ML23153A081

PR-002 - 62FR60789 - Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repositry

ML23153A081
Person / Time
Issue date:	11/13/1997
From:	Hoyle J NRC/SECY
To:
References
PR-002, 62FR60789
Download: ML23153A081 (1)

Text

ADAMS Template: SECY-067 DOCUMENT DATE: 11/13/1997 TITLE: PR-002 - 62FR60789 - PROCEDURES APPLICABLE TO PROCEEDINGS FOR THE ISSUANCE OF LICENSES FOR THE RECEIPT OF HIGH-LEVEL RADIOACTIVE WASTE AT A GEOLOGIC REPOSITORY CASE

REFERENCE:

PR-002 62FR60789 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

DOCKET NO. PR-002 (62FR60789)

In the Matter of PROCEDURES APPLICABLE TO PROCEEDINGS FOR THE ISSUANCE OF LICENSES FOR THE RECEIPT OF HIGH-LEVEL RADIOACTIVE WASTE AT A GEOLOGIC REPOSITORY DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 11/07/97 11/06/97 FEDERAL REGISTER NOTICE - PROPOSED RULE 01/12/98 12/31/97 LTR FM DENNIS BECHTEL TO HOYLE REQUESTING 30 TO 60 DAY EXTENSION OF COMMENT PERIOD AND LSSARP MEETING 01/29/98 01/27/98 FEDERAL REGISTER NOTICE : PROPOSED RULE ; EXTENSION OF PUBLIC COMMENT PERIOD 03/25/98 03/25/98 COMMENT OF CLARK COUNTY, NV DEPT . OF COMPREHENSIVE PLANNING (DENNIS A. BECHTEL) ( 1) 03/27/98 03/25/98 COMMENT OF DEPARTMENT OF ENERGY (LAKE H. BARRETT, ACTING DIRECTOR) ( 2) 03/30/98 03/26/98 COMMENT OF NYE COUNTY NUCLEAR WASTE REPOSITORY PROJECT OFFICE (MALACHY R. MURPHY) ( 3) 3/30/98 03/27/98 COMMENT OF NUCLEAR ENERGY INSTITUTE (STEVEN P. KRAFT) ( 4) 04/01/98 03/31/98 COMMENT OF CITY OF LAS VEGAS, NEVADA (PETE CUMMINGS) ( 5) 04/01/98 03/31/98 COMMENT OF NATIONAL CONGRESS OF AMERICAN INDIANS (JOANN K. CHASE , EXECUTIVE DIRECTOR) ( 6) 12/23/98 12/22/98 FEDERAL REGISTER NOTICE - FINAL RULE 03/30/99 03/26/99 FEDERAL REGISTER NOTICE - FINAL RULE : CORRECTION

00',KE. TEO US RC [7590-01-P]

NUCLEAR REGULATORY COMMISSION) PlZ ._

10 CFR PART 2 *99 HAR 0 46 RIN 3150-AF88 OF_

Ru . _

Procedures Applicable to Proceedings for t~Ulsuance of Licenses-for the Receipt of High-Level Radioactive Waste at a Geologic Repository; Correction AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule: correction.

SUMMARY

This document corrects a final rule published in the Federal Register on December 30, 1998 (63 FR 71729), that amended the Nuclear Regulatory Commission's regulations on procedures applicable to proceedings for the issuance of licenses for the receipt of high-level radioactive waste at a geologic repository. The action is necessary to correct a typographical error.

~ 3 1

I qq C/

EFFECTIVE DATE: [SQ days after ~619lisation].

FOR FURTHER INFORMATION CONTACT: Kathryn L. Winsberg, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-1641, e-mail KLW@nrc.gov.

SUPPLEMENTARY INFORMATION:

• Section 2.1006 [corrected]

On page 71738, first column, in Sec. 2.1006, the first sentence of paragraph (a), the reference to"§ 2.1003(c)" should be corrected to read"§ 2.1003(a)(4)."

Dated at Rockville, Maryland, this 26th day of March, 1999.

For the Nuclear Reg ulatory Commission.

aA ~ht:tlci~

AnnitflVietti-Cook, Secretary of the Commission.

DOC1{ETED US [1590-01-P]

1 NUCLEAR REGULATORY COMMISSION

'98 DEC 23 P2 :08 10 CFR PART2 OF HU RIN 3150-AF88 AD..:L Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its Rules of Practice for

• the licensing proceeding on the disposal of high-level radioactive waste at a geologic repository (HLW proceeding). The amendments are intended to allow application of technological developments that have occurred after the original rule was adopted in 1989, while achieving the original goals of facilitating the NRC's ability to comply with the schedule for decision on the construction authorization for the repository contained in Section 114(d) of the Nuclear Waste Policy Act, and providing for a thorough technical review of the license applicatio*n and equitable access to information for the parties to the hearing.

~~ :J. C/1 I 'i '11

• EFFECTIVE DATE: [99 DAYS AFTE:~ f!'U~LICATIONj.

FOR FURTHER INFORMATION CONTACT: Kathryn L. Winsberg, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-1641, e-mail KLW@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Background On November 13, 1997 (62 FR 60789), the NRC published a proposed rule in the Federal Register that would have amended NRC's regulations in 10 CFR Part 2, Subpart J. In response to the request of a representative of Clark County, Nevada, the NRC extended the comment period which would have expired on January 27, 1998, until March 30, 1998 (63 FR 5315, February 2, 1998). The proposed rule was intended to maintain the primary functions of Pµ/; p tm 1.:2/sa/95 a.%" (# 3 FR 717 :i 9

2 the Licensing Support System (LSS) which are:

(1) Discovery of documents before the license application is filed; (2) Electronic transmission of filings by the parties during the proceeding; (3) Electronic transmission of orders and decisions related to the proceeding; and (4) Access to an electronic version of the docket.

The proposed rule would have eliminated the current requirement in 10 CFR Part 2, Subpart J, for a centralized "Licensing Support System" administered by the NRC and therefore also would have eliminated the requirement for an LSS Administrator to ensure the viability of the central database. To replace these features of the existing rule, the proposed rule would have required that each potential party, including the NRC and the Department of Energy (DOE), make its documentary material available in electronic form to all other participants beginning in the pre-license application phase. For the purposes of this rule, the pre-application phase would have begun on the date that the President submits the site recommendation to Congress. Although the mechanism to implement this requirement is not stated in the proposed rule, the availability of the Internet to link geographically dispersed sites appears to have the potential to satisfy the proposed rule.

Also under the proposed rules, documentary material would have been defined as the material upon which a party intends to rely in support of its position in the licensing proceeding; any material which is relevant to, but does not support, that material or that party's position; and all reports and studies, prepared by or on behalf of the potential party, interested governmental participant, or party, including all related "circulated drafts," relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party.

A Pre-License Application Presiding Officer would resolve any disputes over electronic access to documents during the pre-license application phase. Potential parties would be

3 required to certify to the Pre-License Application Presiding Officer that they have complied with the requirement to provide electronic access to their documentary material.

The NRC requested comments on two alternatives regarding the LSS Advisory Review Panel. In the proposed rule, because the concept of the LSS would be replaced, the requirement for an LSS Advisory Review Panel would have been modified so the panel could advise the Secretary of the Commission regarding standards and procedures for electronic access to documents and for maintenance of the electronic docket This would have required renaming of the advisory committee and redrafting of the committee charter. However, the NRC also requested comments, particularly from potential parties to the HLW repository licensing proceeding, on the alternative of replacing the Advisory Review Panel with a more informal users group.

II. Comments on the Proposed Rule The Commission received six comment letters on the proposed rule. Copies of the letters are available for public inspection and copying for a fee at the Commission's Public Document Room located at 2120 L Street, NW (Lower Level), Washington, D.C. The comments on the proposed rule came from the DOE and five other entities which are represented on the LSS Advisory Review Panel. The NRC conducted a meeting of the LSS Advisory Review Panel (LSSARP) in Las Vegas, Nevada, on February 24, 1998, to receive ,

comments of the LSSARP members on the proposed rule. The.transcript of this meeting is also available for inspection and copying for a fee at the Commission's Public Document Room as described above. The comment letters and LSSARP meeting comments were generally supportive of the NRC's effort to update Part 2, Subpart J; however, several areas of C?ncem were raised.

4 Definition of "documentary material" § 2.1001 Comment: One commenter requested that the phrase "or is likely to lead to the discovery of relevant material," which is included in the current definition of "documentary materiar be included in the new definition.

Response: NRC believes that the definition of documentary material, as adopted in this final rule, amply defines the body of material that will be important for and most usable for the licensing proceeding. The definition of documentary material, as amplified by the Topical Guidelines, is already very broad. The addition of the identified phrase to add a responsibility to identify and provide electronic access to material "that could lead to the discovery of" materi~I relevant to the entire scope of topics in the licensing proceeding could be an apparently limitless task. Furthermore, this enlargement of the scope of documentary material might only serve to impede the usefulness of electronic access to the relevant material by cluttering the system with extraneous material. Finally, a motion by a party in regard to the omission of relevant material would be entertained by the Presiding Officer. This should be sufficient to ensure that truly relevant materials are made available to the participants. Therefore this comment has not been adopted in the final rule.

Comment The DOE commented that NRC should remove from the definition of documentary material the clause:

and all reports and studies prepared by or on behalf of the potential party, interested govemmert31 participant, or party, including all related 'circulated drafts,' relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and or cited by a party.

The DOE is qoncemed that this clause would capture reports and studies that are irrelevant to the license application, such as reports and studies made for other potential sites and for predecessor agencies.

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

Comment : Participants in the LSSARP meeting raised the issue that the term being defined, "documentary material," and the text of the proposed definition, both contain the word "material," leading to some confusion about the intended meaning.

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

Name of System § 2.1001 Comment Several commenters observed that it would be more convenient to continue to have a name, like the current Licensing Support System ( LSS), to use to refer to the combined system to provide electronic access to documentary material in both the pre-license application phase and during the licensing proceeding, including the pre-license application electronic docket and the electronic docket. The participants in the LSSARP meeting generally agreed_ that "Licensing Support Network (LSN)" would be an appropriate name.

Response: The final rule has adopted the suggestion. Because the proposed rule had used the term integrated electronic information generally for this purpose, the final rule substitutes Licensing Support Network (LSN) for integrated electronic information and amends the definition accordingly to refer to the system, rather than the information.

Timing and availability of documentary material and the pre-license application phase

§§ 2.1003, 2.1008, 2.1012(d).

Comment: Many of the participants at the LSSARP meeting observed that because the Licensing Support Network appears more likely to be a World Wide Web-based system, easily

6 accessible by office and horn~ personal computers, rather than a specially designed stand-alone system like the former LSS concept, there is little reason to continue the practice of limiting access to documentary material in the pre-license application phase to potential parties

(

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

Response: NRC agrees that under the final rule, information can be made available to all members of the public, even in the pre-license application phase. Practical considerations, including the operating capacities of the systems, may require that priority be given to potential parties, however these matters may be worked out in consultation with the Advisory Review Panel in the implementation of the final rule. Proposed§ 2.1003(a) has been modified to delete the list of individuals to whom electronic information must be made available beginning in the pre-license application phase, because this information must be made generally available electronically. Proposed § 2.1008 purported to give electronic access to the integrated

~

electronic information to persons who comply with the regulations in Part 2 Subpart J and with the orders of the Pre-license Application Presiding Officer. Therefore, proposed§ 2.1008 has not been adopted because it is by implication not consistent with allowing public access to the electronic information and the pre-license application electronic docket. Proposed § 2.1012( d),

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

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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 pre-license application phase and § 2.1003. The State of Nevada commented that the proposed rule's use of the date of the President's recommendation to Congress as the date when all potential parties and interested governmental participants must make documentary information available electronically had the appearance of a presumption that the State of Nevada's objection to the Yucca Mountain site decision would be overridden by Congress. This participant stated that it would be more reasonable to select the date of Congress' resolution of any objection from the State of Nevada in order to be certain that this particular license application is going forward. Other LSSARP participants pointed out that the critical sets of documents that should be available as early as possible are those of the NRC and, particularly, the DOE. The LSSARP meeting discussion suggested that it would not matter if other potential parties did not make their documentary material available until a later time when the Yucca Mountain license application was a certainty. LSSARP meeting

• • participants suggested that DOE and NRC be required to make their documentary material available at an earlier date. Because the DOE and NRC documentary material will constitute the overwhelming majority of the information to be made available in the LSN, it is important that it be accessible as soon as possible to allow preparation for the licensing proceeding.

They suggested that other potential parties and interested governmental participants should be required to make their documentary material available electronically no later than the date that the site selection decision becomes final after review by Congress.

Response: NRC has adopted the suggestion developed at the LSSARP meeting, that NRC and DOE documents should be made available at the earliest practical time, and that all other participants' documents should be made available later. However, in order to allow time

8 for compliance with dates that may be hard to predict in advance, the final rule allows 30 days after the selected milestones before requiring compliance. Therefore, the definition of Pre-license application phase has been revised to state that phase begins 30 days after the date on which DOE submits its site recommendation decision to the President, a date earlier than the date specified in the proposed rule. DOE's latest Program Plan, CM/ian Radioacffve Waste Management Program Plan, Rev. 2, DOE/RW-0504 (July 1998) has scheduled sending the Site.

Suitability Recommendation to the President in July 2001.

Section 2.1003(a) has been revised to require NRC and DOE to make their documentary material available beginning in the pre-license application phase. The final rule requires all other potential parties or interested governmental participants to make their documentary material available no later than 30 days after the date the repository site selection decision becomes final after review by Congress. Section 2.1003 has also been rearranged slightly from the proposed version in order to clarify and improve the parallel structure of the subsections.

Time period for inspection and copying documents§§ 2.1004, 2.1010(c)

Comment: The DOE commented that the two days allowed in both §§ 2.1004 and 2.101 O{c) for making documents, available for inspection and copying should be extended to ten working days, because reasonable and expeditious efforts to reproduce and make large documents available could easily consume two days. DOE points out that lengthening the time limit would al~o relieve the Presiding Officer of the burden of reviewing requests for minor extensions of these deadlines.

Response: NRC acknowledges that two days may be too brief a period of time to search for and reproduce some large documents. Nevertheless, ten working days is much more time than is needed, or can be spared routinely in the schedule for this licensing proceeding.

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

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§2.1007(aH3) and (c) Access Comment The DOE notes that proposed§ 2.1007(a)(3) retains the current requirement to make available systems to provide electronic access for members of the public at any NRC and DOE Local Public Document Rooms to be located in Nevada, with specified locations at Las Vegas, Reno, Carson City, Nye County, and Lincoln County. DOE requests that the rule be clarified to specify which of these locations are the responsibility of DOE and which are NRC's.

Response: The best options for providing the required public access to the LSN will need to be explored by DOE and NRC in consultation with the Advisory Review Panel in the implementation of the rule. The NRC position on maintaining Local Public Document Rooms will be changing because of the future planned availability of all agency documents via the Internet accessible from a personal computer from home, office, or a public library. NRC does not believe that it is necessary or practical to add further detail to this portion of the rule at this time.

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

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

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

§ 2.1007(c) has not been adopted.

10 Certification of compliance § 2.1009{b)

Comment The DOE noted that the proposed rule replaces the six month interval for certifying that the procedural requirements have been met with an unspecified interval "upon order of a duly appointed presiding officer." DOE suggests that a regular and prescribed interval for certification would facilitate the success of the system and proposes a twelve-month period as appropriate.

Response: NRC agrees that a regular interval for updating the certification may be beneficial. Therefore, the final rule adopts the suggestion of a twelve month interval for updating the certification of compliance. The DOE will also be required to update its certification at the time It submits its license application to the NRC.

Compliance § 2.1012 Comment One commenter and participant in the LSSARP meeting stated that the Director of NRC's Office of Nuclear Materials Safety and Safeguards (NMSS) should have the responsibility and authority to reject the DOE license application, not only if it is not able to be accessed through the electronic docket but also, if the DOE is not in compliance with all of the requirements of the rule when the license application is submitted. This commenter suggested that the current language of § 2.1011 (d)(6) and (7) be moved to § 2.1012.

Response:. Section 2.1 009(b) has been revised in response to the previously discussed comment to require an updated certification from the DOE at twelve month intervals and at the time of submission of the license application. This final rule also adds a clause to §2.1012 to authorize the Director, NMSS, to find the license application unacceptable for docketing if it is not accompanied by a certification from DOE pursuant to§ 2.1009(b).

Copies of documents for deposition § 2.1019(i)

Comment: The DOE observes that it may be burdensome to provide paper copies of large documents that are not identical (because of subsequent modification or added notations)

11 to those documents that have been made available electronically, as required by proposed

§ 2.1019(i}. DOE suggests that the requirement be clarified to require submission of copies only of the parts of the documents that have been modified.

Response: NRC believes that this suggestion might prove difficult to implement. It would seem especially difficult to isolate and identify changes from the previous documents if the subsequent modifications have been inserted electronically, thereby altering the pagination of the pre-existing text. Isolating the modified sections as separate documents could obscure the overall context and meaning of the changed portion. NRC has not adopted this suggestion.

Retention of the "LSS Administrator" function § 2.1011 Comment The consensus of the LSSARP meeting participants and three of the.written comments supported retention of the LSS Administrator function. One comment asserted that the "LSS Administrator" was needed to contribute to the design and management of the system, to be a "traffic cop", to balance priorities for data input, to organize data, to resolve conflicts, to audit the system, and to add credibility. Another comment stated that the LSS Administrator should be retained and should review participants' readiness to allow access to their documentary material, receive and resolve complaints regarding network problems, perform periodic audits or compliance reviews, assist participants in achieving and maintaining compliance, and coordinate resolution of technical issues.

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

Section 2.1011 (c) provides for the designation of an LSN Administrator before the start of the pre-license application phase. The LSN Administrator will be responsible to coordinate the functioning of the Licensing Support Network by identifying technical and policy issues related to implementation of the LSN for Advisory Review Panel and NRC consideration. The LSN

12 Administrator will coordinate addressing tne consensus advice of the LSN Advisory Review Panel and resolving problems regarding LSN availability and the integrity of the LSN data. The LSN Administrator will also provide periodic reports to the NRC on the status of LSN functionality and operability.

Maintaining an Advisory Review Panel § 2.101 Hc)

Comment All those who submitted written comments and who commented at the LSSARP meeting preferred continuing to have an advisory review panel, rather than substituting an informal users group. The DOE stated that it was premature to replace the advisory review panel with an informal users group and that the formality of the panel would ensure that each member's concerns about the structure of the electronic docket will be addressed in a documented manner. Two commenters stated that a more informal group would tend to be less effective with higher turnover in participants and less commitment to the objectives of the program.

Response:. The final rule requires the Secretary of the Commission to reconstitute the LSS Advisory Review Panel as the LSN Advisory Review Panel (LSNARP). In view of the many complex implementation issues that must be coordinated among the participants, the continued use of an advisory committee appears to offer the best means to ensure that these issues will be considered and resolved effectively. However, the NRC directs that LSNARP meetings be conducted with the most efficient possible use of resources. Meetings should be conducted taking advantage of teleconf--?rence, video conference, or other electronic communication capabilities to the greatest extent practicable. Because the current membership will be retained, proposed § 2.1011 (d)(2) that specifies the initial membership of the Advisory Review Panel has not been adopted.

13 Membership on the LSNARP § 2.1011 (c}(2)

Comment Two commenters, who are affected units of local government, stated that the proposed rule should be modified to give a separate seat on the LSNARP to each affected unit of local government, rather than specifying one seat for "a coalition of affected units of local government." One commenter stated that there are now 10 counties designated by DOE as "affected" and that the different interests of this group could not be represented by one seat.

One commenter, Nye County, Nevada, stated that its status as the "situs jurisdiction" is significantly different from that of the other counties and requires separate representation: The National Congress of American Indians stated that individual affected tribes from the Yucca Mountain area should be members of the LSNARP.

Response: In order to keep the functioning of the LSNARP manageable, including numbers of participants required for quorums and other operating requirements, NRC believes that it is necessary to continue to treat entities with similar interests as coalitions (e.g., affected units of local government, tribal groups). However, this does not need to affect,recognition of the unique status of individual members of the coalition, nor their opportunity to attend and participate at LSN meetings.

Funding for participants in the LSN Comment Several participants at the LSSARP meeting stated that there was an urgent need for funding to enable small entities to participate fully in the HLW licensing proceeding and the LSNARP, and to fulfill their responsibilities to provide electronic access to documentary material under this rule.

Response: The LSSARP participants did not suggest and NRC has not devised any revisions to the rule to address this problem. As noted at the LSSARP meeting, NRC is prohibited from paying expenses for participants in licensing proceedings by a provision from the Fiscal Year 1993 Energy and Water Development Appropriations Act, which has been

14 codified at 5 U.S.C. 504 note. A Comptroller General's opinion issued December 3, 1980,

_ Opinion No. B-200585, interpreting identical language previously contained in the Energy and Water Development Appropriation Act, 1981 (Pub. Law No.96-367, 94 Stat. 1331), concluded that NRC could not provide to intervenors free copies of transcripts or free copying and service of intervenors' documents. Therefore, although the supplementary information of the proposed rule notice suggested that there might be an option for participants to provide their documentary materials to NRC or DOE to allow NRC or DOE to maintain electronic availability of the participants' documents, NRC has concluded that this action may not be permissible .under the statutory prohibition.

NRC recognizes that this revised rule places responsibility for document conversion, loading, and maintaining and operating a web server on each of the individual parties or potential parties. NRC believes there is an approach to help the smaller parties and potential parties mitigate the funding requirements of participation under this rule. Affected units of local

• government (AULG) and other parties and potential parties could utilize a portion of grant funds typically provided to the AULG by DOE in the past. Although in FY 1997 no grants were forthcoming from DOE and many of the county governments had to cancel or severely curtail their activities for the year, funding was available in FY 1998 and should be available in FY 1999.

Tribal Government participation - definition of "party" and§ 2.715.

Comment The National Congress of American Indians (NCAI) stated that NRC should set up a process to determine which tribes are interested in representation in the licensing proceeding to ensure that all interested federally recognized tribes are included as parties to the licensing proceeding. The NCAI also expressed a concern that tribal governments do not appear to be included in the provisions of§ 2.715 which allow representatives of State or local governments to participate in a proceeding without being required to take a position on the

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

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

With regard to §2. 715, because this issue is outside the scope of the current rulemaking, the NRC intends to undertake a separate rulemaking to amend that section to include federally recognized Native American tribal governments. This task has been added to the NRC's Rulemaking Activity Plan (SECY 98-168). However, the straightforward and procedural nature of such a rule change should make it possible to proceed without undcie delay.

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

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

16 Ill. Section-by-Section Description of Final Rule In § 2.1000, the reference to§ 2.709 is removed because it requires compliance with

§ 2. 708 which does not apply to this subpart.

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

ASCII File. This definition is removed and no longer used in the rule. Prescriptive references to specific technical standards have been removed to allow flexible implementation consistent with developing technology.

Documentary material. The definition of documentary material is revised to cover information upon which a party, potential party, or interested governmental participant intends to rely and/or cite in support of its position in the licensing proceeding; any information known to, and in the possession of, or developed by the party which is relevant to, but does not support; that information or that party's position; and all reports and studies, prepared by or on behalf of the potential party, interested governmental participant, or party, including all related "circulated drafts," relevant to both the license application and the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. This definition is used in the rule in § 2.1003 to define what material must be provided in electronic form for access beginning in the pre-license application phase.

Therefore, the term "documentary material" is intended to describe the most important body of material and would be defined clearly to require that all parties include electronic access to any relevant information in their possession that does not support their position in the licensing proceeding, as well as providing access to the information that does support their position, and any reports and studies prepared by the party relevant to the application on issues described in the Topical Guidelines, regardless of whether or not they would be relied upon or cited by the party. The scope of the documentary material is still governed by the topical guidelines.

Electronic docket. A new definition is added to describe NRC's electronic information

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

Licensing Support Network (LSN). A new definition would be added to describe the combined system to make documentary material and the NRC pre-license application docket and licensing docket available in electronic form to potential parties, parties, interested governmental participants, or the public for the licensing proceeding of the high-level waste geologic repository, either as part of the NRC's pre-license application electronic docket or electronic docket or pursuant to electronic access to documentary material made available by individual potential parties, parties, and interested governmental participants. This is a term that replaces the LSS in this rule.

LSS Administrator. This term is eliminated from the rule because the concept of the LSS is also removed. The Pre-license Application Presiding Officer will resolve disputes about electronic access to documents in the pre-license application phase. This rule creates a new*

term "LSN Administrator" which is described below.

LSN Administrator. This new term describes the individual who will coordinate access to, and the functioning of, the Licensing Support Network, as well as the resolution of problems regarding the functionality and availability of the system .

.Efil!y. This definition is revised to add "affected unit of local government", as that term is defined in the Nuclear Waste Policy Act of 1982, as amended, and also to refer to that statute for the definition of affected Indian Tribe. In addition, any affected unit of local government, the host State, and any affected Indian Tribe would be required to file a list of contentions.

Potential party. This definition is revised to remove the reference to the LSS and to substitute the term Licensing Support Network to describe the material to which the potential party will be given access.

18 Pre-license application electronic docket. A new definition is added to describe NRC's electronic information system to receive, distribute, store, and maintain NRC pre-license application docket materials during the pre-license application phase.

Pre-license application phase. This definition is being specified for the purposes of this rule to begin 30 days after the date the DOE submits its site suitability decision to the President.

This term is used in § 2.1003 to specify the date by which the DOE and the NRC must make their documentary material available electronically. This date has been chosen to allow access to the largest body of the most important NRC and DOE documentary material sufficiently in advance of the filing of the license application to aJlow advance preparation of contentions and discovery requests before the application is filed but late enough in the repository development process to provide meaningful information.

Searchable full text. This definition is revised to remove references to ASCII and to the LSS.

Topical Guidelines. A new definition is added to describe the set of topics set forth in Regulatory Guide 3.69 that are intended to guide the scope of documentary material under this subpart.

Section 2.1002 is removed because creation of the LSS is no longer required. Access to the Licensing Support Network will provide the major functions which the LSS was de~igned to provide. Paragraphs (c) and (d), which state that participation by the host State in the pre-application phase will not affect its disapproval rights and that this subpart shall not affect any participant's independent right to receive information, are now incorporated in the revised

§ 2.1003 as paragraphs (c) and (d).

Section 2.1003 is revised to describe information that is required to be made available electronically by all potential parties, parties, and interested governmental participants (including the NRC and DOE). This information must be made electronically available by NRC

19 and DOE beginning in the pre-license application phase, which starts 30 days after the date the DOE submits its site recommendation to the President. Other potential parties and interested governmental participants would be required to make their documentary material available no later than 30 days after the date the repository site selection decision becomes final after review by Congress. The requirements of the rule are simplified to require only that access to an electronic file and bibliographic header be provided. All references to specific formats are removed to allow flexibility in implementation.

