Section 2 1012 (d) would be revised to substitute pre-license appllcati.on electronic dock.et or electronic docket for Licensing Support System to indicate that access to either the pre-license application electronic docket or the electronic docket may be suspended or terminated for failure to comply with the orders of the Pre-License Application Presiding Officer or the Presiding Officer.
Section 2.1013 would be revised to delete references to the LSS and LSSA and would refer to the provis10n of information in electronic form. The requirement in § 2.1013 (c)(5) to file one signed paper copy of each filing with the Secretary, NRC, would be removed because the electronic docket would not require signed paper copies Section 2.1014(c)(4) would delete a reference to the LSS and make the failure of a petitioner to participate in the pre-license application phase a criterion in considering whether to grant a petition to intervene..
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60793 Section 2.1017 would use the unavailability of the electronic docket instead of the LSS as a Justification for extending the computation of time in the proceeding.
Sections 2.1018 and 2.1019 would be revised to delete references to the LSS and instead to refer to providing documents electronically.
In addition, minor editorial changes have been made throughout the proposed rule to improve readability.
Environmental hnpact: Categorical Exclusion The NRC has determined that this proposed regulation is the type of action described in categorical exclusion 10*
CFR 51.22(c)(l). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed regulation.
Paperwork Reduction Act Statement This proposed rule contains no information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Regulatory Analysis The history of the development of the existing rule, 10 CFR part 2, subpartJ, and the current regulatory problem are described in the Background and Discussion sections of this notice. To address the regulatory problem, several alternative approaches to amending the regulations in subpart J of part 2 were considered.
Option 1: Existing Rule This approach would not take advantage of current and future technology. It would require an enormously expensive custom designed system to be developed using old assumptions about technological standards and the universe of "relevant" material. At the time of the development of the existing rule, the cost of the LSS was estimated by DOE to be in the $200 million range. Furthermore, given the large backlog that contains a substantial amount of documents that may no longer be relevant because of the unanticipated delay in developing the LSS as initially designed in 1988, there is a substantial chance that it would be impossible for the DOE to achieve, and for the LSSA to certify, compliance with the provisions of the current rule In this case, the proceeding would have to be conducted under 10 CFR part 2, subpart G, and could result in a protracted discovery phase. In addition to the very costly and ineffective system, the further costs of using this approach are difficult to quantify, however the lengthened discovery phase could prevent the Commission from meeting the statutory deadline for decision on the application. This delay could also result in possible increased spent fuel storage costs for the additional length of the licensing proceeding.
Option 2: IO CFR Part 2, Subpart G Because the NRC Is developing a new system called the Agency-wide Documents Access and Management System (ADAMS), which will provide an agency-wide electronic docket, it would be possible to rely on existing adjudicatory procedure rules in 10 CFR part 2, subpart G (which will have to be updated to reflect the electronic docket) to conduct the licensing proceeding.
However, this approach would not provide pre-license application acce~
to documents and could result in a protracted discovery phase. The costs of using this approach are difficult to quantify. However the lengthened discovery phase could prevent the Comm1ssion from meeting the statutory deadline for decision on the application and result in possible increased spent fuel storage costs, as in Option 1.
Option 3: Existing Rule Using a Distributed System This approach would allow using linked individual Internet sites to serve as the LSS. However, this approach does not solve the problem discussed in Option 1 concerning the requirement to capture a huge backlog of material that may not have been maintained in a manner that would ever permit compliance with the rule, and which may not all be relevant to the future license application. Therefore, the costs of this approach, as in Option 1, would include the possibility that the LSS rule compliance finding could not be made and the proceeding would have to be conducted under 10 CFR part 2, subpart G. A lengthened discovery phase could prevent the Commission from meeting the statutory deadline for decision on the application and result in possible increased spent fuel storage costs, as in Option 1.
Option 4: Revf.sed Rule With More Realistic Document Discovery Approach This approach would remove the requirement for a central LSS system and LSS Administrator, but would require each potential party to provide for the electronic availability of both the material it intends to rely upon to support its position, any material which does not support that material or that position, and any reports or studies prepared by or for the party, beginning in the pre-application phase (presided over by a Pre-License Application Presiding Officer). This definition of documentary material would provide pre-application access to a more focussed set of the materials most important to the licensing proceeding. It would not require electronic access to the entire backlog of DOE and other parties' material, some of which may no longer be relevant to the licensing proceeding. The electronic docket functionality of the LSS would be provided by the NRC agency-wide system with supervision of the Presiding Officer. Participation in the pre-license application phase would be one criterion for participating in the hearing. After the application is filed, in addition to the electronically available material, discovery would be limited to interrogatories and depositions as in the current rule. The specific method of providing electronic access to documentary would not be specified, which would allow flexibility to accommodate current and future technology advances. Individual parties may give their documents in electronic form to NRC or DOE in order to provide electronic access. Because this rule would unconditionally provide the procedural rules for the HLW licensmg proceeding, there would be no last minute danger that the proceeding would have to be conducted under 10 CFR part 2, subpart G The Commission believes that Option 4 provides the most effective solution for maintaining the basic functionality of the LSS conceptual design, while most flexibly accommodating current and future technological developments The Commission requests public comment on the draft regulatory analysis Comments on the draft analysis may be submitted to the NRC as indicated under the Addresses heading.
Regulatory Flexibility Certification The amendments would modify the Commission's rules of practice and procedures. The rule would be amended to allow more widely available electronic access to information before the license application is filed.
Participants would be reqwred to make their own documentary matenal available electronically This proposed rule would not have a significant economic impact upon a substantial number of small entitles. The license applicant for the HL W repository would be the Department of Energy. DOE would not fall within the definition of a "small entity" in the NRC's size standards (10 CFR 2.810). Although a few of the intervenors in the HLW
60794 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules proceeding would likely qualify as small entities, the impact on intervenors or potential intervenors would not be significant The requirement for participants to make their own documentary material available electronically is stated in a manner that would allow flexibility in implementation. Furthermore, it is consistent with current business practice to create documents electronically. Therefore, the exact additional costs involved in making the documentary materials available electronically are difficult to quantify.
However, to avoid those costs.
participants would have the option of providing their documents to NRC or DOE to maintain electronic availability.
Thus, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b). the NRC hereby certifies that this proposed rule would not have a significant economic impact upon a substantial number of small entities.
Backfit Analysis The NRC has determined that the backflt rules in 10 CFR Chapter 1,
§§50.109, 72.62, and 76.76, do not apply to this rule, and therefore, a backfit analysis is not required because these amendments do not involve any provisions that would impose backflts as defined in those rules.
List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954; as amended, the Energy Reorganization Act of 197 4, as amended; and 5 U.S.C. 553; the Nuclear Regulatory Commission is proposing to adopt the following amendments to 10 CFR part 2.
PART 2-RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS
- 1. The authority citation for part 2 continues to read as follows:
Authority: Secs. 161. 181. 68 Stat 948, 953, as amended (42 U.S.C. 2201. 2231), sec 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S C 2241); sec. 201, 88 StaL 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
Section 2.101 also issued under secs.
53, 62, 63, 81, 103, 104, 105, 68 Stat.
930,932,933,935,936,937,938,as amended (42 U.S.C. 2073, 2092, 2093, 2111.2133,2134, 2135);sec. 114(0, Pub. L.97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(0); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 {42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat 936. 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 {42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs.
161b, I, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat 444, as amended (42 U.S.C. 2201 (b), (i), (o), 2236, 2282); sec.
206, 88 Stat 1246 (42 U.S.C. 5846).
Section 2.205(j) also issued under Pub L. 101-410, 104 Stat. 890, as amended by Section 3100l(s), Pub. L. 104---134, 110 Stat. 1321-373 (28 U.S.C. 2461 note.) Sections 2.600-2 606 also issued under sec. 102, Pub. L.91-190, 83 Stat 853, as amended (42 U.S.C. 4332}.
Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C.
557. Section 2.764 also issued under secs. 135, 141, Pub. L.97-425, 96 Stat.
2232, 2241 (42 U.S.C. 10155, 10161).
Section 2.790 also issued under sec.
103, 68 Stat. 936, as amended (42 U.S.C.
2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C.
2039). Subpart K also issued under sec 189, 68 Stat. 955 (42 U.S C. 2239); sec 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued under sec. 189, 68 Stat 955 (42 U.S.C.
2239). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 u.s.c 2135).
- 2. Section 2.1000 is revised to read as follows:
§2.1000 Scope of subpart.
The rules in this subpart govern the procedure for applications for a license to receive and possess high-level radioactive waste at a geologic repository operations area noticed pursuant to § 2.101 (t) (8) or § 2.105 (a) (5).
The procedures in this subpart take precedence over the 10 CFR part 2, subpart G, rules of general applicability, except for the following provisions.
§§2.702, 2.703, 2.704, 2.707, 2 711, 2.713, 2.715, 2.715a, 2 717, 2.718, 2.720, 2.721, 2.722, 2.732, 2.733, 2.734, 2.742, 2.743, 2.750, 2.751, 2 753, 2.754, 2.755, 2.756, 2.757, 2.758, 2.759, 2 760, 2.761, 2.763, 2 770, 2.771, 2.772, 2.780, 2 781, 2.786, 2 788, and 2 790.
- 3. Section 2.1001 is amended by removing the definitions of ASCII File and LSS Administrator, adding definitions of Electronic docket, Integrated electronic lnformation, Pre-license application electronic docket, and Topical Guidelines-, and revising the definitions of Documentary material, Party, Potential party, Pre-license application phase. and Searchable full text, to read as follows:
§2.1001 Definitions.
Documentary material means any material or other infonnatlon upon which a party, potential party, or interested governmental participant intends to rely and/or to cite in support of its position in the proceeding for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter; any material or other information that is relevant to, but does not support, that material or information or that party's position; and all reports and studies, prepared by or on behalf of the potential party.
interested governmental participant, or party, including all related "circulated drafts," relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. The scope of documentary material shall be guided by the topical guidelines in the applicable NRC Regulatory Guide.
Electronic docket means the NRC information system that receives, distributes, stores, and retrieves the Commission's adjudicatory docket materials.
Integrated electronic information means the material that is made available electronically to parties, potential parties, and interested governmental participants to the proceeding for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter. as part of the electronic docket or electroruc access to documentary material, beginning in the pre-license application phase.
Party for the purpose of this subpart means the DOE. the NRC staff, the host State, any affected unit of local government as defined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101). any affected Indian Tribe as defined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U S.C.
10101), and a person admitted under
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60795
§ 2.1014 to the proceeding on an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter; provided that a host State, affected unit of local government, or affected Indian Tribe shall file a list of contentions in accordance with the provisions of
§§2.1014(a)(2) (ii) and (ill).
Potential party means any person who, during the period before the issuance of the first pre-hearing conference order under§ 2 1021(d), is given access to the integrated electronic infonnation and who consents to comply with the regulations set forth in subpart J of this part, including the authority of the Pre-License Application Presiding Officer designated pursuant to
§2.1010.
Pre-license application electronic docket means the NRC's electronic information system that receives, distributes, stores, and maintains NRC pre-license application docket materials during the pre-license application phase.
Pre-license application phase means the time period before the license application to receive and possess high-level radioactive waste at a geologic repository operations area is docketed under§ 2.10 l (f) (3). For the purpose of this subpart, this period begins on the date that the President submits the site recommendation to the Congress pursuant to section 114(a)(2)(A) of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10134(a)(2)(A))..
Searchable full text means the electronic indexed entry of a document that allows the identification of specific words or groups of words within a text file.
Topical Guldelines means the set of topics set forth in Regulatory Guide 3.69, Topical Guidelines for the Licensing Support System, which are intended to guide the scope of "documentary material".
§ 2. 1002 [Removed and reserved]
- 4. Section 2.1002 is removed and reserved.
- 5. Section 2.1003 is revised to read as follows:
§ 2.1003 Availablllty of material.
(a) Beginning in the pre-license application phase, subject to the exclusions in§ 2.1005 and paragraphs (b) and (c) of this section, each potential party, interested governmental participant or party, shall make available to other potential parties, interested government participants or partles-(1) An electronic file for all documentary material (including circulated drafts but excluding preliminary drafts) generated by, or at the direction of, or acquired by, a potential party, interested governmental participant, or party. Concurrent with the production of the electronic file will be an authentication statement that indicates where an authenticated image cop_y of the document can be obtained.
(2) The participation of the host State in the pre-license application phase shall not affect the State's ability to exercise its disapproval rights under section 116(b) (2) of the Nuclear Waste Policy Act, as amended, 42 U.S.C 10136(b) (2).
(3) This subpart shall not affect any independent right of a potential party, interested governmental participant or party to receive information.
