ML20198P570

Final Rule;Amending 10CFR2, Procedures Applicable to Proceedings for Issuance of Licenses for Recipient of Hlrw at Geologic Repository

ML20198P570
Person / Time
Issue date:	12/22/1998
From:	Hoyle J NRC OFFICE OF THE SECRETARY (SECY)
To:
References
FRN-62FR60789, FRN-63FR71729, RULE-PR-2 AF88-2-027, AF88-2-27, NUDOCS 9901070081
Download: ML20198P570 (45)

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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.

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 1 developments that have occurred after the original rule was adopted in 1989, while achieving the original goals of facilitating the NRC's ability to comply with the schedule for decision on the construction authorization for the repository contained in Section 114(d) of the Nuclear Waste Policy Act, and providing for a thorough technical review of the license applicatio'n and equitable access to information for the parties to the hearing.

Sa% 29,1999

- EFFECTIVE DATE:[00 DAY 5 AFTEii FUBUCATICN].

FOR FURTHER INFORMATION CONTACT: Kathryn L. Winsberg, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 4151641, e-mail KLW @nrc. gov.

SUPPLEMENTARY INFORMATION:

l. Background /

On November 13,1997 (62 FR 60789), the NRC published a proposed rule in the I 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 T

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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 ,

1 (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 eliminatcd 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 i 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 l proposed rule, the availability of the Intemet 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 1

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required to certify to the Pre-License Application Presiding Officer that they have complied with l

the requirement to provide electronic access to their documentary material.

The NRC requested comments on two altematives 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 i

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.

11. 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 represent d on tiie LSS Advisory Review Panel. The NRC conducted a meeting of the LSS Advisory Review Panel (LSSARP)in Las Vegas, Nevada, on February 24,1998, to receive comments of the LSSARP members on the proposed rule. The transcript of this meeting is also available for inspection and copying for a fee at the Commission's Public Document Room as described above. The comment letters and LSSARP meeting comments were generally supportive of the NRC's effort to update Part 2, Subpart J; however, several areas of concern were raised.

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Definition of " documentary material" 6 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 i 1

final rule, amply defines the body of material that will be irnportant for and most usable for the o

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 anu provide electronic access to materia' "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.

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5 Response Although it seems implicit, the NRC is willing to clarify that this clause applies only to information that is relevant to the license application. To make this clear in the final rule, the phrase "both the license application and" has been inserted after the words " relevant to" in the phrase cited by DOE.

Comment: Participants in the LSSARP meeting raised the issue that the term being defined, " documentary material," and the text of the proposed definition, both contain the word

" material," leading to some confusion about the intended meaning.

Response: The final rule has eliminated the words " material or other" from the proposed definition, leaving the definition to read: " Documentary material means any information upon which a party, potential party . . ."

Name of System 6 2.1001 Comment: Several commenters observed that it would be more convenient to contirue 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 intearated electronic information generally for this purpose, the final rule substitutes Licensino Support Network (LSN) for intearated electronic information and amends the definition accordingly to refer to the system, rather than the information.

Timina and availability of documentary material and the pre-license applicati sn chase 66 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

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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 l

to the licensing proceeding. Instead, this information could be made available to any member of the public. The State of Nevada representative commented that it would be an uncomfortable position for the State, as a potential party, to have more access to information than its citizens. The DOE also points out an internal inconsistency in the proposed rule in that proposed @ 2.1012(d), which states that the Pre-License Application Presiding Officer may suspend or terminate access to the pre-license application electronic docket for non-compliance, is not consistent with the public access in proposed @ 2.1007(a), which says that DOE and NRC must maintain systems to provide electronic access to the integrated electronic information for the public.

i 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, i

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 Panelin the implementation of the final rule. Proposed 2.1003(a) has been modified to delete the list of individuals to whom electronic information must be made available beginning in the

. pre-license application phase, because this information must be made generally available electronically. Proposed 2.1008 purported to give electronic access to the integrated electronic information to persons who comply with the regulations in Part 2 Subpart J and with l

the orders of the Pre-license Application Presiding Officer. Therefore, proposed @ 2.1008 has not been adopted because it is by implication not consistent with allowing public access to the electronic information and the pre-license application electronic docket. Proposed 2.1012(d),

which concerned suspending or terminating access, has not been adopted in the final rule, i

