[Federal Register Volume 63, Number 250 (Wednesday, December 30, 1998)]
[Rules and Regulations]
[Pages 71729-71741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34436]
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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
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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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 application and equitable access to information for the
parties to the hearing.
EFFECTIVE DATE: January 29, 1999.
FOR FURTHER INFORMATION CONTACT: Kathryn L. Winsberg, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, telephone (301) 415-1641,
e-mail [email protected]
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 10 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 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
10 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 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
[[Page 71730]]
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 concern were
raised.
Definition of ``Documentary Material'' Sec. 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 material'' 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'' material
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 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 is concerned 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.
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 Sec. 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 Secs. 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 accessible by office and home
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
Sec. 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 2.1012(d), which concerned suspending
or terminating access, has not been adopted in the final rule, 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
Sec. 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
[[Page 71731]]
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 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, Civilian Radioactive 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 Secs. 2.1004,
2.1010(c)
Comment: The DOE commented that the two days allowed in both
Secs. 2.1004 and 2.1010(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 also 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.
Section 2.1007(a)(3) and (c) Access
Comment: The DOE notes that proposed Sec. 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 Sec. 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 all 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 Sec. 2.1007(c) is confusing.
Furthermore, that text appears to be unnecessary, because
Sec. 2.1007(b) states that the regulations of NRC and DOE regarding
availability of copies apply to the respective agencies' records.
Therefore, proposed Sec. 2.1007(c) has not been adopted.
Certification of Compliance Sec. 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 Sec. 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 Sec. 2.1011(d)(6) and (7) be moved to Sec. 2.1012.
Response: Section 2.1009(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 Sec. 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 Sec. 2.1009(b).
[[Page 71732]]
Copies of Documents for Deposition Sec. 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) to those documents that
have been made available electronically, as required by proposed
Sec. 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 Sec. 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 Sec. 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 Administrator will coordinate addressing the
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 Sec. 2.1011(c)
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 teleconference, video conference, or other
electronic communication capabilities to the greatest extent
practicable. Because the current membership will be retained, proposed
Sec. 2.1011(d)(2) that specifies the initial membership of the Advisory
Review Panel has not been adopted.
Membership on the LSNARP Sec. 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 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 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
[[Page 71733]]
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
Sec. 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
Sec. 2.715 which allow representatives of State or local governments to
participate in a proceeding without being required to take a position
on the 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 defined 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 Sec. 2.1014.
With regard to Sec. 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 undue delay.
Additional Matters Regarding ``Documentary Material'' and Electronic
Availability Sec. 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 Sec. 2.1003. An electronic bibliographic header is
necessary to allow effective and efficient use of an electronic full
text search capability. Therefore, Sec. 2.1003(a)(1) has been amended
to clarify the requirement to submit an electronic bibliographic header
along with each item of documentary material.
III. Section-by-Section Description of Final Rule
In Sec. 2.1000, the reference to Sec. 2.709 is removed because it
requires compliance with Sec. 2.708 which does not apply to this
subpart.
In Sec. 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
Sec. 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 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.
Party. 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.
[[Page 71734]]
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 Sec. 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 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 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 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, are now incorporated in the revised Sec. 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 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 NRC 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 2.1010 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 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.
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 that procedures to comply
with Sec. 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 2.1010 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 conform 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 revised 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 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 identifying 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 NRC 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 NRC
Office of Nuclear Material Safety and Safeguards (NMSS) to determine
that the application would not be acceptable if
[[Page 71735]]
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 Sec. 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 Sec. 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 provision of information in electronic form. The
requirement in Sec. 2.1013(c)(5) to file one signed 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 10 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.
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 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, under the current rules,
the proceeding would have to be conducted under 10 CFR 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 the 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 10 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.
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 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 NRC from meeting the statutory deadline for
decision on the application.
Option 4: Revised Rule With More 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 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
[[Page 71736]]
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 information 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.
Backfit Analysis
The 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 10 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 OMB.