(b)(l) Each potential party, interested governmental participant, or party shall make available in electronic image form, subject to the claims of privilege in
§ 2.1006, graphic-oriented documentary material that includes raw data, computer runs, computer programs and codes, field notes, laboratory notes, maps, diagrams and photographs which have been printed, scripted, or hand written. Text embedded within these documents need not be separately entered rn searchable full text. Graphic-oriented documents may include--
Calibration procedures, logs, guidelines, data and discrepancies; (11) Gauge, meter and computer settings;
~
ill) Probe locations; iv) Logging intervals and rates; v) Data logs in whatever form
- captured, (vi) Text data sheets,
~
ii) Equations and sampling rates; iii) Sensor data and procedures; ix) Data Desert tions;
) Field and laboratory notebooks; (xr) Analo~ computer, meter or other device print-outs; (xii) Digital computer print-outs, (xiil) Photographs, (xiv) Graphs, plots, strip charts, sketches; (xv) Descriptive material related to the information identified in paragraph (b)(I) of this section (2) Each potential party, interested governmental participant, or party shall make available in an electronic file, subject to the claims of privilege in
§ 2.1006, only a bibliographic header for each item of documentary material that is not suitable for image or searchable full text.
(c) Each potential party, interested governmental participant, or party shall make available electronically a bibliographic header for each documentary material-(1) For which a claim of privilege is asserted; (2) Which constitutes confidential financial or commercial information; or (3) Which constitutes safeguards information under § 73. 21 of this chapter.
(d) Basic licensing documents generated by DOE, such as the Site Characterization Plan, the Environmental Impact Statement, and the license application, or by NRC, such as the Site Characterization Analysis, and the Safety Evaluation Report, shall be made available in electronic form by the respective agency that generated the document.
- 6. Section 2.1004 is revised to read as follows:
§ 2. 1004 Amendments and additions.
Any document that has not been provided to other parties in electronic form must be identified in an electronic notice and made available for inspection and copying by the potential party, interested governmental participant, or party responsible for the submission of the document within two days after it has been requested unless some other time is approved by the Pre-License Application Presiding Officer or the Presiding Officer designated for the high-level waste proceeding. The time allowed under this paragraph will be stayed pending Officer action on a motion to extend the time.
- 7. Section 2.1005 is revised to read as follows.
§ 2. 1005 Exclusions.
The following material is excluded from the requirement to provide electronic access, either pursuant to
§ 2 1003, or through derivative discovery pursuant to§ 2.1019(1)-
(a) Official notice materials; (b) Reference books and text books; (c) Material pertaining exclusively to administration, such as material related to budgets, financial management, personnel, office space, general distribution memoranda, or procurement, except for the scope of work on a procurement related to repository siting, construction, or operation, or to the transportation of spent nuclear fuel or high-level waste; (d) Press clippings and press releases; (e) Junk mail; (f) Preferences cited in contractor reports that are readily available; (g) Classified material subject to subpart I of this part; (h) Readily available references, such as Journal articles and proceedings, which may be subject to copyright.
60796 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules
- 8. Section 2.1006 is revised to read as follows:
§ 2.1006 Privilege.
(a) Subject to the requirements in
§ 2.1003(c), the traditional discovery privileges recognized in NRC adjudicatory proceedings and the exceptions from disclosure in § 2. 790 may be asserted by potential parties, interested governmental participants, and parties. In addition to Federal agencies, the deliberative process privilege may also be asserted by State and local government entities and Indian Tribes.
(b) Any document for which a claim of privilege is asserted, but is denied in whole or in part by the Pre-License Application Presiding Officer or the Presiding Officer, must be provided in electronic form by the party, interested governmental participant, or potential party that asserted the claim to-( 1) The other participants; or (2) To the Pre-License Application Presiding Officer or to the Presiding Officer, for entry into a Protective Order file, if the Pre-License Application Presiding Officer or the Presiding Officer so directs under§§ 2.1010(b) or 2.1018(c).
(c) Notwithstanding any availability of the deliberative process privilege under paragraph (a) of this section, circulated drafts not otherwise privileged shall be provided for electronic access pursuant to
§2.1003(a).
9 Section 2.1007 is being revised to read as follows:
§ 2. 1007 Access.
(a) (1) A system to provide electronic access to the integrated electronic information shall be provided at the headquarters of DOE, and at all DOE Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, beginning in the pre-license application phase.
(2) A system to provide electronic access to the integrated electronic information shall be provided at the headquarters Public Document Room of NRC, and at all NRC Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, and at the NRC Regional Offices beginning in the pre-license application phase.
(3) The systems for electronic access specified in paragraphs (a) (1) and (a) (2) of this section shall include locations at Las Vegas, Nevada; Reno, Nevada; Carson City, Nevada; Nye County, Nevada; and Lincoln County, Nevada.
(b) Public availability of paper and electronic copies of the records, as well as duplication fees, and fee waiver for those records, is governed by the Freedom of Information Act (FOIA) regulations of the respective agencies.
(c) Documents to which electronic access has been provided by other parties, potential parties, or interested governmental participants pursuant to this subpart shall not be considered as agency records of the Nuclear Regulatory Commission or the Department of Energy unless and until they have been entered into the docket of the proceeding pursuant to § 2. 702 for purposes of the FOIA, 5 U.S.C. 552, if these documents remain under the custody and control of the agency or organization that identified the documents Requests for access pursuant to the FOIA to documents submitted by a Federal agency shall be transmitted to that Federal agency.
- 10. Section 2.1008 is revised to read as follows:
§ 2.1008 Potential parties.
Any person who complies with the regulations in this subpart, including
§ 2.1003, and agrees to comply with the orders of the Pre-License Application Presiding Officer designated under
§ 2.1010, may have electronic access to the integrated electronic information made available pursuant to this subpart in the pre-license application phase.
- 11. Section 2.1009 is revised to read as follows.
§ 2. 1009 Procedures.
(a) Each potential party, interested governmental participant, or party shall-(1) Designate an official who will be responsible for administration of its responsibility to provide electronic files of documentary material ;
(2) Establish procedures to implement the requirements in§ 2.1003; (3) Provide training to its staff on the procedures for implementation of the responsibility to provide electronic files of documentary material; (4) Ensure that all documents carry the submitter's unique identification number; (5) Cooperate with the advisory reVIew process established by the NRC under§ 2.1011 (c).
(b) The responsible official designated pursuant to paragraph (a) (1) of this section shall certify to the Pre-License Application Presiding Officer that the procedures specified in paragraph (a) (2) of this section have been implemented, and that to the best of his or her knowledge, the documentary material specified in § 2.1003 has been identified and made electronically available. Upon order of a duly appointed presiding officer, the responsible official shall update this certification.
- 12. Section 2.1010 is revised to read as follows:
§ 2.101 o Pre-License Appncatlon Presiding Officer.
(a) (1) The Commission may designate one or more members of the Commission, or an atomic safety and licensing board, or a named officer who has been delegated final authority on the matter (Pre-License Application Presiding Officer) to rule on disputes over the electronic availability of documents during the pre-license application phase, including disputes relating to privilege, and disputes relating to the implementation of the recommendations of the Advisory Review Panel established under
§2.lOll(e).
(2) The Pre-License Application Presiding Officer shall be designated before the integrated electronic information is scheduled to be available.
(b) The Pre-License Application Presiding Officer shall rule on any claim of document withholding to determine-(!) Whether it is documentary material within the scope of this subpart; (2) Whether the material is excluded under§ 2.1005; (3) Whether the material is prvileged or otherwise excepted from disclosure under §2.1006; (4) If privileged, whether it is an absolute or qualified privilege; (5) If qualified, whether the document should be disclosed because it is necessary to a proper decis10n in the proceeding; (6) Whether the material should be disclosed under a protective order containing such protective terms and conditions (including affidavits of nondisclosure) as may be necessary and appropriate to limit the disclosure to potential participants, interested governmental participants and parties in the proceeding, or to their qualified witnesses and counsel. When Safeguards Information protected from disclosure under section 14 7 of the Atomic Energy Act of 1954, as amended, is received and possessed by a potential party, interested governmental participant, or party, other than the Commission staff, it shall also be protected according to the requirements of§ 73.21 of this chapter. The Pre-License Application Presiding Offi.cer may also prescribe such additional procedures as will effectively safeguard and prevent disclosure of Safeguards
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60797 Information to unauthorized persons with minimum impairment of the procedural rights which would be available 1f Safeguards Information were not involved. In addition to any other sanction that may be imposed by the Pre-License Application Presiding Officer for violation of an order pertaining to the disclosure of Safeguards Information protected from disclosure under section 14 7 of the Atomic Energy Act of 1954, as amended, the entity in violation may be subject to a civil penalty imposed pursuant to
§ 2.205. For the purpose of imposing the criminal penalties contained in section 223 of the Atomic Energy Act of 1954, as amended, any order issued pursuant to this paragraph with respect to Safeguards Information shall be deemed to be an order issued under section 161 b of the Atormc Energy Act of 1954, as amended.
(c) Upon a final determination that the material is relevant, and not privileged, exempt from disclosure, or otherwise exempt from production under§ 2.1005, the potential party, interested governmental participant, or party who asserted the claim of withholding must make the document available in accordance with the provisions of this subpart within two days.
(d) The service of all pleadmgs and answers, orders, and decisions during the pre-license application phase shall be made according to the procedures specified m § 2.1013(c) and entered into the pre-license application electronic docket (e) The Pre-License Application Presiding Officer shall possess all the general powers specified in§§ 2. 721 (c) and 2.718 (f) The Commission, in designating the Pre-License Application Presiding Officer in accordance with paragraphs (a) (1) and (2) of this section, shall specify the jurisdiction of the Officer
- 13. Section 2 1011 ls revised to read as follows:
§2.1011 Management of electronic information.
(a) Electronic document production and the electronic docket are subject to the provisions of this subpart.
(b) 'I;he NRC, DOE, parties, and potential parties participating in accordance with the provisions of this subpart shall be responsible for obtaining the computer system necessary to comply with the requirements for electronic document production and service (c)(l) The Secretary of the Commission shall establish an Advisory Review Panel composed of the Advisory Committee members identified in paragraph (c) (2) of this section who wish to serve. The Secretary of the Commission shall have the authority to appoint additional representatives to the Advisory Review Panel consistent with the requirements of the Federal Advisory Committee Act, 5 U.S.C. app.
I, giving particular consideration to potential parties, parties, and interested governmental participants who were not members of the NRC HL W Licensillg Support System Advisory Committee.
(2) The Advisory Committee membership will initially include the State of Nevada, a coalition of affected units of local government ill Nevada who were on the NRC High-Level Waste Licensing Support System Advisory Committee, DOE, NRC, the National Congress of American Indians, the coalition of national environmental groups who were on the NRC High-Level Waste Licensing Support System Advisory Committee and such other members as the Commission may from time to time designate to perform the responsibilities in paragraph (d) of this section.
(d)(l) The Advisory Review Panel shall provide advice to-(i) NRC on the fundamental issues of the type of computer system necessary to access the integrated electronic information effectively under paragraph (b) of this section; and (ii) The Secretary of the Commission on the operation and maintenance of the electronic docket under the Commission's Rules of Practice (10 CFR part 2).
(2) The responsibilities of the Advisory Review Panel shall include advice on-(i) Format standards for providing electronic access to documentary material to the parties, interested governmental participants, or potential parties; (ii) The procedures and standards for the electronic transmission of filings, orders. and decisions during both the pre-license application phase and the high-level waste licensing proceeding; (iii) Other duties as specified in this subpart or as directed by the Secretary of the Commission.
- 14. In§ 2 1012, paragraphs (a), (b) (1),
and (d) are revised to read as follows:
§2.1012 Compliance.
(a) In addition to the requirements of
§ 2.101 (f). the Director of the NRC's Office of Nuclear Materials Safety and Safeguards may determine that the tendered application ls not acceptable for docketing under this subpart if the Secretary of the Commission determines that it cannot be effectively accessed through the Commission's electronic docket.
(b) (1) A person, illclUding a potential party given access to the integrated electronic information under this subpart, shall not be granted party status under§ 2.1014, or status as an interested governmental participant under
§ 2.715(c), ifit cannot demonstrate substantial and timely compliance with the requirements of§ 2.1003 at the time it requests participation in the high-level waste licensing proceeding under
§ 2.1014 or§ 2.715(c).
(d) Access to the pre-license application electronic docket or electronic docket may be suspended or terminated by the Pre-License Application Presiding Officer or the Presiding Officer for any potential party, interested governmental participant or party who is in noncompliance with any applicable order of the Pre-License Application Presiding Officer or the Presiding Officer or the requirements of this subpart.
- 15. Section 2.1013 is revised to read as follows:
§ 2.1013 Use of the electronic docket during the proceeding.
(a) (1) Pursuant to § 2. 702, the Secretary of the Commission will maintain the official docket of the proceeding on the application for a license to receive and possess waste at a geologic repository operations area (2) Commencing with the docketing in an electronic form of the license application to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter, the Secretary of the Commission, upon determining that the application can be properly accessed under the Commission's electronic docket rules, will establish an electronic docket to contain the official record materials of the high-level radioactive waste licensing proceeding in searchable full text, or for material that is not suitable for entry ill searchable full text, by header and image, as appropriate.
(b) Absent good cause, all exhibits tendered during the hearing must have been made available to the parties in electronic form before the commencement of that portion of the hearing in which the exhibit will be offered. The electronic docket contains a list of all exhibits, showing where in the transcript each was marked for identification and where it was received illtO evidence or rejected. Transcripts will be entered into the electronic docket on a daily basis in order to
60798 Federal Register / Vol. 62, No. 219 / Thursday. November 13, 1997 / Proposed Rules provide next-day availability at the hearing.