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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 ore-license aoolication chase and 2.1003. The State of Nevada commented that the proposed rule's use of the date of the President's recommendation to Congress as the date when all potential parties and interested governmental participants must make documentary information available electronically had the appearance of a presumption that the State of Nevada's objection to the Yucca Mountain site decision would be overridden by Congress. This participant stated that it would be more reasonable to select the date of Congress' resolution of any objection from the State of Nevada in order to be certain that this particular license application is going forward. Other LSSARP participants pointed out that the critical sets of dgcuments 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 .eting, that NRC and DOE documents should be made available at the earliest practical time, and that all other participants' documents should be made available later. However, in order to allow time

8 for compliance with dates that muy be hard to predict in advance, the final rule allows 30 days after the selected milestones before requiring compliance. Therefore, the definition of Pre-l license aoolication chase 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 oeriod for inspection and coovina documents 66 2.1004. 2.1010(c)

Comment:The DOE commented that the two days allowed in both 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 l than is needed, or can be spared routinely in the schedule for this licensing proceeding.

l Therefore, the deadlines in these two sections have been extended from two to five days.

9 62.1007(a)(3) and (c) Access Comment The DOE notes that proposed 2.1007(a)(3) retains the current requirement to make available systems to provide electronic access for members of the public at any NRC 1

and DOE Local Public Document Rooms to be located in Nevada, with specified locations at l

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 br providing the required public access to the LSN will need to be explored by DOE and NRC in consultation with the Advisory Review Panelin 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

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not believe that it is necessary or practical to add further detail to this portion of the rule at this time.

Comment The DOE states that @ 2.1007(c) appears to require both NRC and DOE to treat docketed documents as agency documents under the Freedom of Information Act (FOIA).

DOE finds the phrase "if these documents remain under the custody and control of the agency or organization that identified the documents" to be confusing. DOE proposes a clarification that all documents entered into the docket, other than those submitted by another agency, are i NRC documents for FOIA purposes.

Response: NRC agrees that the text of @ 2.1007(c) is confusing. F-urthermore, that text appears to be unnecessary, because Q 2.1007(b) states that the regulations of NRC and DOE regarding availability of copies apply to the respective agencies' records. Therefore, proposed

% 2.1007(c) has not been adopted.

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i 10 Certification of comofiance 6 2.1009(b) 1 Comment The DOE noted that the proposed rule replaces the six month interval for l

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 I

period as appropriate. I Response NRC agrees that a regular interva' for updating the certification may be i beneficial. Therefore, the final rule adopts the suggestion of a twelve month interval for I l

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. l I

Comoliance 6 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 rot in compliance with all of the requirements of the rule when the license application is submitted. This commenter suggested j i

that the current language of @ 2.1011(d)(6) and (7) be moved to @ 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 @2.1012 to authorize the Director, NMSS, to find the license application unacceptable for docketing if it is not accompanied by a certification from DOE pursuant to 2.1009(b).

1 Cooies of documents for deposition 6 2.1019(i) 1 l

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) l

11 to those documents that have been made available electronically, as required by proposed 9 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 6 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 contnbute 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 ana should review participar& 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 technicalissues.

l Response: The Commission agrees that the "LSS Administrator" function may be useful I for the smooth functioning of the LSN to identify and help implement solutions to implementation problems. The final rule contains a new term in @ 2.1001, LSN Administrator.

Section 2.1011(c) provides for the designation of an LSN Administrator before the start of the l

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 i

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12 Administrator will coordinate addressing the consensus advice of the LSN Advisory Review i

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.

! Maintainina an A.dvisorv Review Panel 6 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 repices 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.^dvieory 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 9 2.1011(d)(2) that specifies the initial membership of the Advisory Review

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13 Membership on the LSNARP 6 2.1011(cM2)

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 governrnent." 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 I 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 ,

1 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 l

the unique status of individual members of the coalition, nor their opportunity to attend and i participate at LSN meetings.