Although the rule sets deadlines for requiring all potential parties and interested governmental participants to make their documentary material available electronically, the NRG would encourage the earliest feasible availability of documentary material in order to enhance the future smooth operation of the licensing proceeding. The paragraphs relating to evaluations and certifications by the LSS Administrator are removed because the LSS (and LSSA) concept is removed. Section 2.101 O states that the Pre-License Application Presiding Officer will resolve any disputes relating to electronic access to documents in the pre-license appiication phase. Accordingly, the paragraphs which stated that the-application would have to be -

docketed under Subpart G if the LSSA did not certify compliance have been removed.

Subpart J (including specifically referenced sections of Subpart G) unconditionally presents the rules of procedure applicable for the HLW licensing proceeding.

Section 2.1004 is revised to provide procedures for providing access to a document that has not previously been provided.in electronic form, to delete previous references to the LSS and the LSSA, and to extend the period of time for providing access to a document from two days to five days.

Section 2.1005 is revised to delete reference to the LSS and to add an exclusion of readily available references, such as journal articles or proceedings, which may be subject to copyright.

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

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

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

Section 2.1009 is revised to delete references to the LSS and the LSSA, and to refer instead to the responsibility to provide electronic files. The responsible official for each potential party is required to certify to the Pre-License Presiding Officer ~at procedures to comply with

§ 2.1003 have been implemented and that its documentary material has been made electronically available. A requirement for all participants to update the certification at twelve month intervals and for DOE to update its certification at the time of submission of the license application replaces a previous requirement to provide this certification at six month intervals.

Section 2.101 O is revised to delete references to the LSS and the LSSA and to refer instead to electronic access. The reference to petitions for access is removed to cont arm to removal of this requirement. The time period for providing access to documents is extended from two days to five days.

Section 2.1011 is revi~ed to reflect that the electronic availability of documentary material that is specified in this rule no longer requires special equipment. The Secretary of the Commission is directed to reconstitute the LSS Advisory Review Panel as the LSN Advisory Review Panel. The functions of the panel have been amended to delete the reference to the LSS and to substitute the purpose of arriving at standards and procedures to facilitate the electronic access to documentary material and to the electronic docket established for the HLW

J 21 geologic repository licensing proceeding. Because of the broad and non-prescriptive requirements regarding providing electronic files in this rule, the LSN Advisory Review Panel will be very useful in discussing standards and procedures to ensure that all participants are able to access the electronic information. Because the LSS concept is replaced, the name and functions of the LSS Administrator have been changed to "LSN Administrator" and to include coordinating the functions of the Licensing Support Network. The LSN Administrator will be responsible for identrfying technical and policy issues related to implementation of the LSN for

.LSSARP and NRC consideration, addressing the consensus advice of the LSN Advisory Review Panel, and for coordinating the resolution of problems experienced by participants regarding LSN availability and the integrity of the LSN data. The LSN Administrator will 'also provide periodic reports to the NRG on the status of LSN functionality and operability. Similarly, the name and functions of the LSS Advisory Review Panel have been modified in the final rule to accommodate a new purpose.

Section 2.1012(a) is revised to allow the Director of the NRG Office of Nuclear Material Safety and Safeguards (NMSS) to determine that tlie application would not be acceptable if it is not able to be accessed through the electronic docket or if it is not accompanied by a certification of compliance with the rule pursuant to§ 2.1009(b). Section 2.1012(b)(1) is revised to substitute Licensing Support Network for Licensing Support System so that a person who has had access to the Licensing Support Network would not be granted party status in the licensing proceeding if it cannot demonstrate compliance with the requirements of § 2.1003.

Section 2.1012 (d) has been removed because the provision for suspending or terminating access to the pre-license application electronic docket or the electronic docket is inconsistent with allowing public access to the LSN.

Section 2.1013 is revised to delete references to the LSS and LSSA and refers to the V

provision of information in electronic form. The requirement in§ 2.1013(c}(5} to file one signed

22 paper copy of each filing with the Secretary, NRC, is removed because the electronic docket will not require signed paper copies. However, use of the electronic docket will require the development of electronic signature procedures, which will be devised in the implementation of the rule.

Section 2.1014(c)(4) has been revised to delete a reference to the LSS and make the failure of a petitioner to participate in the pre-license application phase a criterion in considering whether to grant a petition to intervene.

Section 2.1017 has been revised to use the unavailability of the electronic docket instead of the LSS as a justification for extending the computation of time in the proceeding.

Sections 2.1018 and 2.1019 are revised to delete references to the LSS and instead to refer to providing documents electronically.

In addition, minor editorial changes have been made throughout the final rule to improve readability.

Environmental Impact: Categorical Exclusion The NRC has determined that this regulation is the type of action described in categorical exclusion 10 CFR 51.22(c)(1 ). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this regulation.

Paperwork Reduction Act Statement This rule contains no information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Regulatory Analysis To address the regulatory problem of adapting the existing rule to technological developments that have occurred, several alternative approaches to amending the regulations in Subpart J of Part 2 were considered.

23 Option 1: Existing rule.

This approach would not take advantage of current and future technology. It would require an enormously expensive custom designed system to be developed using old assumptions about technological standards and the universe of "relevant" material. At the time of the development of the existing rule, the cost of the LSS was estimated by DOE to be in the

$200 million range. Furthermore, because the large backlog contains many documents that may no longer be relevant due to the unanticipated delay in developing the LSS as initially designed in 1988, there is a $ubstantial chance that it would be impossible for the DOE to

• achieve and for the LSSA to certify compliance with the provisions of the current rule. In this case, under the current rules, the proceeding would have to be conducted under 10 CFF¥-Part 2, Subpart G, and could result in a protracted discovery phase. The additional costs of using this approach are difficult to quantify. However, the lengthened discovery phase could prevent the NRC from meeting the statutory deadline for decision on the application for a geologic repository license.

Option 2: 10 CFR Part 2, Subpart G.

Because th~ NRC is developing a new system called the Agency-wide Documents Access and Management System (ADAMS), that will provide an agency-wide electronic docket, it would be possible to rely on existing adjudicatory procedure rules in 10 CFR Part 2, Subpart G, which will have to be updated to reflect the electronic docket to conduct the licensing proceeding. This approach would not provide pre-license application access to documents and could result in a protracted discovery phase. The costs of using this approach are difficult to quantify. However, the lengthened discovery phase could prevent the NRC from meeting the statutory deadline for decision on the application.

24 Option 3: Existing rule using a distributed system.

This approach would allow using linked individual Internet sites to serve as the LSS.

However, this approach does not solve the problem discussed in Option 1 concerning the requirement to capture a huge backlog of material that may not have been maintained in a manner that would ever permit compliance with the rule and may not all be relevant to the future license application. Therefore, the costs of this approach, as in Option 1, would indude the possibility that the LSS rule compliance finding could not be made and the proceeding would have to be conducted under 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 tnore realistic document discovery approach.

This approach will remove the requirement for a central LSS system and LSS Administrator, but will require each potential party to provide for the electronic availability of both the material it intends to rely upon to support its position, any material which does not support that material or that position, and any reports or studies prepared by or for the party, beginning in the pre-application phase (presided over by a Pre-License Application Presiding Officer). This definition of documentary material will provide pre-application access to a more focused set of the materials most important to the licensing proceeding. It will not require electronic access to the entire backlog of DOE and other parties' material, some of which may no longer be relevant to the licensing proceeding. The electronic docket functionality of the LSS will be provided by the NRC agency-wide system with supervision of the Presiding Officer.

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

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

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

Regulatory Flexibility Certification The amendments will modify the NRC's rules of practice and procedures. The rule is amended to allow more widely available electronic access to infonnation before the license application is filed. Participants will be required to make their own documentary material* -

available electronically. This final rule will not have a significant economic impact upon a substantial number of small entities. The license applicant for the HLW repository will be the Department of Energy. DOE does not fall within the definition of a "small entity" in the NRC's size standards (10 CFR 2.810). Although a few of the intervenors in the HLW proceeding would likely qualify as small entities, the impact on intervenors or potential intervenors will not

• be significant. The requirement for participants to make their own documentary material available electronically is stated in a manner that will allow flexibility in implementation.

Furthermore, it is consistent with current business practice to create documents electronically.

Although the exact additional costs to small entities involved in making the documentary materials available electronically are difficult to quantify, to avoid those costs, participants may have the option of utilizing funds provided by DOE to affected units of local government. Thus, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the NRC hereby certifies that this final rule will not have a significant economic impact upon a substantial number of small entities.

26 Backfit Analysis ljle NRC has determined that a backfit analysis is not required for this final rule because these amendments do not include any provisions that would require backfits as defined in 10 CFR Chapter I.

Small Business Regulatory Enforcement Fairness Act In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of 0MB.

List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954; as amended, the Energy Reorganization Act of 1974, as amended; and 5 U.S.C.

553; the Nuclear Regulatory Commission is adopting the following amendments to 10 CFR Part 2.

PART 2-RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS

1. The authority citation for Part 2 continues to read as follows:

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

sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C. 2241}; sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841 ); 5 U.S.C. 552.

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

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

sec. 114(f), Pub. L.97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).

Sections 2.102, 2.103, 2.104, 2.105, 2. 721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued under Pub. L. ~7-415, 96 Stat. 2073 (42 U.S.C. 2239}.

Sections 2.200-2.206 also issued under secs. 161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o), 2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Section 2.2050) also issued under Pub. L. 101-41 0, 104 Stat. 890, as amended by Section 31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note.) Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C.

4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.TT0, 2.780 also issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808

• also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154).

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

2. Section 2.1 000 is revised to -read as follows:

§ 2.1000 Scope of subpart.

The rules in this subpart govern the procedure for applications tor a license to receive and possess high-level radioactive waste at a geologic repository operations area noticed pursuant to§ 2.101 (f)(8) or§ 2.105(a)(5). The procedures in this subpart take precedence over

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

§§ 2.702, 2.703, 2.704, 2.707, 2.711, 2.713, 2.715, 2.715a, 2.717, 2.718, 2.720, 2.721, 2.722, 2.732, 2.733, 2.734, 2.742, 2.743, 2.750, 2.751, 2.753, 2.754, 2.755, 2.756, 2.757, 2.758, 2.759, 2.760, 2.761, 2.763, 2.770, 2.771, 2.772, 2.780, 2.781, 2.786, 2.788, and 2.790.

3. Section 2.1001 is amended by removing the definitions of ASCII File and LSS Administrator; adding definitions of Electronic docket, Licensing Support Network, LSN Administrator, Pre-license application electronic docket, and Topical Guidelines; and revising the definitions of Documentary material, ~ . PotentiaJ party, Pre-license application phase, and Searchable full text, to read as follows:

§ 2.1001 Definitions.

Documentary material means (1} any information upon which a party, potential party, or interested governmental participant intends to rely and/or to cite in support of its position in the proceeding for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter; (2) any information that is known to, and in the possession of, or developed by the party that is relevant to, but does not support, that information or that party's position; and (3) all reports and studies, prepared by or on behalf of the potential party, interested governmental participant, or party, including all related "circulated drafts," relevant to both the license application and the issues set forth in the Topical Guidelines in Regulatory Guirle 3.69, regardless of whether they will be relied upon and/or cited by a party. The scope of documentary material shall be guided by the topical guidelines in the applicable NRG Regulatory Guide.

Electronic docket means the NRG information system that receives, distributes, stores, and retrieves the Commission's adjudicatory docket materials.

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

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

~ for the purpose of this subpart means the DOE, the NRC staff, the host State, any affected unit of local government as defined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), any affected Indian Tribe as defined in section 2 of the Nuciear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), and a person admitted under § 2.1014 to the proceeding on an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter; provided that a host State, affected unit of local government, or affected Indian Tribe shall file a list of contentions in accordance with the provisions of §§ 2.1014{a)(2) (ii) and (iii).

30 Potential party means any person who, during the period before the issuance of the first pre-hearing conference order under§ 2.1021 (d), is given access to the Licensing Support Network and who consents to comply with the regulations set forth in subpart J of this part, including the authority of the Pre-License Application Presiding Officer designated pursuant to

§2.1010.

Pre-license application electronic docket means the NRC's electronic information system that receives, distributes, stores, and maintains NRC pre-license application docket materials during the pre-license application phase.

Pre-license application phase means the time period before the license application to receive and possess high-level radioactive waste at a geologic repository operations area is docketed under § 2.101 (f)(3). For the purpose of this subpart, this period begins 30 days after the date the DOE submits the site recommendation to the President pursuant to section 114(a) of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10134(a)).

Searchable full text means the electronic indexed entry of a document that allows the identification of specific words or groups of words within a text file.

Topical Guidelines means the set of topics set forth in Regulatory Guide 3.69, Topical Guidelines for the Licensing Support System, which are intended to serve as guidance on the scope of "documentary materiar.

4. Section 2.1002 is removed and reserved.

§2.1002 [Removed]

5. Section 2.1003 is revised to read as follows:

§ 2.1003 Availability of material.

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

31 potential party, interested governmental participant or party shall make available no later than 30 days after the date the repository site selection decision becomes f.inal after review by Congress--

(1) An electronic file including bibliographic header for all documentary material (including circulated drafts but excluding preliminary drafts) generated by, or at the direction of, or acquired by, a potential party, interested governmental participant, or party. Concurrent with the production of the electronic file will be an authentication statement that indicates where an authenticated image copy of the document can be obtained .

• (2) In electronic image form, subject to the claims of privilege in § 2.1006, graphic-oriented documentary material that includes raw data, computer runs, computer<

programs and codes, field notes, laboratory notes, maps, diagrams and photographs which have been printed, scripted, or hand written. Text embedded within these documents need not be separately entered in searchable full text. Graphic-oriented documents may include-(i) Calibration procedures, logs, guidelines, data and discrepancies; (ii) Gauge, meter and computer settings; (iii) Probe locations; (iv) Logging intervals and rates; (v) Data logs in whatever form captured; (vi) Text data sheets; (vii) Equations and sampling rates; (viii) Sensor data and procedures; (ix) Data Descriptions; (x) Field and laboratory notebooks; (xi) Analog computer, meter or other device print-outs; (xii) Digital computer print-outs;

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

(3) In an electronic file, subject to the claims of privilege in § 2.1006, only a bibliographic header for each item of documentary material that is not suitable for image or searchable full text.

(4) An electronic bibliographic header for each documentary material-(i) For which a claim of privilege is asserted; (ii) Which constitutes confidential financial or commercial information; or (iii) Which constitutes safeguards information under§ 73.21 of this chapter.

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

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

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

6. Section 2.1004 is revised to read as follows:

§ 2.1004 Amendments and additions.

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

33 document within five days after it has been requested unless some other time is approved by the Pre-License Application Presiding Officer or the Presiding Officer designated for the high-level waste proceeding. The time allowed under this paragraph will be stayed pending Officer action on a motion to extend the time.

7. Section 2.1005 is revised to read as follows:

§ 2.1005 Exclusions.

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

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

8. Section 2.1006 is revised to read as follows:

§ 2.1006 Privilege.

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

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

(b) Any document for which a claim of privilege is asserted, but is denied in whole or in part by the Pre-License Application Presiding Officer or the Presiding Officer, mu 9t be provided I

in electronic form by the party, interested governmental participant, or potential party that asserted the claim to-(1) The other participants; or (2) To the Pre-License Application Presiding Officer or to the Presiding Officer, for entry into a Protective Order file, if the Pre-License Application Presiding Officer or the Presiding Officer so directs under§§ 2.1010(b) or 2.101 S(c).

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

9. Section 2.1007 is revised to read as follows:

§ 2.1007 Access.

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

(2) A system to provide electronic access to the Licensing Support Network shall be provided at the headquarters Public Document Room of NRC, and at all NRC Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, and at the NRC Regional Offices beginning in the pre-license application phase.

(3) The systems for electronic access specified in paragraphs (a)(1) and (a){2) of this section shall include locations at Las Vegas, Nevada; Reno, Nevada; Carson City, Nevada; Nye

35 County, Nevada; and Lincoln County, Nevada.

(b) Public availability of paper and electronic copies of the records of NRC and DOE, as well as duplication fees, and fee waiver for those records, is governed by the regulations of the respective agencies.

10. Section 2.1008 is removed and reserved:

§ 2.1008 [Removed]

11. Section 2.1009 is revised to read as follows:

§ 2.1009 Procedures.

(a) Each potential party, interested governmental participant, or party shall-(1) Designate an official who will be responsible for administration of its responsibility to provide electronic files of documentary material ;

(2) Establish procedures to implement the requirements in § 2.1003; (3) Provide training to its staff on the procedures for implementation of the responsibility to provide electronic files of documentary material; (4) Ensure that all documents carry the submitters unique identiffoation number; (5) Cooperate with the advisory review process established by the NRC under

§ 2.1011(d).

(b) The responsible official designated pursuant to paragraph (a)(1) of this section shall certify to the Pre-License Application Presiding Officer that the procedures specified in paragraph (a){2) of this section have been implemented, and that to the best of his or her knowledge, the documentary material specified in § 2.1003 has been identified and made electronically available. The responsible official shall update this certification at twelve month intervals. The responsible official for the DOE shall also update this certification at the time of submission of the license application.

12. Section .2.101 O is revised to read as follows:

36

§ 2.1010 Pre-License Application Presiding Officer.

(a)(1) The Commission may designate one or more members of the Commission, or an atomic safety and licensing board, or a named officer who has been delegated final authority on the matter to serve as the Pre-License Application Presiding Officer to rule on disputes over the electronic availability of documents during the pre-license application phase, including disputes relating to privilege, and disputes relating to the implementation of the recommendations of the Advisory Review Panel established under § 2.1011 (d).

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

(b) The Pre-License Application Presiding Officer shall rule on any claim of document withholding to determine-(1} Whether it is documentary material within the scope of this subpart; (2) Whether the material is excluded under §2.1005; (3) Whether the material is privileged or otherwise excepted from disclosure under

§ 2.1006; (4) If privileged, whether it is an absolute or qualified privilege; (5) If qualified, whether the document should be disclosed because it is necessary to a proper decision in the proceeding; (6) Whether the material should be disclosed under a protective order containing such protective terms and conditionc:; (including affidavits of nondisclosure) as may be necessary and appropriate to limit the disclosure to potential participants, interested governmental participants and parties in the proceeding, or to their qualified witnesses and counsel. When Safeguards Information protected from disclosure under section 147 of the Atomic Energy Act of 1954, as amended, is received and possessed by a potential party, interested governmental participant, or party, other than the Commission staff, it shall also be protected according to the

37 requirements of § 73.21 of this chapter. The Pre-License Application Presiding Officer may also prescribe such additional procedures as will effectively safeguard and prevent disclosure of Safeguards Information to unauthorized persons with minimum impairment of the procedural rights which would be available if Safeguards Information were not involved. In addition to any other sanction that may be imposed by the Pre-License Application Presiding Officer for violation of an order pertaining to the disclosure of Safeguards Information protected from disclosure under section 147 of the Atomic Energy Act of 1954, as amended, the entity in violation may be subject to a civil penalty imposed pursuant to § 2.205. For the purpose of imposing the criminal penalties contained in section 223 of the Atomic Energy Act of 1954, as amended, any order issued pursuant to this paragraph with respect to Safeguards Information shall be deemed fo be an order issued under section 161 b of the Atomic Energy Act of 1954, as amended.

(c) Upon a final determination that the material is relevant, and not privileged, exempt from disclosure, or otherwise exempt from production under § 2.1005, the potential party, interested governmental participant, or party who asserted the claim of withholding must make the document available in accordance with the provisions of this subpart within five days.

(d) The service of all pleadings and answers, orders, and decisions during the pre-license application phase shall be made according to the procedures specified in

§ 2, 1013(c) and entered into the pre-license application electronic docket.

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

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

13. Section 2.1011 is revised to read as follows:

38

§ 2.1011 Management of electronic information.

(a) Electronic document production and the electronic docket are subject to the provisions of this subpart.

(b) The NRC, DOE, parties, and potential parties participating in accordance with the provisions of this subpart shall be responsible for obtaining the computer system necessary to comply with the requirements for electronic document production and service.

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

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

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

39 the NRG HLW Licensing Support System Advisory Review Panel.

(e)(1) The LSN Advisory Review Panel shall provide advice to-(i) NRG on the fundamental issues of the type of computer system necessary to access the Licensing Support Network effectively under paragraph (b) of this section; and (ii) The Secretary of the Commission on the operation and maintenance of the electronic docket established for the HLW geologic repository licensing proceeding under the I

Commission's Rules of Practice (10 CFR Part 2).

(iii) The LSN Administrator on solutions to improve the functioning of the LSN; (2) The responsibilities of the LSN Advisory Review Panel shall include advice on-(i) Format standards for providing electronic access to the documentary material*

certified by each participant to be made available in the LSN to the other parties, interested governmental participants, or potential parties; (ii) The procedures and standards for the electronic transmission of filings, orders, and decisions during both the pre-license application phase and the high-level waste licensing proceeding; (iii) Other duties as specified in this subpart or as directed by the Secretary of the Commission.

14. In§ 2.1012, paragraphs (a) and (b)(1) are revised to read as follows, and paragraph {d) is removed:

§ 2.1012 Compliance.

{a) In addition to the requirements of§ 2.101 (f), the Director of the NRC's Office of Nuclear Materials Safety and Safeguards may determine that the tendered application is not acceptable for docketing under this subpart if the Secretary of the Commission determines that it cannot be effectively accessed through the Commission's electronic docket system or if the application is not accompanied by an updated certirication pursuant to§ 2.1009(b).

40 (b}(1) A person, including a potential party given access to the Licensing Support Network under this subpart, shall not be granted party status under § 2.1014, or status as an interested governmental participant under§ 2.715(c), if it cannot demonstrate substantial and timely compliance with the requirements of § 2.1003 at the time it requests participation in the high-level waste licensing proceeding under§ 2.1014 or§ 2.715(c).

15. Section 2.1013 is revised to read as follows:

§ 2.1013 Use of the electronic docket during the proceeding.

(a){1) Pursuant to § 2. 702, the Secretary of the Commission will maintain the official docket of the proceeding on the application for a license to receive and possess waste at a geologic repository operations area.

{2) Commencing with the docketing in an electronic form of the license application to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter, the Secretary of the Commission, upon determining that the application can be properly accessed under the Commission's electronic docket rules, will establish an electronic docket to contain the official record materials of the high-level radioactive waste licensing proceeding in searchable full text, or, for material that is not suitable for entry in searchable full text, by header and image, as appropriate.

(b) Absent good cause, all exhibits tendered during the hearing must have been made available to the parties in electronic form before the commencement of that portion of the hearing in which the exhibit will be offered. The electronic docket will contain a list of all exhibits, showing where in the transcript each was marked for identification and where it was received into evidence or rejected. Transcripts will be entered into the electronic docket on a daily basis in order to provide next-day availability at the hearing.

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

41 possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter shall be transmitted electronically by the submitter to the Presiding Officer, parties, and the Secretary of the Commission, according to established format requirements.

Parties and interested governmental participants will be required to use a password security code for the electronic transmission of these documents.

(2) Filings required to be served shall be served upon either the parties and interested governmental participants, or their designated representatives. When a party or interested governmental participant has appeared by attorney, service must be made upon the attorney of record.

(3) Service upon a party or interested governmental participant is completed when the sender receives electronic acknowledgment ("delivery receipn that the electronic submission has been placed in the recipient's electronic mailbox.

(4) Proof of service, stating the name and address of the person on whom served and the manner and .date of service, shall be shown for each document filed, by-(i) Electronic acknowledgment ("delivery receipr);

(ii) The affidavit of the person making the service; or (iii} The certificate of counsel.

(5) All Presiding Officer and Commission issuances and orders will be transmitted electronically to the parties and interested governmental participants.

(d) Online access to the electronic docket, including a Protective Order File if authorized by a Presiding Officer, shall be provided to the Presiding Officer, the representatives of the parties and interested governmental participants, and the witnesses while testifying, for use during the hearing. Use of paper copy and other images will also be permitted at the hearing.

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

42

§ 2.1014 Intervention.

{c)

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

17. Section 2.1017 is r~vised to read as follows:.

§ 2.1017 Computation of time.

In computing any period of time, the day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period so computed is included _unless it is a Saturday, Sunday, or legal holiday at the place where the action or event is to occur, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor holiday. Whenever a party, potential party, or interested governmental participant, has the right or is required to do some act within a pr_escribed period after the service of a notice or other document upon it, one day shall be added to the prescribed period.

If the electronic docket is unavailable for more than four access hours of any day that would be counted in the computation of time, that day will not be counted in the computation of time.

18. In § 2.1018, paragraph {a)( 1) and the introductory text of paragraph (e) are revised to read as follow.;;:

§ 2.1018 Discovery.

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

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

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

43

§ 2.1020;

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

(iv) Depositions upon oral examination pursuant to § 2.1019; (v) Requests for ~dmission pursuant to§ 2.742;

{vi) Informal requests for information not made electronically available, such as the names of witnesses and the subjects they plan to address; and

{vii) Interrogatories and depositions upon written questions, as provided in paragraph

\

(a){2) of this section.

(e) A party, potential party, or interested governmental' participant who has made available in electronic form all material relevant to any dis_covery request or who has responded to a request for discovery with a response that was complete when made is under no duty to supplement its response to include information thereafter acquired, except as follows:

19. In§ 2.1019, paragraphs (d), (e), and (i) are revised to read as follows:

§ 2.1019 Depositions.

(d) When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and signature unless the deponent is ill or cannot be found or refuses to sign. The officer shall certify the deposition or, if the deposition is not signed by the deponent, shall certify the reasons for the failure to sign, and shall promptly transmit an electronic copy of the deposition to the Secretary of the Commission for entry into the electronic docket.

(e) Where the deposition is to be taken on written questions as authorized under

44

§ 2.1018(a)(2J, the party or interested governmental participant taking the deposition shall electronically serve a copy of the questions, showing each question separately and consecutively numbered, on every other party and interested governmental participant with a notice stating the name and address of the person who is to answer them, and the name, description, title, and address of the officer before whom they are to be asked. Within ten days after service, any other party or interested governmental participant may serve cross-questions.

The questions, cross-questions, and answers shall be recorded and signed, and the deposition certified, returned, and transmitted in electronic form to the Secretary of the Commission for entry into the electronic docket as in the case of a deposition on oral examination.

(i){1) After receiving written notice of the deposition under paragraph (a) or paragraph (e) of this section, and ten days before the scheduled date of the deposition, the deponent shall submit an electronic index of all documents in his or her possession, relevant to the subject matter of the deposition, including the categories of documents set forth in paragraph (i)(2) of this section, to all parties and interested governmental participants. The index shall identify those records which have already been made available electronically. All documents that are not identical to documents already made available electronically, whether by reason of subsequent modification or by the addition of notations, shall be treated as separate documents.

(2} The following mat~rial is excluded from the initial requirements of § 2.1003 to be made available electronically, but is subject to derivative discovery under paragraph (i)(1) of this section-(i) Personal records; (ii) Travel vouchers; (iii) Speeches;

45 (iv) Preliminary drafts; (v) Marginalia.

(3) Subject to paragraph (i)(6) of this section, any party or interested governmental participant may request from the deponent a paper copy of any or all of the documents on the index that have not already been provided electronically.

(4) Subject to paragraph {i)(6) of this section, the deponent shall bring a paper copy of all documents on the index that the deposing party or interested governmental participant requests that have not already been provided electronically to an oral deposition conducted pursuant to paragraph (a) of this section, or in the case of a deposition taken on written questions pursuant to paragraph (e) of this section, shall submit such documents with the certified deposition.