(c) (1) All filings in the adjudicatory proceeding on the license application to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter shall be transmitted electronically by the submitter to the Presiding Officer, parties, and the Secretary of the Commission, according to established format requirements. Parties and interested governmental participants will be required to use a password security code for the electronic transmission of these documents.
(2) Filings required to be served shall be served upon either the parties and interested governmental participants, or their designated representatives. When a party or interested governmental participant has appeared by attorney, service must be made upon the attorney of record.
(3) Service upon a party or interested governmental participant is completed when the sender receives electronic acknowledgment ("delivery receipt")
that the electronic submission has been placed in the recipient's electronic mailbox (4) Proof of service, stating the name and address of the person on whom served and the manner and date of service, shall be shown for each docurnentfiled,by-(1) Electronic acknowledgment
("delivery receipt");
(ii) The affidavit of the person making the service; or (iii) The certificate of counsel.
(5) All Presiding Officer and Commission issuances and orders will be transmitted electronically to the parties and interested governmental participants (d) Online access to the electronic docket, including a Protective Order File if authorized by a Presiding Officer, shall be provided to the Presiding Officer, the representatives of the parties and interested governmental participants, and the witnesses while testifying, for use during the hearing.
Use of paper copy and other images will also be permitted at the hearing.
- 16. In§ 2.1014, paragraph (c)(4) is revised to read as follows*
§ 2.1014 Intervention.
(c) * * *
(4) The failure of the petitioner to participate as a potential party in the pre-license application phase.
- 17. Section 2.101 7 is revised to read as follows:
§ 2.1017 ComputaUon of time.
In computing any period of time, the day of the act, event, or default after which the designated period of time begins to run 1s not included. The last day of the period so computed is included unless it ls a Saturday, Sunday, or legal holiday at the place where the action or event is to occur, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor holiday.
Whenever a party, potential party, or interested governmental participant, has the right or is required to do some act within a prescribed period after the service of a notice or other document upon it, one day shall be added to the prescribed period If the electronic docket is unavailable for more than four access hours of any day that would be counted in the computation of time, that day will not be counted in the computation of time.
- 18. Jn§2.1018, paragraph (a)(l) and the introductory text of paragraph (e) are revised to read as follows:
§2.1018 Discovery.
(a) (1) Parties, potential parties, and interested governmental participants in the high-level waste licensing proceeding may obtam discovery by one or more of the following methods:
(i) Access to the documentary material made available pursuant to
§2.1003;
{il) Entry upon land for inspection, access to raw data, or other purposes pursuant to§ 2.1020; (iii) Access to, or the production of, copies of documentary material for which bibliographic headers only have been submitted pursuant to § 2.1003 (b) and (c),
(iv) Depositions upon oral examination pursuant to§ 2.1019;
{v) Requests for admission pursuant to
§2.742; (vi) Informal requests for information not made electronically available, such as the names of witnesses and the subjects they plan to address; and (vii) Interrogatories and depositions upon wntten questions, as provided in paragraph (a)(2) of this section.
(e) A party, potential party, or interested governmental participant who has made available in electronic form all material relevant to any discovery request or who has responded to a request for discovery with a response that was complete when made is under no duty to supplement its response to include information thereafter acquired, except as follows*
- 19. ln § 2.1019, paragraphs (d), (e),
and (i) are revised to read as follows:
§ 2.1019 Depositions.
(d) When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and signature unless the deponent ls ill or cannot be found or refuses to sign. The officer shall certify the deposition or, if the deposition is not signed by the deponent, shall certify the reasons for the failure to sign, and shall promptly transmit an electronic copy of the deposition to the Secretary of the Commission for entry into the electronic docket (e) Where the deposition is to be taken on written questions as authorized under§ 2.1018(a)(2), the party or interested governmental participant taking the deposition shall serve a copy of the questions, showing each question separately and consecutively numbered, on every other party and interested governmental participant with a notice stating the name and address of the person who is to answer them, and the name, description, title, and address of the officer before whom they are to be asked. Within ten days after service, any other party or interested governmental participant may serve cross-questions The questions, cross-questions, and answers shall be recorded and signed, and the deposition certified, returned, and transmitted in electronic form to the Secretary of the Commission for entry into the electronic docket as in the case of a deposition on oral examination.
(1)(1) After receiving written notice of the deposition under paragraph (a) or paragraph (e) of this section, and ten days before the scheduled date of the deposition. the deponent shall submit an electronic index of all documents in his or her possession, relevant to the subject matter of the deposition, including the categories of documents set forth in paragraph (i) (2) of this section, to all parties and interested governmental participants The mdex shall identify those records which have already been made available electronically. All documents that are not identical to documents already made available electronically, whether by reason of subsequent modification or by the addition of notations, shall be treated as separate documents.
(2) The following material is excluded from the initial requirements of § 2.1003 to be made available electronically, but is subject to derivative discovery under paragraph (i)(l) of this section-(!) Personal records; (ii) Travel vouchers;
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60799 (ill) Speeches; (iv) Preliminary drafts; (v) Marginalia.
(3) Subject to paragraph (1)(6) of th1s section, any party or interested governmental participant may request from the deponent a paper copy of any or all of the documents on the index that have not already been provided electronically.
(4) Subject to paragraph (i) (6) of this section, the deponent shall bring a paper copy of all documents on the index that the deposing party or interested governmental participant requests that have not already been provided electronically to an oral deposition conducted pursuant to paragraph (a) of this section, or in the case of a deposition taken on written questions pursuant to paragraph (e) of this section, shall submit such documents with the certified def>_?sitlon.
(5) Subject to paragraph (i) (6) of this section, a party or interested governmental participant may request that any or all documents on the index that have not already been provided electronically, and on which it intends to rely at hearing, be made electronically available by the deponent.
(6) The deposmg party or interested governmental participant shall assume the responsibility for the obligations set forth in paragraphs (i)(l), (1)(3), (1)(4),
and (i) (5) of this section when deposing someone other than a party or interested governmental participant Dated at Rockville, MD, thls 6th day of November, 1997.
For the Nuclear Regulatory Commissmn John C. Hoyle, Secretary of the Commission.
[FR Doc 97-29884 Flled 11-12-97; 8*45 am]
BR.UNG CODE 7oll0-01-P NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Part 792 The Freedom of Information Act and Privacy Act AGENCY: National Credit Union Administration (NCUA).
ACTION: Proposed rule.
SUMMARY
- NCUA proposes to revise its regulations governing the disclosure of information pursuant to the Freedom of Wormation Act (FOIA) to reflect recent changes to FOIA brought about by the enactment of the Electronic Freedom of Information Act Amendments of 1996 (E-FOIA). The proposed rule, among other things, sets forth new procedures NCUA will employ to implement provisions of E-FOIA, such as expedited treatment of requests and multi-track processing. The proposed rule also clarifies the information which must be included in FOIA requests so that NCUA can process them. Other proposed changes to the rule are designed to provide guidance to the public on how to obtain records contained in the files of the Office of Inspector General.
DATES: Comments must be submitted on or before January 12, 1998.
ADDRESSES: Comments should be directed to Becky Baker, Secretary of the Board. Mail or hand-deliver comments to: National Credit Union Administration, 1775 Duke Street, Alexandrta,Virginia22314-3428.Fax comments to (703} 518-6319. E-mail comments to boardmail@ncua.gov.
Please send comments by one method only.
FOR FURTHER INFORMATION CONTACT:
Dianne Salva, Staff Attorney, or Sheila Albin, Associate General Counsel, (703) 518-6540.
SUPPLEMENTARY INFORMATION:
Backgrotmd The Freedom of Information Act (FOIA) was enacted in 1966 to establish the right of any member of the public to obtain access to government information. FOIA was amended several times before 1996, when the Electronic Freedom of Information Act Amendments of I 996, Pub. L. 104-231.
-was enacted. E-FOIA has twin goals of making records contained in government files more easily accessible to the public and improving administration of FOIA programs in the agencies. In particular, Congress moved to amend the FOIA because it found that government agencies were incrE¥3Singly using computers to conduct agency business and store valuable agency records and information. When the Senate passed FOIA in 1966, the government is reported to have had just 1,826 computers in use. By 1994, in addition to the proliferation of individual personal computers used by government employees, the number of government computers had climbed to almost 35,000. In recognition of the vast amount of information the government maintains in electronic format, E-FOIA was designed to ensure continued public access to government information, including that maintained in electronic format FOIA ensures that the public has access to government information by requiring agencies to disclose information in three ways. First, FOIA requires agencies to disclose basic information about agency structure and general rules of procedure within the agency by publication in the Federal Register. Second, FOIA requires agencies to make certain categories of records available for the public to inspect and copy. Many agencies have established public reading rooms to comply with this requirement And, third, FOIA requires agencies to respond to individual requests for other specific agency records. Records must be released unless one or more ofFOIA's nine statutory exemptions applies.
Under E-FOIA, public access to "reading room" records, which are those records that must be made available for inspection and copying, will be enhanced in two ways. The categories of records which fall within the "reading room" provision of FOIA have been expanded. Previously, three categories of records were required to be made available for inspection and copying: Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and administrative staff manuals and instructions to staff that affect a member of the public. Under E-FOIA two new categories have been added: Records released under the FOIA after March 31, 1997, which the agency determines have become or are likely to become the subject of subsequent requests, and a general index of the new category of records.
Public access to reading room records will be further enhanced by the provision in E-FOIA which requires that agencies make their reading room records available electronically, if they are created by the agency on or after November 1, 1996. The "electronic reading room" can be implemented by placing records on the internet As for individual requests, E-FOIA clarifies that reasonable efforts must be made to search for records electronically. It also requires agencies to provide requesters with records in the form or format the requester chooses, if the agency can readily do so. Perhaps most fundamental to the new law is its provision that clarifies that records, if they meet other legal requirements, are subject to FOIA even though they are maintained in electronic format The other goal of E-FOIA was to improve the administration of FOIA programs in the agencies. Congress found that due to a lack of resources, some agencies suffered stubborn
Federal Register/Vol. 63, No. 21 /Monday, February 2, 1998/Proposed Rules 5315 NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 RIN 315o-AF88 Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic ReposHory AGENCY: Nuclear Regulatory Commission ACTION: Proposed rule; extension of public comment period.
SUMMARY
- On November 13, 1997 (62 FR 60789), the NRC published for public comment a proposed rule to amend the Rules of Practice for the licensing proceeding on the disposal of high-level radioactive waste at a geologic repository (HL W proceeding). The comment period for this proposed rule was scheduled to expire on January 27, 1997. In a letter dated December 31, 1997, and received by NRC on January 12, 1998, a representative of Clark County, Nevada, requested a 30 to 60-day extension of the comment period.
This extension is requested to allow Clark County, Nevada, and other affected units of local government, whose funding for participation in the HLW proceeding has only recently been restored, sufficient time to review the proposed rule and submit comments. In response to this request, the NRC has decided to extend the comment period for 60 days.
DATES: The comment period has been extended 60 days and will now expire on March 30, 1998. Comments submitted after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except for comments received on or before this date.
ADDRESSES: Send comments by mail addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Attention: Rulernakings and Aqjudications Staff.
Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:30 am and 4*15 pm on Federal workdays.
You may also provide comments via the NRC's interactive rulemaking web site through the NRC home page (http:/
/www.nrc.gov). This site provides the availability to upload comments as files (any format), if your web browser supports that function. For information about the interactive rulemaking site, contact Ms. Carol Gallagher, (301) 415-5905; e-mail CAG@nrc.gov.
Documents related to this rulemaking, including comments received, may be examined at the NRC Public Document Room, 2120 L Street NW. (Lower Level),
Washington, DC. These same documents also may be viewed and downloaded electronically via the interactive rulemaking website established by NRC for this rulemaking.
FOR FURTHER INFORMATION CONTACT:
Kathryn L. Winsberg, U S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-1641. e-mail KLW@nrc.gov.
Dated at Rockville, Maryland, this 27th day of]anuary, 1998.
For the Nuclear Regulatory Comrnisslon.
Annette Vietti-Cook, Acting Secretary of the Commlsswn.
[FR Doc. 98-2445 Ftled 1-30--98, 8*45 am]
BIU.ING CODE 7690--01...P FEDERAL HOUSING FINANCE BOARD 12 CFR Part 937
[No. 98-02]
Financial Disclosure by Federal Home Loan Banks AGENCY: Federal Housing Finance Board ACTION: Proposed rule.
SUMMARY
- The Federal Housing Finance Board (Finance Board) is proposing to amend its regulations to add a requirement that the Federal Home Loan Banks (Banks) provide annual audited financial statements, and quarterly unaudited frnancial statements, to their members, both in conformance with the requirements promulgated by the Securities and Exchange Comnussion (SEC). This amendment is intended to codify current prevailing practice at the Banks, and to establish uniform financial disclosure requirements and standards for the Banks.
DATES: Written comments must be received in writing on or before March 19, 1998.
ADDRESSES: Comments should be mailed to: Elaine L Baker, Secretary to the Finance Board, Federal Housing Finance Board, 1777 F Street, NW.,
Washington DC 20006. Comments will
. be available for public inspection at this address.