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, as amended; and 5 U.S.C. 553; the Nuclear Regulatory
Commission is adopting 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. l6l, l8l, 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, 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. 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
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, 2.770, 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:
Sec. 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
Sec. 2.101(f)(8) or Sec. 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: Secs. 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, Party, Potential party, Pre-license
application phase, and Searchable full text, to read as follows:
Sec. 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 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.
* * * * *
Licensing Support Network means the combined system that makes
[[Page 71737]]
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.
* * * * *
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 Sec. 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 Secs. 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
Sec. 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 Sec. 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
Sec. 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
material''.
Sec. 2.1002 [Removed]
4. Section 2.1002 is removed and reserved.
5. Section 2.1003 is revised to read as follows:
Sec. 2.1003 Availability of material.
(a) Subject to the exclusions in Sec. 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 potential party,
interested governmental participant or party shall make available no
later than 30 days after the date the repository site selection
decision becomes final 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
Sec. 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;
(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
Sec. 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 Sec. 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:
Sec. 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 five days after it
[[Page 71738]]
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:
Sec. 2.1005 Exclusions.
The following material is excluded from the requirement to provide
electronic access, either pursuant to Sec. 2.1003, or through
derivative discovery pursuant to Sec. 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:
Sec. 2.1006 Privilege.
(a) Subject to the requirements in Sec. 2.1003(c), the traditional
discovery privileges recognized in NRC adjudicatory proceedings and the
exceptions from disclosure in Sec. 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 Secs. 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 Sec. 2.1003(a).
9. Section 2.1007 is revised to read as follows:
Sec. 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 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:
Sec. 2.1008 [Removed]
11. Section 2.1009 is revised to read as follows:
Sec. 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
Sec. 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 Sec. 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 Sec. 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 2.1010 is revised to read as follows:
Sec. 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 Sec. 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 Sec. 2.1005;
(3) Whether the material is privileged or otherwise excepted from
disclosure under Sec. 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 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
[[Page 71739]]
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 Sec. 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
Sec. 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 Sec. 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 Sec. 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 Secs. 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:
Sec. 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 Sec. 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 the
NRC HLW Licensing Support System Advisory Review Panel.
(e)(1) The LSN Advisory Review Panel shall provide advice to--
(i) NRC 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 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 Sec. 2.1012, paragraphs (a) and (b)(1) are revised to read
as follows, and paragraph (d) is removed:
Sec. 2.1012 Compliance.
(a) In addition to the requirements of Sec. 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
certification pursuant to Sec. 2.1009(b).
(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 Sec. 2.1014, or status as an interested governmental
participant under Sec. 2.715(c), if it cannot demonstrate substantial
and timely compliance with the requirements of Sec. 2.1003 at the time
it requests participation in the high-level waste licensing proceeding
under Sec. 2.1014 or Sec. 2.715(c).
* * * * *
15. Section 2.1013 is revised to read as follows:
Sec. 2.1013 Use of the electronic docket during the proceeding.
(a)(1) Pursuant to Sec. 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
[[Page 71740]]
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 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
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 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 Sec. 2.1014, paragraph (c)(4) is revised to read as follows:
Sec. 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:
Sec. 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 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 Sec. 2.1018, paragraph (a)(1) and the introductory text of
paragraph (e) are revised to read as follows:
Sec. 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
Sec. 2.1003;
(ii) Entry upon land for inspection, access to raw data, or other
purposes pursuant to Sec. 2.1020;
(iii) Access to, or the production of, copies of documentary
material for which bibliographic headers only have been submitted
pursuant to Sec. 2.1003(a);
(iv) Depositions upon oral examination pursuant to Sec. 2.1019;
(v) Requests for admission pursuant to Sec. 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 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. In Sec. 2.1019, paragraphs (d), (e), and (i) are revised to
read as follows:
Sec. 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 Sec. 2.1018(a)(2), 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
[[Page 71741]]
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 material is excluded from the initial
requirements of Sec. 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 (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 22nd day of December, 1998.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 98-34436 Filed 12-29-98; 8:45 am]
BILLING CODE 7590-01-P