(5) Subject to paragraph {i)(6) of this section, a party or interested governmental participant may request that any or all documents on the index that have not already been provided electronically, and on which it intends to rely at hearing, be made electronically available by the deponent.

(6) The deposing party or interested governmental participant shall assume the responsibility for the obligations set forth in paragraphs (i)(1 ), (i)(3), (i)(4), and (i)(5) of this section when deposing someone other than a party or interested governmental participant.

,- '),..

Dated at Rockville, Maryland, this .;/,,1,, ..,...day of December, 1998.

For the Nuclear Regulatory Commission.

Joh . Hoyle, Se etary of the Commission.

National DOCKETED Congress of USNRC .11 American i ~ lf: I'-/ /r8 Indians "98 APR -l A~

Executive Committee March 31, 1998 President W. Ron Allen Jamestown S'Klallam Tribe First Vice President Ernie Stevens, Jr.

Secretary Oneida Nation of Wisconsin U.S. Nuclear Regulatory Commission Recording Secretary Washington, D.C. 20555-0001 DOCKET Le la Ka skall a Nambe Pueblo PROPOSED  ;:/.

Attention: Rulemakings and Adjudication Staff Treasurer Russell (Bud) Mason

( b f1 Fl<. IP07 8C/)

Three Affiliated Tribes ice Presidents Thank you for the opportun ity for the National Congress of American

.en Area cl M . Cliffo rd Indians to provide comments to the proposed rule to amend the Nuclear Ogl ala Sioux Regulatory Commission Rules of Practice for the licensing proceeding on the Albuquerque Area disposal of high-level radioactive waste at a geologic repository. The NCAI Joe A. Garcia Ohkay Owingeh is a member of the NRC Licensing Support System Advisory Review Panel.

San Juan Pueblo As the oldest largest national Indian advocacy organization in the country Anadarko Area Gary McAdams the NCAI has a membership of 225 American Indian and Alaska Native Wichita & Affiliated Tribes governments.

Bi ll ings Area Earl Old Person Blackfeet Tribe Thank you for accepting into the record our comments on this important Juneau Area issue. We look forward to implementation of the comments into the Steve Ginnis Nattve Village of Fort Yukon proposed rule changes by the Nuclear Regulatory Commission. If you have Minneapolis Area any questions regarding our comments, please call Robert Holden, Director

• a Churchill acs Band of Ojibwe of the NCAI Nuclear Waste Program, (202) 466-7767, fax 466-7797.

gee Area S. Diane Kel ly Cherokee Nation Northeast Area Michael W . Schindler Seneca Nation of Indians Phoenix Area Ivan Maki l Salt River Pima -Maricopa Portland Area Henry Cagey Lummi Nation Sacramento Area Cheryl A . Seidner Table *Bluff Reservation-Wiyot Attachment Southeast Area A. Bruce Jones Lumbee Tribe Executive Director JoAnn K. Chase Mandan, Hidatsa & Arikara 2010 Massachusetts Ave., NW Second Floor A owledged by card..~ - 1 1998 Washington, DC 20036 202.466 .7767 202.466.7797 facsimile

U.S. NUCLEAR REGULATORY COMMISSION RULEMAKINGS & ADJUDICATIONS STAFF OFFICE OF THE SECRETARY OF THE COMMISSION Doc

National Congress of American Indians Comments of the National Congress of American Indians on the U.S. Nuclear Regulatory Commission Proposal to Amend the Executive Committee Rules of Practice for Issuance of Licenses for a High-Level President W. Ron Allen Radioactive Waste Geologic Repository Jamestown S'Klallam Tribe First Vice President March 31, 1998 Ernie Stevens, Jr.

Oneida Nation of Wisconsin Recording Secretary Th e fo llowing comments refl ect initial concerns of the National Congress of American Lela Kaskalla Ind ian s on the U.S. N uclear Regu latory Comm iss ion proposal to amend the Rules of Nambe Pueblo Practice for Issuance of Licenses for a high-level radioactive waste geologic repos itory.

Treasurer Add itional comments will be provided as this action proceeds.

Russell (Bud) Mason Three Affiliated Tribes ice Presidents

1. Tribal governments and peoples in the area are impacted by site en Area M. Clifford characterization of Yucca Mountain and will indeed be impacted by Ogla/a Sioux placement of a geologic repository at Yucca Mountain. We are concerned Albuquerque Area Joe A. Garcia that tribal governments indigenous to the area for hundreds of years before Ohkay Owingeh San Juan Pueblo the contemporary governments and populations moved to the area, may not be included as parties to the licensing proceedings. In regard to Section Anadarko Area Gary McAdams 2.715, tribal governments are not specifically included. The NCAI urges a Wichita & Affiliated Tribes broad interpretation affording tribal representatives an opportunity to be a Billings Area Earl Old Person party. This is perhaps not withi°n the purview of the proposed rulemaking, Blackfeet Tribe but the matter should be addressed in either a policy decision or another Juneau Area formal rulemaking.

Steve Ginnis Native Village of Fort Yukon Minneapolis Area The NCAI plays a national role providing feedback on various issues and

• a Churchill C5 Band of Ojibwe dissemination of information, but in the scope of government to government gee Area protocol and standing, those tribal governments directly impacted by the S. Diane Kelly Cherokee Nation NRC licensing activities should be active participants. The NRC may be Northeast Area aware the State of Nevada and some county governments are supportive of Michael W. Schindler Seneca Nation of Indians meaningful tribal participation. We are mindful of budgetary and other constraints, but the process will remain one of inequity if the State of Phoenix Area Ivan Makil Nevada and selected counties are deemed parties to the licensing process Salt River Pima-Maricopa while tribes continue to be excluded. Several federally recognized tribes Portland Area Henry Cagey have been working with the Department of Energy on cultural resource Lummi Nation management issues. These tribes are designated as "impacted ", which has Sacramento Area Cheryl, A, Seidner no legal or political meaning, but more a descriptive term for the DOE. The Table Bluff Reservation-Wiyot NCAI recommends that the NRC set up a process to work with federally Southeast Area recognized Indian nations to determine which tribes are interested in A. Bruce Jones Lumbee Tribe representation and will be part of an interactive process on licensing issues.

Executive Director JoAnn K. Chase 2. The NCAI believes the Licensing Support System Advisory Review Panel Mandan, Hidatsa & Arikara should continue to function in its advisory capacity with the addition of 2010 Massachusetts Ave., NW Second Floor Washington, DC 20036 202.466.7767 202.466.7797 facsimile

tribal government members. The NCAI is appreciative of its membership and will continue to serve as a member of the NRC Licensing Support System Advisory Review Panel. The NCAI supports and encourages individual Indian nation participation on the LSSARP to include tribes in the Yucca Mountain area. Several local units of government serve on the LSSARP but tribal governments with a closer nexus for trust responsibility protection by federal government are not members. We believe a process for inclusion should be made for membership of tribes. The National Congress of American Indians supports the notion that Yucca Mountain area tribes should be included as parties to the licensing activities and proceedings.

The Foreword of a 1990 DOE supported study states, "Yucca Mountain symbolizes the cultural diversity and conflicting values in America. To some government officials, state and federal, it is a vast, useless landscape fit only for the toxic waste of modern society. It has an owner who has the right to define how it is used. To the Southern Paiute, Owens Valley Paiute, Western Shoshone, and other groups of Native Americans in the Las Vegas area, Yucca Mountain is a bountiful harvest of plants, animals, and cultural remembrances. It means food, medicine, religious inspiration, and cultural history. It is a living place without ownership; it is there for all to use as needed. The contrast in attitudes between western civilization and Native American cultures is stark and immediate." (Native American Cultural Resources Resource Studies at Yucca Mountain, Nevada; Stoffle, Halmo, Olmsted, and Evans; Institute for Social Research, University of Michigan; 1990).

Indian tribes have a government to government relationship with the United States grounded in the U.S. Constitution and solemn and extant treaties which bind the parties to this day. Indeed, from the earliest days of the U .S., tribal sovereignty has been recognized. As far back as 1832 the United States Supreme Court ruled that the Indian tribes are "distinct, independent public communities." (Worcester v. Georgia, 31 U.S. (6 Pet.) 559 (1832)).

On April 24, 1994, President Clinton issued a "Memorandum for the Heads of Executive Departments and Agencies on Government to Government Relations With Native American Tribal Governments." The Memorandum states that in order to ensure the rights of sovereign tribal governments are fully respected, executive branch activities shall be guided by the following [excerpts]: (a) The head of each executive department and agency shall be responsible for ensuring that the department or agency operates within a government to government relationship with federally recognized tribal governments. (b) Each executive department and agency shall consult, to the greatest extent practicable and to the extent permitted by law, with tribal governments prior to taking actions that affect federally recognized tribal governments. All such consultations are to be open and candid so that all interested parties may evaluate for themselves the potential impact of relevant proposals. (c) Each executive department and agency shall assess the impact of Federal Government plans, projects, programs and activities on tribal trust resources and assure that tribal government rights and concerns are considered during the development of such plans, projects, programs and activities.

3. We have stated in the past and we again restate to the Nuclear Regulatory Commission that it should adhere to a consistent federal policy based on treaties, federal law, and the

NRC's responsibilities as a federal agency to ensure that tribal rights and interests are identified and fully considered in decision-making regulatory processes. Thank you for the opportunity for the National Congress of American Indians to provide comments on the proposed rulemaking.

A statement from an unnamed tribal chairperson contained in the cultural resources study mentioned above will serve as closing remarks :

" The best thing that could happen to the United States of America is for a group of us Indian people to be elected to address the Supreme Court. Because there are so many things that they don't really understand. It is like this black thing I am holding. Where did it come from? The earth, right, because all material is from the earth. Who is to say that this part [pointing to one part of the object] is more important than that one over there [pointing to another part of the object]. We have to put these things into perspective. It is like this thing [the high-level waste proposal] that came out. They are saying, "We are not damaging that, all we are going to do is to cut down that tree." As an Indian person I feel I am important, but am I more important than that tree or is that tree more important than me? We are on this earth, we are insignificant. Indian people say, "What's more important; the earth that we stand on, the air that we breathe, or the water that we drink?" They all have their reason to be here and that is what we have to get over to the United States Supreme Court. We are nothing, but to put it all together it forms a circle.

And we all have to live together no matter what, because it's our earth. These things are here, we didn't put them here, so who are we to move them. We didn't create them, but we are here to protect them." (Native American Cultural Resources Resource Studies at Yucca Mountain, Nevada; Stoffle, Halmo, Olmsted, and Evans; Institute for Social Research, University of Michigan; 1990).

DOCKETED USHRC Nuclear Regulatory Commission Office of the Secretary '98 APR -1 A7 :so Attn: John Hoyle OF ,_ ,: ,...1t-- C;:*r ,

i .\. L 1

\.11, ** ,

RULL.\ . ' ,. I

SUBJECT:

CITY OF LAS VEGAS COMMENTS ON PROPOS~WANGE:TO me=

LSS RULE (10 CFR PART 2 SUBPART J)

Dear John:

The following are our comments on the proposed LSS Rule Change. I hope these reach you in time to make the March 31 , 1998 cut-off and I apologize for being so late with my input. I think the meeting of February 24th and 25th accomplished a lot towards airing the concerns of many of the parties in attendance, so my comments will be brief.

I think the proposal to use the Internet to access documents related to licensing is a good idea. The Internet provides wide public access which will make the information available to more of the affected parties and the public in general, and certainly the technology of the Internet will continue to improve and expand and become even more user friendly.

The City of Las Vegas has concerns about the elimination of the LSSARP and , in fact, supports the retention of the committee for the foreseeable future. The rule change would replace the LSSARP with an informal committee. This committee would be made up of users and , I would assume, all the current parties. The City would have to agree with many of the comments made at the meeting that once a formal committee becomes established and then becomes replaced with some sort of informal arrangement, the participation and commitment to the committee would diminish. I felt that the meeting in February of the committee was quite informative, and I am not certain that the turn-out, the information, and opinion exchange would be the same. In short, we recommend that the LSSARP as currently structured be retained .

The proposed rule eliminates the position of LSS Administrator and replaces that position with a Pre-License Application Presiding Officer. It is my understanding that the LSS Administrator's responsibility is basically to manage the system, be the watch dog that ensures all affected parties can provide documentation and have access to all documentation and information on the LSS. We view the LSSA as the man in charge to protect the interests of all parties involved in the process, whether they be large federal agencies, like DOE and NRC, or smaller entities and tribes in Nevada or elsewhere.

In previous meetings of the LSSARP and discussions of the duties of the LSSA, it was envisioned that the LSSA would be a responsible position filled by a highly qualified individual from the NRC. We feel that replacing the LSSA with another position creates a gray area and I believe fails to fulfill what affected parties had envisioned in that E-/Jiqi I

---~......

APR l 1998

~~" .

U.S. 1-.uv1u;rv, R A 10 IUSIAKINGS & FF OFFICEOF OFTHE ISSION

position.

Having reviewed the rest of the proposed rule change, the City is generally supportive of the changes to the rule. The question of the LSSA and the LSSARP are two areas that we do not support.

Again, John, I apologize for being so late with these comments.

PC:dh:3/30/98 NW\comentN RC-LSSrule Commenter:

Pete Cummings March 31, 1998

From: Pete Cummings < PCUMMINGS@ci.las-vegas.nv.us >

To: "'JCH@NRC.gov'" <JCH@NRC.gov>

Date: 3/31/98 4:21pm

Subject:

City of Las Vegas Comments on Proposed Change to the LSS Rule John:

Attached for your use are the City of Las Vegas comments on the proposed change to the LSS Rule.

From: "LA FAYE, Miriam" <mdl@nei.org> DOCKE TED To: "'cag@nrc.gov"' <cag@nrc.gov>

USNRC Date: 3/27/98 3:43pm

Subject:

Comments "98 MAR 30 P2 :JS Attached please find the Nulear Energy Institute (NEI) comments on l (DFF1:.:, 1_ ,.,F S[:C'~ rv CFR Part 2, Procedures Applicable to Proceedings for the Issuance of A RULt:rv*: mr_ . D Licenses for the receipt of High-Level Radioactive Waste at a Geologic DJUOIC ,. 11 : ',\J ~ IAFF Repository; Proposed Rule (62 Fed. Reg. 60,789, November 13, 1997)

If you have any question, please feel free to call.

APR -: 1 1998 Acknowledged b cmd ....---- ........ .........

DOCKETED Steven P. Kraft USNRC DIRECTOR, Spent Nuclear Fuel Management "96 MAR 30 P2 :35 March 27, 1998 OF I' ~ 1 ' * * *

• 1f Secretary R tb , r: ~' * "

U.S. Nuclear Regulatory Commission ADJUC ICA,k .,~ , ,/;rF Washington , D.C. 20555-0001 Attention: Rulemakings and Adjudication Staff

Subject:

10 CFR Part 2, Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository; Proposed Rule (62 Fed. Reg. 60,789, November 13, 1997)

• Gentlemen:

On behalf of the nuclear energy industry, the Nuclear Energy Institute (NEl) 1 is pleased to submit these comments on proposed changes to the procedures for licensing high-level waste and spent nuclear fuel repositories. In general, NEI endorses the proposed changes.

The current procedures (promulgated on April 24, 1989 [54 Fed. Reg . 14,925]) were developed by the Nuclear Regulatory Commission (NRC) through a negotiated rulemaking process in which the nuclear industry was represented . The Licensing Support System (LSS) - required by the current rule - was intended to be a stand-alone, electronic document storage and retrieval system for (1) discovery of documents before the license application is filed ; (2) electronic transmission of filings by the parties

• during the proceeding ; (3) electronic transmission of orders and decisions related to the proceeding ; and (4) access to an electronic version of the docket. Also included were procedures intended to provide for an efficient repository licensing proceeding aimed at assisting NRC in meeting the three to four year licensing requirement contained in Section 114 (d) of the Nuclear Waste Policy Act of 1982 (NWPA).

The proposed changes would upgrade the current procedures to take advantage of developments since 1989 in electronic document storage, retrieval , transmission, etc.,

especially the Internet. These changes are appropriate and help to resolve the industry's concerns with the LSS as originally conceived. In 1989, the industry 1

NEI is the organization responsible for establishing unified nuclear industry policy on matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEI's members include all utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect/engineering firms, fuel fabrication facilities, materials licensees, and other organizations and individuals involved in the nuclear energy industry.

questioned the cost-benefit of a stand-alone LSS (then estimated at $200 million) given the changes that were beginning to occur in electronic document handling and are now being realized . The revised procedures would allow the use of improving technologies by the parties as the technologies become available without further changes to the rule.

The changes will also save significant costs, because the requirement to design, build and maintain a stand-alone LSS is eliminated.

The proposed changes would not diminish, but rather assist in providing an efficient repository licensing proceeding, thereby helping NRC meet the three to four year licensing requirement as requ ired by the NWPA. The parties will be better able to access licensing documentation and more easily participate in the proceeding. In addition, interested members of the general public will have more convenient access through the Internet. Thus, the proposed changes further the principles that underlie the purpose for which the LSS was created .

There were a number of important issues related to the proposed changes discussed at the February 24, 1998 LSS Advisory Review Panel (LSSARP) meeting, including the definition of documentary material, cost and equity concerns, compliance, and the need for the LSS Administrator and the LSSARP. Of these, only the definition of documentary material required additional, significant input. Several LSSARP members indicated that they would submit recommended definitions prior to the close of the comment period. It is recommended that NRC issue for comment a draft of the new definition, while the rest of the rule is issued as final. The rule can then be modified once the definition of documentary material is finalized. This approach would minimize any delay in implementing the revised rule pending the finalization of the definition of documentary material.

NEI appreciates the opportunity to comment on these needed proposed changes. If you have any questions, please do not hesitate to contact us.

Sincerely, Steven P. Kraft

March 30. 1998 NOTE TO: Emile Juli an Chief, Docketing and Services Branch FROM: Carol Gallagher ADM. DAS ~

fl . ,P , ~

SUBJECT:

DOCKETING OF COMMENT ON PROPOSED 10 CFR PART 2 RULEMAKING Attached for docketing is a comment related to the Proposed Rulemaking on Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository. This comment was received via e-mail on March 27. 1998. The commenter's name is Steven P. Kraft. Nuclear Energy Institute. Please send a copy of the docketed comment to Kathryn L. Winsberg (mai l stop 015-8-18) for her records.

Attachment:

As stated cc w/o attachment:

K. Winsberg

1014 Carlyon Avenue SE (360) 943-5610 Olympia, WA 98501 FAX (360) 943-5648

'98 MAR 30 P2 :48 Secretary March 26, 1998 U.S. Nuclear Regulatory Commission Washington D .C. 20555-000 1 Attn: Rulemakings and Adjudications Staff Re: 10CFR 2, Subpart J RIN 3150-AF 88 ( t,~ FR '1078'1) @

Enclosed please find the final comments of Nye County, Nevada on the proposed changes to 10 CFR 2, Subpart J (The LSS Rule). The comments have also been transmitted by E-mail to Ms. Carol Gallagher on this date.

Thank your for your assistance.