FOR FURTHER INFORMATION CONTACT:
Joseph A. McKenzie, Director, Financial Analysis and Reporting Division, Office of Policy, 202/ 408-2845, or Deborah F Silberman, Acting General Counsel, Office of General Counsel, 202/ 408-2570, Federal Housing Finance Board, 1777 F Street, NW., Washington DC 20006.
SUPPLEMENTARY INFORMATION:
I. Background The Federal Home Loan Bank Act (Bank Act), 12 U.S.C. 1421 et seq.,
authorizes the Finance Board to issue consolidated Bank obligations that are the joint and several obligations of the Banks in order to provide funds for the Banks, 12 U.S C 1431(b), (c). The Bank Act further authorizes the individual Banks to issue debt securities subject to rules and regulatlons adopted by the Finance Board, 12 U.S.C 143l(a) The Finance Board has never adopted regulations concerning the issuance of debt securities by the individual Banks, and the Banks have never issued debt securities pursuant to this authority However, the Banks are corporate entities with both mandatory and voluntary stockholders. Federal savings associations automatically become members of the FHLBank in the district in which the Federal savings association's principal office are located. See 12 U.S.C 1464(f). Other eligible financial mstitutions may apply for and be granted membership in a Bank if they meet the statutory and regulatory membership eligibility criteria set forth in the Bank Act, see 12 U.S.C. 1424 and other regulatory requirements, see 12 CFR part 933 As a condition of membership, all members are required to maintain a minimum stockholding in their respective Banks.
See 12 U S.C. 1426. The aggregate stockholder investments in the Banks range from $700 million in the Bank of Topeka, to more than $3 billion m the Bank of San Francisco.
Pursuant to section 3(a) (2) of the Securities Act of 1933, 15 USC 77 c(a) (2)), (Securities Act), securities issued by both the Finance Board and the Banks are exempt from the registration requirements of the Securities Act. Section 3(a) (2) exempts from registration and other requirements of the Securities Act, inter alla, securities issued or guaranteed by "any person controlled or supervised by and acting as an instrumentality of the Government of the United States pursuant to authority granted by the Congress of the United States " 15 U.S C. 77c(a)(2).
Classes of securities issued by the Finance Board and the Banks similarly are exempt from the registration and reporting requirements of the Securities Exchange Act of 1934 (15 U.S.C 78a et seq.) (Exchange Act) pursuant to section 3(a)(42) of the Exchange Act (15 U S.C.
78c(a)(42)) Section 3(a)(42)(B) designates as securities exempt from registration and reporting under the Exchange Act, "government securities,"
From:
To:
Date:
Subject:
Kathryn/Chip/Mike-John Hoyle FXC, KLW, TWD2.TWP7.MJB2 12/22/97 5:38pm COMMENTS BY DENNIS BECHTEL, CLARK COUNTY, NV Thanks for joining me irl the 12/16 meeting with Dennis Bechtel, the LSSARP representative from Clark County, NV. I have attached a bnef write-up of the thoughts he expressed at the end of the meetmg about the proposed amendments to the LSS rule. I'm sure he will have further comments when he has had more tune to study the changes in detail.
As you recall, Dennis noted that the affected units of local government were expecting to meet on January 15 to discuss the sharing of the long awaited funding they will be receiving from DOE. Smee many of the local governments had not been participating recently on LSS matters because of the reduction of staff due to lack of funding, this new funding should allow them to participate once more.
Dennis expressed the view that, with funding available again, the local governments participating on the LSSARP would probably be interested in a face-to-face meeting in Nevada at which they could be briefed by NRC on the proposed changes to the LSS rule and ask questions/seek clanfication on the issues raised by the proposal to eliminate the LSS as a urnquely designed stand-alone system. He noted that because the funding would not be available until later in January, the local governments may wish to request an extension of the comment response date for at least 30 days beyond the current date of January 27, 1998.
I'll let you know if I hear further from Dennis on this subject.
John CC:
TWD2.TWP7.JTG1, TWD1.1WP5.AEL1, WNPl.JRG, WNPl.BWJ...
No. 98-26 United States Nuclear Regulatory Commission Office of Public Affairs Washington, DC 20555 Phone 301-415-8200 Fax 301-415-2234 lntemet:opa@nrc.gov FOR IMMEDIATE RELEASE (Thursday, February 12, 1998)
NRC SCHEDULES MEETING OF LICENSING SUPPORT SYSTEM ADVISORY REVIEW PANEL The Nuclear Regulatory Commission will hold a meeting in Las Vegas in late February to discuss proposed amendments to regulations concerning the design and operation of its licensing support system for the projected high-level waste repository.
The licensing support system is an electronic information management system established to maintain documents for the future licensing proceeding of a high-level waste repository. The Licensing Support System Advisory Review Panel was established in 1989 to advise the NRC and the Department of Energy about the design, development, and operation of the licensing support system. The NRC is considering amending its rules to allow more flexibility of new information management technologies into licensing the repository because current technology has advanced to a level beyond the original concept.
The panel's meeting will take place on February 24 and 25 at the offices of the U.S.
Department of Energy, 232 Energy Way, Room A106, North Las Vegas, Nevada. The first day's session is scheduled to run from 8:30 a.m. to 4:30 p.m. The second day's meeting is scheduled from 8:30 to 10:00 a.m.
Panel members include representatives from the state of Nevada; a coalition of counties in Nevada and California; the National Congress of American Indians; the Nevada Nuclear Waste Task Force; the nuclear industry; DOE; NRC; and other federal agencies.
Proposed amendments to be discussed at the meeting were published for public comment in the Federal Register last November 13. The comment period expires March 30.
Individuals wishing to make oral presentations or file written statements atthe meeting, should contact John Hoyle, Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, D.C., 20555: telephone 301-415-1969.
SUMMARY
OF INFORMAL COMMENTS BY DENNIS BECHTEL ON PROPOSED LSS RULE AMENDMENTS DECEMBER 16, 1997 Mr. Dennis Bechtel, the Clark County '(NV) representative on the LSS Advisory Review Panel, provided the following comments in his informal meeting with NRC staff:
o The formal LSSARP would appear to have considerably more stature than the informal users group on which the NRC seeks comment. How can the current level of "standing" be preserved if the LSSARP as a formal FACA advisory committee is terminated?
o There is concern that if the House passed language of the current Interim Waste bill prevails affected County status would be g'iven only to Nye County and Lincoln County. How might that jmpact the ability of the other Counties to continue to participate on the LSSARP, or on the informal users group which might replace it?
o What is the status of the Topical Guidelines? How did the subjects of environmental issues and socio-economic issues get handled?
o What is the "system" which is referred to in Section 2.1007 for use by the public to gain access at the PDR, the LPDRs and the Counties?
o Clark County continues to feel very strongly about retention of the LSS Administrator concept in the rule. A person is needed to monitor the activities of the participants, the availability and responsiveness of the various automated databases, and to help set priorities for users/participants. The County questions whether the pre-licensing ASLB is the proper entity for the role required.
o There is some concern with use of the phrase "Regulatory Flexibility" in the Statement of Consideration, although required by the Regulatory Flexibility Act.
Unless defined more carefully, the public may consider the words are being used to describe a process to speed the proce~dingup in some way detrimental to stakeholders.
o After the comment period has ended, and the staff has prepared its analysis of comments and the proposed wording of the final rule, can the LSSARP be given early access to such a paper before the Commission acts upon it?
o Will the new type of LSS be tested before it is relied upon by the participants?
Federal Register/Vol. 63, No. 21 /Monday, February 2. 1998/Proposed Rules NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 RIN 3150-AF88 Procedures A.ppllcable to Proceedings for the Issuance of Licenses for the
- Receipt of Hlgh-Levet Radioactive Waste at a Geologic Repository AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule; extension of public comment period.
8UMMARY: On November 13, 1997 (62 FR 60789), the NRC published for public comment a proposed rule to amend the Rules of Practice for the licensing proceeding on the disposal of high-level radioactive waste at a geologic repository (HL W proceeding). The comment period for this proposed rule was scheduled to expire on January 27, 1997. In a letter dated December 31, 1997, and received by NRC on January 12, 1998, a representative of Clark County, Nevada, requested a 30 to BO-day extension of the comment period.
This extension is requested to allow Clark County, Nevada, and other affected units of local government, whose funding for participation in the HLW proceeding has only recently been restored, sufficient time to review the proposed rule and submit comments. In response to this request, the NRC has decided to extend the comment period for 60 days.
DATES: The comment period has been extended 60 days and will now expire on March 30, 1998. Comments submitted after this date will be considered if It la practical to do so, but assurance of consideration cannot be given except for comments received on or before this date.
ADOIESSES: Send comments by mail addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Attention: Rulemakings and Adjudications Staff.
Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:30 am and 4:15 pm on Federal workdays.
You may also provide comments via the NRC's interactive rulemaking web site through the NRC home page (http:/
/www.nrc.gov). This site provides the availability to upload comments as files (any format), if your web browser supports that function. For information about the interactive rulemaldng site, contact Ms. Carol Gallagher, (301) 415-5905; e-mail CAG@nrc.gov.
Documents related to this rulemaking, including comments received, may be examined at the NRC Public Document Room, 2120 L Street NVv. (Lower Level),
Washington, DC. These same documents also may be viewed and downloaded electronically via the interactive rulemaking website established by NRC for this rulemaking.
FOR FURTHER INFORMATION CONTACT:
Kathryn L. Winsberg, U.S. Nuclear Regulatory Com.mission, Washington, DC 20555, telephone (301) 415-1641, e-mail KLW@nrc.gov.
Dated at Rodvtlle, Maryland, this 27th day of January, 1998.
For the Nuclear Regulatory Comm1"ion.
Annette Vietti-Cook, Acting Secretary of the Commission.
!FR Doc. 98-2445 Filed 1-30-98; 8:45 am)
BILUNCl CODE 7Q0-01.P 5315
Proposed Rul~s Thia aection of the FEOERAl. REGISTER contains notices to the public of the proposed ll8uance of rules and regulationa. The purpose of these notices Is to give lnlerelled persona an opportunity to participate In the rule making prior to the adoption of the Ina!
rules.
NUCLEAR.REGULATORY COMMISSION 10CFR Part2 R1N 3150-AFIS Procedura Appllcable to Proceedings for the Issuance of Licenses for the Receipt of High-level Radioactive Waste at a Geologic Repository AG!NCY: Nuclear Regulatory CommiMion.
ACTION: Proposed rule.
SUMIIARY: The Nuclear Regulatory Com.misafon J.s proposing to amend Im Rules of Practice for the li.cenaing proceeding on the disposal of high--level radioactive waste at a geologic repository (HLW proceeding). The proposed amendments are intended to allow application of technological developmenm that have occurred since the original rule was adopted in 1989, while achieving the original goals of facilitating the Commfsslon's ability to comply with the schedule for decision on the construction authorization for the repository contained in Section 114(d) of the Nuclear Waste Polley Act, and providinR for a thorough technical review of the license application and equitable access to information for lb~
parties to the hearing.
DATES: Submit commenm by January 27, 1998. Comments received after this date will be considered if it ill practical to do 110, but the NRC ill able to BA8Ul'9 conaideration only for comments received on or before this date.
ADDRESSES: Send comments by mail addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, OC 20555-0001. Attention: Rulemakings and Adjudications Staff.
Hand-deliver comments to: 11555 Rockville Pike, RockviLe, Maryland, between 7:30 am and 4:15 pm on Federal workdays.
You may also provide comments via the NRC's interactive rulemaking web site through the NRC home page (http:/
/www.nrc.gov). This site provides the Fedanlhglater Vol.62. No. *219 Thunday, No¥IIDlhar 13. 1997 60789 availability to upload comment.a as files which the ~
and the interests (any format), if your web browser affected by a n1lema'king meet to supports that function. For informatlon attempt to reach a consenaua on a draft about the interactive rulemaking site, proposed rule. ff a comensua is reached, contact Ms. Carol Gallagher, (301) 415-_
the agency publishes the negotiated rule 5905; e-mail CAGOnrc~.
as the agency's proposed rule. The Documents related to thia rulema'king.
CommisaiQn sefected the negotiated
'incl. commenta :n,a,ived, may be n1lemaking l\\pproech to address the LSS exaTUined at the NRC Public Document issue for several reasom. In 1987, the Room, 2120 L Street NW., (Lower idea of uae of an electronic information Level), Washington., DC. These same management lystem in a Commission documents also may be vi~ and.
adjudicatory proceeding was novel, not downloaded electronically" via the only for the Commission, but in general.
interactive rulemaktng website Therefore, the development of the rules established by NRC for this ndema'king for the use of IUch a system would FOR FURTHER INFORMATION CONTACT:
benefit from diacmsion and joint Kathryn L. Winsberg. U.S. Nuclear
. problem solving by those who might Regulatory Commission, Wuhington.
ultimately use the system and bad DC 201555, telephone (301) 415-1641, experience with the Commlllllion's e-mail KLWOmc.gov.
tradltibnal adjudicatory process.
