[Federal Register Volume 62, Number 219 (Thursday, November 13, 1997)]
[Proposed Rules]
[Pages 60789-60799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29884]
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Proposed Rules
Federal Register
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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.
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Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 /
Proposed Rules
[[Page 60789]]
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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: Proposed rule.
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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.
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 [email protected]
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 [email protected]
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 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 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 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.
The 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 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
[[Page 60790]]
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 LSS 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).
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 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 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 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).
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 license
[[Page 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 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 regarding these two
alternative arrangements.
III. Section-by-Section Description of Changes
In Sec. 2.1000, the reference to Sec. 2.709 would be removed
because it would require compliance with Sec. 2.708 that would not
apply to this subpart.
In Sec. 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 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
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'' 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 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 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 Administrator
This term would be eliminated from the rule because the concept of
the LSS would also be removed. The Pre-license 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 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 the term integrated electronic information 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 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 Sec. 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
[[Page 60792]]
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 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 HLW 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 J, including the requirement in Sec. 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 Sec. 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 Sec. 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)(1) would be
revised to substitute integrated 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 proceeding if it cannot demonstrate compliance with the
requirements of Sec. 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 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 Sec. 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.
[[Page 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 Impact: Categorical Exclusion
The NRC has determined that this proposed 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 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 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: 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
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 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: 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 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 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 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 required to make their own documentary
material available electronically. This proposed rule would not have a
significant economic impact upon a substantial number of small
entities. The license applicant for the HLW 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
[[Page 60794]]
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 backfit rules in 10 CFR Chapter 1,
Secs. 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, 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. 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,
Integrated electronic information, 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 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 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 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
[[Page 60795]]
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 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 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
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 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''.
Sec. 2.1002 [Removed and reserved]
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) Beginning in the pre-license application phase, subject to the
exclusions in Sec. 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 available 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--
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.
(2) Each potential party, interested governmental participant, or
party shall make available 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.
(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 Sec. 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:
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 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:
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) 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.
[[Page 60796]]
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 being revised to read as follows:
Sec. 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 Sec. 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:
Sec. 2.1008 Potential parties.
Any person who complies with the regulations in this subpart,
including Sec. 2.1003, and agrees to comply with the orders of the Pre-
License Application Presiding Officer designated under Sec. 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:
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(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 Sec. 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:
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 (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(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 is excluded under Sec. 2.1005;
(3) Whether the material is prvileged 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
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
[[Page 60797]]
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 two 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)(1) 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
HLW Licensing 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 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)(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 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 Sec. 2.1012, paragraphs (a), (b)(1), and (d) are revised to
read as follows:
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.
(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 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).
* * * * *
(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:
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 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 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
[[Page 60798]]
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 (b) and (c);
(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 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 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;
[[Page 60799]]
(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, MD, this 6th day of November, 1997.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 97-29884 Filed 11-12-97; 8:45 am]
BILLING CODE 7590-01-P