Yours very truly,

~~~

Regulatory & Licensing Advi r Nye County Nuclear Waste Re sitory Project Office cc: Les Bradshaw Nick Stellavato APR 1 1998 Aeknowtaog b

U.S. NUCLEAR REGULATORY COMM1..,,

AULEMAKINGS & ADJUDICATIONS ST -

OFFICE OF THE SECRETARY OF THE COMMISSION OoclYTI t StP *sti Postmark Date .3 ~ 7 _9 8'_

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NYE COUNTY'S COl\tMENTS ON PROPOSED CHANGES TO 10 CFR 2, SUBPART J After reviewing the summary and transcript of that meeting, the Nye County Nuclear Waste Repository Project Office reaffirms the comments made orally by its representatives at the Advisory Review Panel (ARP) meeting in Las Vegas on February 24 & 25 , 1998. These final comments are offered primarily for purposes of emphasis.

General Approach We fully agree with the general approach of moving the LSS to an Internet based system. Clearly, as the Supplementary Information states, and as the ARP members agreed, technology has long since overtaken the LSS development process, and the centralized LSS, while perhaps not entirely "obsolete" , can no longer be economically justified. We also agree with the proposed approach to allow flexibility to incorporate innovations in information management technology as they become available. We can simply never play "catch-up" , especially in view of the ponderous nature of the rulemaking and government procurement proces*ses. Participants must be free to take advantage of technological advances as they become available without fear of finding themselves in violation of a rule which could become obsolete with the introduction of each new generation of software or hardware.

As stated at the ARP meeting, however, even an Internet based, flexible system should have a name. LSNet, or LSN, seemed to be generally accepted by the participants at the ARP meeting, and we thus recommend it formal adoption and incorporation into the final rule changes.

Documentary Material & Relevancy The definition of "Documentary material" is much improved over an earlier proposal, and coupled with the treatment of what we once called "raw data" , or graphic oriented material, as well as the rules applying to derivative discovery in §2.1019, is a good start. Along with, we believe, a majority of the ARP, Nye recommends that the language "or is likely to lead to the discovery of relevant information" be reinserted from the current rule. This would make the LSNet loading requirements more consistent with current discovery practices, yet, with the exclusions which the rule incorporates would in our view keep the burden on the participants, principally of course the DOE, at a workable level. Additionally, the rule itself, and its supplementary information, should clearly provide that the definition applies to

documents which will be used only in the DOE EIS, and/or the NRC's consideration of whether or not to adopt that EIS, and not just to the more narrow (on its face at least) scope of the License Application.

Compliance We agree with the views expressed at the ARP meeting to the effect that, regardless of where within the NRC the position is located, or what its title may be, certain functions of the current LSS Administrator should be retained, and reside with a single officer or organization. Where that officer or entity is located is really an internal matter, so long as the functions and authority clearly exist. Among the functions, as pointed out by the ARP members, should be the ability and authority to review participants readiness to allow access to their documentary material; receive and resolve complaints regarding network problems; perform periodic audits or compliance reviews; assist participants in achieving and maintaining compliance; and coordinate technical issues such as standards for search engines.

Additionally, the Director of NMSS should have the authority, indeed the responsibility, not only to reject the DOE License Application if it is not able to be accessed through the electronic docket. That almost goes without saying. The authority should clearly extend to rejection of the LA if all requirements of the rule are not met at the time the LA is submitted. This can be accomplished be retaining the language of the current §2.101l(d)(6)&(7), and moving those provisions into §2.1012. Furthermore the revised rule should not abandon entirely the concept of some form of independent audit, or compliance assessment program, similar to what was previously proposed, and discussed at the LSSARP meeting in October of 1993.

Advisory Review Panel We appreciate the desire on the part of the NRC to reduce the number of formal advisory committees in keeping with the administration's policy in that area, but Nye, like other members of the ARP, strongly opposes reducing the LSSARP to a mere "informal users group". We thus much prefer the alternative expressed in the draft of a revised rule. Even that draft requires further revision, however. The State of Nevada and each affected unit of local government should be separately represented, rather than through any form of coalition, as §2.101l(c)(2) now calls for. That coalition language is an artifact of the original negotiating committee, and in practice has never been followed. Each unit of local government has had separate representation, as a matter of practice, on the LSSARP. The revised rule should acknowledge and formalize that reality. This is particularly true for Nye County, which has had its status as the situs jurisdiction recognized formally by the Congress in the NWPA, and* whose interests,

position of neutrality, and level of activity in the program, are significantly different from other affected local governments. We believe there was strong support for this position, if not and outright commitment, expressed by the NRC representatives at the ARP meeting .

Department of Energy Washington , DC 20585 DOCKETED U RC March 25, 1998 Mr. John C. Hoyle "96 MAR 27 A7 :sa Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Attention: Rulemakings and Adjudications Staff Re: Comments on Proposed Revision to 10 CFR Part 2, Subpart J

Dear Mr. Hoyle:

The Department of Energy is pleased to submit comments on the Nuclear Regulatory Commission's Notice of Proposed Rulemaking for amendments to 10 CFR Part 2, Subpart J, Proc;iures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository.

The intent of Subpart J is to reduce the time normally spent on the discovery process by using an electronic information management system to make relevant information available to all parties during the repository prelicensing phase, as well as during any adjudicatory process. The existing rule envisions use of a stand-alone computer, the Licensing Support System (LSS). The proposed amendments address two main assumptions: (1) emerging information management technologies can accomplish this function more effectively and with less cost than the LSS, and (2) there exists _- I a substantial backlog of irrelevant materials that may not have been identified or properly ...

maintained, yet must be included in the LSS under the current rule. The proposed amendments Ip would replace the LSS with an integrated electronic information system using web-based technology and modify the scope of documentary material to be included in the LSS.

The Department is highly supportive of the proposed use of new information management technologies. Our principal comment on the revision is that the scope of documentary material has not been sufficiently narrowed to exclude irrelevant material. Our detailed comments are provided in the attachment to this letter.

Should you have questions, please contact Nancy Slater at 202-586-9322 or Claudia Newbury at 702-794-1361 .

Sincerely,

~~a-~

_Ly Lake H. Barrett, Acting Director p Office of Civilian Radioactive Waste Management Attachment APR - l 199 b cafd _________. . ,. ...

U.S. NUCLEAR REGULATORY COMM! SION RULEMl!lKINl~S &ADJUDlCATIONS STAFF OfRCEOFTHESECRETARY OF THE COMMI SION

Attachment Office of Civilian Radioactiv\e Waste Management U.S. Department of Energy Comments on the Proposed Rule at 10 CFR Part 2, Subpart J Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository SUBSTANTIVE COMMENTS

1. § 2.1001 Definitions The proposed definition of"documentary material" is unnecessarily broad. One of the main reasons cited by NRC for proposing the rule change is that there exists a substantial backlog of irrelevant documents that may not have been identified or properly maintained, yet which must be included in the LSS under the current rule. NRC noted that this backlog would not allow timely certification of the LSS. DOE proposes the following modifications to the definition to more completely address this concern:

Delete the proposed third class of documentary material, "all reports and studies, prepared by or on behalf of the potential party, interested governmental participant, or party, including all related "circulated drafts," relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party."

The DOE believes that the first two classes of documentary material are defined broadly enough to capture all relevant materials. DOE is concerned that the NRC-proposed definition would encompass reports and studies irrelevant to the specific license application, for example, reports and studies made for other sites and for predecessor agencies.

2. § 2.1004 Amendments and Additions, and§ 2.1010 Pre-License Application Presiding Officer This section allows two working days to make available for inspection and copying any document that has not been provided to other parties in electronic form. The same type of two-day limit is also imposed in § 2.1010(c) regarding material determined to be relevant and not privileged or exempt. Noting that reasonable and expeditious efforts to reproduce and make documents, particularly large documents, available could easily consume two days, the DOE suggests that these time limits (in§ 2.1004 and§ 2.1010(c)) be changed from two working days to ten working days. Such a change in the rule would also relieve 1

the Presiding Officer of the burden of evaluating and granting minor extensions of time, where these are likely to result mainly from the time necessary for clerical and administrative processing.

3. § 2.1007(a)(3) Access The proposed rule retains requirements for electronic access systems in Las Vegas, Reno, Carson City, and Nye and Lincoln Counties(§ 2.1007(a)(3)). However, the proposal does not specify which locations are the responsibility of the NRC or DOE. The DOE requests that the rule be clarified to assign responsibility for the systems in each of the locations specified.

4. § 2.1007(c) Access Subsection ( c) appears to require both the NRC and the DOE to treat docketed documents as agency documents under FOIA. However, it is unclear which agency must treat which documents as its own in response to requests for information. The final phrase of the first sentence "if these documents remain under the custody and control of the agency or organization that identified the documents" is confusing. The DOE proposes clarifying the responsibility under this provision by specifying that all documents entered into the docket pursuant to § 2.702, other than those submitted by another Federal agency, are NRC documents for the purposes ofFOIA.

5. § 2.1009 Procedures The proposed rule replaces the six month intervals for certifying that the procedural requirements have been met with an unspecified interval "upon order of a duly appointed presiding officer." The DOE believes that regular and prescribed certification will help

• ensure the success of the electronic docket system and suggests that a twelve-month period would be appropriate.

6. § 2.1010 Pre-License Application Presiding Officer Subsection (a)(l) should be clarified as to who may serve as the "Pre-License Application Presiding Officer." The first sentence appears to consider only the "named officer who has been delegated final authority on the matter" as the "(Pre-License Application Presiding Officer)." As written, the other references to the Commission members and the atomic safety and licensing board are not direGtly connected to the referenced Officer. If the Officer is to be designated from among the Commission, the atomic safety and licensing board, or a named officer, the sentence should be revised. The DOE proposes that the introductory phrase be revised as:

"The Commission may designate one or more members of the Commission, or of an atomic safety and licensing board, or a named officer who has been delegated 2

final authority on the matter, to serve as the Pre-License Application Presiding Officer to rule on disputes over the electronic availability of documents during the pre-license application phase ... " . *

7. § 2.l0ll(c) Management of Electronic Information The DOE supports the proposed idea of modifying the role of the Advisory Review Panel (ARP) that advises the NRC and the Secretary of the Commission. Regarding the alternative, discussed in 62 FR 60791, of replacing this panel with a more informal users group, the DOE believes that it is premature to replace the panel with such a users group.

A more formal technical group still appears appropriate for providing the advice specified in§ 2.101 l(d), because the formality will ensure that each ARP member's concerns about the structure of the electronic docket will be addressed in a documented manner.

8. § 2.1012(d) Compliance The proposed rule states that the Pre-License Application Presiding Officer may suspend or terminate access to the pre-license application electronic docket for a party who is not in compliance. While control of access could be appropriate, such control contradicts the recognition that the information is publicly available, per§ 2.1007(a)(l), and could be made available universally through the Internet. The notion of controlled access suggests that the NRC does not intend to require an Internet-based system with the level of public access generally associated with the Internet. The DOE suggests that the NRC clarify the purpose and method of access control.

9. § 2.1017 Computation of Time Because access to the electronic docket may be unavailable for many reasons, such as the computer being used by a party is unavailable due to routine maintenance or a power failure, etc., it may be useful to define what is meant by unavailable or to require prompt notice if the unavailability of the system is due to a local cause.

10. § 2.1019 Depositions Section 2.1019(i) requires deponents to submit an electronic index of all documents in the deponent's possession relevant to the subject matter of the deposition. This section further states that "documents that are not identical to documents already made available electronically, whether by reason of subsequent modification or by the addition of notations, shall be treated as separate documents" and that a paper copy of all documents not already made available electronically shall be brought to the oral deposition or accompany a written deposition.

The DOE recognizes that the documents potentially subject to this requirement could be 3

large. It may better serve the needs of those using the system if this requirement were clarified to recognize that modifications and notations could be made on only small parts of large documents, and therefore, only the affected parts of the documents would be submitted as separate documents under§ 2.1019(i)(l).

EDITORIAL COMMENTS

11. § 2.1005 Exclusions The word "Preferences" in§ 2.1 005(f) should be changed to "References."

12. § 2.1010 Pre-License Application Presiding Officer The word "prvliged" in § 2.101 0(b)(3) should be change to "privileged."

4

Department of Comprehensive Planning Mission Statement: " To serve and protect the community by guiding development, enhancing the living environment, and promoting innovative ways to conserve natural resources."

500 S. Grand Central Parkway, Suite 3012 COMMISSIONERS PO Box 551741 Las Vegas, NV 89155-1741 Yvonne Atkinson Gates, Chair (702) 455-4181 Lorr ln Erin Kenny T. Hunt, Vice-Chair March 25, 1998 Fax: (702) 385-8940 Mary J. Kincaid Lance M. Matone Myrna Williams Brue L Woodbury Secretary Dale W. Askew, County Manager U.S. Nuclear Regulatory Commission Director Mail Stop 016G 15 Richard B. Holmes Washington, D.C. 20555-0001 Attention: Rulemakings and Adjudications Staff

Subject:

COMMENTS BY THE CLARK COU TY DEPARTMENT OF COMPREHENSIVE PLAN ING, NUCLEAR W 1 STE D1VISION TO (l)

REVISED 10 CFR PART 2 SUBPART J (THE "LICENSING SUPPORT SYSTEM") RULE To whom it may concern:

Clark County appreciates the opp01iunity to comment on the proposed revisions to 10 CFR Part 2 Subpart J (The "Licensing Support System") Rule. Clark County also welcomed the opportunity to discuss the proposed revisions at the February 24,

• 1998 meeting of the Licensing Support System dvisory Review Panel (LSSARP) in Las Vegas. The meeting provided for some excel lent in teractions on issues associated with !he proposed changes.

The following are our comments to the proposed Rule:

The Proposed "Licensing Support System" We support the NRC proposal to utilize the Internet to facilitate the review of information that will be used to support the licensing application. It is important to take advantage of the advances in technology that have transpired since the original Rule was promulgated in the late l 980's. The increased soph istication of Internet and the reduced cost of high-speed computers can facilitate access to relevant documents and information. While we are supportive of this change in the Rule, several issues related to the use of the Internet still need to be addressed.

Provision must be made, for example, to enable the public and other stakeholders without computers to have access to the information . The use of Department of Energy (DOE) and NRC reading rooms, along with Internet availability at local libraries, will assist interested residents in the Las Vegas area. In the smaller towns and rural locations of the affected units oflocal government (AULG), however, other

U.S. NUCLEAR REGULATORY COMMISSION RULEMAKINGS &ADJUDICATIONS STAFF OFFICE OF THE SECRETARY OF THE COMMISSION Do;::ument Statistics Postmark Date 3/:]s/'f Copies Receiv"'d _ _ _ _/_ _ __

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Clark County, Nevada Comments to Revised Subpart J March 20, 1998 Page 2 provisions may need to be made to enable the public involvement. The NRC should survey the AULG and other public groups to determine if there will be problems and to discuss how potential information retrieval issues can be resolved.

Also, thought needs to be given to ensuring that the inforn1ation available on the Internet is organized and indexed to facilitate access. Having a Home Page, perhaps using the existing LSS Homepage, with a descriptive tutorial explaining how data and information could be retrieved would be one way to assist reviewers in initiating search queries.

The Licensing Support System Advisory Review Panel (LSSARP)

Clark County supports a LSSARP organized under the provisions of the Federal Advisory Committee Act (Public Law 92-463), and :.ipplicab e regulations (DOE Order 1130.6, with Change 1). Retaining formal d~signation will assist in providing a more stable committee to advise DOE and NRC on licensing issues. Continuity is needed and desirable due to the complexity of the issues associated with licensing.

It is also important for the parties potentially impacted by the Yucca Mountain Program to have an advisory committee with the authority to provide needed recommendations to the NRC.

Informal, ad hoc committees without a strong entitlement or basis for existence have a tendency over time to become ineffective. Turnover in participants is often high and there may be less commitment to the objectives of the program.

A second issue has to do with representation on the LS SARP. When the LS SARP was first organized there were two seats for affected governments. Nye County and a Coalition of affected governments both had seats. At the time, however, Clark, Lincoln and Nye counties were the only the three affected units of local government (AULG),. Since that time seven additional counties, for a total of ten counties, have been designated as affected by DOE.

Since each AULG has an official mission defined in The Nuclear Waste Act and amendments, it is important that each be allowed a seat on an LSSARP. Each county has a different perspective on Yucca Mountain issues and each should be afforded an

Clark County, Nevada Comments to Revised Subpart J March 20, 1998 Page3 opportunity to bring their perspective to the table. A coalition of AULG would not be able to provide one consensus viewpoint.

Topical Guidelines Reference is made in the Proposed Rules to Topical Guidelines in Regulatory Guide 3.69. Having reviewed the Topical Guidelines subsequent to the February 24, 1998 meeting I believe that those concerns expressed by Clark County and others at earlier meetings have been resolved.

For the record, we have expressed concern that the version of the Topical Guidelines had excluded a category of information important to Clark County and others during the pre-licensing phase of the program. Socioeconomics, or in the case of the Yucca Mountain Program the effects of Yucca Mountain program activities on the communities potentially impacted, had been eliminated as a topic of concern.

Socioeconomics had been included as a result of the negotiations that transpired during the development of the original Rule. We're pleased that the current version has once again has included Socioeconomics.

We have also strongly supported the NRC inclusion of Transportation and Environment as topical issues as well as the reference to the Environmental Impact

• Statement in the Guidelines.

Licensing Support Systems Administrator The need for organization and management of the large amounts of information considered during the licensing application review phase provides a strong rationale for retaining the position of Systems Administrator. The revised Rule, however, proposes to eliminate the NRC Systems Administrator :(LSSA) position. What remains is a Pre-Licensing Application Presiding Officer. While the Presiding Officer can, undoubtedly, perform some of the functions intended for a LSSA (e.g., acting as an arbitrator for debates about what known information can be incorporated into the system) other duties envisioned for the LSSA would not be served.

An important role for the LSSA, for example, was to contribute to the design and management of the LSS. The LSSA would also act as a "traffic cop" to ensure that the interests of all parties in licensing would be accommodated (including, significantly, the public). The LSSA, in this case, could serve to balance the priorities

Clark County, Nevada Comments to Revised Subpart J March 20, 1998 Page4 for data input into the system.

Another function of a LSSA would be to assist in organizing the universe of documents important for licensing to facilitate review by all parties. The small entities, as the AULG and public are termed in the text of the Rule, will not have the time nor the resources to determine whether all info1mation important to their specific licensing interests has been captured. Having an LSSA w,mld be particularly important to facilitate the review of the many small entities that may be involved in reviewing particular aspects of the license application.

An LSSA will obviously not be able to resolve all the licensing review problems. It can, however, serve to audit the system to ensure that the review process is operating as intended and meets the needs of all parties. It can add credibility to the review process.

The statement by Mr. Cotter at the February 24, 1998 LSSARP meeting in Las Vegas provides a strong statement about the ne~d for an Administrator. "Now, you 're taking a known system and you 're replacing it with a system which is being created as we speak and with which none of us have any experience.... You need to have an LSS administrator who has a defined responsibility... whose purpose is to take care of this need full time for a period offour years. "

As a final point the LS SARP can play a strong role in defining the responsibilities of a LSSA.

Public Participation There was some discussion at the February 24, 198 meeting about the scope of the data available for the public review, particularly during the pre-licensing phase. The public and other stakeholders should have the opportunity to review all available information on licensing. It is important that all information available to groups such as the LSSARP should be made available to the public at the same time.

Environmental Impact Statement (EIS)

A key document for all affected governments will be the EIS . The EIS, which is to be released in the summer of 1999, must be made ava il able in electronic format as early as. Since a 90 day review period, standard for stakeholder review of an EIS

Clark County, Nevada Comments to Revised Subpart J March 20, 1998 Page5 does not appear to be much time for the review of what will probably be an incredibly large document, it is important that the EJS be available for review in electronic format as individual sections are completed. Because of the importance of the document, this will facilitate review.

Summary There are obviously many advantages to all parties, thanks to advances in technology, to the proposed revisions. The complexity of the program as well as the importance of the decisions being made, still necessitate, however, a system that must be designed and managed. Creating a tota lly laissez.faire system, however, leaves much to chance. Restoring a number of the provisions of the original rule, however, the LSSA position and the LSSARP will assist in enabling all stakeholders to be actively involved in the licensing review.

Thank you again for the opportunity to comment. Clark County will continue to be an active participant on the LSSARP and in licensing review.

If there are questions please contact me at (702) 455-51 75.

cc: John Hoyle, Secretary Richard B. Holmes Board of Count Commissioners Affected Units of Local Government State of Nevada lssrulc8.ml8

DOCKETED DOCKET USNRC PROPOSED RULE

( (,A Fl f,o 1 gq NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 RIN 3150-AF88 Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository AGENCY: Nuclear Regulatory Commission.

ACTION: Extension of public comment period.

SUMMARY

On November 13, 1997 (62 FR 60789), the NRC published for public comment a proposed rule to amend the Rules of Practice for the licensing proceeding on the disposal of high-level radioactive waste at a geologic repository (HLW proceeding). The comment period for this proposed rule was scheduled to expire on January 27, 1997. In a letter dated December 31, 1997, and received by NRC on January 12, 1998, a representative of Clark County, Nevada, requested a 30 to 60-day extension of the comment period. This extension is requested to allow Clark County, Nevada, and other affected units of local government, whose funding for participation in the HLW proceeding has only recently been restored, sufficient time to review the proposed rule and submit comments. In response to this request, the NRC has decided to extend the comment period for 60 days.

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2 DATES: The comment period has been extended 60 days and will now expire on March 30, 1998. Comments submitted after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except for comments received on or before this date.

ADDRESSES: Send comments by mail addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 . Attention: Rulemakings and Adjudications Staff.

Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:30 am and 4: 15 pm on Federal workdays.

You may also provide comments via the NRC's interactive rulemaking web site through the NRC home page (http://www.nrc.gov). This site provides the availability to upload comments as files (any format), if your web browser supports that function. For information about the interactive rulemaking site, contact Ms. Carol Gallagher, (301) 415-5905; e-mail CAG@nrc.gov.

Documents related to this rulemaking, including comments received, may be examined at the NRC Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC. These same documents also may be viewed and downloaded electronically via the interactive rulemaking website established by NRC for this rulemaking.

3 FOR FURTHER INFORMATION CONTACT: Kathryn L. Winsberg, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-1641 , e-mail KLW@nrc.gov.

Dated at Rockville, Maryland, this 27th day of January, 1998.

For the Nuclear Regulatory Commission.

~ v.c~-Co.A Annette Vietti-Cook, Acting Secretary of the Commission.

Department of Comprehensive Planning Mission Statement: "To serve and protect the community bi; guiding development, enhancing the livPgOUCSK E RIC£D environment, and promoting innovative ways to conserve natural resources." ,

500 S. Grand Central Parkway, Suite 3012 COMMISSIONERS "98 JAN 12 A10 :43 PO Box 551741 Las Vegas, NV 89155-1741 Yvonne Atkinson Gates, Chair (702) 455-4181 Lorraine T. Hunt, Vice-Chair Fax: (702) 385-8940 Erin Kanny Mary J. Kincaid Lance M. Malone Myrna WIiiiams December 31, 1997 Bruce L Woodbury Dale W. Ask-, County Manager Director DOCKET Richard B. Holmes Mr. John Hoyle PROPOSED RULE :l Secretary of the Commission

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U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Subject:

RESOLUTION OF LICENSING SUPPORT SYSTEM (LSS)

ISSUES AND DRAFT PROPOSED RULE, 10 C.F.R. PART 2, SUBPART J

Dear Mr. Hoyle:

This is in reference to the draft Rule, 10 C.F.R. Part 2, Subpart J, and related Licensing Support System (LSS) issues, that was released by the Nuclear Regulatory Commission (NRC) for review in November of 1997.

As you are aware, representatives from the affected units of local government (AULG), the State of Nevada and others as members of the LSS Advisory Review Panel (LSSARP) have had the opportunity both to participate in the negotiations that resulted in the original Subpart J Rule and, more recently, to consider options to implement the LSS.

With the deadline for comments fast approaching, I would like to propose several options for your consideration. The loss of funding for AULG for FY 1996 and 1997, of course, has severely hindered the abilily of local governments to actively participate in Yucca Mountain activities, including issues associated with the LSS.

Although AULG funding for FY 1998 has been restored, the January 27, 1998 deadline for comments on the proposed Rule will be difficult for most AULG to meet since most will be reconstituting their Programs in early January. For these reasons I am, therefore, requesting that the NRC give consideration to extending the current deadline 30 to 60 days to provide the AULG with additional time to review the proposed Rule.

U.S. NUCLEAR REGULATORY COMMtsc::* N RULEMAKINGS & ADJUDICATIONS STA :

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Letter to John Hoyle December 31, 1997 Page2 Also, because of the effort devoted by a number of parties both in the negotiations and implementation phases, I think it is also important to have a meeting of the LSSARP before the Rule is finalized. Because of the importance of the issues to Nevadans, I would suggest having the meeting in Nevada (either Reno or Las Vegas). One option would be to schedule a LSSARP meeting around a planned AULG/DOE meeting on Friday, January 23, 1998. Realizing that the time frame is tight perhaps the LS SARP could meet on Thursday, January 22, 1998. I would be glad to assist in arranging for a room in the Clark County Government Center for the meeting.

Thank you for your consideration of this matter. I would be happy to discuss this further with you at your convenience.

cc: Affected Unit of Local Government Representatives Richard B. Holmes nrclss7

I.

DOCKET '11 BER PROPO~t: I ,l; :d :t oocw~,f-01-PJ C ft;:i ~~1,01~9) USNRC NUCLEAR REGULATORY COMMISSION "97 NOV -7 P2 :Ql 10 CFR PART 2

.RIN 31 S0-AFSS OFF!Ci OF SECI*, T'.RY RULF ,iL~? l

• t iC)

ADJUDICAI 1(::-':-j~, .) fAFF Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

SUMMARY

The Nuclear Regulatory Commission is proposing to amend its Rules of Practice for the licensing proceeding on the disposal of high-level radioactive waste at a geologic repository (HLW proceeding). The proposed amendments are intended to allow application of technological developments that have occurred since the original rule was adopted in 1989, while achieving the original goals of facilitating the Commission's ability to comply with the schedule for decision on the construction authorization for the repository contained in Section 114(d) of the Nuclear Waste Policy Act, and providing for a thorough technical review of the license application and equitable access to information for the parties to the hearing. a.,,_.1.. .A~d~

(I'-'_~...T. -, ~ 19 'I 8' DATES: Submit comments by ps EWfS AFfl!~ PU!LICM"ION]. Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date.

ADDRESSES: Send comments by mail addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 . Attention: Rulemakings and Adjudications Staff.

Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:30 am and 4: 15 pm on Federal workdays.

Y<:>u may also provide comments via the NRC's interactive rulemaking web site

2 through the NRC home page (http://www.nrc.gov). This site provides the availability to upload comments as files (any format), if your web browser supports that function. For information about the interactive rulemaking site, contact Ms. Carol Gallagher, (301) 415-5905; e-mail CAG@nrc.gov.

Documents related to this rulemaking, including comments received, may be examined at the NRC Public Document Room, 2120 L Street NW. , (Lower Level),

Washington, DC. These same documents also may be viewed and downloaded electronically via the interactive rulemaking website established by NRC for this rulemaking.

FOR FURTHER INFORMATION CONTACT: Kathryn L. Winsberg, U.S. Nuclear Regulatory -

Commission, Washington, DC 20555, telephone (301)415-1641 , e-mail KLW@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Background The existing procedures for licenses to receive high-level radioactive waste at a geologic repository were developed to address the Nuclear Regulatory Commission's concern regarding how best to review the U.S. Department of Energy (DOE) license application for a first-of-a-kind high-level radioactive waste (HLW) repository during the 3-year time period dictated by Section 114(d) of the Nuclear Waste Policy Act. The Commission believed it -

necessary to reduce the time normally spent on the discovery process at the start of a licensing proceeding and the time-consuming service of documents during the proceeding if the Commission were to reach its decision within the allotted time. The Licensing Support System (LSS) concept, an electronic information management system, was created to achieve this time reduction by making the information and data supporting a DOE application available simultaneously in a centralized database to all interested parties before the application is submitted and formal NRC review begins. Emerging information management

I I 3

technologies for issue identification, electronic storage and retrieval, and electronic mail were recommended for these functions to help achieve the objectives of more effective and efficient review.

The Commission employed the technique of negotiated rulemaking to develop the regulations governing the development and use of the LSS. Negotiated rulemaking is the process by which the agency and the interests affected by a rulemaking meet to attempt to reach a consensus on a draft iproposed rule. If a consensus is reached, the agency publishes the negotiated rule as the agency's proposed rule. The Commission selected the negotiated rulemaking approach to address the LSS issue for several reasons. In 1987, the idea of use of an electronic information management system in a Commission adjydicatory proceeding was novel, not only for the Commission, but in general. Therefore, the I

development of the rules for the use of such a system would benefit from discussion and joint problem solving by those who might ultimately use the system and had experience with the Commission's traditional adjudicatory process. Furthermore, the potential users of the LSS possessed unique information that would be important to the design of the system, such as their computer capability and the amount and types of relevant documents that they might generate. In addition, the potential for consensus was enhanced by the fact that the LSS rule focused on procedures for conducting the licensing process that might benefit all parties, rather than focusing on substantive technical criteria for a licensing process. Finally, the success of the LSS concept depended upon potential parties voluntarily complying with the licensing process for document identification and submission i!'l the period before the DOE license application was submitted. Therefore, the involvement of interested parties in the development of the provisions to govern the use of the LSS was essential.

The Commission initiated the negotiated rulemaking in August 1987. The negotiating