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Fundina for participants in the LSN l 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 Developrnent Appropriations Act, which has been

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l 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 i Water Development Appropriation Act,1981 (Pub. Law No.96-367,94 Stat.1331), concluded j that NRC could not provide to intervenors free copies of transcripts or free copying and service l 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 l

materials to NRC or DOE to allow NRC or DOE to maintain electronic availability of the i

1 participants' documents, MC has concluded that this action may not be permissible under the I statutory prohibition. I i

NRC recognizes that this revised rule places responsibility for document conversion, l loading, and maintaining and operating a web server on each of the individual parties or potential parties. NRC believes there is an approach to help the smaller parties and potential parties mitigate the funding requirements of participation under this rule. Affected units of local government (AULG) and other parties and potential parties could utilize a portion of grant funds typically provided to the AULG by DOE in the past. Although in FY 1997 no grants were  !

- forthcoming from DOE and many of the county governments had to cancel or severely curtail  !

l their activities for the year, funding was available in FY 1998 and should be available in FY 1999.

Tribal Government carticipation - definition of " party" and 6 2.715.

Comment. The National Congress of American Indians (NCAl) 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 t

licensing proceeding. The NCAI also expressed a concern that tribal governments do not appear to be included in the provisions of 2.715 which allow representatives of State or local j governments to participate in a proceeding without being required to take a position on the w

15 issues. NCAI recognizes that this matter may not be within the purview of this rulemaking but requests that it be addressed in the appropriate forum.

Response: The definition of " party" includes "affected Indian Tribe as defined in section 2 of the Nuclear Waste Policy Act of 1982." If a tribe which did not meet that det;nition wished to participate as a party, it would still be able to seek intervention under 9 2.1014.

With regard to 2.715, because this issue is outside the scope of the current rulemaking, the NRC intends to undertake a separate rulemaking to amend that section to include federally recognized Native American tribal governments. This task has been added to the NRC's Rulemaking Activity Plan (SECY 98-168). However, the straightforward and procedural nature of suc.h a rule change should make it possible to proceed without undue delay.

Additional matters reoardina " documentary material" and electronic availability 6 2.1003 The definition of " documentary material" has been amended to make clear that the duty to identify "information that is relevant to, but does not support, that information or that party's position"is limited to information "that is known to, and in the possession of, or developed by the party."

The NRC staff has become aware through informal discussions with commenters on this rulemaking that the proposed rule language did not clearly retain the requirement for an electronic bibliographic header to be made available with each item of documentary material made available under @ 2.1003. An electronic bibliographic header is necessary to allow effective and efficient use of an electronic full text search capability. Therefore, 2.1003(a)(1) has been amended to clarify the requirement to submit an electronic bibliographic header along with each item of documentary material.

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l In @ 2.1000, the reference to @ 2.709 is removed because it requires compliance with 2.708 which does not apply to this subpart.

l In @ 2.1001, the following definitions are added, amended, or removed:

! ASCll File. This definition is removed and no longer used in the rute. Prescriptive l

references to specific technical standards have been removed to allow flexible implementation consistent with developing technology.

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! Documentary material. The definition of documentary materialis revised to cover l

I information upon which a party, potential party, or interested governmental participant intends i

to rely and/t cite in support af 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 l support, that information or that party's position; and sll reports and studies, prepared by or on l behalf of the potential party, interested governmental participant, or party, including all related

" circulated drafts," relevant to both the license application and the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. This definition is used in the rule in 2.1003 to define what material must be provided in electronic form for access beginning in the pre-license application phase.

Therefore, the term " documentary material" is intended to describe the most important body of l_

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 L 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 oescribe NRC's electronic information 8

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17 system to receive, distribute, store, and maintain NRC adjudicatory docket materials in the licensing proceeding.

Licensina Supoort 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 NAC's pre-license application electronic docket or electronic docket or pursuant to electronic access to documentary material made available by l 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 i

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 i

substitute the term Licensina Sucoort Network to describe the material to which the potential party will be given access.