SUPPLDll!NTARY -.&TION:
Furthermore, the potential uaers of the
-- -r--
LSS possessed unique information that L Backgroand would be important to the design of the The existing procedures for Hcensea
. system, such as their computer to receive high-level radioactive waste capability and the amount and types of at a geologic repoattory wen, developed relevant documents that they m.ight to address the Nuclear Regulatory generate. In addition, the JlOlential for CommlllBion's concern regarding how COil58DSUII was enhanced by the fact that best to review the U.S. Department of the LSS rule focuaed on procedUI811 for Energy (DOE) license app*llcation~..auo.
..... for a conducting the licensing process that first-of-a-kind bigh-levol l'BGloactive might benefit all parties, rather than waste (HLW) repository during the 3-focusing on suhstantive technical year time period dictated by Section criteria for a licensing process. Finally, 114(d) of the Nuclear Waste Policy Act.
the IIUCC8S8 of the LSS concept The Commission believed i* necessary depended upon potential parties to reduce the time normally spent on
- voluntarily comp~ with the.
the discovery process at the start of a licensing process fur document licensing proceeding and the time-identification and mbmiulon in the conauming service of documents du,rlng period before the OOE license the proceeding if thfl OJmmfufon were - application WBII submitted. Therefore, to reach its decision within the allotted the involvement of interested parties in time. The Llcensing Support System the development of the provisions to (LSS) concept, an electronic information govern the use of the LSS waa essential.
managemimt system. was created to The Commission initiated the achieve thia time reduction by making negotiated rulema'king in August 1987.
the informatlon and data supporting a The negotiating committee, composed of DOE application available State. local, and tribal governments, simultaneously in a centralized database industry representatives, NRC, OOE, to all interested parties before the*
and environmental groups, completed application is submitted and formal its work in July 1988. Except for the NRC review begin.a. ~mging induatry coalition, all the parties on the information management technologies negotiating committee agreed on the text for issue identification, electronic
- ana supplementary information of a storage and retrieval, and electronic draft proposed rule. However, even the mail were recommended for these one dissenting party, the industry functions to help achieve the objectives representative, had been a full and of more effective and efficient review.
active participant in the drafting of the The Commission employed the regulatory text and supporting tecbnique of negotiated rulemaking to information. Industry did not join the develop the regulations governing the final consensus at the end of the process development and use of the LSS.
based on its belief that the use of a new Negotiated rulemaldng is the process by technology in the licensing process
60790 Federal Register / Vol 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules would not prove coat-beneficial. At that time, the cost of the LSS was estimated by OOB to be in the $200 million range.
The Commission. recognlz1ng the agreement among the other parties on the negotiating committee, decided to publlah the negotiated draft proposed rule as the Commission's proposed rule in November 1988. Because ofthia effort. the final LSS rule (10 CFR part 2, subpart D, "ProcedUl'88 Applicabfe to Proceeding for the lmlance of Licenses for the Receipt of Hlgh-,Level Radioactive Waste at a Geologic Repoaitory'p, was promulgated on April 24, 1989 (54 FR 14925).
The LSS rule uaigned the LSS Ad.min.1atrator (LSSA) function to the *
- NRC which would be raspomfble for the management. sdmfnfstratlon, operation, and maintenance of the LSS; punuant to DOB's agreement, gave 00B respomibility for the design, dmlopment, and Jmplementatlon of the LSS; and established the charter of the LSS Advisory Review Panel *
(LSSARP) to provide CODSemU.1 '"
guidance on the design and o.evelopment of the LSS to both NRC and DOE. The LSS was intendecf to provide a central, shared. federally funded databese of licen.smg information b,,ginning in 1995, the year DOE was expected to submit its application for a const:ruction permit for the repoeitory. The Con:uniasion minor amendment,, further me proceduree in a final p
on February 26, 1991 {56 FR7787).
The Licenaing Support System Administrator (LSSA) Willi appointed. in JanUBl'}' 1989. The LSSARP wu formed, holding its 8:rat meeting In December 1989. Also In December 1989, well before any serious development work could be started on the LSS, the Department of Energy revised its repository program schedule to extend its anticipated. license application data from 1995 to 2001. Co.nSf!(luently, the LSS development ~ule was extended.
IL Dfa:uaaion The development of the LSS that was devised in the original procedural rules in 10 CFR Pert 2, Subpart J, has not been accomplished during the time that has passed since adoption of the rule. Many delays and changes in personnel and program structure have attended the Department of Energy's efforts to develop the LSS. Budgetary shortfalls and the ~cipated length of time that it has taken to develop the licensing application for the repository not only delayed the development of the LSS, but also resulted in ll6V8r8l additional years' accumulation of potential licenaing infonnation.
Because of the length of time involved and the narrowing of the repository development program, much of the early material thought to be relevant at the time the rule was developed may no longer be relennt to the actual licensing proceeding that may not begin until about 2002. Also because of the extended period of tfme It has taken to develop the LSS for DOE's use as a dcx:ument managernA11t system, it appears that.all accumulated documents may not have been identified and maintained properly for t:r&ckmg of Jmportant repository development decision& In addition, because document capture may now involve much l.aJ:xer b&cklogs than originally contemplated, the risk of falling to captore all the material originally required to be placed in the LSS la
. su&.tantially larger than origlnally assumed. In order for the current Subpait J rules to apply, the LSSA mwrt certify that the DOE has complied with the requirement to enter all relevant documents In the LSS. Therefore, all of these factora combine to produce the high likelJ.bood that the current rule cannot be Jmplemented as originally envisioned. If not, then 10 CFR part 2, subpart J, will noa apply. Instead.
subpart G, the y appllcable procedures for ing proceedings.
will apply. Thia means that the,:e would be no_pre--license application acceas to documents.
Although the development of the LSS has remained stalled, the state of technology in dodument automation and retrieval has overtaken the 1986 technology on which the original LSS was to be l>aSed. The use of computers to generate and maintain the complex docu.ments of a party in litigation la wideapread and commonplace. The Internet ii universally available to tie disparate and geographically dispersed systems together. Readily available commercial software applications can perfmm. the document management functions of the LS8. Therefore, the centrallzed LSS envillioned at the time
- the LSS rule was developed has become obsolete. The enormous expense of designing and maintaining a stand-alone system required by the current rules appears to be an unJU5tifled expense, especia.!).y when it appears u.nllkely that the rule will be able to be implemented.
succesafully even if the LSS is cree.ted.
Consequently, the Commission is proposing to amend its rules to allow more flexibility to incorporate the advantages of~ information management technologies In the procedural rules for the licensing of the geologic repository. This would elJmlnate the LSS as a uniquely designed stand-alone system, while still maintaining the following primary functions ol the LS8 as a mecbaniam. for the:
(1) Diacovery of documents before the llcenae application ii filed; (2) Blectronic transmission of fi1inp by the parties during the proceedini:
(3) Electronic transmlmon of onfm and decisions related to the proceeding; and (4) Access to an electronic version of the docket.
The Commission believes that the proposed rule would continue to support the model schedule for conducting the licensing proceeding within the 3-year statutory period that wu published in the Statement of Considerations for the origina.l 10 CFR part 2, subpart J, rule pubfiahed on April 14, 1989 (54 FR 14925, 14939).
The proposed rule would elJminate the current prescriptive requirement in 10 CFR part 2, subpart J. for a centralized "Licensing Support System" administered by the NRC and therefore also would elJminate the requirement for an LSS Administrator to ensure the viability of the central database. To replace these featurea of the existing rule, the proposed rule would require that all potential parties, Including the NRC and DOE, make their documentary material available in electronic form to all other participants beginning in the pre-liceme application phase. Thia requirement is stated without unduly restrictive technological specifications, in order to accommodate flexible Jmplementation consistent with current or future technological developments.
Documentary material woula be defined as the material upon which a party intends to rely in support of its position in the licensing proceed.Jng; any material which la relevant to, but does not support. that material or that party's position; and all reports and studies, prepared by or on behalf of the potential party, intereated !tOvarnmental participant. or party, including ell related "circulated drafts," relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. For the purposes of this rule, the J)rtr application phase would begin on the date thet the President submits the site recommendation to Congress. This timing would ellow access to the parties' documentary material enough before DOE submits the license application to allow advance preparation of contentions and discovery requests before the Uceme
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60791 application, but late enough in the repository develojl~ent process to provide meaningful information.
all reports end studies, prepared by or on behalf of the potential party, interested governmental participant, or party, including all related "circulated drafts," relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. This definition would be used in the rule in S 2.1003 to define what A Pre-License Application Presiding Officer would resolve any disputes over electronic access to documents during the pre-license application phase.
Potential parties would be required to certify to the Pre-License Application Presiding Officer that they have complied with the requirement to provide electronic acceu to their documentary material. The requirements of the current rule for an el~c hearing docket would be retained, as well as the limitations on the permissible forms of discovecy after the application is filed.
material must be provided in electronic form for llCC88S ~
in the pre-license application phaae. Therefore the term "documentary material" would be intended to describe the most important The Commlasion is considering two alternatives regarding the I£S Adviaory Review Panel. In this proposed rule, because the concept of the I£S would be replaced, the requirement for en I£S Advisory Review Panel would be modified so the panel can advise the Secretary of the Commission regarding standards end procedures for electronic access to documents end for maintenance of the electronic docket.
Thia would require renaming of the advisory committee and redrafting of the committee charter. However, the Commission is also considering the alternative of replacing the Advisory Review Panel with a more informal wiers group, end particularly requests comments from potential parties to the m.w repository licensing proceeding regarding these two alternative arrangements.
- m. Section-by-Section Description of Chor In S 2.1000, the reference to S 2.709 would be removed because it would require compliance with § 2.708 that would not apply to this sub~
In S 2.1001, the following definitions.
would be added, amended, or removed:
ASCII File This definition would be removed and no longer used in the rule.
Prescriptive references to specific technical standards would be removed to allow flexible implementation consistent with developing technology.
Documentmy Material The definition of documentary material would be revised to cover material upon which a party, potential party, or interested governmental participant intends to rely end/or cite in support of its position in the licensing proceeding; any material or other information which is relevant to, but does not support, that material or
- information or that party's position; and body of material and would be defined clearly to require that all parties include electronic acceas to any relevant material in their posseuion that does not support their position in the licensing proceeding. as well as providing acceas to the material that does support their position, and any reports end studies prepared by the party on issues described in the Topical Guidelines, regardless of wheth81' or not they would be relied upon or cited by the party. The scope of the documentary material would still '6e governed by the topical guidelinea.
Electronic Docket A new definition would be added to describe NRC's electronic information system to receive, distribute, store, and maintain NRC adjudicatory docket materials in the licensing proceeding.
Integrated Electronic_lnfonnation A new definition would be added to describe material made available in electroilic form to potential parties, parties, or interested goverpmental participants to the licensing proceeding.
for the high-level waste geo1ogic repository, either as part of the NRC's pre-license application electronic*
docket or electronic docket or purauant to elertronic BCC8l!I to documentary material made available by individual potential parties, parties, end interested governmental participants. Thia is a term for the information accesa that would replace the I.SS in this rule.
LSS Administrator This term would be eliminated from the rule because the concept of the I£S would also be removed. The Pre-license Application Presiding Officer will resolve disputes about electronic accesa to documents in the pre-license application phase.
Party This definition would be revised to add "affected unit of local government",
as that term is defined in the Nuclear Waste Policy Act of 1982, as amended,
- end also to refer to that act for the definition of effected Indian tribe. In.
addition, any affected unit of local government, the host State, end any affected Indian Tribe would be required to file a list of contentions.
Potential Party This definition would be reviaed to remove the reference to the LSS, end to substitute the term integrated electronk information to describe the material to which the potential party will be given acceaa.
Pm-licen11e Application Electronlc Docket*
A new definition would be added to describe NRC's electronic information system tQ_ receive, distribute, store, and maintain ~C pre-license application docket maieria1s during the pre-license application phase.
Pre-UC8IIB8 Application PhCJ$8.
Thia definition is being specified for the purposes of this rule to begin on the date that the President submits the site recommendation to the Congreas. This date baa been chosen to allow access to the potential parties' docum~tary
. material enough before the license application to allow advance preparation of contentions and discovery requests before the,
application is filed, but late enough in the repository development procesa to provide meaningful information.
Searchable Full Tm This definition would be revised to remove references lo ASCII and to the LSS.
Topical Guidelinea A new definition would be added to describe the set of topics set forth in Regulatory Guide 3.69 that are intended to guide the scope of documentary material under this subpart.
Section 2.1002 would be removed because the I£S would no longer be required. Acceas lo intew.ated electronic information would provide the major functions which the I.SS was designed to provide. Paragraph& (c) and (d),.
which state that participation by the host State in the pre-application phase will not affect its disapproval rights, end that this subpart shall not effect any participant's independent right to receive information, would be incorporated in the revised S 2.1003 as paragraphs (a)(2) and (3).