4 committee, composed of State, local, and tribal governments, industry representatives, NRC, DOE, and environmental groups, completed its work in July 1988. Except for the-industry coalition, all the parties on the negotiating committee agreed on the text and supplementary information of a draft proposed rule. However, even the one dissenting party, the industry representative, had been a full and active participant in the drafting of the regulatory text and supporting information. Industry did not join the final consensus at the end of the process based on its belief that the use of a new technology in the licensing process would not prove cost-beneficial. At that time, the cost of the *LSS was estimated by DOE to be in the $200 million range. The Commission, recognizing the agreement among the other parties on the -

negotiating committee, decided to publish the negotiated draft proposed rule as the Commission's proposed rule in November 1988. Because of this effort, the final LSS rule (10 CFR Part 2, Subpart J), "Procedures Applicable to Proceeding for the Issuance of Licenses for the Receipt of High-Level Radioactive Waste at a Geologic Repository", was promulgated on April 24, 1989 (54 FR 14925).

The LSS rule assigned the LSS Administrator (LSSA) function to the NRC which, would be responsible for the management, administration, operation, and maintenance of the LSS; pursuant to DOE's agreement, gave DOE responsibility for the design, development, and implementation of the LSS; and established the charter of the LSS Advisory Review Panel (LSSARP) to provide consensus guidance on the design and development of the LSS _

to both NRC and DOE. The LS~ was intended to provide a central, shared, federally funded database of licensing information beginning in 1995, the year DOE was expected to submit its application for a construction permit for the repository. The Commission adopted minor amendments further clarifying these procedures in a final rule published on February 26, 1991 (56 FR 7787).

f '

5 The Licensing Support System Administrator (LSSA) was appointed in January 1989.

The LSSARP was formed, holding its first meeting In December 1989. Also in December 1989, well before any serious development work could be started on the LSS, the Department of Energy revised its repository program .schedule to extend its anticipated license application date from 1995 to 2001. Consequently, the LSS development schedule was extended.

II. Discussion The development of the LSS that was devised in the original procedural rules in 10 CFR Part 2, Subpart J, has not been accomplished during the time that has passed since adoption of the rule. Many delays and changes in personnel and program structure have attended the Department of Energy's efforts to develop the LSS. Budgetary shortfalls and the unanticipated length of time that it has taken to develop the licensing application for the repository not only delayed the development of the LSS, but also resulted in several additional years' accumulation of potential licensing information.

Because of the length of time involved and the narrowing of the repository development program, much of the early material thought to be relevant at the time_ the rule was developed may no longer be relevant to the actual licensing proceeding that may not begin until about 2002. Also because of the extended period of time it has taken to develop the LSS for DOE's use as a document management system, it appears that all accumulated documents may not have been identified and maintained pro~erty for tracking of important repository development decisions. In addition, because document capture may now Involve much larger backlogs than originally contemplated, the risk of failing to capture all the material originally required to be placed in the LSS is substantially larger than originally assumed. In order for the current Subpart J rules to apply, the LSSA must certify that the

6 DOE has complied with the requirement to enter all relevant documents in the LSS.

Therefore, all of these factors combine to produce the high likelihood that the current rule cannot be implemented as originally envisioned. If not, then 10 CFR Part 2, Subpart J, will no longer apply. Instead, Subpart G, the generally applicable procedures for licensing proceedings, will apply. This means that there would be no pre-license application access to documents.

Although the development of the LSS has remained stalled, the state of technology in document automation and retrieval has overtaken the 1986 technology an which the original LSS was to be based. The use of computers to generate and maintain the complex documents of a party in litigation is widespread and commonplace. The Internet is universally available to tie disparate and geographically dispersed systems together. Readily available commercial software applications can perform the document management functions of the LSS. Therefore, the .centralized LSS envisioned at the time the LSS. rule was developed has become obsolete. The enormous expense of designing and maintaining a stand-alone system required by the current rules appears to be an unjustified expense, especially when it appears unlikely that the rule will be able to be implemented successfully even if the LSS is created.

Consequently, the Commission is proposing to amend its rules to allow more flexibility to incorporate the advantages of new information management technologies in the procedural rules for the licensing of the geologic repository. This would eliminate the LSS as a uniquely designed stand-alone system, while still maintaining the following primary functions of the LSS as a mechanism for the:

(1) Discovery of documents before the license application is filed; (2) Electronic transmission of filings by the parties during the proceeding;

7 (3) Electronic transmission of orders and decisions related to the proceeding; ~d (4) Access to an electronic version of the docket n, The Commission believes that the proposed rule would continue to support the model schedule for conducting the licensing proceeding within the 3-year statutory period that was published in the Statement of Considerations for the original 10 CFR Part 2, Subpart J, rule published on April 14, 1989 (54 FR 14925, 14939}. ,1 The proposed rule would eliminate the current prescriptive requirement In 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 \,Yhether they will be relied upon and/or cited by a party. For the purposes of this rule, the pre-application phase would begin .on the date that the President submits the site recommendation to Congress. This timing would allow access to the parties' documentary material enough before DOE submits the license

8 application to allow advance preparation of contentions and discovery requests before the license application, but late enough in the repository development process .to provide meaningful information.

A Pre-License Application Presiding Officer would resolve any disputes over electronic access to documents during the pre-license application phase. Potential parties would be required to certify to the Pre-License Application Presiding Officer that they have complied with the requirement to provide electronic access to their documentary material. The requirements of the current rule for an electronic hearing docket would be retained, as well as the limitations on the permissible forms of discovery after the application is filed.

The Commission is considering two alternatives regarding the LSS Advisory Review Panel. In this proposed rule, because the concept of the LSS would be replaced, the requirement for an LSS Advisory Review Panel would be modified so the panel can advise the Secretary of the Commission regarding standards and procedures for electronic access to documents and for maintenance of the electronic docket. This would require renaming of the advisory committee and redrafting of the committee charter. However, the Commission is also considering the alternative of replacing the Advisory Review Panel with a more informal users group, and particularly requests comments from potential parties to the HLW repository licensing proceeding re*garding these two alternative arrangements.

Ill. Section-by-Section Description of Changes In § 2.1000, the reference to § 2. 709 would be removed because it would require compliance with § 2. 708 that would not apply to this subpart.

In§ 2.1001, the following definitions would be added, amended, or removed:

ASCII File. This definition would be removed and no longer used in the rule.

Prescriptive references to specific technical standards would be removed to allow flexible

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9 implementation consistent with developing technology.

Documentary material. The definition of documentary material would be revised to cover material upon which a party, potential party, or interested governmental participant intends to rety and/or cite in support of its position in the licensing proceeding; any material or other information which is relevant to, but does not support, that material or information or that party's position; and all reports and studies, prepared by .or on behalf of the potential party, interested governmental participant, or party, including all related *circulated drafts,"

relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. This definition would be used in the rule in § 2. 1003 to define what material must be provided in electronic form for access beginning in the pre-license application phase. Therefore the term "documentary material" would be intended to describe the most important body of material and would be defined clearly to require that all patties Include electronic access to any relevant material in their possession that does no~ support their position in the licensing proceeding, as well as providing access to the material that does support -their position, and any reports and studies prepared by the party on issues described in the Topical Guidelines, regardless of whether or not they would be relied upon or cited by the party. The scope of the documentary material would still be governed by the topical guidelines.

Electronic docket. A new definition would be added to describe NRC's electronic Information system to receive, distribute, store, and maintain NRC adjudicatory docket materials in the licensing proceeding.

Integrated electronic information. A new definition would be added to describe material made available in electronic form to potential parties, parties, or interested governmental participants to the licensing proceeding for the high-level waste geologic

10 repository, either as part of the NRC's pre-ticenae application electronic docket or electronic docket or pursuant to electronic access to documentary material made avallable by individual potential parties, parties, and interested governmental participants. This is a term for the information access that would replace the LSS in this rule.

LSS Administrator. This term would be eliminated from the rule because the concept of the LSS would also be removed. The Pre-ticense Application Presiding Officer will resolve disputes about electronic access to documents In the pre-license application phase.

~ - This definition would be revised to add *affected unit of local govemrnenr, as that term is defined in the Nuclear Waste Policy Act of 1982, as amended, and also to refer *

- to that act for the definition of affected Indian tribe. In addition, any affected unit of local government, the host State, and any affected Indian Tribe would be required to file a list of contentions.

Potential party. This definition .would be revised to remove the reference to the LSS, and to substitute th&i term integrated electronic lnformatlQn to describe the material to which the potential party will be given access.

Pre-license application eJectronlc docket. A new definitionwould be added to describe NRC's electronic information system to receive, distribute, store, and maintain NRC pre.

license application docket materials during the pre-license application phase.

Pre-Hcenae appHcation phase. This definition is being specified for the purposes of this rule to begin on the date that the President submits the site recommendation to the Congress. This date has been chosen to allow access to the potential parties' documentary material enough before the license application to allow advance preparation of contentions and discovery requests before the application is filed, but late enough in the repository development process to provide meaningful Information.

11 Searchable full text. This definition would be revised to remove references to ASCII and to the LSS.

Topical Guidelines. A new definition would be added to describe the set of topics set forth In Regulatory Guide 3.69 that are intended 'to guide the scope of documentary- material under this subpart.

Section 2.1002 would be removed because the LSS would no longer be required.

Access to Integrated electronic information would provide the major functions which the LSS was designed to provide. Paragraphs (c) and (d), which state that participation by the host State in the pre-application phase will not affect Its disapproval rights, and that this subpart shall not affect any participant's independent right to receive information, would be incorporated in the revised § 2.1003 as paragraphs (a)(2) and (3).

Section 2.1003 would be revised to describe information that would be required to be

• made available electronically by all potential parties, parties, and interested .govemmental participants (including the NRC and DOE). This information would have to be made available to all other participants beginning in the pre-license application phase, which starts at the date of the President's submission of the site recommendation to the Congress. The requirements of the rule would be simplified to require only that access to an electronic file be provided. All references to specific formats would be removed to allow flexibility in implementation.- The Commission intends that a potential party, party, or interested govemmental participant might offer electronic access to Its documentary material in a number of different ways, including by providing its documents In electronic form either to the NRC or to the DOE, to have the NRC or the DOE maintain the documents for electronic access.

Although the draft rule would require that documentary material be made available

12 electronically beginning on the date of the President's site recommendation to the Congress, the Commission would encourage the earliest feasible availability of documentary material in order to enhance the future smooth operation of the licensing proceeding. The paragraphs relating to evaluations and certifications by the LSS Administrator would be removed because the LSS (and LSSA) concept would be removed. Section 2.1010 states that the Pre-License Application Presiding Officer will resolve any disputes relating to electronic access to documents in the pre-license application phase. Accordingly, the paragraphs which stated that the ~pplica~on would have to be docketed under Subpart G if the LSSA did not certify compliance would be removed, and Subpart J 0ncJuding specifically referenced sections of

• Subpart G) would unconditionally embody the rules of procedure for the HLW licensing proceeding.

Section 2.1004 would be revised to provide procedures for providing access to a document that has not previously bee11 provided in electronic form and to delete previous references to the LSS and the LSSA.

Section 2.1005 would be revised to delete reference to the LSS and to add an exclusion of readily available references, such as journal articles or proceedings, which may be subject to copyright.

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

Section 2.1007 would be revised to refer to providing systems for access to integrated electronic information rather than providing terminals for access to the LSS. These systems must be maintained by DOE and NRC at the locations specified in the current version of the rule (except for the Uranium Recovery Field Office which no longer exists), beginning in the pre-license application phase.

13 Section 2.1008 would be revised to allow electronic access to the integrated electronic information to any person who complies with the requirements of Subpart J, including the I

requirement in § 2.1003 to make documentary material available, and who agrees to comply with the orders of the Pre-license Application Presiding Officer. The previous requirement to petition to the Pre-license Application Presiding Officer would be removed .

.Section 2.1009 would be revised to delete references to the LSS and the LSSA, and to refer instead to the responsibility to provide electronic files. The responsible official for each potential party would be required to certify to the Pre-License Presiding Officer that procedures to comply with § 2.1003 have been implemented and that its documentary material has been made electronically available. A new requirement to update the certification at the request of the presiding officer would be added to replace a previous requirement to provide this certification at 6 month intervals.

Section 2.1010 would be revised to delete references to the LSS and the LSSA and to refer instead to electronic access. The reference to-petitions for access would be removed to conform to removal of this requirement.

Section 2.1011 is being considered for revision in either of two alternative ways and the Commission requests specific comments on these alternatives. This proposed rule would revise §2.1011 to reflect that the electronic availability of documentary material that is

/

specified in this rule nd longer requires special equipment. The name and functions of the LSS Advisory Review Panel would be amended to delete the reference to the LSS and substitute the purpose of arriving at standards and procedures to facilitate the electronic access to material and to the electronic docket. Because of the broad and non-prescriptive requirements regarding providing electronic files In this proposed rule, the Advisory Review Panel would be very useful in discussing standards and procedures to ensure that all

14 participants are able to access the electronic information. Because the LSS concept would be replaced, and the requirement for an LSS Advisory Review Panel woul<;I be modified in the proposed rule to accommodate a new purpose, the advisory committee would have to be renamed and the committee charter would have to be redrafted.

However, the Commission is also considering the alternative of eliminating the requirement for an advisory committee chartered under the Federal Advisory Committee Act, and substituting a more informal voluntary users group to perform the functions of discussing electronic format standards, procedures, and *other details. If this option were adopted, the final rule would be revised to refer to the users group. This group would be able to interact

• using Internet discussion areas ~ike LSSNet) as well as meetings, video conferences, or teleconferences. *This users group would ideally make use of the current LSSARP members' knowledge and experience. The Commission is particularly requesting comment from potential parties to the HLW repository .concerning their interest and suppo~ for the informal users group alternative.

Section 2.1012(a) would be revised to allow the Director of the NRC Office of Nuclear Material Safety and Safeguards (NMSS) to determine that the application would not be acceptable if it is not able to be accessed through the electronic docket. Section 2.1012(b)(1) would be revised to substitute jntegrated electronic information for Licensing Support System so that a person who has had access to the integrated electronic information would not be granted party status in the licensing p~ceeding if it cannot demonstrate compliance with the requirements of§ 2.1003. Section 2.1012 {d) would be revised to substitute pre-license application electronic docket or electronic docket for Licensing Support System to indicate that access to either the pre-license application electronic docket or the electronic docket may be suspended or terminated for failure to comply with the orders of the

15 Pre-License Application Presiding Officer or the Presiding Officer.

Section 2.1013 would be revised to delete references to the LSS and LSSA and would refer to the provision of information in electronic form. The requirement in

§ 2.1013(c)(5) to file one signed paper copy of each filing with the Secretary, NRC, would be removed because the electronic docket would not require signed paper copies.

Section 2.1014(c)(4) would delete a reference to the LSS and make the failure of a petitioner to participate in the pre-license application phase a criterion in considering whether to grant a petition to intervene .

Section 2.1017 would use the unavailability of the electronic docket instead of the LSS as a justification for extending the computation of time in the proceeding.

Sections 2.1018 and 2.1019 would be revised to delete references to the LSS and instead to refer to providing documents electronically.

In addition, minor editorial changes have been made throughout the .proposed rule to improve readability.

Environmental Impact: categorical Exclusion The NRC has determined that this proposed regulation is the type of action d~scribed in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed regulation.

Paperwork Reduction Act Statement This proposed rule contains no information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

• Regulatory Analysis The history of the development of the existing rule, 10 CFR Part 2, Subpart J, and the

16 current regulatory problem are described in the Background and Discussion sections of this notice. To address the regulatory problem, several alternative approaches.to amending the regulations in Subpart J of Part 2 were considered.

Option 1: Existing rule .

. This approach would not take advantage of current and future technology. It would require an enonnously expensive custom designed system to be developed using old assumptions about technological standards and the universe of "relevant" material. At the time of the development of the existing rule, the cost of the LSS was estimated by DOE to be in the-$200 million range. Furthennore, given the large backlog that contains a substantial

• amount of documents that may no longer be relevant because of the unanticipated delay in developing the LSS as initially designed in 1988, there is a substantial chance that It would be impossible for th& DOE to achieve, and for the LSSA to certify, compliance with the provisions of the current rule. In this case, the proceeding would have to ~ conducted under 10 CFR Part 2, Subpart G, and could result in a protracted discovery phase. In addition to the very costly and ineffective system, the further costs of using this approach are difficult to quantify, however the lengthened discovery phase could prevent the Commission from meeting the statutory deadline for decision on the application. This delay could also result in possible increased spent fuel storage costs for the additional length of the licensing proceeding.

Option 2: 10 CFR Part 2, Subpart G.

Because the NRC is developing a new system called the Agency-wide Documents Access and Management System (ADAMS), which will provide an agency-wide electronic docket, it would be possible to rely on existing adjudicatory procedure rules in 10 CFR Part 2, Subpart G (which will have to be updated to reflect the electronic docket) to conduct the

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17 licensing proceeding. However, this approach would not provide pre-license application access to documents and could result in a protracted discovery phase. The costs of using this approach are difficult to quantify. However the lengthened discovery phase could prevent the Commission from meeting the statutory deadline for decision on the application and result in po~sible increased spent fuel storage costs, as in Option 1.

Option 3: Existing rule using a distributed system.

This approach would allow using linked individual Internet sites to serve as the LSS.

However, this approach does not solve the problem discussed in Option 1 concerning the requirement to capture a huge backlog of material that may not have been maintained in a manner that would ever permit compliance with the rule, and which may not all be relevant to the Mure license application. Therefore, the costs of this approach, as in Option 1, would include the possibility that the LSS rule compliance finding could not be made and the proceeding would have to t?e conducted under 1o CFR Part 2, Subpart G. A lengthened discovery phase could prevent the Commission from meeting the ~tutory deadline for decision on the application and result in possible increased spent fuel storage costs, as in

• Option 1.

Option 4: Revised rule with more realistic document discovery approach.

This approach would remove the requirement for a central LSS system and LSS Administrator, but would require each potential party to provide for the electronic availability of both the material it intends to rely upon to support its position, any material which does not support that material or that position, and.any reports or studies prepared by or for the party, beginning in the pre-application phase (presided* over by a Pre-License Application Presiding Officer). This definition of documentary material would provide pre-application access to a more focussed set of the materials most important to the licensing proceeding. It would not

18 require electronic access to the entire backlog of DOE and other parties' material, some of which may no longer be relevant to the licensing proceeding. The electroni_c docket functionality of the LSS would be provided by the NRC agency-wide system with supervision of the Presiding Officer. Participation in the pre-license application phase would be one criterion for participating in the hearing. After the application is filed, in addition to the electronically available material, discovery would be limited to interrogatories and depositions as In the current rule. The specific method of providing electronic access to documentary would not be specified, which would allow flexibility to accommodate current and future technology advances. Individual parties may give their documents in electronic form to NRC

• or DOE in order to provide electronic access. Because this rule would unconditionally provide the procedural rules for the HLW licensing proceeding, there would be no last minute danger that the proceeding would have to be conducted under 10 CFR Part 2, Subpart G.

The Commission believes that (?ptlon 4 provides the most effective solution for maintaining the basic functionality of the LSS conceptual design, while most flexibly accommodating current and Mure technological developments. The Commission requests public comment on the draft regulatory analysis. Comments on the draft analysis may be submitted to the NRC as indicated under the Addresses heading.

Regulatory Flexibility Certification The amendments would modify the Commission's rules of practice and procedures.

The rule would be amended to allow more widely available electronic access to information before the license application is filed. Participants would be required to make their own documentary matf3rial available electronically. This proposed rule would not have a significant economic Impact upon a substantial number of small entitles. The license applicant for the HLW repository would be the Department of Energy . DOE would not fall

19 within the definition of a "small entity" in the NRC's size standards (10 CFR 2.810).

Although a few of the intervenors in the HLW proceeding would likely qualify as small entities, the impact on intervenors or potential intervenors would not be significant. The requirement for participants to make their own documentary material available electronically is stated in a manner that would allow flexibility in implementation. Furthermore, it is consistent with current business practice to create documents electronically. ~erefore, the exact additional costs involved in making the documentary materials available electronically are difficult to quantify. However, to avoid those costs, participants would have the option of providing their documents to NRC or DOE to maintain electronic availability. Thus, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the NRC hereby certifies that this proposed rule would not have a significant economic impact upon a substantial number of small entities.

Backfrt Analysis The NRC has determined that the backfit rules in 10 CFR Chapter 1, §§ 50.109, 72.62, and 76.76, do not apply to this rule, and therefore, a backfit analysis is not required because these amendments do not involve any provisions that would impose backfits as defined in those rules.

List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954; as amended, the Energy Reorganization Act of 1974, a& amended; and 5 U.S.C.

20 553; the Nuclear Regulatory Commission is proposing to adopt the following amendments to 10 CFR Part 2.

PART 2-RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS

1. The authority citation for Part 2 continues to read as follows:

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

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

1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.

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

• 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114{f), Pub. L.97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended {42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued unde.r secs. 102, 103, 104, 105, 183, 189, 68 Stal 936; 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also Issued under Pub. L.97-415, 96 Stat. 2073 {42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o), 2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Section 2.2050) also issued under Pub. L. 101-410, 104 Stat. 890, as amended by Section 31001(s), Pub. L. 104-134, 110 Stal 1321-373 (28 U.S.C. 2461 note.) Sections 2.600-2.606 al~ issued under sec. 102, Pub. L. 91,-190, 83 Stat. 853, as amended (42 U.S.C. 4332). ~ections 2.700a, 2.719 also issued under 5 U.S.C.

554. Sections 2.754, 2.760, 2.no, 2.780 also issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 135, 141, Pub. L.97-425, 96 Stal 2232, 2241 (42 U.S.C. 10155, 10161).

Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5

I. r 21 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L. 85--256, 71 Stat. 579, as amended (42 U.S.C.

2039). Subpart K also issued under sec. 189, 68 StaJ. 955 (42 U.S.C. 2239); sec. 134, Pub.

L.97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued under sec. 189, 68 Stat.

955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 u.s.c. 2135).

2. Section 2.1000 is revised to read as follows:

§ 2.1000 Scope of subpart.

The rules in this subpart govern the procedure for applications for a license to receive and possess high-level radioactive waste at a geologic repository operations area noticed pursuant to § 2.101 (f)(8) or § ?.105(a)(5). The procedures in this subpart take precedence over the 10 CFR Part 2, subpart G, rules of general applicability, except for the following provisions:§§ 2.702, 2.703, 2.704, 2.707, 2.711, 2.713, 2.715, 2.715a, 2.7~7. 2.718, 2.720, 2.721, 2.722, 2.732, 2.733, 2.734, 2.742, 2.743, 2.750, 2.751, 2.753, 2.754, 2.755, 2.756, 2.757, 2.758, 2.759, 2.760, 2.761, 2.763, 2.770, 2.771, 2.772, 2.780, 2.781, 2.786, 2.788, and 2.790.

3. Section 2.1001 is amended by removing the definitions of ASCII File and LSS Administrator. adding definitions of Electronic docket. Integrated electronic information, Pre-Ucense application electronic docket. and Topical Guidelines; and revising the definitions of

,, Documentary material, ~ Potential party. Pre-license application phase, and Searchable full text, to read as follows:

22

§ 2.1001 Definitions.

Documentary material means any material or other information upon which a party, potential party, or interested governmental participant intends to rely and/or to cite in support of its position in the proceeding for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter; any material or other information that is relevant to, but does not support, that material or information or that party's position; and all reports and studies, prepared by or on behatf of the potential party, interested governmental participant, or party, including all related "circulated drafts,* relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. The scope of documentary material shall be guided by the topical guidelines in the applicable NRC Regulatory Guide.

Electronic docket means the NRC information system that receives. distributes, stores, and retrieves the Commission's adjudicatory docket materials.

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

ffilty_ for the purpose of this subpart means the DOE, the NRC staff, the host State,

I.

23 any affected unit of local government as defined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), any affected Indian Tribe as defined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), and a person admitted under § 2.1 0 14 to the proceeding on an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter; provided that a host State, affected unit of local government, or affected Indian Tribe shall file a list of contentions in accordance with the provisions of

§§ 2.1014(a)(2) (ii) and (iii).

Potential party means any person who, during the period before the issuance of the first pre-hearing conference order under § 2.1021(d), is given access to the integrated electronic information and who consents to comply with the regulations set forth in subpart J of this part, Including the authority of the Pre-License Application Presiding 9fficer designated pursuant to § 2.1010.

Pre-license application electronic docket means the NRC's electronic information system that receives, distributes, stores, and maintains NRC pre-license application _?ocket materials during the pre-license application phase.

Pre-license application phase means the time period before the license application to receive and possess high-level radioactive waste at a geologic repository operations area is docketed under§ 2.101(1)(3). For the purpose of this subpart, this period begins on the date that the President submits the site recommendation Jo the Congress pursuant to section 114(a)(2)(A) of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10134(a)(2)(A))..

24 Searchable full text means the electronic indexed entry of a document that allows the identification of specific words or groups of words within a text file.

Topical Guidelines means the set of topics set forth in Regulatory Guide 3.69, Topical Guidelines for the Licensing Support System, wtiich are intended to guide the scope of "documentary material*.

4. Section 2.1002 is removed and reserved.

§2.1002 [Removed]

5. Section 2.1003 is revised to read as follows:

§ 2.1003 Availability of material.

(a) Beginning in the pre-license application phase, subject to the exclusions in

§ 2.1005 and paragraphs (b) and (c) of this section, each potential party, interested governmental participant or party, shall make available to other potential parties, interested government participants or parties -

(1) An electronic file for all documentary material (including circulated drafts but excluding preliminary drafts) generated by, or at the direction of, or acquired by, a potential party, interested governmental participant, or party. Concurrent with the production of the electronic file will be an authentication statement that Indicates where an authenticated image copy of the document can be obtained.

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

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

(b)(1) Each potential party, interested governmental participant, or party shall make

25 available in electronic image fonn, subject to the claims of privilege in § 2.1006, graphic-oriented documentary material that includes raw data, computer runs, computer programs and codes, field notes, laboratory notes, maps, diagrams and photographs which have been printed, scripted, or hand written. Text embedded within these documents need not be separately entered in searchable full text. Graphic-oriented documents may include-(!) calibration procedures; logs, guidelines, data and discrepancies;

{ii) Gauge, meter and computer settings; (Iii) Probe locations; (Iv) Logging intervals and rates; (v) Data logs in whatever fonn captured; (vi) Text data sheets; (vii) Equations and sampling rates; (viii) Sensor data and procedures; (ix) Data Descriptions; (x) Fteld and laboratory notebooks; (xi) Analog computer, meter or other device print-outs; (xii) Digital computer print-outs; (xiii) Photographs; (xiv) Graphs, plots, strip charts, sketches; (xv) Descriptive material related to the lnfo"!11ation identified in paragraph (b)(1) of this section.

(2) Each potential party, interested governmental participant, or party shall make available in an electronic file, subject to the claims of privilege In § 2.1006, only a bibliographic header for each item of documentary material that is not suitable for Image or

26 searchable full text.