18 i Pre-license aoolication electronic docket. A new definition is added to describe NRC's i

electronic information system to receive, distribute, store, and maintain NRC pre-license application docket materials during the pre-license application phase.

l Pre license aoolication chase. 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 Q 2.1003 to specify the date by which the DOE and the NRC must make their documentary material available electronically. Tnis 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 ASCll 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 func tions 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 2.1003 as paragraphs (c) and (d).

l Section 2.1003 is revised to describe information that is required to be made available l

I electronically by all potential parties, parties, and interested governmental participants (including the NRC and DOE). This information must be made electronically available by NRC

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I and DOE beginning in the pre-license application phase, which starts 30 days after the date the l l-DOE submits its site recommendation to the President. Other potential parties and interested l governmental participants would be required to make their documentary material available no later than 30 days after the date the repository site selection decision becorras final after review l

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 l

governmental participants to make their documentary material available electronically, the NRC l 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 l

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 l days to five days.

Section 2.1005 is revised to delete reference to the LSS and to add an exclusion of i

readily available references, such as journal articles or proceedings, which may be subject to copyright.

20 Section 2.1006 is revised to refer to providing a document in electronic form and to delete references to the LSS and the LSSA.

Section 2.1007 is revised to refer to providing systems for access to the Licensing Support Network rather than providing terminals for access to the LSS. Paragraph (c) is deleted because the text was confusing and not needed.

Section 2.1008 is removed and reserved. The requirements for petitioning for access during the pre-license application phase are not consistent with allowing public access to the electronic information.

Section 2.1009 is revised to delete references to the LSS and the LSSA, and to refer instead to the responsibility to provide electronic files. The responsible official for each potential party is required to certify to the Pre-License Presiding Officer that procedures to comply with 2.1003 have been implemented and that its documentary material has been made electronically available. A requirement for all participants to update the certification at twelve month intervals and for DOE to update its certification at the time of submission of the license application replaces a previous requirement to provide this certification at six month intervals.

Section 2.1010 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

i

( .

l l

21

! geologic repository licensing proceeding. Because of the broad and non prescriptive requirements regarding providing electronic files in this rule, the LSN Advisory Review Panel will be very useful in discussing standards and procedures to ensure that all participants are able to access the electronic information. Because the LSS concept is replaced, the name and l

l functions of the LSS Administrator have been changed to "LSN Administrator" and to include i

l coordinating the functions of the Licensing Support Network. The LSN Administrator will be i

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 1

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 it is l not able to be accessed through the electronic docket or if it is not accompanied by a certification of compliance with the rule pursuant to 2.1009(b). Section 2.1012(b)(1)is revised to substitute Licensina Support Network for Licensina Sucoort System so that a person who has had access to the Licensing Support Network would not be granted party status in the l licensing proceeding if it cannot demonstrate compliance with the requirements of G 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.

j Section 2.1013 is revised to delete references to the LSS and LSSA and refers to the provision of information in electronic form.1 he requirement in @ 2.1013(c)(5) to file one signed

1 M l paper copy of each filing with the Secreta'y, NRC, is removed because the electronic docket i

will not require signed paper copies. However, use of the electronic docket will require the development of electronic signature procedures, which wii) be devised in the implementation of i

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 imps.ct 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, w

23 Option 1: Existina rule.

This app oach would not take advantage of current and future technolpgy. It would require an enormously expensive custom designed system to be developed using old j 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 appin'. ion for a geologic repository license.

Option 2: 10 CFR Part 2. Suboart 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 provi6 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.

ru-- - - - .- . i . -

l

< , 1 24 l Option 3: Existina rule usino 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 (

• the Presiding Officer.

Participation in the pre-license application phase will be one criterion for participating in the hearing. After the application is filed, in addition to the electronically available material, discovery will be limited to interrogatories and depositions as in the current rule. The specific method of providing electronic access to documentary material will not be specified, which will allow flexibility to accommodate current and future technology advances. Because this rule will

\

25 unconditionally provide the procedural rules for document management for the HLW licensing proceeding, there would be no last minute danger that discovery would have to be conducted under 10 CFR Part 2, Subpart G.

The NRC believes that Option 4 provides the most effective solution for maintaining the basic functionality of the LSS conceptual design and accommodates current and future technological developments. This constitutes the final regulatory analysis for this rule.