Section 2.1003 would be revised to describe information that would be required to be made available electronically by all potential parties, parties, and interested governmental
60792 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules participants (including the NRC and than providing termJnals for access to OOi). This information would have to the I.SS. These systems must be be made available to all other maintained by DOE and NRC at the participants beginning in the pre-license locations specifled in the current application phase, which starts at the version of the rule (except for the date of the President's submission of the Uranium Recovery Field Office which site recommendation to the Congress.
no longer exists), beginning in the pre-The requirements of the rule would be license application phase.
simplifled to require only that access to Section 2.1008 would be revised to an electronic file be provided. All allow electronic access to the integrated references to specific formats would be electronic information to any person removed to allow flexibility in who complies with the requirements of implementation. The Commission Subpart J, including the requirement in intends that a potential party, party, or
§ 2.1003 to make documentary materlal interesbfd govemmentaf participant available, and who agrees to comply might offer electronic accass to its with the orden of the Pre-licenae d~entary materlal in a number of Application Presiding Officer. The
- different waya. including by providing previous requirement to petition to the ita documents in electronic form either Pre-llcense Application Presiding to the NRC or to the OOE, to have the Officer would be removed.
NRC or the OOH maintain the Section 2.1009 would be revised to documents for electronic access.
delete remencas to the LSS and the Although the draft rule would require I.SSA, and to refer instead to the that documentary material be made ruaponsib~ to provide electronic files.
available electronically Mglnning on the The respo le official for each date of the President's lite potential party would be required to recommendation to the Congieea, the certify to the Pre-Llcente Presiding Cnrorninlon would encourage the Offl.cer that procedures to comply with earliest feasible availability of
- S 2.1003 have been implemented and documentary material in order to that Its documentary materlal has been enhance the future smooth operation of made electronically available. A new the llcensing pmceeding. The
,requirement to update the certification paragraplu relating to evaluations and at the request of the presiding officer certiflcatiom by the LS8 Administrator would be added to replace a previous would be removed because the LSS (and requirement to provide this certification I.SSA) concept would be removed.
at 6 month intervals.
Section 2.1010 states that the Pre-Section 2.1010 would be revised to License Application Presiding Officer delete references to the LSS and the
- will resolve any disputes relating to I.SSA and to refer instead to electronic electronic access to documents in the acceaa. The reference to petitions for pre-license application phae.
accau. would be removed to conform to Accordingly, the paragraphs which removal of thia ~ent.
stated that the application would hava Section 2.10114.& being comidered for to be docketed under Subpart G if the
- revision in either of two alternative I.SSA did not certify compUa.nce would ways and the Commiuion requests be removei;i, and Subpart J (including specific comments on these alternatives.
specifically referenced sectlona of
. this proposed rule would revise Subpart G) would unconditionally S 2.1011 to reflect that the electronic embody the rules of procedure for~
availability of documentary matmial HLW licensing procee_dµ:ig.
- that ta apecified in this rule no longer Section 2.1004 would be revised to
. requires special equipment. The name provide procedures for providing access and functions of die LSS Advisory to a document that baa not previously*
Review Panel would be amended to been provided in electronic form and to delete the reference to the LSS and delete previous references to the LSS substitute tha purpose of arriving at and the I.SSA.
standards and procedures to facilitate Section 2.10015 would be tevisad to the electronic aa;esa to material and to delete reference to the LSS and to add the electronic docket..Because of the an exclusion of readily available broad and non-prescriptive references, such as Journal articles or requ.iremants ~
providing proceedings, which may be subject to electronic files in this proposed rule, the co=; 2.1006 would be~ to ~:a~=~= =dry refer to providing a document in procedures to ensure that all electronic fonn and to delete references participants are able to access the to the LSS and the I.SSA.
electronic information. Because the LSS Section 2.1007 would be revtaed to concept would be replaced, and the refer to providing systems for access to requirement for an LSS Advisory integrated electronic information rather Review Panel would be modified in the proposed rule to accommodate a new purpose, the advisory committee would have to be renamed and the committee charter would have to be redrafted.
However, the Commission rs also considering the alternative of eliminating the requirement for an advisory committee chartered under the.
Federal Advisory Committee Act, and substituting a more informal vohi.ntary users group to perform the functions of discussing electronic format standards, procedures, and other details. II this option were adopted, the fl..nal rule would be revised to refer to the u.ers group. This group would be able to interact using Internet dlscusslon areas (like LSSNet) as well as meetings, video conferencea, or teleconferences. This Wl8l'll group would ideally make use of the current LSSARP members' knowledge and experience. The Com.mission is particularly requesting comment from potential parties to tha HLW repository concerning their
- interest and support for the Informal users group alternative.
Section 2.1012(a) would be revised to allow the Director of the NRC Office of Nuclear Material Safety and Safeguards (NMSS) to determine that the application would not be acceptable If it is not able to be accessed through the electronic docket. Section 2.1012(b)(1) would be revised to subetitute integrated electronic information for IJcenslng Support System so that a person who has had access to the integrated electronic information would not &e granted party status in the licensing proceeding lf it cannot demonstrate compliance with the requirements of S Z.1003. Section z.1012 (d) would be nv;ised to substitutQ pre-license application electronic docket or electronic doclcet for Ucensing Support System to indicate that access to either the pre-Iiceruse application electronic docket or the electronic dock.et may be swtpended or terminated for failure to comply with the orders of the Pre-License Application Presiding Officer or the Presiding Officer.
Section 2.1013 would be reviaed to delete references to the LSS and I.SSA and would refer to the provision of information in electronic form. The requirement in S 2.1013(c}(5) to file one signed paper copy of each filing with the Secretary, NRC, would be removed becaUAe the electronic docket would not require signed paper copies.
Section 2.1014(c)(4) would delete a reference to the LSS and make the failure of a petitioner to participate In the pre-license application phase a criterion in considering whether to grant a petition to intervene.
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed l'lules 60793 Section 2.1017 would use the unavailability of the electronic dochd imtead of the LSS a a justification for extending the computation of time in the proceeding.
Section.11 2.1018 and 2.1019 would be revised to delete references to the LS8 and instead to refer to providing documents electronically.
In addition. minor editoriaJ changes have been made throughout the proposed rule to improve mdability.
Envirommmt.1 1mp<<cb Categorical Exdusloa.
The NRC baa detmmined that thia -
proposed regulation is the type of action described in categorical excliimon 10 CFR 51.22(c)(1}. Therefore, neither an enviromnental impact statement norm environ.mental assessment bu been
- prepared for this proposed regulation.
Paperwork Reduction Act St19ment Thia proposed rule contains no information collection requiramenta and, therefore, is not subject to the niquirementa of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et.eq. ).
hplatory Analysis The history of the development of the existing rule, 10 CFR part Z,.subpart J, and the current regulatory problem are d.esc:rlbed In the Background and Diacwlsion sections of this notice. To address the regulatory problem, aeveral eltematlve approaches to amending the regulations in subpart J of part 2 were considered.
Option 1: Existing Rnle _
difficult to quantify, however the lengthened discovery phase couJd prevent the ComrnlssiCJn from meeting the statutory deadline for decision on the application. This delay could also result in possible increased spent fuel storage costs for the additional length of the licensing p:roceeding in the pre-application phase (presided over by a Pre-IJcense Application Preaiding Officer). This definition of documentary material would provide pre-application acceu to a more focuased l8t of the materlala most important to the if==ing. h would not.:\\~
acceu to the entire of OOB and other Option 2: 10 CFR Part 2, Subpart G parties' material, aome of which may no Because the NRC la developing a new longer be relevant to the licensing system called the Agency-wii:le -.
- proceeding. The electronic docket Documents Access and Management functionality of the LSS would be System (ADAMS), which will provide provided by the NRC agency-wide an agency-wide electronic docket. it
. l)'stem with superviaion of the would be pouible to rely on axf.sting
/
Presiding Officer. Participation In tbe adjudicatory procedure rules In 10 CPR pre-license appllcation phase would be part 2, subpart G (which will have to be one criterion for participating in the updated to reflect the electronic docket) bee.ring. After the application is ft.led, in to conduct the licensing proceeding.
addition to the electronically available However, this approach would not matmial, dilcovery would be limited to provide p~llcen.se application accea interrogatorlea IID'1. depositions aa in the to documents and could J:eSult In
- cur:rent rule. The specific method of protracted discovery phue. The com of providing elsctronlc,accets1 to ming this approach are difficult to clocwnentary would not be specified, quantify. However the leogthened which would allow flexibility to discovery phase could pl'8V8Dt the accommodate cummt and future C'.nrnroluion from meeting the statutory tecbnoloiw advancea. Indlvidual parties deedline for decision on the application may give their documents In electronic and result in pollible lncreued spent <<orm to NRC or OOE in order to provide fuel storage cost.a, u In 0pt!on 1.
electronic accea. Becau.le this rule Option 3. Bzi.slfing Rule Ulli.ng a would unconditionally provide the Distribuhld system procedural 1'l1U39 for the m..w licensing proceeding, there would be no last This ~roach would allow using minute danger that the proceeding linked
- vidual Internet sites to serve would have to be conducted under 10 as the LSS. However, this approach does CFR part 2, subpart G.
not solve the problem dist:ussed in The C.Ommiu1on believes that Option Option 1 concerning the requirement to 4 provides the most effective solution capture a huge backlog of material that
.for maintaining the basic functionality may not have been maintained in a of the LSS conceptual design, while manner that would ever permit moat flexibly accolll.lilOdf,ting cunent compliance with the rule, and which and future technological developments.
may not all be relevant to the future The Commission requBBts public licenae application. Therefore, the coats comment on the draft regulatory of this approach, as in Option 1, would analysis. Comments on the draft include the possibility thet the LSS rule analysis DlllJ be submitted,to the NRC compliance finding could not be made as indicated under the Addresses and the proceeding would have to be heeding.
conducted under 10 CFR part Z, subpart v-1ft..._ 11'1-... n.n-c.erti8catio G. A lengthened diacovery phase could n
prevent the Commission from meeting The amendments would modify the the statutory deadline for decision on.
Commission's rules of practice and the application and result In possible procedures. The rule would be amended increased spent fuel storage costs, as in to allow more widely available Option 1.
electronic access to information before This approach would not take advantage of cummt and future technology. It would require an enormously expensive custom designed system to be developed using old UlfUIIlptions about technological atandards and the universe of "relevant" material. At the time of the development of the existing rule, the cost of the LSS was estimated by OOE to be in the $200 million range. Furthermore, given the large backlog that contains a substantial amount of documents that may no longer be relevant because of the unanticipated delay In developing the Option 4: Revised Rule With More LSS as initially designed in 1988, there Realistic Document Discovery Approach the license application is ft.led.
Participants would be required to make their own documentary material available electronically. This proposed rule would not have a significant economic impact upon a substantiel number of small entities. The license applicant for the m..w repository would be the Department of Energy. DOE would not fall within the definition of is a substantial chance thet it would be This approach would remove the impossible for the DOE to achieve, and requirement for a central LSS system for the LSSA to certtfy, compliance with and LSS Administrator, but would the provisions of the current rule. in this require each potentiel party to provide ca&e, the proceeding would have to be for the electronic availability of both the conducted under 10 CFR part 2, subpart materiel it intends to rely upon to G, and could result in a protracted support its position, any material which discovery phase. In addition to the very does not support that material or that costly and Ineffective system, the
- position. and any report.a or studies further costs of using this approach are prepared by or for the party, hflginnfng a "small entity" in the NRC's size standards (10 CFR 2.810). Although a few of the lntervenors in the m..w
60794 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules proceeding would lik.aly qualify as small entities, the impact on intervenors or potential lntervenors would not be significant. The requirement for participants to make their own documentary material available electronically Is stated In a manner that would allow ftex.ibility in Implementation. Furthermore, it is consistent with current business practice to create document5 electronically. Therefore, the exact additional cost5 involved In making the documentary materials available electronically are difficult to quantify.
However, to avoid those cost5, participant5 would have the option of providing their document5 to NRC or DOE to maintain eleqronic availability.
Thus, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the NRC hereby certifles that this proposed rule would not have a significant economic impact upon a substantial number of small entities.
Backfit Analysis The NRC has determined that the bacldit rules in 10 CFR Chapter 1,
§S 50.109, 72.62, and 76.76, do not apply to this rule, and therefore, a bac:kfit analysis is not required because these emendment5 do not involve any provisions that would impose backflt5 as defined in those rules.
List ofSubjecta in 10 CFR. Part 2 Admini5trative practice and procedure, Antitrust, Byproduct material, Classifled Information, Environmental protection, Nuclear materials, Nuclear power plant5 and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954; as amended, the Energy Reorganization Act of 1974, as emended; and 5 U.S.C. 553; the Nuclear Regulatory Commission is proposing to adopt the following amendments to 10 CFR part 2.
PART 2-RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS
- 1. The authority citation for part 2 continues to read as follows:
Authority: Secs. 161, 161, 68 Stal 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-61~. 76 StaL 409 (42 U.S.C. 2241); sec. 201, 88 StaL 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
Section 2. 101 also issued under secs.
53, 62, 63, 81, 103, 104, 105, 68 Stat.
930,932,933,935,936,937,938,as emended (42 U.S.C. 2073, 2092, 2093, 2111,2133, 2134, 2135);sec. 114(0, Pub. L. 97--425, 96 Stat. 2213, as emended (42 U.S.C. 10134(0); sec. 102, Pub. L.91-190, 83 Stal 853, as emended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871). Section5 2.102, 2.103, 2.104, 2.105, 2.721 alao issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued under Pub. L. 97--415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also wued under secs.
161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as emended (42 U.S.C. 2201 (b), (i), (o), 2236, 2282); sec.