(c) Each potential party, interested governmental participant, or party shall make availabte electronically a bibliographic header for each documentary material-(1) For which a claim of privilege is asserted; (2) Which constitutes confidential financial or commercial Information; or (3} Which constitutes safeguards information under§ 73.21 of-this chapter.

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

6. Section 2.1004 is revised to read as follows:

§ 2.1004 Amendments and additions.

Any document that has not been provided to other parties in electro11ic form must be identified in an electronic notice and made available for inspection and copying by the potential party, interested governmental participant, or party responsible for the submission of the document within two days after it has been requested unless some other time is approved by the Pre-License Application Presiding Officer or the Presiding Officer designated for the high-level waste proceeding. The time allowed under this paragraph will be stayed pending Officer action on a motion to extend the time.

7. Section 2.1005 is revised to read as follows:

§ 2.1005 Exclusions.

The following material is excluded from the requirement to provide electronic access ,

either pursuant to § 2.1003, or through derivative discovery pursuant to § 2.1019(i}-

(a) Official notice materials;

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

8. Section 2.1006 is revised to read as follows:

§ 2.1006 Privilege.

(a) Subject to the requirements in§ 2.1003(c), the traditional discovery privileges recognized in NRC adjudicatory proceedings and the exceptions from disclosure in § 2. 790

• may be asserted by potential parties, interested govemmental participants, and parties. In addition to Federal agencies, the deliberative process privilege may also be asserted by State and local govemment entities and Indian Tribes.

(b) Any document for which a claim of privilege is asserted, but Is denied in whole or in part by the Pre-License Application Presiding Officer or the Presiding Officer, must be provided in electronic form by the party, interested govemmental participant, or potential party that asserted the claim *to-(1) The other participants; or

_)

28

{2) To the Pre-License Application Presiding Officer or to the Presiding Officer, for entry into a Protective Order file, if the Pre-License Application Presiding Officer or the Presiding Officer so directs under§§ 2.1010(b) or 2.1018(c).

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

9. Section 2.1007 is being revised to read as follows:

§ 2.1007 Access.

(a)(1) A system to provide electronic access to the integrated electronic information -

shall be provided at the headquarters of DOE, and at all DOE Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, beginning in the pre-license application phase.

(2} A system to provide electronic access to the integrated electronlp information shall be provided at the headquarters Public Document Room of NRC, and at all NRC Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, and at the NRC Regional Offices beginning in the pre-license appliation phase.

(3) The systems for electronic access specified in paragraphs (a)(1) and (a)(2) of this section shall include locations at Las Vegas, Nevada; Reno, Nevada; carson City, Nevada; Nye County, Nevada; and Lincoln County, Nevada.

(b) Public availability of paper and electronic copies of the records, as well as duplication fees, and fee waiver for those records, is governed by the Freedom of Information Act (FOIA) regulations of the respective agencies.

(c) Documents to which electronic access has been provided by other parties,

29 potential parties, or interested governmental participants pursuant to this subpart shall not be considered as agency records of the Nuclear Regulatory Commission or the Department of Energy unless and until they have been entered into the dock.et of the proceeding pursuant to

§2.702 for purposes of the FOIA, 5 U.S.C. 552, if these documents remain under the custody and control of the agency or organization that identified the documents. Requests for access pursuant to the FOIA to documents submitted by a Federal agency shall be transmitted to that Federal agency.

10. Section 2.1008 is revised to read as follows:

§ 2.1008 Potential parties.

Any person who complies with the regulations in this subpart, Including § 2.1 Q03, and

~grees to comply with the orders of the Pre-License Application Presiding Officer designated under§ 2.1010, may have electronic access to the integrated electronic information made available pursuant to this subpart In the pre--license application phase.

11. Section 2. 1009 is revised to read as follows:

§ 2.1009 Procedures.

(a) Each potential party, interested governmental participant, or party shall- -

(1) Designate an official who win be responsible for admlnlstratlon of Its responsibility to provide electronic files of documentary material ;

(2) Establish procedures to implement the requirements In § 2.1003; (3) Provide training to Its staff on the procedures for implementation of the responsibility to provide electronic files of documentary material; (4) Ensure that all documents carry the submitter:'s unique Identification number; (5) Cooperate with the advisory review process established by the NRC under

§ 2.1011(c).

30 (b) The responsible official designated pursuant to paragraph (a)(1) of this section shall certify to the Pre-License Application Presiding Officer that the procedures specified in paragraph (a)(2) of this section have been implemented, and that to the best of his or her knowledge, the documentary material specified in § 2.1003 has been identified and made electronically available. Upon order of a duly appointed presiding officer, the responsible official shall update this certification.

12. Section 2.1010 is revised to read as follows:

§ 2.1010 Pre-License Application Presiding Officer.

(a)(1) The Commission may designate one or more members of the Commission, or an atomic safety and licensing board, or a named officer who has been delegated final authority on the matter (Pre-License Application Presiding Officer) to rule on disputes over the electronic availability of documents during the pre-license application phase, including disputes relating to privilege, and disputes relating to the implementation of. the recommendations of the Advisory Review Panel established under§ 2.1011(e).

(2) The Pre-License Application Presiding Officer shall be designated before the integrated electronic information is scheduled to be available.

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

{2) Whether the material is excluded under §2.1005; (3) Whether the material Is prvileged or otherwise excepted from disclosure under

§ 2.1006; (4) If privileged, whether it is an absolute or qualified privilege; (5) If qualified, whether the document should be disclosed because It is necessary to

31 a proper decision in the proceeding; (6) Whether the material should be disclosed under a protective order containing such protective terms and conditions (including affidavits of nondisclosure) as may be necessary and appropriate to limit the disclosure to potential participants, interested governmental participants and parties in the proceeding, or to their qualified witnesses and counsel. When Safeguards Information protected from disclosure under section 147 of the Atomic Energy Act of 1954, as amended, is received and possessed by a potential party, interested governmental participant, or party, other than the Commission staff, it shall also be protected according to the requirements of § 73.21 of this chapter. The Pre-License Application Presiding Officer may also prescribe such additional procedures as will effectively safeguard and prevent disclosure of Safeguards Information to unauthorized persons with minimum impairment of the procedural rights which would be available if Safeguards Information were not involved. In addition to any other sanction that may be imposed by the Pre-License Application Presiding Officer for violation of an order pertaining to the disclosure of Safeguards Information protected from disclosure under section 147 of the Atomic Energy Act of 1954, as amended, the entity in violation may be subject to a civil penalty imposed pursuant to § 2.205. For the purpose of imposing the criminal penalties contained in section 223 of the Atomic Energy Act of 1954, as amended, any order issued pursuant to this paragraph with respect to Safeguards Information shall be deemed to be an order issued under section 161b of the Atomic Energy Act of 1954, as amended.

(c) Upon a final determination that the material is relevant, and not privileged, exempt from disclosure, or otherwise exempt from production under§ 2.1005, the potential party, interested governmental participant, or party who asserted the claim of withholding must make the document available in accordance with the provisions of this subpart within two

32 days.

(d) The service of all pleadings and answers, orders, and decisions.during the pre-license application phase shall be made according to the procedures specified in

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

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

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

13. Section 2.1011 is revised to read as follows:

§ 2.1011 Management of electronic information.

(a) Electronic document production and the electronic docket are subject to the provisions of this subpart.

(b) The NRC, DOE, parties, and potential parties participating in accordance with the provisions of this subpart shall be responsible for obtaining the computer system necessary to comply with the requirements for electronic document production and service.

(c)(1) The Secretary of the Comm~ion shall establish an Advisory Review Panel composed of the Advisory Committee members identified in paragraph (c)(2) of this section who wish to serve. The Secretary of the Commission shall have the authority to appoint additional representatives to the Advisory Review Panel consistent with the requirements of the Federal Advisory Committee Act, 5 U.S.C. app. I, giving particular consideration to potential parties, parties, and Interested governmental participants who were not members of the NRC HLW Licensing Support System Advisory Committee.

(2) The Advisory Committee membership will Initially Include the State of Nevada, a

33 coalition of affected units of local government in Nevada who were on the NRC High-Level Waste Licensing Support System Advisory Committee, DOE, NRC, the National Congress of American Indians, the coalition of national environmental groups who were on the NRC High-Level Waste Licensing Support System Advisory Committee and such other members as the Commission may from time to time designate to perfonn the responsibilities in paragraph (d} of this section.

(d)(1) The Advisory Review Panel shall provide advice to-(i) NRC on the fundamental issues of the type of computer system necessary to access the integrated electronic infonnation effectively under paragraph (b) of this section; and (ii) The Secretary of the Commission on the operation and maintenance of the electronic docket under the Commission's Rules of Practice (10 CFR Part 2).

(2) The responsibilities of the Advisory Review Panel shall include advice on-(i) Fonnat standards for providing electronic access to documentary material to the parties, interested governmental' participants, or potential parties; (ii) The procedures and standards for the electronic transmission of filings, orders, and decisions during both the pre-license application phase and the high-level waste licensing proceeding;

{iii) Other dutie.s as specified in this subpart or as directed by the Secretary of the Commission.

14. In § 2.1012, paragraphs (a), (b)(1 ), and (d) are revised to read as follows:

§ 2.1012 Compliance.

(a) In addition to the requirements of§ 2.101 (f), the Director of the NRC's Office of Nuclear Materials Safety and Safeguards may detennine that the tendered application is not

34 acceptable for docketing under this subpart If the Secretary of the Commission determines that it cannot be effectively accessed through the Commission's electronic docket.

(b)(1) A person, including a potential party given access to the integrated electronic information under this subpart, shall not be granted party status under§ 2.1014, or status as an interested governmental participant under§ 2.715(c), if it cannot demonstrate substantial and timely compliance with the requirements of § 2.1003 at the time it requests participation in the high-level waste licensing proceeding under § 2. 1'014 or§ 2.715(c).

(d) Access to the pre-license application electronic docket or electronic docket may be suspended or terminated by the Pre-License Application Presiding Officer or the Presiding Officer for any potential party, interested governmental participant or party who is in noncompliance with any applicable order of the Pre-License Application Presiding Officer or ,

the Presiding Officer or the requirements of this subpart.

15. Section 2.1013 is revised to read as follows:

§ 2.1013 Use of the electronic docket during the proceeding.

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

(2) Commencing with the docketing In an electronic form of the license application to receive and possess high-level radioactive waste at a_geologlc repository operations area pursuant to part 60 of this chapter, the Secretary of the Commission, upon determining that the application can be proper1y accessed under the Commission's electronic docket rules, will establish an electronic docket to contain the official record materials of the high-level radioactive waste licensing proceeding In searchable full text, or for material that is not

I.

35 suitable for entry in searchable full text, by header and image, as appropriate.

(b) Absent good cause, all exhibits tendered during the hearing must have been made available to the parties in electronic form before the commencement of that portion of the hearing in which the exhibit will be offered. The electronic docket contains a list of all exhibits, showing where in the ,transcript each was marked for identification and where it was received into evidence or rejected. Transcripts will be entered into the electronic docket on a daily basis in *order to provide next-day availability at the hearing.

(c)(1) All filings in the adjudicatory proceeding on the license application to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter shall be transmitted electronically by the submitter to the Presiding Officer, parties, and the Secretary of the Commission, according to established format requirements. Parties and interested governmental participants will be required to use a password security code for the electronic transmission of these documents ..

(2) Filings required to be served shall be served upon either the parties and interested governmental participants, or their designated representatives. When a party or interested governmental participant has appeared by attorney, service must be made upon the attorney of record.

(3) Service upon a party or interested governmental participant is completed when the sender receives electronic acknowledgment ("delivery receipt that the electronic submission has been placed in the recipient's electronic m~ilbox.

(4) Proof of service, stating the name and address of the person on whom served and the manner and date of service, shall be shown for each document filed, by-

0) Electronic acknowledgment f'delivery receiptj; (ii) The affidavit of the person making the service; or

36 (iii) The certificate of counsel.

(5) All Presiding Officer and Commission issuances and orders will be transmitted electronically to the parties and interested governmental participants.

(d) Online access to the electronic docket, including a Protective Order File if authorized by a Presiding Officer, shall be provided to the Presiding Officer, the representatives of the parties and interested governmental participants, and the witnesses while testifying, for use during the hearing. Use of paper copy and other images will also be permitted at the hearing.

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

§ 2.1014 Intervention ..

(c) * * *

(4) The failure of the J5etitioner.to participate as a potential party in the pre-license application phase.

17. Section 2.1017 is revised to read as follows:

§ 2.1017 Computation of time.

In computing any period of time, the day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period so computed is included unless it is a Saturday, Sunday, or legal holiday at the place where the action or event is to occur, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor holiday. Whenever a party, potential party, or interested governmental participant, has the right or is required to do some act within a prescribed period after the service of a notice or other document upon it, one day shall be added to the

37 prescribed period. If the electronic docket is unavailable for more than four access hours of any day that would be counted in the computation of time, that day will not be counted in the computation of time.

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

§ 2.1018 Discovery.

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

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

(ii) Entry upon land for inspection, access to raw data, or other purposes pursuant to§ 2.1020; (iii) Access to, or the production of, copies of documentary material for which bibliographic headers only have been submitted pursuant to§ 2.1003 (b) and (c);

(iv) . Depositions upon oral examination pursuant to § 2.1019; (v) Requests for admission pursuant to § 2. 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

38 no duty to supplement its response to include information thereafter acquired, except as follows:

19. In§ 2.1019, paragraphs (d), (e), and (i) are revised to read as follows:

§ 2.1019 Depositions.

(d) When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and signature unless the deponent is ill or cannot be found or refuses to sign. The officer shall certify the deposition or, if the deposition is not signed by -

the depoF1ent, shall certify the reasons for the failure to sign, and shall promptly transmit an electronic copy of the deposition to the Secretary of the Commission for entry into the electronic docket.

(e) Where the deposition is to be taken on written questions as auth~rized under

§ 2.1018(a)(2) , the party or interested governmental participant taking the deposition \

shall serve a copy of the questions, showing each question separately and consecutively numbered, on every other party and interested governmental participant with a notice stating the name and address of the person who is to answer them, and the name, description, title, and address of the officer before whom they are to be asked. Within ten days after service, any other party or interested governmental participarrt may serve cross-questions. The questions, cross-questions, and answers shall be rec;orded and signed, and the deposition certified, returned, and transmitted In electronic form to the Secretary of the Commission for entry into the electronic docket as in the case of a deposition on oral examination.

(i)(1) After receiving written notice of the deposition under paragraph (a) or paragraph

I.

39 (e) of this section, and ten days before the scheduled date of the deposition, the deponent shall submit an electronic index of all documents in his or her possession, relevant to the subject matter of the deposition, including the categories of documents set forth in paragraph (i)(2) of this section, to all parties and interested governmental participants. The index shall identify those records which have already been made available electronically. All documents that are not identical to documents already made available electronically , whether by reason of subsequent modification or by the addition of notations, shall be treated as separate documents.

(2) The following material is excluded from the initial requirements of§ 2.1003 to be made available electronically, but is subject to derivative discovery under paragraph (i)(1) of this section-(i) Personal records; (ii) Travel vouchers; (iii) Speeches; (Iv) Preliminary drafts;

{v) Marginalia.

(3) Subject to paragraph 0)(6) of this section, any party or interested governmental participant may request from the deponent a paper copy of any or all of the documents on the index that have not already been provided electronically.

(4) Subject to paragraph (1)(6) of this section, the deponent shall bring a paper copy of all documents on the index that the deposing party or interested governmental participant requests that have not already been provided electronically to an oral deposition conducted pursuant to paragraph (a) of this section, or in the case of a deposition taken on written questions pursuant to paragraph (e) of this section, shall submit such documents with the

40 certified deposition.

(5) Subject to paragraph (1)(6) of this section, a party or interested governmental participant may request that any or all documents on the Index that have not already been provided electronically, and on which it intends to*reJy at hearing, be made electronically available by the deponent.

(6) The deposing party or interested governmental participant shaft assume the responsibility for the obligations set forth in paragraphs (1)(1 ), (1)(3), (1)(4), and (i)(S) of this se~on when deposing someone other than a party or interested governmental participant.

Dated at Rockville, MD, this /., e_ day of November, 1997.

For the Nuclear Regulatory Commission.

I the Commission.

60789 Proposed Rules Federal RegWer Vol. 62, No. 219 Thursday, November 13, 1997 This section of the FEDERAL REGISTER availability to upload comments as files which the agency and the interests contains notices to the public of the proposed (any format), if your web browser affected by a rulemaking meet to Issuance of rules and regulations. The supports that function. For information attempt to reach a consensus on a draft purpose of these notices Is to give Interested about the interactive rulemaking site, proposed rule. If a consensus is reached, persons an opportunity to participate in the contact Ms. Carol Gallagher, (301) 415- the agency publishes the negotiated rule rule making prior to the adoption of the final rules.

5905; e-mail CAG@nrc.gov. as the agency's proposed rule. The Documents related to this rulemaking, Commission selected the negotiated including comments received, may be rulemaking approach to address the LSS NUCLEAR REGULATORY examined at the NRC Public Document issue for several reasons. In 1987, the COMMISSION Room, 2120 L Street NW., (Lower idea of use of an electronic information Level), Washington, DC. These same management system in a Commission 10 CFR Part2 documents also may be viewed and adjudicatory proceeding was novel, not downloaded electronically via the only for the Commission, but in general.

RIN 3150-AF88 interactive rulemaking website Therefore, the development of the rules Procedures Appllcable to Proceedings established by NRC for this rulemaking. for the use of such a system would for the Issuance of Licenses for the FOR FURTHER INFORMATION CONTACT: benefit from discussion and joint Receipt of High-Level Radioactive Kathryn L. Winsberg, U.S. Nuclear problem solving by those who might Waste at a Geologic Repository Regulatory Commission, Washington, ultimately use the system and had DC 20555, telephone (301) 415-1641, experience with the Commission's AGENCY: Nuclear Regulatory e-mail KLW@nrc.gov. traditional adjudicatory process.

Commission. Furthermore, the potential users of the SUPPLEMENTARY INFORMATION:

ACTION: Proposed rule. LSS possessed unique information that I. Background would be important to the design of the

SUMMARY

The Nuclear Regulatory system, such as their computer The existing procedures for licenses Commission is proposing to amend its to receive high-level radioactive waste capability and the amount and types of Rules of Practice for the licensing at a geologic repository were developed relevant documents that they might proceeding on the disposal of high-level to address the Nuclear Regulatory generate. In addition, the potential for radioactive waste at a geologic Commission's concern regarding how consensus was enhanced by the fact that repository (I-Il.,W proceeding). The best to review the U.S Department of the LSS i:ule focused on procedures for proposed amendments are intended to Energy (DOE) license application for a conducting the licensing process that allow application of technological first-of-a-kind high-level radioactive might benefit all parties, rather than developments that have occurred since waste (HLW) repository during the 3- focusing on substantive technical the original rule was adopted in 1989, year time period dictated by Section criteria for a licensing process Finally, while achieving the original goals of 114 (d) of the Nuclear Waste Policy Act. the success of the LSS concept facilitating the Commission's ability to The Commission believed it necessary depended upon potential parties comply with the schedule for decision to reduce the time normally spent on voluntarily complying with the on the construction authorization for the the discovery process at the start of a licensing process for document repository contained in Section 114(d) licensing proceeding and the time- identification and submission in the of the Nuclear Waste Policy Act, and consuming service of documents during period before the DOE license providing for a thorough tecbnical the proceeding if the Commission were application was submitted. Therefore, review of the license application and to reach its decision within the allotted the involvement of interested parties in equitable access to information for the time. The Licensing Support System the development of the provisions to parties to the hearing. (LSS) concept, an electronic information govern the use of the LSS was essential.

DATES: Submit comments by January 27, management system, was created to The Commission initiated the 1998. Comments received after this date achieve this time reduction by making negotiated rulemaking in August 1987 will be considered if it is practical to do the information and data supporting a Toe negotiating committee, composed of so, but the NRC is able to assure DOE application available State, local, and tribal governments, consideration only for comments simultaneously in a centralized database industry representatives, NRC, DOE, received on or before this date to all interested parties before the and environmental groups, completed ADDRESSES: Send comments by mail application is submitted and formal its work in July 1988. Except for the addressed to the Secretary, U.S. Nuclear NRC review begins. Emerging industry coalition, all the parties on the Regulatory Commission, Washington, information management technologies negotiating committee agreed on the text DC 20555-0001. Attention: Rulemakings for issue identification, electronic and supplementary information of a and Adjudications Staff. storage and retrieval, and electronic draft proposed rule. However, even the Hand-deliver comments to: 11555 mail were recommended for these one dissenting party, the industry Rockville Pike, Rockville, Maryland, functions to help achieve the objectives representative, had been a full and between 7:30 am and 4:15 pm on of more effective and efficient review. active participant in the drafting of the Federal workdays. The Commission employed the regulatory text and supporting You may also provide comments via technique of negotiated rulemaking to information. Industry did notjoin the the NRC's interactive rulemaking web develop the regulations governing the final consensus at the end of the process site through the NRC home page (http*/ development and use of the LSS. based on its belief that the use of a new

/www.nrc.gov) This site provides the Negotiated rulemaking is the process by technology in the licensing process I

60790 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules would not prove cost-beneficial. At that accumulation of potential licensing geologic repository. This would time, the cost of the LSS was estimated information. eliminate the LSS as a uniquely by DOE to be in the $200 million range. Because of the length of time involved designed stand-alone system, while still The Commission, recognizing the and the narrowing of the repository maintaining the following primary agreement among the other parties on development program, much of the functions of the LSS as a mechanism for the negotiating committee, decided to early material thought to be relevant at the:

publish the negotiated draft proposed the time the rule wa.s developed may no (1) Discovery of documents before the rule as the Commission's proposed rule longer be relevant to the actual licensing license application is flled; in November 1988. Because of this proceeding that may not begin until (2} Electronic transmission of filings effort, the final LSS rule (10 CFR part 2, about 2002. Also because of the by the parties during the proceeding; subpart], "Procedures Applicable to extended period of time it has taken to (3) Electronic transmission of orders Proceeding for the Issuance of Licenses develop the LSS for DOE's use as a and decisions related to the proceeding; for the Receipt of High-Level document management system, it and Radioactive Waste at a Geologic appears that all accumulated documents (4} Access to an electronic version of Repository", was promulgated on April may not have been identified and the docket.

24, 1989 (54 FR 14925). maintained properly for tracking of The Commission believes that the The LSS rule assigned the LSS important repository development proposed rule would continue to Administrator (LSSA) function to the decisions. In addition, because support the model schedule for NRC which would be responsible for the document capture may now involve conducting the licensing proceeding management, administration, operation, much larger backlogs than originally within the 3-year statutory period that and maintenance of the LSS; pursuant contemplated, the risk of failing to was published in the Statement of to DOE's agreement, gave DOE capture all the material originally Considerations for the original 10 CFR responsibility for the design, required to be placed in the LSS is . part 2, subpart], rule published on development, and implementation of substantially larger than originally April 14, 1989 (54 FR 14925, 14939).

the LSS; and established the charter of assumed. In order for the current The proposed rule would eliminate the LSS Advisory Review Panel Subpart J rules to apply, the LSSA must the current prescriptive requirement in (LSSARP) to provide consensus certify that the DOE has complied with 10 CFR part 2, subpart J. for a guidance on the design and the requirement to enter all relevant centralized "Licensing Support System" development of the LSS to both NRC documents in the LSS. Therefore, all of administered by the NRC and therefore and DOE. The LSS was intended to these factors combine to produce the also would eliminate the requirement provide a central, shared, federally high likelihood that the current rule for an LSS Administrator to ensure the funded database of licensing cannot be implemented as originally viability of the central database. To infonnation beginning in 1995, the year envisioned. If not, then 10 CFR part 2, replace these features of the existing DOE was expected to submit its subpart J, will no longer apply. Instead, rule, the proposed rule would require application for a construction permit for subpart G, the generally applicable that all potential parties, including the the repository. The Commission procedures for licensing proceedings, NRC and DOE, make their documentary adopted minor amendments further will apply. This means that there would material available in electronic form to clarifying these procedures in a final be no pre-license application access to all other participants beginning in the rule published on February 26, 1991 (56 documents pre-license application phase. This FR 7787). Although the development of the LSS requirement is stated without unduly The Licensing Support System has remained stalled, the state of restrictive technological specifications, Administrator (LSSA) was appointed in technology in document automation and in order to accommodate flexible January 1989. The LSSARP was formed, retrieval has overtaken the 1986 implementation consistent with current holding its first meeting in December technology on which the original LSS or future technological developments 1989. Also in December 1989, well was to be based. The use of computers Documentary material would be before any serious development work to generate and maintain the complex defined as the material upon which a could be started on the LSS, the documents of a party in litigation is party intends to rely in support of its Department of Energy revised its widespread and commonplace. The position in the licensing proceeding; repository program schedule to extend Internet is universally available to tie any material which is relevant to, but its anticipated license application date disparate and geographically dispersed does not support, that material or that from 1995 to 2001. Consequently, the systems together Readily available party's position; and all reports and LSS development schedule was commercial software applications can studies, prepared by or on behalf of the extended perform the document management potential party. interested governmental functions of the LSS. Therefore, the participant, or party, including all IL Discussion centralized LSS envisioned at the time related "circulated drafts," relevant to The development of the LSS that was the LSS rule was developed has become the issues set forth in the Topical devised in the original procedural rules obsolete. The enormous expense of Guidelines in Regulatory Guide 3.69, in 10 CFR Part 2, Subpart J. has not been designing and maintaining a stand-alone regardless of whether they will be relied accomplished during the time that has system required by the current rules upon and/or cited by a party For the passed since adoption of the rule. Many appears to be an unjustified expense, purposes of this rule, the pre-delays and changes in personnel and especially when it appears unlikely that application phase would begin on the program structure have attended the the rule will be able to be implemented date that the President submits the site Department of Energy's efforts to successfully even if the LSS is created. recommendation to Congress This develop the LSS. Budgetary shortfalls Consequently, the Commission is timing would allow access to the and the unanticipated length of time proposing to amend its rules to allow parties' documentary material enough that it has taken to develop the licensing more flexibility to incorporate the before DOE submits the license application for the repository not only advantages of new information application to allow advance delayed the development of the LSS. but management technologies in the preparation of contentions and also resulted in several additional years' procedural rules for the licensing of the discovery requests before the Hcense

Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60791 application, but late enough in the all reports and studies, prepared by or and also to refer to that act for the repository development process to on behalf of the potential party, definition of affected Indian tribe. In provide meaningful information. interested governmental participant, or addition, any affected unit of local A Pre-License Application Presiding party, including all related "circulated government, the host State, and any Officer would resolve any disputes over drafts," relevant to the issues set forth affected Indian Tribe would be required electronic access to docwnents during in the Topical Guidelines 1n Regulatory to file a list of contentions.

the pre-license application phase. Guide 3.69, regardless of whether they Potential parties would be required to Potential Party will be relied upon and/or cited by a certify to the Pre-License Application party. This definition would be used in This definition would be revised to Presiding Officer that they have the rule in § 2.1003 to define what remove the reference to the LSS, and to complied with the requirement to material must be provided in electronic substitute the term integrated electronic provide electronic access to their form for access beginning in the pre- lnfonnadon to describe the material to documentary material. The license application phase. Therefore the which the potential party will be given requirements of the current rule for an term "documentary material" would be access.