Regulatory Flexibility Certification The amendments will modify the NRC's rules of practice and procedures. The rule is amended to allow more widely available electronic access to 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 mnificant economic impact upon a substantial number of small entities. The license applicant Sr 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.

4 .

26 l Backfit Analysis i

i 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 i

defined in 10 CFR Chapter I.

l 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 Dart 2 continues to read as follows:

AUTHORITY: Secs.161,181,68 Stat. 948,953, as amended (42 U.S.C. 2201,2231);

sec.191, as amended, Pub. L.87-615,76 Stat. 409 (42 U.S.C. 2241); sec. 201,88 Stat.1242, I

as amended (42 U.S.C. 5841); 5 U.S.C. 552.

i Section 2.101 also issued under secs. 53,62,63,81,103,104,105,68 Stat. 930,932, i

27 933,935,936,937,938, as amended (42 U.S.C. 2073,2092,2093,2111,2133,2134,2135);

sec.114(f), Pub. L.97-425, 96 Stat. 2213, as amended (42 U.S.C.10134(f)); sec.102, Pub. L.

91 190,83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301,88 Stat.1248 (42 U.S.C. 5871).

Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102,103,104,105,183, 189, 68 Stat. 936,937, S38, 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.

j 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.

l 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, l Pub. L.85-256,71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec.

i

189,68 Stat. 955 (42 U.S.C. 2239); sec.134, Pub. L.97-425,96 Stat. 2230 (42 U.S.C.10154).

l

l. Subpart L. .lso issued under sec.189,68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L.91-560,84 Stat.1473 (42 U.S.C. 2135).

2. Section 2.1000 is revised to read as follows:

@ 2.1000 Scope of subpart.

The rules in this subpart govern the procedure for applications for a license to receive

and possess high-level radioactive waste at a geologic repository operations area noticed pursuant to @ 2.101(f)(8) or @ 2.105(a)(5). The procedures in this subpart take precedence over

i

i. 28 i

the 10 CFR Part 2, subpart G, rules of general applicability, except for the following provisions:

2.702, 2.703, 2.704, 2.707, 2.711, 2.713, 2.715, 2.715a, 2.717, 2.718, 2.720, 2.721, 2.722, i

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 ASCll File and LSJ l Administrator: adding definitions of Electronic docket. Licensina Support Network, LSN Administrator. Pre-license aoolication electronic docket, and Tooical Guidelines; and revising the definitions of Documentary material, Party, Potential carty. Pre-license aoolication chase, l and Searchable full te4, b read as follows:

2.1001 Definitions.

l 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 j 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 l applicable NRC Regulatory Guide.

i.

. .... ~

Electronic docket means the NRC information system that receives, distributes, stores,

. and retrieves the Commission's adjudicatory docket materials.

I, e .

29 Licensina Succort Network means the combined system that makes documentary material available electronically to parties, potential parties, and interested governmental participants to the proceeding for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter, as part of the electronic docket or electronic access to documentary material, beginning in the pre-license application phase.

LSN Administrator means the person within the U.S. Nuclear Regulatory Commission responsible for coordinating access to and the integrity of data available on the Licensing Support Network. The LSN Administrator shall not be in any organizational unit that either represents the U.S. Nuclear Regulatory Commission staff as a party to the high-level waste repository licensing proceeding or is a part of the management chain reporting to the Director, Office of Nuclear Material Safety and Safeguards. For the purposes of this subpart, the organizational unit within the NRC selected to be the LSN Administrator shall not be considered to be a party to the proceeding.

hC Party for the purpose of this subpart means the DOE, the NRC staff, the host State, any I

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 f 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 Q@ 2.1014(a)(2) (ii) and (iii).

V

30

, Potential carty rneans any person who, during the period before the issuance of the first pre-hearing conference order under Q 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 s 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 apolication chase 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 9 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".

4. Section 2.1002 is removed and reserved.

62.1002 (Removed)

5. Section 2.1003 is revised to read as follows:

@ 2.1003 Availability of material.