206, 88 Stat 1246 (42 U.S.C. 5846).
Section 2.205(1) also issued under Pub.
L. 101-410, 104 Stat. 890, ea amended by Section 31001(s), Pub. L. 104-1S4, 110 Stat. 1321-373 (28 U.S.C. 2461 note.) Sections 2.600-2.606 also issued under~- 102, Pub. L.91-190, 83 Stat.
853, as emended (42 U.S.C. 4332).
Sections 2.7008, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also wued under 5 U.S.C.
557. Section 2.764 also issued under
.esecs. 135, 141, Pub. L. 97--425, gs Stat.
2232, 2241 (42 u.s.c. 10155, 10161).
Section 2.790 also issued under sec.
103, 68 Stat. 936, as amended (42 U.S.C.
2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C.
553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as *amended (42 U.S.C.
2039). Subpart K also issued under sec.
189, 68 Stat. 955 (42 U.S.C. 2239); sec.
134, Pub. L. 97--425t 96 Stal 2230 (42 U.S.C. 10154). Subpart L also issued under sec. 189, 68 Stal 955 (42 U.S.C.
2239). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 u.s.c. 2135).
- 2. Section 2.1000 is revised to read ea follows:
f 2.1000 Scope of~
The rules in this subpart govern the procedure for applications for a license to receive and possess high-level radioactive waste at a geologic repository operations area noticed pursuant to S 2. 101(f)(8) or§ 2.105(a)(5).
The procedures in this subpart take precedence over the 10 CFR part 2, subpart G, rules of general applicability, except for the following provisions:
ss 2.702, 2.703, 2.704, 2.707, 2.711, 2.713, 2.715, 2.715a, 2.717, 2.718, Z.720, 2.721, 2.722, 2.732, 2.733, 2.734, 2.742, 2.743, 2.750, 2.751, 2.753, 2.754, 2.755, 2.756, 2.757, 2.758, 2.759, 2.760, 2.761, 2.763, 2.770, 2.771, 2.772, 2.780, 2.781, 2.788, 2.788, and 2.790.
- 3. Section 2.1001 is emended by removing.the definitions of ASCII File and LSS Administrator:; adding definitions of Electronic docket, Integrated electronic mformation, Pre-license application electronic docket, and Topical Guidelmes; and revising the definitions of Documentary material, Party, Potential party, Pre-license application phase, and Searchable full text, to read as follows:
I 2. 1001 Definitions.
Documentary material means any material or other information upon which a party, potential party, or interested governmental participant intends to rely and/or to cite in support of its position in the proceeding for a license to receive and possess high-level radioactive waste at a geologic repository operation5 area pursuant to part 60 of this chapter; any material or other information that is relevant to, but does not support, that material or information or that party's position; and all reports and studies, prepared by or on behalf of the potential party, interested governmental participant, or party, including all related "circulated drafts," relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. The scope of documentary material shall be guided by the topical guidelines in the applicable NRC Regulatory Guide.
Electronic docket means the NRC information system that receives, distributes, stores, and retrieves the Commission's adjudicatory dock.et materials.
Integrated electronic information means the material that is made available electronically to parties, potential parties, and interested governmental participants to the proceeding for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter, as part of the electronic dock.et or electronic access to documentary material, beginning in the pre-license application phase.
Party for the purpose of this subpart means the DOE, the NRC staff, the host State, any affected unit of local government as defined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), any affected Indian Tribe as defined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C.
10101), and a person admitted under
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules
, 60795
§ 2 1014 to the proceeding on an application for a license to receive and possess high-level radioactive waste at a geologic repository operatioru1 area punuant to part 60 of this chapter; provided that a host State, affected unit of local government. or affected Indian Tribe shall Ble a list of contentions in accordance with the provisions of
§S 2.1014(a)(2) (ii) and (iii).
PotenUal party means any person who, during the period before the issuance of the first pre-hearing conference order under § 2.102 l(d), is given access to the integrated electronic informatlpn and who consents to comply with the regulationa set forth in subpart J of thls part, including the authority of the Pre-Llcen.se Application Presiding Officer designated pursuant to
§2.1010.
Pre-license application electronic docket means the NRC's electronic information system that receives, distributes, stores, and maintains NRC pre-license application docket materla.ls during the pre-license application phue.
Pre-license application phase means the time period before the licenae application to receive and possess high-level radioactive waste at a geologic repository operations area ls docketed under S 2.101(0(3). For the purpose of this subpart, this period begins on the date that the President submits the site recommendation to the Congress pursuant to section 114(a)(2)(A) of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10134(a)(2}(A))..
Searchable full text means the electronic indexed entry of a document that allows the identification of specific words or groups of words within a text file.
Topical Guidelines means the set of c.. topics set forth in Regulatory Guide 3.69, Topical Guidelines for the Llcensing Support System, which are Intended to guide the scope of "documentary material".
f 2. 1002 [Removed and NIMMld]
- 4. Section 2.1002 is removed and reserved.
- 5. Section 2.1*003 is'revised to read as follows:
f 2.1003 Avallablllty of malerlal.
(a3 Beginning in the pre-license application phase, subject to the exclusions In § 2.1005 and paragraphs (bl and (cl of this section, each potential party, interested governmental participant or party, shall make aval)able to other potential parties, interested government participants or parties-(1) An electronic file for all documentary material (including circulated drafts but excluding preliminary drafts) generated by, or at the direction of, or acquired by, a potential party, interested governmental participant, or party. Concurrent with the production of the electronic file will be an authentication statement that indicates where an authenticated image copy of the document can be obtained.
l2) The participation of the host State in the pre-license application phase shall not affect the State's ability to exercise its disapproval rights under section 116(b)(2) of the Nuclear Waste Policy Act, as amended, 42 U.S.C.
10136(b)(2).
(3) This subpart shall not affect any independent right of a potential party, interested governmental participant or party to receive information.
(b)(l) Each potential party, interested governmental participant, or party shall make available in electronic image form, subject to the claims of privilege in S 2.1006, graphic-oriented documentary material that includes raw data, computer runs, computer programs and codes, field notes, laboratory notes, maps, diagrams and photographs which have been printed, scripted, or hand written. Text embedded within these documents need not be separately entered in searchable full text Graphic-oriented documents may include--
Calibration procedures, l::igs, guidelines, data and discrepanciea:
(ill Gauge, meter and computer settings; (iii) Probe locations; (iv) Logging intervah and rates; (v) Datilogs in whatever form captured;
{vi) Text data eheetll; (vii) Equations and sampl.i.nR rates:
(viii) Sensor data and piocaaurea; (ix) Data Description.a; (x) Field and laboratory noteboob; (xi) Analog computer, meter or other device print-outs;
(:xii) Digital computer print-oum; (xiii) Pfiotograplis; (xiv) Graphs, plots, strip charts, sketches; (xv) Descriptive material related to the
, information identified in paragraph (b )( 1) of tlm section.
(2) Each potential party, interested governmental participant, or party shall make available in an electronic fl.le, subject to the claims of privilege in S 2.1006, only a bibliograp~c header for each item of documentary material that is not suitable for image or searchable full text.
(cl Each potential party. interested governmental participant, or party shall make available electronically a bibliographic header for each documentary material-(1) For which a claim of privilege is asserted; (2) Which constitutes confidential financial or commercial information; or (3) Which constitutes safeguards information under § 73.21 of this chapter.
(d) Basic licensing documents generated by DOE, such as the Site Characterization Plan, the Environmental Impact Statement, and the license application, or by NRC, such as the Site Characterization Analysis, and the Safety Evaluation Report, shall be made available in electronic form by the respective agency that generated the dOC1.I.IQ8Ilt.
- 6. Section 2.-2004 is revised to read as follows:
t 2.1004 Amendmenta and additions.
Any document that has not been provided to other parties in electronic form must be identified In an electronic notice and made available for inspection and copying by the potential party, interested govern.mental participant, or party responsible for the submission of the document within two days after it has been requested unless some other time is approved by the Pre-Llcense Application Presiding Officer or the Presiding Officer designated for the high-level waste proceeding. The time allowed under this paragraph will be stayed pending Officer action on a motion to extend the time.
- 7. Section 2.1005 is revised to read as follows:
I 2.1005 EKclwllona.
The following material 111 excluded from the requirement to provide electronic access, either pursuant to S 2.1003, or through derivative discovery punruant to § 2.1019(i}-
(a) Official notice Dlilu:lrials; (b) Reference books and text books:
(c) Material pertaining exclusively to administration, such as material related to budgets, financial management, personnel, office space, general distribution memoranda, or procurement, except for the scope of work on a procurement related to repository siting, construction, or operation. or to the transportation of spent nm;:lear fuel or high-level waste; (d) Press clippings and press releases; (e} Junk man:
(f) Preferences cited In contractor reports that are readily available; lg) Classified material subject to subpart I of this part; (li) Readily available references, such a.s journal articles and proceedings, which may be subject to copyrighL
60796 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules
- 8. Section Z.1006 is revised to read as follows:
f2.100I Prlvllege.
(a) Subject to the requirements in S 2.1003(c), the traditional discovery priVlleges recognized in NRC adjudicatory proceedings and the exceptions from disclosure in § 2.790 may be asserted by potential parties, interested governmental participanta, and parties. In addition to Federal agencies, the deliberative process privilege may also be asserted by State and local government entities and Indian Tribes.
(b) Any document for which a claim of privilege is asserted, but is denied in whole or in part by the Pre-License Application Presiding Officer or the Presiding Officer, must be provided in electronic form by the party, interested governmental participant, or potential party that asserted the claim ter-( 1) The other participants; or (2) To the Pre-License Application Presiding Officer or to the Presiding Officer, for entry into I Protective Order file, if the Pre-License Application Presiding Officer or the Presiding Officer so directs under§§ 2.1010(b) or 2.101a(c).
(c) Notwithstanding any availability of the deliberative process privilege under paragraph (a) of this section, circulated drafts not otherwise privileged shall be provided for electronic access pursuant to S 2.1003(a).
- 9. Section 2.1007 is being revised to read as follows:
12.1007 AcceA.
(a){l) A system to provide electronic access to the integrated electronic information shall be provided at the headquarters of DOE, and at all OOE Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, beginning in the pre-license application phase.
(2) A system to provide electronic access to the integrated electronic information shall be provided at the headquarters Public Document Room of NRC, and at all NRC Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, and at the NRC Regional Offices beginning in the pre-license application phaae.
(3) The systems for electronic access specified in paragraphs (a)(t) and (a)(Z) of this section shall include locations at Las Vegas, Nevada; Reno, Nevada; Carson City, Nevada; Nye County, Nevada; and Lincoln County, Nevada.
(b) Public availability of paper and electronic copies of the records, as well as duplication fees, and fee waiver for those records, is governed by the Freedom of Information Act (FOIA) regulations of the respective agencies.
(c) Documents to which electronic access has been provided by other parties, potential parties, or interested govern.mental participants pursuant to this subpart shall not be considered as agency records of the Nuclear Regulatory Commission or the Department of Energy unless and until they have been entered into the docket of the proceeding pursuant to S 2.702 for purposes of the FOIA, 5 U.S.C. 552, if these documents remain under the custody and control of tha agency or organization that identified the documents. Requests for access pursuant to the FOIA to documentlJ submitted by a Federal agency shall be l:rarulmitted to that Federal agency.
- 10. Section 2.1008 is revised to read as follows:
f 2.1008 Potential pmla.
Any person who complies with the regulations in this subpart, including
§ 2.1003, and agrees to comply with the orders of the Pre-License Application Presiding Officer designated under
§ 2.1010, may have electronic access to the integrated electronic information made available pursuant to thi.t subpart in the pre-license application phase.
- 11. Section 2.1009 is revised to read as follows:
f 2.1009 ProcedurN.
(a) Each potential party, interested governmental participant, or party shall-(1) Designate an official who will be responaible for administration of ita responaibility to provide electronic files of documentary material ;
(2) Establish procedures to implement the requirements in§ 2.1003; (3) Provida training to it& staff on the procedures for implementation of the responsibility to provide electronic Bies of documentary material; (4) Ensure that all documents carry the submitter's unique identification i,.umber:
(5) Cooperate with the advisory review process established by the NRC under § 2.101 l(c).
(b) The 'responsible official designated pl.ll"8uant to paragraph (a)(l) of this section shall certify to the Pre-License Application Presiding Officer that the procedures specified in paragraph (a)(Z) of this section have been implemented, and thet to the best of his or her knowledge, the documentary material specified in S 2.1003 has been identified and made electromcally available. Upon order of a duly appointed presiding officer, the responsible official shall update this certification.
- 12. Section 2.1010 is revised to read as follows:
f 2.1010 p,..Lfcense Application Preslclng Officer.
(a)(l) The Commission may designate one or more members of the Commission, or an atomic safety and licensing board, or a named officer who has been delegated final authority on the matter (Pre-License Application Presiding Officer) to rule on disputes over the electronic availability of documents during the pre-license application phase, Including disputes relating to prlvilege,'and disputes relating to the implementation of the recommendations of the Advisory Review Panel established under
§ 2.101 l(e).
(2) The Pre-License Application Presiding Officer shall be designated before the integrated electronic information is scheduled to be available.