electronic hearing docket would be intended to describe the most important Pre-license Application Electronic retained, as well as the limitations on body of material and would be defined Docket the permissible forms of discovery after clearly to require that all parties include the application ls filed. electronic access to any relevant A new definition would be added to The Commission ls considering two material in their possession that does describe NRC's electronic information alternatives regarding the LSS Advisory not support their position in the system to receive, distribute, store, and Review Panel. In this proposed rule, licensing proceeding, as well as maintain NRC pre-license application because the concept of the LSS would providing access to the material that docket materials during the pre-license be replaced, the requirement for an LSS does support their position, and any application phase.

Advisory Review Panel would be reports and studies prepared by the Pre-License Application Phase modified so the panel can advise the party on issues described in the Topical Secretary of the Commission regarding Guidelines, regardless of whether or not This definition is being specified for standards and procedures for electronic they would be relied upon or cited by the purposes of this rule to begin on the access to documents and for the party. The scope of the documentary date that the President submits the site maintenance of the electronic docket. material would still be governed by the recommendation to the Congress. This This would require renaming of the topical guidelines. date has been chosen to allow access to advisory committee and redrafting of the potential parties' documentary the committee charter. However, the Electronic Docke_t material enough before the license Commission is also considering the A new definition would be added to application to allow advance alternative of replacing the Advisory describe NRC's electronic information preparation of contentions and Review Panel with a more informal system to receive, distribute, store, and discovery requests before the users group, and particularly requests maintain NRC adjudicatory docket application is filed, but late enough in comments from potential parties to the materials in the licensing proceeding the repository development process to HLW repository licensing proceeding provide meaningful information.

Integrated Electronic Information regarding these two alternative Searchable Full Text arrangements

• A new definition would be added to describe material made available in This defmltlon would be revised to

m. Section-by-Section Description of electronic form to potential parties, remove references to ASCII and to the Changes parties, or interested governmental LSS.

In§ 2.1000, the reference to§ 2.709 participants to the licensing proceeding Topical Guidelines would be removed because it would for the high-level waste geologic require compliance with§ 2.708 that repository, either as part of the NRC's A new definition would be added to would not apply to this subpart. pre-license application electronic describe the set of topics set forth in In § 2.1001, the following definitions docket or electronic docket or pursuant Regulatory Guide 3.69 that are intended would be added, amended, or removed: to electronic access to documentary to guide the scope of documentary material made available by individual material under this subpart.

ASCII File Section 2.1002 would be removed potential parties, parties, and interested This definition would be removed governmental participants. This is a because the LSS would no longer be and no longer used in the rule. term for the information access that required. Access to integrated electronic Prescriptive references to specific would replace the LSS in this rule. information would provide the major technical standards would be removed functions which the LSS was designed to allow flexible implementation LSS Admlnlstrator to provide Paragraphs (c) and (d),

consistent with developing technology. This term would be eliminated from which state that participation by the the rule because the concept of the LSS host State in the pre-application phase Documentary Material will not affect its disapproval rights, and would also be removed. The Pre-hcense The definition of documentary Application Presiding Officer will that this subpart shall not affect any material would be revised to cover resolve disputes about electronic access participant's independent right to material upon which a party, potential to documents in the pre-license receive information, would be party, or interested governmental application phase. incorporated in the revised § 2 1003 as participant intends to rely and/or cite in paragraphs (a) (2) and (3) support of its position in the licensing Party Section 2. 1003 would be revised to proceeding; any material or other This definition would be revised to describe information that would be information which is relevant to, but add "affected unit of local government", required to be made available does not support, that material or as that term is defined in the Nuclear electronically by all potential parties, information or that party's position; and Waste Polley Act of 1982, as amended, parties, and interested governmental

60792 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 I Proposed Rules participants (including the NRC and than providing terminals for access to proposed rule to accommodate a new DOE). This information would have to the LSS. These systems must be purpose, the advisory committee would be made available to all other maintained by DOE and NRC at the have to be renamed and the committee participants beginning in the pre-license locations specified in the current charter would have to be redrafted.

application phase, which starts at the version of the rule (except for the However, the Commission is also date of the President's submission of the Uranium Recovery Field Office which considering the alternative of site recommendation to the Congress. no longer exists), beginning in the pre- eliminating the requirement for an The requirements of the rule would be license application phase. advisory committee chartered under the simplified to require only that access to Section 2.1008 would be revised to Federal Advisory Committee Act, and an electronic fl.le be provided. All allow electronic access to the integrated substituting a more informal voluntary references to specific formats would be electronic information to any person users group to perform the functions of removed to allow flexibility in who complies with the requirements of discussing electronic format standards, implementation. The Commission Subpart], including the requirement in procedures, and other details. If this intends that a potential party, party, or § 2.1003 to make documentary material option were adopted, the final rule interested governmental participant available, and who agrees to comply would be revised to refer to the users might offer electronic access to its with the orders of the Pre-license group. This group would be able to documentary material in a number of Application Presiding Officer. The interact using Internet discussion areas different ways, including by providing previous requirement to petition to the (like LSSNet) as well as meetings, video its documents in electronic form either Pre-license Application Presiding conferences, or teleconferences. This to the NRC or to the DOE, to have the Officer would be removed. users group would ideally make use of NRC or the DOE maintain the Section 2.1009 would be revised to the current LSSARP members' documents for electronic access. delete references to the LSS and the knowledge and experience. The Although the draft rule would require LSSA, and to refer instead to the Commission is particularly requesting that documentary material be made responsibility to provide electronic files. comment from potential parties to the available electronically beginning on the The responsible official for each HLW repository concerning their date of the President's site potential party would be required to interest and support for the informal recommendation to the Congress, the certify to the Pre-License Presiding users group alternative Commission would encourage the Officer that procedures to comply with Section 2.1012(a) would be revised to earliest feasible availability of § 2.1003 have been implemented and that its documentary material has been allow the Director of the NRC Office of documentary material in order to Nuclear Material Safety and Safeguards enhance the future smooth operation of made electronically available. A new requirement to update the certification (NMSS) to determine that the the licensing proceeding. The at the request of the presiding officer application would not be acceptable if paragraphs relating to evaluations and it is not able to be accessed through the certifications by the LSS Administrator would be added to replace a previous would be removed because the LSS (and requirement to provide this certification electronic docket. Section 2.1012(b)(l) at 6 month intervals. would be revised to substitute LSSA) concept would be removed.

Section 2.1010 states that the Pre- Section 2.1010 would be revised to integrated electronic inforrnaUon for License Application Presiding Officer delete references to the LSS and the Licensing Support System so that a will resolve any disputes relating to LSSA and to refer instead to electronic person who has had access to the electronic access to documents in the access. The reference to petitions for integrated electronic information would pre-license application phase. access would be removed to conform to not be granted party status in the Accordingly, the paragraphs which removal of this requirement. licensing proceeding if it cannot stated that the application would have Section 2.1011 is being considered for demonstrate compliance with the to be docketed under Subpart G if the revision in either of two alternative requirements of§ 2.1003. Section 2 1012 LSSA did not certify compliance would ways and the Commission requests (d) would be revised to substitute pre-be removed, and Subpart J (including specific comments on these alternatives. license appllcati.on electronic dock.et or specifically referenced sections of This proposed rule would revise electronic docket for Licensing Support Subpart G) would unconditionally §2.1011 to reflect that the electronic System to indicate that access to either embody the rules of procedure for the availability of documentary material the pre-license application electronic HLW licensing proceeding. that is specified in this rule no longer docket or the electronic docket may be Section 2.1004 would be revised to requires special equipment. The name suspended or terminated for failure to provide procedures for providing access and functions of the LSS Advisory comply with the orders of the Pre-to a document that has not previously Review Panel would be amended to License Application Presiding Officer or been provided in electronic form and to delete the reference to the LSS and the Presiding Officer.

delete previous references to the LSS substitute the purpose of arriving at Section 2.1013 would be revised to and the LSSA. standards and procedures to facilitate delete references to the LSS and LSSA Section 2.1005 would be revised to the electronic access to material and to and would refer to the provis10n of delete reference to the LSS and to add the electronic docket Because of the information in electronic form. The an exclusion of readily available broad and non-prescriptive requirement in § 2.1013 (c)(5) to file one references, such as Journal articles or requirements regarding providing signed paper copy of each filing with proceedings, which may be subject to electronic files in this proposed rule, the the Secretary, NRC, would be removed copyright Advisory Review Panel would be very because the electronic docket would not Section 2.1006 would be revised to useful in discussing standards and require signed paper copies refer to providing a document in procedures to ensure that all Section 2.1014(c)(4) would delete a electronic form and to delete references participants are able to access the reference to the LSS and make the to the LSS and the LSSA. electronic information. Because the LSS failure of a petitioner to participate in Section 2.1007 would be revised to concept would be replaced, and the the pre-license application phase a refer to providing systems for access to requirement for an LSS Advisory criterion in considering whether to grant integrated electronic information rather Review Panel would be modified in the a petition to intervene..

Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60793 Section 2.1017 would use the difficult to quantify, however the in the pre-application phase (presided unavailability of the electronic docket lengthened discovery phase could over by a Pre-License Application instead of the LSS as a Justification for prevent the Commission from meeting Presiding Officer). This definition of extending the computation of time in the statutory deadline for decision on documentary material would provide the proceeding. the application. This delay could also pre-application access to a more Sections 2.1018 and 2.1019 would be result in possible increased spent fuel focussed set of the materials most revised to delete references to the LSS storage costs for the additional length of important to the licensing proceeding. It and instead to refer to providing the licensing proceeding. would not require electronic access to documents electronically. the entire backlog of DOE and other In addition, minor editorial changes Option 2: IO CFR Part 2, Subpart G parties' material, some of which may no have been made throughout the Because the NRC Is developing a new longer be relevant to the licensing proposed rule to improve readability. system called the Agency-wide proceeding. The electronic docket Documents Access and Management functionality of the LSS would be Environmental hnpact: Categorical System (ADAMS), which will provide provided by the NRC agency-wide Exclusion an agency-wide electronic docket, it system with supervision of the The NRC has determined that this would be possible to rely on existing Presiding Officer. Participation in the proposed regulation is the type of action adjudicatory procedure rules in 10 CFR pre-license application phase would be described in categorical exclusion 10* part 2, subpart G (which will have to be one criterion for participating in the CFR 51.22(c)(l). Therefore, neither an updated to reflect the electronic docket) hearing. After the application is filed, in environmental impact statement nor an to conduct the licensing proceeding. addition to the electronically available environmental assessment has been However, this approach would not material, discovery would be limited to prepared for this proposed regulation. provide pre-license application acce~ interrogatories and depositions as in the to documents and could result in a current rule. The specific method of Paperwork Reduction Act Statement protracted discovery phase. The costs of providing electronic access to This proposed rule contains no using this approach are difficult to documentary would not be specified, information collection requirements quantify. However the lengthened which would allow flexibility to and, therefore, is not subject to the discovery phase could prevent the accommodate current and future requirements of the Paperwork Comm1ssion from meeting the statutory technology advances. Individual parties Reduction Act of 1995 (44 U.S.C. 3501 deadline for decision on the application may give their documents in electronic et seq.). and result in possible increased spent form to NRC or DOE in order to provide Regulatory Analysis fuel storage costs, as in Option 1. electronic access. Because this rule Option 3: Existing Rule Using a would unconditionally provide the The history of the development of the procedural rules for the HLW licensmg existing rule, 10 CFR part 2, subpartJ, Distributed System proceeding, there would be no last and the current regulatory problem are This approach would allow using minute danger that the proceeding described in the Background and linked individual Internet sites to serve would have to be conducted under 10 Discussion sections of this notice. To as the LSS. However, this approach does CFR part 2, subpart G address the regulatory problem, several not solve the problem discussed in The Commission believes that Option alternative approaches to amending the Option 1 concerning the requirement to 4 provides the most effective solution regulations in subpart J of part 2 were capture a huge backlog of material that for maintaining the basic functionality considered. may not have been maintained in a of the LSS conceptual design, while manner that would ever permit most flexibly accommodating current Option 1: Existing Rule compliance with the rule, and which and future technological developments This approach would not take may not all be relevant to the future The Commission requests public advantage of current and future license application. Therefore, the costs comment on the draft regulatory technology. It would require an of this approach, as in Option 1, would analysis Comments on the draft enormously expensive custom designed include the possibility that the LSS rule analysis may be submitted to the NRC system to be developed using old compliance finding could not be made as indicated under the Addresses assumptions about technological and the proceeding would have to be heading.

standards and the universe of "relevant" conducted under 10 CFR part 2, subpart material. At the time of the development G. A lengthened discovery phase could Regulatory Flexibility Certification of the existing rule, the cost of the LSS prevent the Commission from meeting The amendments would modify the was estimated by DOE to be in the $200 the statutory deadline for decision on Commission's rules of practice and million range. Furthermore, given the the application and result in possible procedures. The rule would be amended large backlog that contains a substantial increased spent fuel storage costs, as in to allow more widely available amount of documents that may no Option 1. electronic access to information before longer be relevant because of the the license application is filed.

unanticipated delay in developing the Option 4: Revf.sed Rule With More Participants would be reqwred to make LSS as initially designed in 1988, there Realistic Document Discovery Approach their own documentary matenal is a substantial chance that it would be This approach would remove the available electronically This proposed impossible for the DOE to achieve, and requirement for a central LSS system rule would not have a significant for the LSSA to certify, compliance with and LSS Administrator, but would economic impact upon a substantial the provisions of the current rule In this require each potential party to provide number of small entitles. The license case, the proceeding would have to be for the electronic availability of both the applicant for the HLW repository would conducted under 10 CFR part 2, subpart material it intends to rely upon to be the Department of Energy . DOE G, and could result in a protracted support its position, any material which would not fall within the definition of discovery phase. In addition to the very does not support that material or that a "small entity" in the NRC's size costly and ineffective system, the position, and any reports or studies standards (10 CFR 2.810). Although a further costs of using this approach are prepared by or for the party, beginning few of the intervenors in the HLW

60794 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules proceeding would likely qualify as 2111.2133,2134, 2135);sec. 114(0, and LSS Administrator, adding small entities, the impact on intervenors Pub. L.97-425, 96 Stat. 2213, as definitions of Electronic docket, or potential intervenors would not be amended (42 U.S.C. 10134(0); sec. 102, Integrated electronic lnformation, Pre-significant The requirement for Pub. L.91-190, 83 Stat. 853, as license application electronic docket, participants to make their own amended (42 U.S.C. 4332); sec. 301, 88 and Topical Guidelines-, and revising the documentary material available Stat. 1248 {42 U.S.C. 5871). Sections definitions of Documentary material, electronically is stated in a manner that 2.102, 2.103, 2.104, 2.105, 2.721 also Party, Potential party, Pre-license would allow flexibility in issued under secs. 102, 103, 104, 105, application phase. and Searchable full implementation. Furthermore, it is 183, 189, 68 Stat 936. 937, 938, 954, text, to read as follows:

consistent with current business 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 §2.1001 Definitions.

practice to create documents electronically. Therefore, the exact also issued under Pub. L.97-415, 96 * * * *

• additional costs involved in making the Stat. 2073 {42 U.S.C. 2239). Sections Documentary material means any documentary materials available 2.200-2.206 also issued under secs. material or other infonnatlon upon electronically are difficult to quantify. 161b, I, o, 182, 186, 234, 68 Stat. 948- which a party, potential party, or However, to avoid those costs. 951, 955, 83 Stat 444, as amended (42 interested governmental participant participants would have the option of U.S.C. 2201 (b), (i), (o), 2236, 2282); sec. intends to rely and/or to cite in support providing their documents to NRC or 206, 88 Stat 1246 (42 U.S.C. 5846). of its position in the proceeding for a DOE to maintain electronic availability. Section 2.205(j) also issued under Pub license to receive and possess high-level Thus, in accordance with the Regulatory L. 101-410, 104 Stat. 890, as amended radioactive waste at a geologic Flexibility Act, 5 U.S.C. 605(b). the NRC by Section 3100l(s), Pub. L. 104---134, repository operations area pursuant to hereby certifies that this proposed rule 110 Stat. 1321-373 (28 U.S.C. 2461 part 60 of this chapter; any material or would not have a significant economic note.) Sections 2.600-2 606 also issued other information that is relevant to, but impact upon a substantial number of under sec. 102, Pub. L.91-190, 83 Stat does not support, that material or small entities. 853, as amended (42 U.S.C. 4332}. information or that party's position; and Sections 2.700a, 2.719 also issued under all reports and studies, prepared by or Backfit Analysis 5 U.S.C. 554. Sections 2.754, 2.760, on behalf of the potential party.

The NRC has determined that the 2.770, 2.780 also issued under 5 U.S.C. interested governmental participant, or backflt rules in 10 CFR Chapter 1, 557. Section 2.764 also issued under party, including all related "circulated

§§50.109, 72.62, and 76.76, do not secs. 135, 141, Pub. L.97-425, 96 Stat. drafts," relevant to the issues set forth apply to this rule, and therefore, a 2232, 2241 (42 U.S.C. 10155, 10161). in the Topical Guidelines in Regulatory backfit analysis is not required because Section 2.790 also issued under sec. Guide 3.69, regardless of whether they these amendments do not involve any 103, 68 Stat. 936, as amended (42 U.S.C. will be relied upon and/or cited by a provisions that would impose backflts 2133) and 5 U.S.C. 552. Sections 2.800 party. The scope of documentary as defined in those rules. and 2.808 also issued under 5 U.S.C material shall be guided by the topical 553. Section 2.809 also issued under 5 guidelines in the applicable NRC List of Subjects in 10 CFR Part 2 U.S.C. 553 and sec. 29, Pub. L.85-256, Regulatory Guide.

Administrative practice and 71 Stat. 579, as amended (42 U.S.C.

procedure, Antitrust, Byproduct 2039). Subpart K also issued under sec Electronic docket means the NRC material, Classified information, 189, 68 Stat. 955 (42 U.S C. 2239); sec information system that receives, Environmental protection, Nuclear 134, Pub. L.97-425, 96 Stat. 2230 (42 distributes, stores, and retrieves the materials, Nuclear power plants and U.S.C. 10154). Subpart L also issued Commission's adjudicatory docket reactors, Penalties, Sex discrimination, under sec. 189, 68 Stat 955 (42 U.S.C. materials.

Source material, Special nuclear 2239). Appendix A also issued under material, Waste treatment and disposal. sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 Integrated electronic information For the reasons set out in the u.s.c 2135). means the material that is made preamble and under the authority of the 2. Section 2.1000 is revised to read as available electronically to parties, Atomic Energy Act of 1954; as amended, follows:

potential parties, and interested the Energy Reorganization Act of 197 4,

§2.1000 Scope of subpart. governmental participants to the as amended; and 5 U.S.C. 553; the The rules in this subpart govern the proceeding for a license to receive and Nuclear Regulatory Commission is procedure for applications for a license possess high-level radioactive waste at a proposing to adopt the following to receive and possess high-level geologic repository operations area amendments to 10 CFR part 2.

radioactive waste at a geologic pursuant to part 60 of this chapter. as PART 2-RULES OF PRACTICE FOR repository operations area noticed part of the electronic docket or DOMESTIC LICENSING PROCEEDINGS pursuant to § 2.101 (t) (8) or § 2.105 (a) (5). electroruc access to documentary AND ISSUANCE OF ORDERS The procedures in this subpart take material, beginning in the pre-license precedence over the 10 CFR part 2, application phase.

1. The authority citation for part 2 subpart G, rules of general applicability, * * * *

• continues to read as follows: except for the following provisions. Party for the purpose of this subpart Authority: Secs. 161. 181. 68 Stat 948, 953, §§2.702, 2.703, 2.704, 2.707, 2 711, means the DOE. the NRC staff, the host as amended (42 U.S.C. 2201. 2231), sec 191, 2.713, 2.715, 2.715a, 2 717, 2.718, 2.720, State, any affected unit of local as amended, Pub. L.87-615, 76 Stat. 409 (42 2.721, 2.722, 2.732, 2.733, 2.734, 2.742, government as defined in section 2 of U.S C 2241); sec. 201, 88 StaL 1242, as 2.743, 2.750, 2.751, 2 753, 2.754, 2.755, the Nuclear Waste Policy Act of 1982, amended (42 U.S.C. 5841); 5 U.S.C. 552.

2.756, 2.757, 2.758, 2.759, 2 760, 2.761, as amended (42 U.S.C. 10101). any Section 2.101 also issued under secs. 2.763, 2 770, 2.771, 2.772, 2.780, 2 781, affected Indian Tribe as defined in 53, 62, 63, 81, 103, 104, 105, 68 Stat. 2.786, 2 788, and 2 790. section 2 of the Nuclear Waste Policy 930,932,933,935,936,937,938,as 3. Section 2.1001 is amended by Act of 1982, as amended (42 U S.C.

amended (42 U.S.C. 2073, 2092, 2093, removing the definitions of ASCII File 10101), and a person admitted under

Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60795

§ 2.1014 to the proceeding on an interested government participants or make available electronically a application for a license to receive and partles- bibliographic header for each possess high-level radioactive waste at a (1) An electronic file for all documentary material-geologic repository operations area documentary material (including (1) For which a claim of privilege is pursuant to part 60 of this chapter; circulated drafts but excluding asserted; provided that a host State, affected unit preliminary drafts) generated by, or at (2) Which constitutes confidential of local government, or affected Indian the direction of, or acquired by, a financial or commercial information; or Tribe shall file a list of contentions in potential party, interested governmental (3) Which constitutes safeguards accordance with the provisions of participant, or party. Concurrent with information under § 73. 21 of this

§§2.1014(a)(2) (ii) and (ill). the production of the electronic file will chapter.

be an authentication statement that (d) Basic licensing documents

• * *

• indicates where an authenticated image generated by DOE, such as the Site Potential party means any person Characterization Plan, the who, during the period before the cop_y of the document can be obtained.

(2) The participation of the host State Environmental Impact Statement, and issuance of the first pre-hearing the license application, or by NRC, such in the pre-license application phase conference order under§ 2 1021(d), is as the Site Characterization Analysis, shall not affect the State's ability to given access to the integrated electronic and the Safety Evaluation Report, shall exercise its disapproval rights under infonnation and who consents to be made available in electronic form by section 116(b) (2) of the Nuclear Waste comply with the regulations set forth in the respective agency that generated the Policy Act, as amended, 42 U.S.C subpart J of this part, including the 10136(b) (2). document.

authority of the Pre-License Application (3) This subpart shall not affect any 6. Section 2.1004 is revised to read as Presiding Officer designated pursuant to independent right of a potential party, follows:

§2.1010. interested governmental participant or Pre-license application electronic § 2. 1004 Amendments and additions.

party to receive information.

docket means the NRC's electronic (b)(l) Each potential party, interested Any document that has not been information system that receives, governmental participant, or party shall provided to other parties in electronic distributes, stores, and maintains NRC make available in electronic image form, form must be identified in an electronic pre-license application docket materials subject to the claims of privilege in notice and made available for inspection during the pre-license application § 2.1006, graphic-oriented documentary and copying by the potential party, phase. material that includes raw data, interested governmental participant, or Pre-license application phase means computer runs, computer programs and party responsible for the submission of the time period before the license codes, field notes, laboratory notes, the document within two days after it application to receive and possess high- maps, diagrams and photographs which has been requested unless some other level radioactive waste at a geologic have been printed, scripted, or hand time is approved by the Pre-License repository operations area is docketed written. Text embedded within these Application Presiding Officer or the under§ 2.10 l (f) (3). For the purpose of documents need not be separately Presiding Officer designated for the this subpart, this period begins on the entered rn searchable full text. Graphic- high-level waste proceeding. The time date that the President submits the site oriented documents may include-- allowed under this paragraph will be recommendation to the Congress Calibration procedures, logs, stayed pending Officer action on a pursuant to section 114(a)(2)(A) of the guidelines, data and discrepancies; motion to extend the time.

Nuclear Waste Policy Act of 1982, as (11) Gauge, meter and computer 7. Section 2.1005 is revised to read as amended (42 U.S.C. 10134(a)(2)(A)) .. settings; follows.

• * * *

• ill) Probe locations; § 2. 1005 Exclusions.

Searchable full text means the iv) Logging intervals and rates;

~v) Data logs in whatever form The following material is excluded electronic indexed entry of a document from the requirement to provide that allows the identification of specific captured, (vi) Text data sheets, electronic access, either pursuant to words or groups of words within a text § 2 1003, or through derivative ii) Equations and sampling rates; file. iii) Sensor data and procedures; discovery pursuant to§ 2.1019(1)-

Topical Guldelines means the set of ix) Data Desert tions; (a) Official notice materials; topics set forth in Regulatory Guide ~ ) Field and laboratory notebooks; (b) Reference books and text books; 3.69, Topical Guidelines for the (xr) Analo~ computer, meter or other (c) Material pertaining exclusively to Licensing Support System, which are device print-outs; administration, such as material related intended to guide the scope of (xii) Digital computer print-outs, to budgets, financial management, "documentary material". (xiil) Photographs, personnel, office space, general (xiv) Graphs, plots, strip charts, distribution memoranda, or

§ 2. 1002 [Removed and reserved] sketches; procurement, except for the scope of

4. Section 2.1002 is removed and (xv) Descriptive material related to the work on a procurement related to reserved. information identified in paragraph repository siting, construction, or

5. Section 2.1003 is revised to read as (b)(I) of this section operation, or to the transportation of follows: (2) Each potential party, interested spent nuclear fuel or high-level waste; governmental participant, or party shall (d) Press clippings and press releases;

§ 2.1003 Availablllty of material. make available in an electronic file, (e) Junk mail; (a) Beginning in the pre-license subject to the claims of privilege in (f) Preferences cited in contractor application phase, subject to the § 2.1006, only a bibliographic header for reports that are readily available; exclusions in§ 2.1005 and paragraphs each item of documentary material that (g) Classified material subject to (b) and (c) of this section, each potential is not suitable for image or searchable subpart I of this part; party, interested governmental full text. (h) Readily available references, such participant or party, shall make (c) Each potential party, interested as Journal articles and proceedings, available to other potential parties, governmental participant, or party shall which may be subject to copyright.

60796 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules

8. Section 2.1006 is revised to read as (b) Public availability of paper and and made electronically available. Upon follows: electronic copies of the records, as well order of a duly appointed presiding as duplication fees, and fee waiver for officer, the responsible official shall

§ 2.1006 Privilege.

those records, is governed by the update this certification.

(a) Subject to the requirements in Freedom of Information Act (FOIA) 12. Section 2.1010 is revised to read

§ 2.1003(c), the traditional discovery regulations of the respective agencies. as follows:

privileges recognized in NRC (c) Documents to which electronic adjudicatory proceedings and the § 2.101 o Pre-License Appncatlon Presiding access has been provided by other Officer.

exceptions from disclosure in § 2. 790 parties, potential parties, or interested may be asserted by potential parties, governmental participants pursuant to (a) (1) The Commission may designate interested governmental participants, this subpart shall not be considered as one or more members of the and parties. In addition to Federal agency records of the Nuclear Commission, or an atomic safety and agencies, the deliberative process Regulatory Commission or the licensing board, or a named officer who privilege may also be asserted by State Department of Energy unless and until has been delegated final authority on and local government entities and they have been entered into the docket the matter (Pre-License Application Indian Tribes. of the proceeding pursuant to § 2. 702 for Presiding Officer) to rule on disputes (b) Any document for which a claim purposes of the FOIA, 5 U.S.C. 552, if over the electronic availability of of privilege is asserted, but is denied in these documents remain under the documents during the pre-license whole or in part by the Pre-License custody and control of the agency or application phase, including disputes Application Presiding Officer or the organization that identified the relating to privilege, and disputes Presiding Officer, must be provided in documents Requests for access relating to the implementation of the electronic form by the party, interested pursuant to the FOIA to documents recommendations of the Advisory governmental participant, or potential submitted by a Federal agency shall be Review Panel established under party that asserted the claim to- transmitted to that Federal agency. §2.lOll(e).

10. Section 2.1008 is revised to read (2) The Pre-License Application (1) The other participants; or as follows: Presiding Officer shall be designated (2) To the Pre-License Application before the integrated electronic Presiding Officer or to the Presiding § 2.1008 Potential parties. information is scheduled to be available.

Officer, for entry into a Protective Order (b) The Pre-License Application file, if the Pre-License Application Any person who complies with the regulations in this subpart, including Presiding Officer shall rule on any claim Presiding Officer or the Presiding of document withholding to Officer so directs under§§ 2.1010(b) or § 2.1003, and agrees to comply with the orders of the Pre-License Application determine-2.1018(c). (!) Whether it is documentary Presiding Officer designated under (c) Notwithstanding any availability material within the scope of this

§ 2.1010, may have electronic access to of the deliberative process privilege subpart; the integrated electronic information under paragraph (a) of this section, (2) Whether the material is excluded made available pursuant to this subpart circulated drafts not otherwise under§ 2.1005; in the pre-license application phase.

privileged shall be provided for (3) Whether the material is prvileged

11. Section 2.1009 is revised to read electronic access pursuant to or otherwise excepted from disclosure as follows.

§2.1003(a). under §2.1006; 9 Section 2.1007 is being revised to § 2. 1009 Procedures. (4) If privileged, whether it is an read as follows: (a) Each potential party, interested absolute or qualified privilege; governmental participant, or party (5) If qualified, whether the document