(a) Subject to the exclusions in 2.1005 and paragraphs (b) and (c) of this section, NRC and DOE shall make available, beginning in the pre-license application phase, and each other i

l

%w

-. - .-- - .. .. . .. . - . - - - - . - - - - . = . - - - -

31

- potential party, interested governmental participant or party shall make available no bter 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 $ 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 labo'ratory notebooks; (xi) Analog computer, meter or other device print-outs; (xii) Digital computer print-outs;

l l' 32 (xiii) Photographs; (xiv) Graphs, plots, strip charts, sketches; (xv) Descriptive material related to the information identified in paragraph (b)(1) of this i section.

(3) In an electronic file, subject to the claims of privilege in 2.1006, only a

! bibliographic header for each item of documentary material that is not suitable for image or searchable full text.

l (4) An electronic bibliographic header for each documentary material--

(i) For which a claim of privilege is asserted; l (ii) Which constitutes confidential financial or commercial information; or (iii) Which constitutes safeguards information under @ 73.21 of this chapter. ,

(b) Basic licensing documents generated by DOE, such as the Site Characterization Plan, the Environmental Impact Statement, and the license application, or by NRC, such as the Site Characterization Analysis, and the Safety Evaluation Report, shall be made available in electronic form by the respective agency that generated the document.

(c) The participation of the host State in the pre-license application phase shall not affect the State's ability to exercise its disapproval rights under section 116(b)(2) of the Nuclear Waste Policy Act, as amended,42 U.S.C.10136(b)(2).

(d) This subpart shall not affect any independent right of a potential party, interested L govemmental participant or party to receive information.

6. Section 2.1004 is revised to read as follows:

2.1004 Amendments and additions.

Any document that has not been provided to other parties in electronic form must be identified in an electronic notice and made available for inspection and copying by the potential party, interested governmental participant, or party responsible for the submission of the

33 document within five days after it has been requested unless some other time is approved by the Pre-License Application Presiding Officer or the Passiding 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:

6 2.1005 Exclusions.

The following material is excluded from the requirement to provide electronic access, either pursuant to 2.1003, or through derivative discovery pursuant to 2.1019(i)--

(a) Official notice materials; (b) Reference books and text books; (c) Material pertaining exclusively to administration, such as material related to budgets, financial management, personnel, office space, general distribution memoranda, or procurement, except for the scope of work on a procurement related to repository siting, construction, or operation, or to the transportation of spent nuclear fuel or high-level waste; (d) Press clippings and press releases; (e) Junk mail; (f) References cited in contractor reports that are readily available; (g) Classified material subject to Subpart I of this part; (h) Readily available references, such as journal articles and proceedings, which may be subject to copyright.

8. Section 2.1006 is revised to read as follows:

2.1006 Privilege.

(a) Subject to the requirements in 2.1003(c), the traditional discovery privileges recognized in NRC adjudicatory proceedings and the exceptions from disclosure in Q 2.790 may be asserted by potential parties, interested governmental participants, and parties, in addition to

• e l'

34 Federal agencies, the deliberative process privilege may also be asserted by State and local government entities and Indian Tribes.

(b) Any document for which a claim of privilege is asserted, but is denied in whole or in part by the Pre-License Application Presiding Officer or the Presiding Officer, 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 1

(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 l

Officer so directs under @ 2.1010(b) or 2.1018(c).

(c) Notwithstanding any availability of the deliberative process privilege under paragraph (a) of this section, circulated drafts not otherwise privileged shall be provided for electronic access pursuant to @ 2.1003(a).

l 9.- Section 21007 is revised to read as follows:

2.1007 Access.

(a)(1) A system to provide electronic access to the Licensing Support Network shall be provided at the headquarters of DOE, and at all DOE Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, beginning in the u

i- pre license application phase.

- (2) A system to provide electronic access to the Licensing Support Network shall be A

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 L

.f_ 7 c- . - --, --- w = -

o ,

L 35 County, Nevada; and Lincoln County, Nevada.