(b) The Pre-License Application Presiding Officer shall rule on any claim of document withholding to determine--
(1) Whether it is documentary material within the scope of this subpart; (2) Whether the material ls excluded under§ 2.1005; (3) Whether the material is prvileged or otherwise excepted from discloaure under S 2.1006; (4) If privileged, whether it is an absolute or qualified privilege; (5) If qualified, whether the document should be dlsclosed because it is necessary to a proper decision in the proceeding; (6) Whether the material should be disclosed under a protective order contalning such protective terms and conditions (including affidavits of nondisclosure) as may be necessary and appropriate to limit the disclo1ure to potential participants, interested governmental participants and parties in the proceeding, or to their qualified witnesses and counsel. When Safeguards Information protected from disclosure un-der section 147 of the Atomic Energy Act of 1954, as amended, is received and possessed by a potential party, interes'ted governmental participcJ.Ilt, or party, other than the Commission staff, it shall also be protected according to the requirements of S 73.Zl of this chapter. The Pre*
License Appfication Presiding Officer may also prescribe such additional procedures as will effectively safeguard and prevent disclosure of Safeguards
(
I-
Federal Register I Vol 62, No 219 / Thursday, November 13, 1997 / Proposed Rules 60797 Information to unauthonzed persons with mmimum impairment of the procedural rights which would be available if Safeguards Information were not involved. In addition to any other sanction that may be imposed by the Pre-License Application Presiding Officer for violation of an order pertaining to the disclosure of Safeguards Information protected from disclosure under section 14 7 of the Atomic Energy Act of 1954, as amended, the entity in violation may be subject to a civil penalty rmposed pursuant to
§ 2.205. For the purpose of imposing the criminal penalties contained in section 223 of the Atomic Energy Act of 1954, as amended, any order issued pursuant to this paragraph with respect to Safeguards Information shall be deemed to be an order issued under section 161b of the Atomic Energy Act of 1954, BB amended.
(c) Upon a final determination that the material is relevant, and not privileged, exempt from disclosure, or otherwise exempt from production under § 2.1005, the potential party, interested governmental participant, or party who asserted the claim of withholding must make the document available in accordance with the provisions of this subpart within two days (d) The service of all pleadings a.nd answers, orders, and decisions during the pre-license application phase shall be made according to the procedures specified in § 2.1013(c) and entered into the pre-license application electronic dock.et (e) The Pre-License Application Presiding Officer shall possess all the general powers specified in S§ 2.721(c) and 2.718.
(0 The Commission, in designating the Pre-License Application Presiding Officer in accordance with paragraphs (a) (1) and (2) of this section, shall specify the jurisdiction of the Officer
- 13. Section 2.1011 is revi~ed to read as follows:
§ 2.1011 Management of electronic Information.
(a) Electronic document production and the electronic docket are subject to the provisions of this subpart.
(bJ The NRC, DOE, parties, and potential parties participating in accordance with the provisions of this subpart shall be responsible for obtaining the computer system necessary to comply with the requirements for electronic document productwn and service.
(c)(1) The Secretary oft.he Comm1ss1on shall establish an Advisory Review Panel composed of the Advisory Committee members identified in paragraph (c)(2) of this section who wish to serve. The Secretary of the Commission shall have the authority to appoint additional representatives lo the Advisory Review Panel consistent with the requirements of the Federal Advisory Committee Act, 5 U.S.C. app.
I, giving particular colll!ideration to potential parties, parties, and interested governmental participants who were not members of the NRC HL W Ucensing Support System Advisory Committee.
(2) The Advisory Committee membership will initially include the State of Nevada, a coalition of affected units of local government in Nevada who were on the NRC High-Level Waste Licensing Support System Advisory Committee, DOE, NRC, the National Congress of American Indians, the coalition of national environmental groups who were on the NRC High-Level Waste Licensing Support System Advisory Committea and such other members as the Commission may from time to time designate to perform the responsibilities in paragraph {d) of this section.
(d)(1) The Advisory Review Panel shall provid.e advice to-
{i) NRC on the fundamental issues of the type of computer system necessary to access the integrated electronic information effectively under paragraph (b) of this section; and (ii) The Secretary of the Commission on the operation and maintenance of the electronic docket under the Commission's Rules of Practice (10 CFR part 2).
(2) The responsibilities of the Advisory Review Panel shall include advice on-(i) Format standards for providing electronic access to documentary material to the parties, interested governmental participants, or potential parties; (ii) The procedurea and standards for the ele. TDnic transmission of filings, orders, and decisions during both the pre-license application phase and the high-level waste licensing proceeding;
{iii) Other duties as specified in this subpart or as directed by the Secretary of the Commission.
- 14. [n § 2.1012,Jaragraphs (a), (b)(l),
and (d) are revise to read as follows:
f 2.1012 Compliance.
(a) In addition to the requirements of
§2.101(0, the Di.rector of the NRC's Office of Nuclear Materials Safety and Safeguards may determine b.at the tendered application is not acceptable for docketing under this subpart 1f the Secretary of the Commission determines that it cannot be effectively accessed through the Commission's electroruc docket (b)(l) A person, including a potential party given access to the integrated electronic information under this subpart, shall not be granted party status under S 2.1014, or status as an interested governmental participant under S 2.715(c), if it cannot demonstrate substantial and timely compliance with the requirements of§ 2.1003 at the time it requests participation in the high-level waste liceming proceeding under S 2.1014 or S 2...715(c).
(d} Access to the pre-license application electronic dock.et or electronic dock.et may be suspended or terminated by the Pre-License Application Presiding Officer or the Presiding Officer for any potential party, interested governmental participant or party who is in noncompliance with any applicable order of the Pre-License Application Presiding Officer or the Presiding Officer or the requirements of this subpart.
- 15. Section 2.1013 is revised to read as follows:
f 2.1013 Use of the electronic docket during the proceeding.
(11.)(l) Pursuant to S 2.702, the Secretary of the Commission will maintain the official dock.et of the proceeding on the application for a license to receive and possess waste at a geologic repository operations area.
(2) Commencing with the docketing in an electronic form of the license application to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter, the Secretary of the Commission, upon determining that the application can be properly accessed under the Commission's electronic dock.et rules, will establish an electronic docket to contain the official record materials of the high-level radioactlve waste licensing proceeding in searchable full text, or for material that is not suitable for entry in searchable full text, by header and image, as appropriate.
(b) Absent good cause, all exhibits tendered during the hearing must have been made available to the parties in electronic form before the commencement of that portion of the hearing in which the exhibit will be offered. The electronic docket contains a list of all exhibits, showing where in the transcript each was marked for identification and where it was received into evidence or rejected. Transcnpts will be entered into the electronic docket on a daily basis in order to
60798 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 I Proposed Rules provide next-day availability at the hearing (c)(l) All filings in the adjudicatory proceeding on the license application to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter shall be transmitted electronically by the submitter to the Presiding Officer, parties, and the Secretary of the Commission, according to established format requirements. Parties and interested governmental participants will be required to use a password security code for the electronic transmission of these documents.
(2) Filings required to be served shall be served upon either the partiea and interested governmental participants, or their designated representatives. When a party or interested governmente' participant has appeared by attorney, service must be made upon the attorney of record.
(3} Service upon a party or interestqd governmental participant is completed when the sender receives electronic acknowledgment ("delivery receipt")
that the electronic submission has been placed in the recipient's electronic mailbox.
(4} Proof of service, stating the name and address of the person on whom served and the manner and date of service, shall be shownfor each document filed, by-(i) Electronic acknowledgment
("delivery receipt"):
(ii) The affidavit of the person making the service; or (iii) The certificate of counsel.
(5) All Presiding Officer and Commission issuances and orders will be transmitted electronically to the parties and interested governmental participants.
(d} Online access to the electronic dock.et, Including a Protective Order File if authorized by a Presiding Officer, shall be provided to the Presiding Officer, the representatives of the parties and interested governmental participants, and the witnesses while testifying, for use during the hearing.
Use of paper copy and other images will also be permitted at the hearing.
- 16. In§ 2.1014, paragraph (c)(4) is revised to read as follows:
t 2.1014 Intervention.
(c) * * *
{4) The failure of the petitioner to participate as a potential party in the pre-license application phase.
- 17. Section 2.1017 is revised to read as follows:
§ 2.1017 Computation of tlme.
In computing any penod of time, the day of the act, event, or default after which the designated period of time begl.D.S to run is not mcluded. The last day of the period so computed is included unless it Is a Saturday, Sunday, or legal holiday at the place where the action or event is to occur, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor holiday.
Whenever a party, potential party. or interested governmental participant, has the right or is required to do some act within a prescribed period aft.er the service of a notice or other document upon It, one day shall be added to the prescribed period. If the electronic dock.et is unavailable for more than four access hours of any day that would be counted in the computt.tion oftime, that day will not be counted in the computation of time.
- 18. In S 2.1018, paragraph (a)(l) and the introductory text of paragraph (e) are revised to read as follows:
§ 2.1018 Discovery.
(a)(l} Parties, potential parties, and interested governmental p~c!pants in the high-level waste licensing proceeding may obtain discovery by one or more of the following methods:
(1) Access to the documentary material made available pursuant to
§2.1003; (ii) Entry upon land for Inspection, access to raw data, or other purposes pursuant to§ 2.1020; (ili) Access to, ot the production of, copies of documentary material for which bibliographic headers only have been submitted pursuant to S 2.1003 (b) and (c):
(1-:) Depositions upon oral examination pursuant to§ 2.1019; (v) Requests for admission pursuant to
§2.742; (vi) Informal requests for information not made electronically available, such as the names of witnesses and the subjects they plan to address; and (vii) InteITOgatories and depositions upon written questions, as provided in paragraph (a)(2) of this section.
(e) A party, potential party, or interested governmental participant who has made available in electronic form all material relevant to any discovery request or who has responded to a request for discovery with a response that was complete when made is under no duty to supplement its response to include information thereafter acquired, except as follows:
- 19. 1n § 2 1019, paragraphs (d), (e),
and (I) are revised to read as follows.
§ 2.1019 Depositions.
(d) When the testi~ony is fully transcribeQ, the deposition shall be submitted to the deponent for examination and signature unless the deponent is ill or cannot be found o~
refuses to sign. The officer shall certify the deposition or, if the deposition Is.
not signed by the deponent. shall certify the reasons for the failure to sign, and shall promptly transmit an electronic copy of the deposition to the Secretary of the Commission for entry into the electronic docket.
(e) Where the deposition is to be taken on written questions as authorized under§ 2.1018(a)(2). the party or interested governmental participant taking the deposition shall serve a copy of the questioD.!I, showing each question separately and consecutively numbered, on every other party and interested governmental participant with a notice stating the name and address of the person who is to answer them. and the name, description, title, and address of the officer before whom they are to be asked. Within ten days aft.er service, any other party or interested governm~ntal participant may serve cross-questions.
The questioru1, cross-questions, and answers shall be recorded and signed, and the deposition certified, returned, and transmitted In electronic form to the Secretary of the Commission for entry into the electronic docket as in the case of a deposition on oral examination.
(1)(1) After receiving written notice of the deposition under paragraph (a) or paragraph (e) of this section, and ten days before the scheduled date of the deposition, the deponent shall submi~
an electronic index of all documents m his or her possession, relevant to the subject matter of the deposition, including the categories of documents set forth in paragraph (i)(2} of this section, to all parties and interested governmental participants. The index shall identify those records which have already been made available electronically. All documents that are not identical to documents already made available electronically, whether
.by reason of subsequent modification or by ti:.: addition of notations. shall be treated as separate documents.
(2) The following material 1s excluded from the initial requirements of§ 2 1003 to be made available electronically, but is subject to derivative discovery under paragraph (i)(l) of this section-(i) Personal records; (ii) Travel vouchers;
Federal Register / Vol 62. No. 219 / Thursday,, November 13, 1997 / 1-'ropc,,t>d Kult*~
(iii) Speeches; (iv) Preliminary drafts; (v) Marginalia.
(3) Subject to paragraph (!)(6) of this sect.Ion, any party or interested governmental participant may request from the deponent a paper copy of any or all of the documents on the index that have not already been providtnl electronically.
(4) Subject to paragraph (i)(6) of this secuon, the deponent shall bring a paper copy of all documents, on the index that the deposing party or interested governmental participant requests that have not already been provided electronically to an oral deposition conducted pursuant to paragraph (a) of this section, or In the case of a deposition taken on written questions pursuant to paragraph (e) of this section, shall submit such documents with the certified deposition.
(5) Subject to paragraph (i)(6) of this section, a party or interested governmental participant may request that any or all documents on the index that have not already been provided electronically, and on which it intenda to rely at hearing, be made electronically available by the deponent.
(6) The deposing party or interested governmental participant shall assume the responsibility for the obligations set forJijn paragraphs (i)(l), (1)(3), (1)(4),
and (i)(S) of this section when deposing someone other than a party or interested governmental participant.
Dated at Rockv11le, MD, this 6th day of November, 1997.
For the Nuclear Regulatory Comnusslon.
John C. Hoyle, Secn,ta,y of the Commission.
[FR Doc 97-29884 Filed 11-12-97; 8:45 am)
IIUJNO CODI! 7HO-C1..fll 60i99