L l (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:

! Q 2.1008 [ Removed]

11. Sectiort 2.1009 is revised to read as follows:

@ 2.1009 Procedures.

l (a) Each potential party, interested governmental participant, or party shall-l (1) Designate an official who will be responsible for administration of its responsibility to L

l provide electronic files of documentary material ;

l l (2) Establish procedures to implement the requirements in 9 2.1003; (3) Provide training to its staff on the procedures for implementation of the responsibility to provide electronic files of documentary material; i (4) Ensure that all documents carry the submitter's unique identification number;

. (5) Cooperate with the advisory review process established by the NRC under 6 2.1011(d).

l (b) The responsible official designated pursuant to paragraph (a)(1) of this section shall certify to the Pre-License Application Presiding Officer that the procedures specified in paragraph (a)(2) of this section have been implemented, and that to the best of his or her

- knowledge, the documentary material specified in 2.1003 has been identified and made electronically available. The responsible official shall update this certification at twelve month intervals. The responsible official for the DOE shall also update this certification at the time of i submission of the license application.

12. Section 2.1010 is revised to read as follows:

I

6 36 s 2.1010 Pre-License Application Presiding Officer.

(a)(1) The Commission may designate one or more members of the Commission, or an I

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 Pre ^iding Officer to rule on disputes over the

electronic availability of documents during the pre-license application phase, including disputes relating to privilege, and disputes relating to the implementation of the recommendations of the Advisory Review Panel established under $ 2.1011(d).

(2) The Pre-License Application Presiding Officer shall be designated before the Licensing Support Network is scheduled to be available.

(b) The Pre-License Application Presiding Officer shall rule on any claim of document withholding to determine-(1) Whether it is documentary material within the scope of this subpart:

(2) Whether the materialis excluded under 2.1005; (3) Whether the material is privileged or otherwise excepted from disclosure under Q 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; l

(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 1

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 1964, as amended, is received and possessed by a potential party, interested governmental participant, or party, other than the Commission staff, it shall also be protecteo according to the i

l l

)

)

37 l

i requirements of 73.21 of this chapter.The Pre-Liense 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 r'sy oe 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 G 2.205. For the purpose of l imposing the criminal penalties contained in section 223 of the Atomic Energ, 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 Q 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 l pre-license application phase shall be made according to the procedures specified in )

9 2.1013(c) and entered into the pre-license application electronic docket.

l- (e) The Pre-License Application Presiding Officer shall possess all the general powers i- specified in S 2.721(c) and 2.718.

(f) The Commission,in designating the Pre-License Application Presiding Officer in L accordance with paragraphs (a) (1) and (2) of this section, shall specify the jurisdiction of the

[ Officer.

4-

13. Section 2.1011 is revised to read as fol

ows:

1 l

l l-

4

• a l 38 2.1011 Management of electronic information.

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(a) Electronic document production and the electronic docket are subject to the

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provisions of this subpart.

l (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 l comply with the requirements for electronic document production and service.

l (c) The Licensing Support Network shall be coordinated by the LSN Administrator, who shall be designated before the start of the pre-license application phase. The LSN Administrator shall have the responsibility to--

(1) Identify technical and policy issues related to implementation of the LSN for LSN Advisory Review Panel and Commission consideration; (2) Address the consensus advice of the LSN Advisory Review Panel under paragraph (e)(1) of this section that is consistent with the requirements of this subpart; (3) Coordinate the resolution of problems experienced by participants regarding LSN availability, including the availability of individual participants' data; (4) Coordinate the resolution of problems regarding the integrity of the documentary material certified in accordance with 2.1009(b) by the participants to be in the LSN; and (5) Provide periodic reports to the Commission on the status of LSN functionality and operability.

(d) The Secretary of the Commission shall reconstitute the LSS Advisory Review Panel as the LSN Advisory Review Panel, composed of the interests currently represented on the LSS Advisory Review Panel. The Secretary of the Commission shall have the authority to appoint additional representatives to the LSN Advisory Review Panel consistent with the requirements of the Federal Advisory Committee Act,5 U.S.C. app. I, giving particular consideration to potential parties, parties, and interested governmental participants who were not members of L w

t l

(- 39 l the NRC HLW Licensing Support System Advisory Review Panel.

(e)(1) The LSN Advisory Review Panel shall provide advice to--

. (i) NRC on the fundamentalissues 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 shallinclude advice on-t (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;-

l (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 l

proceeding; (iii) Other duties as specified in this subpart or as directed by the Secretary of the Commission.

14. In 6 2.1012, paragraphs (a) and (b)(1) are revised to read as follows, and l

paragraph (d)is removed:

2.1012 Compliance.

l (a) in addition to the requirements of @ 2.101(f), the Director of the NRC's Office of i

L 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 i

! it cannot be effectively accessed through the Commission's electronic docket system or if the

', application is not accompanied by an updated certuication pursuant to @ 2.1009(b).

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(' b)(1) A person, including a potential party given access to the Licensing Support 1

Network under this subpart, shall not be granted party status under 6 2/;014, or status as an ~ i interested governmental participant under 2.715(c), if it cannot demonstrate substantial and ,

timely compliance with the requirements of @ 2.1003 at the time it requests participation in the high-level waste licensing proceeding under 2.1014 or 2.715(c). j

15. Section 2.1013 is revised to read as follows:

G 2.1013 Use of the electronic docket during the proceeding.

(a)(1) Pursuant to 2.702, the Secretary of the Commission will maintain the official docket of the proceeding on the application for a license to receive and possess waste at a geologic repository operations area.

(2) Commencing with the docketing in an electron.ic 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 establich 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 l 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.

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[ (c)(1) All filings in the adjudicatory proceeding on the license application to receive and

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l 41 possess high-level radioactive waste at a geologic repository operations area pursuant to part t

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 l

l 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 I?as 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");

l (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.

i l (d) Online access to the electronic docket, including a Protective Order File if l

l authorized by a Presiding Officer, shall be provided to the Presiding Officer, the representatives of the parties and interested governmental participants, and the witnesses while testifying, for use during the hearing. Use of paper copy and other images will also be permitted at the hearing.

16. In 2.1014, paragraph (c)(4) is revised to read as follows:

a r. ,

42 2.1014 Intervention.

(c)

(4) The failure of the petitioner to participate as a potential party in the pre-license application phase.

17. Section 2.1017 is revised to read as follows:

s 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 2.1018, paragraph (a)(1) and the introductory text of paragraph (e) are revised to read as follows:

2.1018 Discovery.

(a)(1) Parties, potential parties, and interested governmental participants in the high-level waste licensing proceeding may obtain discovery by one or more of the following methods:

(i) Access to the documentary material made available pursuant to Q 2.1003 ;

(ii) Entry upon land for inspection, access to raw data, or other purposes pursuant to l

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43 9 2.1020; (iii) Access to, or the production of, copies of documentary material for which bibliographic headers only have been submitted pursuant to @ 2.1003(a);

(iv) Depositions upon oral examination pursuant to 2.1019; (v) Requests for admission pursuant to 2.742; (vi) Informal requests for information not made electronically available, such as the  !

names of witnesses and the subjects they plan to address; and (vii) Interrogatories and depositions upon 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 2.1019, paragraphs (d), (e), and (i) are revised to read as follows:

_Q 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 i to sign. The officer shall certify the deposition or, if the deposition is not signed by the l 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 l

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.w 88 0 i 44 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 l

notice stating the name and address of the person who is to answer them, and the nama, 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 l 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 l'

subsequent modification or by the addition of notations, shall be treated as separate documents.

(2) The following materialis excluded from the initial requirements of Q 2.1003 to be made available electronically, but is subject to derivative discovery under paragraph (i)(1) of this section-l (i) Personal records; 4

(ii) Travelvouchers; 1

(iii) Speeches; i

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(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.

i (4) Subject to paragraph (i)(6) of this section, the deponent shall bring a paper copy of l

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 j questions pursuant to paragraph (e) of this section, shall submit such documents with the  !

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! certified deposition. ,

1 (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 4 available by the deponent.

(6) The deposing party or interested governmental participant shall assume the L - 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.

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Dated at Rockville, Maryland, this M ay d of December,1998.

For the Nuclear Regulatory Commission.

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, Johnf. Hoyle, Seefetary of the Commission.

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