§ 2. 1007 Access.

shall- should be disclosed because it is (a) (1) A system to provide electronic (1) Designate an official who will be necessary to a proper decis10n in the access to the integrated electronic responsible for administration of its proceeding; information shall be provided at the responsibility to provide electronic files (6) Whether the material should be headquarters of DOE, and at all DOE of documentary material ; disclosed under a protective order Local Public Document Rooms (2) Establish procedures to implement containing such protective terms and established in the vicinity of the likely the requirements in§ 2.1003; conditions (including affidavits of candidate site for a geologic repository, (3) Provide training to its staff on the nondisclosure) as may be necessary and beginning in the pre-license application procedures for implementation of the appropriate to limit the disclosure to phase. responsibility to provide electronic files potential participants, interested (2) A system to provide electronic of documentary material; governmental participants and parties in access to the integrated electronic (4) Ensure that all documents carry the proceeding, or to their qualified information shall be provided at the the submitter's unique identification witnesses and counsel. When headquarters Public Document Room of number; Safeguards Information protected from NRC, and at all NRC Local Public (5) Cooperate with the advisory disclosure under section 14 7 of the Document Rooms established in the reVIew process established by the NRC Atomic Energy Act of 1954, as amended, vicinity of the likely candidate site for under§ 2.1011 (c). is received and possessed by a potential a geologic repository, and at the NRC (b) The responsible official designated party, interested governmental Regional Offices beginning in the pre- pursuant to paragraph (a) (1) of this participant, or party, other than the license application phase. section shall certify to the Pre-License Commission staff, it shall also be (3) The systems for electronic access Application Presiding Officer that the protected according to the requirements specified in paragraphs (a) (1) and (a) (2) procedures specified in paragraph (a) (2) of§ 73.21 of this chapter. The Pre-of this section shall include locations at of this section have been implemented, License Application Presiding Offi.cer Las Vegas, Nevada; Reno, Nevada; and that to the best of his or her may also prescribe such additional Carson City, Nevada; Nye County, knowledge, the documentary material procedures as will effectively safeguard Nevada; and Lincoln County, Nevada. specified in § 2 .1003 has been identified and prevent disclosure of Safeguards

Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60797 Information to unauthorized persons Committee members identified in through the Commission's electronic with minimum impairment of the paragraph (c) (2) of this section who docket.

procedural rights which would be wish to serve. The Secretary of the (b) (1) A person, illclUding a potential available 1f Safeguards Information were Commission shall have the authority to party given access to the integrated not involved. In addition to any other appoint additional representatives to the electronic information under this sanction that may be imposed by the Advisory Review Panel consistent with subpart, shall not be granted party status Pre-License Application Presiding the requirements of the Federal under§ 2.1014, or status as an interested Officer for violation of an order Advisory Committee Act, 5 U.S.C. app. governmental participant under pertaining to the disclosure of I, giving particular consideration to § 2.715(c), ifit cannot demonstrate Safeguards Information protected from potential parties, parties, and interested substantial and timely compliance with disclosure under section 147 of the governmental participants who were not the requirements of§ 2.1003 at the time Atomic Energy Act of 1954, as amended, members of the NRC HLW Licensillg it requests participation in the high-the entity in violation may be subject to Support System Advisory Committee. level waste licensing proceeding under a civil penalty imposed pursuant to (2) The Advisory Committee § 2.1014 or§ 2.715(c).

§ 2.205. For the purpose of imposing the membership will initially include the * *

• State of Nevada, a coalition of affected *

• criminal penalties contained in section (d) Access to the pre-license 223 of the Atomic Energy Act of 1954, units of local government ill Nevada application electronic docket or as amended, any order issued pursuant who were on the NRC High-Level Waste electronic docket may be suspended or to this paragraph with respect to Licensing Support System Advisory terminated by the Pre-License Safeguards Information shall be deemed Committee, DOE, NRC, the National Application Presiding Officer or the to be an order issued under section 161 b Congress of American Indians, the Presiding Officer for any potential party, of the Atormc Energy Act of 1954, as coalition of national environmental interested governmental participant or amended. groups who were on the NRC High- party who is in noncompliance with any (c) Upon a final determination that Level Waste Licensing Support System applicable order of the Pre-License the material is relevant, and not Advisory Committee and such other Application Presiding Officer or the privileged, exempt from disclosure, or members as the Commission may from Presiding Officer or the requirements of otherwise exempt from production time to time designate to perform the this subpart.

under§ 2.1005, the potential party, responsibilities in paragraph (d) of this 15. Section 2.1013 is revised to read interested governmental participant, or section. as follows:

party who asserted the claim of (d)(l) The Advisory Review Panel withholding must make the document shall provide advice to- § 2.1013 Use of the electronic docket available in accordance with the (i) NRC on the fundamental issues of during the proceeding.

provisions of this subpart within two the type of computer system necessary (a) (1) Pursuant to § 2. 702, the days. to access the integrated electronic Secretary of the Commission will (d) The service of all pleadmgs and information effectively under paragraph maintain the official docket of the answers, orders, and decisions during (b) of this section; and proceeding on the application for a the pre-license application phase shall (ii) The Secretary of the Commission license to receive and possess waste at be made according to the procedures on the operation and maintenance of the a geologic repository operations area specified m § 2.1013(c) and entered into electronic docket under the (2) Commencing with the docketing in the pre-license application electronic Commission's Rules of Practice (10 CFR an electronic form of the license docket part 2). application to receive and possess high-(e) The Pre-License Application (2) The responsibilities of the level radioactive waste at a geologic Presiding Officer shall possess all the Advisory Review Panel shall include repository operations area pursuant to general powers specified in§§ 2. 721 (c) advice on- part 60 of this chapter, the Secretary of and 2.718 (i) Format standards for providing electronic access to documentary the Commission, upon determining that (f) The Commission, in designating the application can be properly accessed the Pre-License Application Presiding material to the parties, interested governmental participants, or potential under the Commission's electronic Officer in accordance with paragraphs docket rules, will establish an electronic (a) (1) and (2) of this section, shall parties; (ii) The procedures and standards for docket to contain the official record specify the jurisdiction of the Officer materials of the high-level radioactive

13. Section 2 1011 ls revised to read the electronic transmission of filings, orders. and decisions during both the waste licensing proceeding in as follows: searchable full text, or for material that pre-license application phase and the

§2.1011 Management of electronic high-level waste licensing proceeding; is not suitable for entry ill searchable information. (iii) Other duties as specified in this full text, by header and image, as (a) Electronic document production subpart or as directed by the Secretary appropriate.

and the electronic docket are subject to of the Commission. (b) Absent good cause, all exhibits the provisions of this subpart. 14. In§ 2 1012, paragraphs (a), (b) (1), tendered during the hearing must have (b) 'I;he NRC, DOE, parties, and and (d) are revised to read as follows: been made available to the parties in potential parties participating in electronic form before the accordance with the provisions of this §2.1012 Compliance. commencement of that portion of the subpart shall be responsible for (a) In addition to the requirements of hearing in which the exhibit will be obtaining the computer system § 2.101 (f). the Director of the NRC's offered. The electronic docket contains necessary to comply with the Office of Nuclear Materials Safety and a list of all exhibits, showing where in requirements for electronic document Safeguards may determine that the the transcript each was marked for production and service tendered application ls not acceptable identification and where it was received (c)(l) The Secretary of the for docketing under this subpart if the illtO evidence or rejected. Transcripts Commission shall establish an Advisory Secretary of the Commission determines will be entered into the electronic Review Panel composed of the Advisory that it cannot be effectively accessed docket on a daily basis in order to

60798 Federal Register / Vol. 62, No. 219 / Thursday. November 13, 1997 / Proposed Rules provide next-day availability at the § 2.1017 ComputaUon of time. 19. ln § 2.1019, paragraphs (d), (e),

hearing. In computing any period of time, the and (i) are revised to read as follows:

(c) (1) All filings in the adjudicatory day of the act, event, or default after proceeding on the license application to § 2.1019 Depositions.

which the designated period of time receive and possess high-level begins to run 1s not included. The last * * * *

• radioactive waste at a geologic day of the period so computed is (d) When the testimony is fully repository operations area pursuant to included unless it ls a Saturday, transcribed, the deposition shall be part 60 of this chapter shall be Sunday, or legal holiday at the place submitted to the deponent for transmitted electronically by the where the action or event is to occur, in examination and signature unless the submitter to the Presiding Officer, which event the period runs until the deponent ls ill or cannot be found or parties, and the Secretary of the end of the next day which is neither a refuses to sign. The officer shall certify Commission, according to established Saturday, Sunday, nor holiday. the deposition or, if the deposition is format requirements. Parties and Whenever a party, potential party, or not signed by the deponent, shall certify interested governmental participants interested governmental participant, has the reasons for the failure to sign, and will be required to use a password the right or is required to do some act shall promptly transmit an electronic security code for the electronic copy of the deposition to the Secretary within a prescribed period after the transmission of these documents. of the Commission for entry into the service of a notice or other document (2) Filings required to be served shall electronic docket upon it, one day shall be added to the (e) Where the deposition is to be taken be served upon either the parties and prescribed period If the electronic interested governmental participants, or on written questions as authorized docket is unavailable for more than four under§ 2.1018(a)(2), the party or their designated representatives. When a access hours of any day that would be party or interested governmental interested governmental participant counted in the computation of time, that taking the deposition shall serve a copy participant has appeared by attorney, day will not be counted in the service must be made upon the attorney of the questions, showing each question computation of time. separately and consecutively numbered, of record. 18. Jn§2.1018, paragraph (a)(l) and (3) Service upon a party or interested on every other party and interested the introductory text of paragraph (e) are governmental participant with a notice governmental participant is completed revised to read as follows:

when the sender receives electronic stating the name and address of the acknowledgment ("delivery receipt") §2.1018 Discovery. person who is to answer them, and the that the electronic submission has been (a) (1) Parties, potential parties, and name, description, title, and address of placed in the recipient's electronic the officer before whom they are to be interested governmental participants in mailbox asked. Within ten days after service, any the high-level waste licensing (4) Proof of service, stating the name other party or interested governmental proceeding may obtam discovery by one and address of the person on whom participant may serve cross-questions or more of the following methods:

served and the manner and date of The questions, cross-questions, and (i) Access to the documentary service, shall be shown for each answers shall be recorded and signed, material made available pursuant to docurnentfiled,by- and the deposition certified, returned,

§2.1003; (1) Electronic acknowledgment {il) Entry upon land for inspection, and transmitted in electronic form to the

("delivery receipt"); access to raw data, or other purposes Secretary of the Commission for entry (ii) The affidavit of the person making into the electronic docket as in the case pursuant to§ 2.1020; the service; or (iii) Access to, or the production of, of a deposition on oral examination.

(iii) The certificate of counsel. copies of documentary material for * * * * *

(5) All Presiding Officer and which bibliographic headers only have (1)(1) After receiving written notice of Commission issuances and orders will been submitted pursuant to § 2.1003 (b) the deposition under paragraph (a) or be transmitted electronically to the and (c), paragraph (e) of this section, and ten parties and interested governmental (iv) Depositions upon oral days before the scheduled date of the participants examination pursuant to§ 2.1019; deposition. the deponent shall submit (d) Online access to the electronic {v) Requests for admission pursuant to an electronic index of all documents in docket, including a Protective Order §2.742; his or her possession, relevant to the File if authorized by a Presiding Officer, (vi) Informal requests for information subject matter of the deposition, shall be provided to the Presiding not made electronically available, such including the categories of documents Officer, the representatives of the parties as the names of witnesses and the set forth in paragraph (i) (2) of this and interested governmental subjects they plan to address; and section, to all parties and interested participants, and the witnesses while (vii) Interrogatories and depositions governmental participants The mdex testifying, for use during the hearing. upon wntten questions, as provided in shall identify those records which have Use of paper copy and other images will paragraph (a)(2) of this section. already been made available also be permitted at the hearing. electronically. All documents that are

16. In§ 2.1014, paragraph (c)(4) is * * * *

• not identical to documents already revised to read as follows* (e) A party, potential party, or made available electronically , whether interested governmental participant

§ 2.1014 Intervention. who has made available in electronic by reason of subsequent modification or form all material relevant to any by the addition of notations, shall be

• * * *

• treated as separate documents.

(c) * *

• discovery request or who has responded (2) The following material is excluded (4) The failure of the petitioner to to a request for discovery with a from the initial requirements of § 2.1003 participate as a potential party in the response that was complete when made to be made available electronically, but pre-license application phase. is under no duty to supplement its is subject to derivative discovery under

• * * *

• response to include information paragraph (i)(l) of this section-

17. Section 2.101 7 is revised to read thereafter acquired, except as follows* (!) Personal records; as follows: * * * * * (ii) Travel vouchers;

Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60799 (ill) Speeches; other things, sets forth new procedures information in three ways. First, FOIA (iv) Preliminary drafts; NCUA will employ to implement requires agencies to disclose basic (v) Marginalia. provisions of E-FOIA, such as information about agency structure and (3) Subject to paragraph (1)(6) of th1s expedited treatment of requests and general rules of procedure within the section, any party or interested multi-track processing. The proposed agency by publication in the Federal governmental participant may request rule also clarifies the information which Register. Second, FOIA requires from the deponent a paper copy of any must be included in FOIA requests so agencies to make certain categories of or all of the documents on the index that NCUA can process them. Other records available for the public to that have not already been provided proposed changes to the rule are inspect and copy. Many agencies have electronically. designed to provide guidance to the established public reading rooms to (4) Subject to paragraph (i) (6) of this public on how to obtain records comply with this requirement And, section, the deponent shall bring a contained in the files of the Office of third, FOIA requires agencies to respond paper copy of all documents on the Inspector General. to individual requests for other specific index that the deposing party or DATES: Comments must be submitted on agency records. Records must be interested governmental participant or before January 12, 1998. released unless one or more ofFOIA's requests that have not already been ADDRESSES: Comments should be nine statutory exemptions applies.

provided electronically to an oral directed to Becky Baker, Secretary of the Under E-FOIA, public access to deposition conducted pursuant to Board. Mail or hand-deliver comments "reading room" records, which are paragraph (a) of this section, or in the to: National Credit Union those records that must be made case of a deposition taken on written Administration, 1775 Duke Street, available for inspection and copying, questions pursuant to paragraph (e) of Alexandrta,Virginia22314-3428.Fax will be enhanced in two ways. The this section, shall submit such comments to (703} 518-6319. E-mail categories of records which fall within documents with the certified comments to boardmail@ncua.gov. the "reading room" provision of FOIA def>_?sitlon. Please send comments by one method have been expanded. Previously, three (5) Subject to paragraph (i) (6) of this only. categories of records were required to be section, a party or interested FOR FURTHER INFORMATION CONTACT:

made available for inspection and governmental participant may request Dianne Salva, Staff Attorney, or Sheila copying: Final opinions, including that any or all documents on the index Albin, Associate General Counsel, (703) concurring and dissenting opinions, as that have not already been provided 518-6540. well as orders, made in the adjudication electronically, and on which it intends of cases; statements of policy and to rely at hearing, be made SUPPLEMENTARY INFORMATION: interpretations which have been electronically available by the deponent. Backgrotmd adopted by the agency and are not (6) The deposmg party or interested published in the Federal Register; and governmental participant shall assume The Freedom of Information Act administrative staff manuals and the responsibility for the obligations set (FOIA) was enacted in 1966 to establish instructions to staff that affect a member forth in paragraphs (i)(l), (1)(3), (1)(4), the right of any member of the public to of the public. Under E-FOIA two new and (i) (5) of this section when deposing obtain access to government categories have been added: Records someone other than a party or interested information. FOIA was amended several released under the FOIA after March 31, governmental participant times before 1996, when the Electronic 1997, which the agency determines have Freedom of Information Act become or are likely to become the Amendments of I 996, Pub. L. 104-231. subject of subsequent requests, and a Dated at Rockville, MD, thls 6th day of November, 1997. -was enacted. E-FOIA has twin goals of general index of the new category of making records contained in records.

For the Nuclear Regulatory Commissmn government files more easily accessible Public access to reading room records John C. Hoyle, to the public and improving will be further enhanced by the Secretary of the Commission. administration of FOIA programs in the provision in E-FOIA which requires

[FR Doc 97-29884 Flled 11-12-97; 8*45 am] agencies. In particular, Congress moved that agencies make their reading room BR.UNG CODE 7oll0-01-P to amend the FOIA because it found that records available electronically, if they government agencies were incrE¥3Singly are created by the agency on or after using computers to conduct agency November 1, 1996. The "electronic NATIONAL CREDIT UNION business and store valuable agency reading room" can be implemented by ADMINISTRATION records and information. When the placing records on the internet Senate passed FOIA in 1966, the As for individual requests, E-FOIA 12 CFR Part 792 government is reported to have had just clarifies that reasonable efforts must be 1,826 computers in use. By 1994, in made to search for records The Freedom of Information Act and addition to the proliferation of electronically. It also requires agencies Privacy Act individual personal computers used by to provide requesters with records in the AGENCY: National Credit Union government employees, the number of form or format the requester chooses, if Administration (NCUA). government computers had climbed to the agency can readily do so. Perhaps ACTION: Proposed rule. almost 35,000. In recognition of the vast most fundamental to the new law is its amount of information the government provision that clarifies that records, if

SUMMARY

NCUA proposes to revise its maintains in electronic format, E-FOIA they meet other legal requirements, are regulations governing the disclosure of was designed to ensure continued subject to FOIA even though they are information pursuant to the Freedom of public access to government maintained in electronic format Wormation Act (FOIA) to reflect recent information, including that maintained The other goal of E-FOIA was to changes to FOIA brought about by the in electronic format improve the administration of FOIA enactment of the Electronic Freedom of FOIA ensures that the public has programs in the agencies. Congress Information Act Amendments of 1996 access to government information by found that due to a lack of resources, (E-FOIA). The proposed rule, among requiring agencies to disclose some agencies suffered stubborn

Federal Register/Vol. 63, No. 21 /Monday, February 2, 1998/Proposed Rules 5315 NUCLEAR REGULATORY examined at the NRC Public Document SUPPLEMENTARY INFORMATION:

COMMISSION Room, 2120 L Street NW. (Lower Level),

I. Background Washington, DC. These same documents 10 CFR Part 2 also may be viewed and downloaded The Federal Home Loan Bank Act electronically via the interactive (Bank Act), 12 U.S.C. 1421 et seq.,

RIN 315o-AF88 rulemaking website established by NRC authorizes the Finance Board to issue Procedures Applicable to Proceedings for this rulemaking. consolidated Bank obligations that are for the Issuance of Licenses for the FOR FURTHER INFORMATION CONTACT:

the joint and several obligations of the Receipt of High-Level Radioactive Kathryn L. Winsberg, U S. Nuclear Banks in order to provide funds for the Waste at a Geologic ReposHory Regulatory Commission, Washington, Banks, 12 U.S C 1431(b), (c). The Bank AGENCY: Nuclear Regulatory DC 20555, telephone (301) 415-1641. e- Act further authorizes the individual mail KLW@nrc.gov. Banks to issue debt securities subject to Commission rules and regulatlons adopted by the ACTION: Proposed rule; extension of Dated at Rockville, Maryland, this 27th day Finance Board, 12 U.S.C 143l(a) The public comment period. of]anuary, 1998. Finance Board has never adopted For the Nuclear Regulatory Comrnisslon. regulations concerning the issuance of

SUMMARY

On November 13, 1997 (62 FR Annette Vietti-Cook, debt securities by the individual Banks, 60789), the NRC published for public Acting Secretary of the Commlsswn. and the Banks have never issued debt comment a proposed rule to amend the securities pursuant to this authority

[FR Doc. 98-2445 Ftled 1-30--98, 8*45 am]

Rules of Practice for the licensing However, the Banks are corporate BIU.ING CODE 7690--01...P proceeding on the disposal of high-level entities with both mandatory and radioactive waste at a geologic voluntary stockholders. Federal savings repository (HLW proceeding). The associations automatically become comment period for this proposed rule FEDERAL HOUSING FINANCE BOARD members of the FHLBank in the district was scheduled to expire on January 27, in which the Federal savings 12 CFR Part 937 1997. In a letter dated December 31, association's principal office are 1997, and received by NRC on January [No. 98-02] located. See 12 U.S.C 1464(f). Other 12, 1998, a representative of Clark eligible financial mstitutions may apply County, Nevada, requested a 30 to 60- Financial Disclosure by Federal Home for and be granted membership in a day extension of the comment period. Loan Banks Bank if they meet the statutory and This extension is requested to allow regulatory membership eligibility AGENCY: Federal Housing Finance Clark County, Nevada, and other criteria set forth in the Bank Act, see 12 Board affected units of local government, U.S.C. 1424 and other regulatory whose funding for participation in the ACTION: Proposed rule.

requirements, see 12 CFR part 933 As HLW proceeding has only recently been

SUMMARY

The Federal Housing Finance a condition of membership, all members restored, sufficient time to review the Board (Finance Board) is proposing to are required to maintain a minimum proposed rule and submit comments. In amend its regulations to add a stockholding in their respective Banks.

response to this request, the NRC has requirement that the Federal Home Loan See 12 U S.C. 1426. The aggregate decided to extend the comment period Banks (Banks) provide annual audited stockholder investments in the Banks for 60 days. financial statements, and quarterly range from $700 million in the Bank of DATES: The comment period has been unaudited frnancial statements, to their Topeka, to more than $3 billion m the extended 60 days and will now expire members, both in conformance with the Bank of San Francisco.

on March 30, 1998. Comments requirements promulgated by the Pursuant to section 3(a) (2) of the submitted after this date will be Securities and Exchange Comnussion Securities Act of 1933, 15 USC considered if it is practical to do so, but (SEC). This amendment is intended to 77 c(a) (2)), (Securities Act), securities assurance of consideration cannot be codify current prevailing practice at the issued by both the Finance Board and given except for comments received on Banks, and to establish uniform the Banks are exempt from the or before this date. financial disclosure requirements and registration requirements of the ADDRESSES: Send comments by mail standards for the Banks. Securities Act. Section 3(a) (2) exempts addressed to the Secretary, U.S. Nuclear DATES: Written comments must be from registration and other requirements Regulatory Commission, Washington, received in writing on or before March of the Securities Act, inter alla, DC 20555-0001. Attention: Rulernakings 19, 1998. securities issued or guaranteed by "any and Aqjudications Staff. person controlled or supervised by and Hand-deliver comments to: 11555 ADDRESSES: Comments should be acting as an instrumentality of the Rockville Pike, Rockville, Maryland, mailed to: Elaine L Baker, Secretary to Government of the United States between 7:30 am and 4*15 pm on the Finance Board, Federal Housing pursuant to authority granted by the Federal workdays. Finance Board, 1777 F Street, NW., Congress of the United States " 15 You may also provide comments via Washington DC 20006. Comments will U.S C. 77c(a)(2) .

the NRC's interactive rulemaking web . be available for public inspection at this Classes of securities issued by the site through the NRC home page (http:/ address. Finance Board and the Banks similarly

/www.nrc.gov). This site provides the FOR FURTHER INFORMATION CONTACT: are exempt from the registration and availability to upload comments as files Joseph A. McKenzie, Director, Financial reporting requirements of the Securities (any format), if your web browser Analysis and Reporting Division, Office Exchange Act of 1934 (15 U.S.C 78a et supports that function. For information of Policy, 202/ 408-2845, or Deborah F seq.) (Exchange Act) pursuant to section about the interactive rulemaking site, Silberman, Acting General Counsel, 3(a)(42) of the Exchange Act (15 U S.C.

contact Ms. Carol Gallagher, (301) 415- Office of General Counsel, 202/ 408- 78c(a)(42)) Section 3(a)(42)(B) 5905; e-mail CAG@nrc.gov. 2570, Federal Housing Finance Board, designates as securities exempt from Documents related to this rulemaking, 1777 F Street, NW., Washington DC registration and reporting under the including comments received, may be 20006. Exchange Act, "government securities,"

From: John Hoyle To: FXC, KLW, TWD2.TWP7.MJB2 Date: 12/22/97 5:38pm

Subject:

COMMENTS BY DENNIS BECHTEL, CLARK COUNTY, NV Kathryn/Chip/Mike-Thanks for joining me irl the 12/16 meeting with Dennis Bechtel, the LSSARP representative from Clark County, NV. I have attached a bnef write-up of the thoughts he expressed at the end of the meetmg about the proposed amendments to the LSS rule. I'm sure he will have further comments when he has had more tune to study the changes in detail.

As you recall, Dennis noted that the affected units of local government were expecting to meet on January 15 to discuss the sharing of the long awaited funding they will be receiving from DOE. Smee many of the local governments had not been participating recently on LSS matters because of the reduction of staff due to lack of funding, this new funding should allow them to participate once more.

Dennis expressed the view that, with funding available again, the local governments participating on the LSSARP would probably be interested in a face-to-face meeting in Nevada at which they could be briefed by NRC on the proposed changes to the LSS rule and ask questions/seek clanfication on the issues raised by the proposal to eliminate the LSS as a urnquely designed stand-alone system. He noted that because the funding would not be available until later in January, the local governments may wish to request an extension of the comment response date for at least 30 days beyond the current date of January 27, 1998.

I'll let you know if I hear further from Dennis on this subject.

John CC: TWD2.TWP7.JTG1, TWD1.1WP5.AEL1, WNPl.JRG, WNPl.BWJ ...

United States Nuclear Regulatory Commission Office of Public Affairs Washington, DC 20555 Phone 301-415-8200 Fax 301-415-2234 lntemet:opa@nrc.gov No. 98-26 FOR IMMEDIATE RELEASE (Thursday, February 12, 1998)

NRC SCHEDULES MEETING OF LICENSING SUPPORT SYSTEM ADVISORY REVIEW PANEL The Nuclear Regulatory Commission will hold a meeting in Las Vegas in late February to discuss proposed amendments to regulations concerning the design and operation of its licensing support system for the projected high-level waste repository .

The licensing support system is an electronic information management system established to maintain documents for the future licensing proceeding of a high-level waste repository. The Licensing Support System Advisory Review Panel was established in 1989 to advise the NRC and the Department of Energy about the design, development, and operation of the licensing support system. The NRC is considering amending its rules to allow more flexibility of new information management technologies into licensing the repository because current technology has advanced to a level beyond the original concept.

The panel's meeting will take place on February 24 and 25 at the offices of the U.S.

Department of Energy, 232 Energy Way, Room A106, North Las Vegas, Nevada. The first day's session is scheduled to run from 8:30 a.m. to 4:30 p.m. The second day's meeting is scheduled from 8:30 to 10:00 a.m.

Panel members include representatives from the state of Nevada; a coalition of counties in Nevada and California; the National Congress of American Indians; the Nevada Nuclear Waste Task Force; the nuclear industry; DOE; NRC; and other federal agencies.

Proposed amendments to be discussed at the meeting were published for public comment in the Federal Register last November 13. The comment period expires March 30.

Individuals wishing to make oral presentations or file written statements atthe meeting, should contact John Hoyle, Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, D.C. , 20555: telephone 301-415-1969.

SUMMARY

OF INFORMAL COMMENTS BY DENNIS BECHTEL ON PROPOSED LSS RULE AMENDMENTS DECEMBER 16, 1997 Mr. Dennis Bechtel, the Clark County '(NV) representative on the LSS Advisory Review Panel, provided the following comments in his informal meeting with NRC staff:

o The formal LSSARP would appear to have considerably more stature than the informal users group on which the NRC seeks comment. How can the current level of "standing" be preserved if the LSSARP as a formal FACA advisory committee is terminated?

o There is concern that if the House passed language of the current Interim Waste bill prevails affected County status would be g'iven only to Nye County and Lincoln County. How might that jmpact the ability of the other Counties to continue to participate on the LSSARP, or on the informal users group which might replace it?

o What is the status of the Topical Guidelines? How did the subjects of environmental issues and socio-economic issues get handled?

o What is the "system" which is referred to in Section 2.1007 for use by the public to gain access at the PDR, the LPDRs and the Counties?

o Clark County continues to feel very strongly about retention of the LSS Administrator concept in the rule. A person is needed to monitor the activities of the participants, the availability and responsiveness of the various automated databases, and to help set priorities for users/participants. The County questions whether the pre-licensing ASLB is the proper entity for the role required.

o There is some concern with use of the phrase "Regulatory Flexibility" in the Statement of Consideration, although required by the Regulatory Flexibility Act.

Unless defined more carefully, the public may consider the words are being used to describe a process to speed the proce~dingup in some way detrimental to stakeholders. *,

o After the comment period has ended, and the staff has prepared its analysis of comments and the proposed wording of the final rule, can the LSSARP be given early access to such a paper before the Commission acts upon it?

o Will the new type of LSS be tested before it is relied upon by the participants?

Federal Register/Vol. 63, No. 21 /Monday, February 2. 1998/Proposed Rules 5315 NUCLEAR REGULATORY examined at the NRC Public Document COMMISSION Room, 2120 L Street NVv. (Lower Level),

Washington, DC. These same documents 10 CFR Part 2 also may be viewed and downloaded RIN 3150-AF88 electronically via the interactive rulemaking website established by NRC Procedures A.ppllcable to Proceedings for this rulemaking.

for the Issuance of Licenses for the FOR FURTHER INFORMATION CONTACT:

• Receipt of Hlgh-Levet Radioactive Kathryn L. Winsberg, U.S. Nuclear Waste at a Geologic Repository Regulatory Com.mission, Washington, AGENCY: Nuclear Regulatory DC 20555, telephone (301) 415-1641, e-Commission. mail KLW@nrc.gov.

ACTION: Proposed rule; extension of Dated at Rodvtlle, Maryland, this 27th day public comment period. of January, 1998.

For the Nuclear Regulatory Comm1"ion.

8UMMARY: On November 13, 1997 (62 FR Annette Vietti-Cook, 60789), the NRC published for public Acting Secretary of the Commission.

comment a proposed rule to amend the

!FR Doc. 98-2445 Filed 1-30-98; 8:45 am)

Rules of Practice for the licensing BILUNCl CODE 7Q0-01.P ..

proceeding on the disposal of high-level radioactive waste at a geologic repository (HLW proceeding). The comment period for this proposed rule was scheduled to expire on January 27, 1997. In a letter dated December 31, 1997, and received by NRC on January 12, 1998, a representative of Clark County, Nevada, requested a 30 to BO-day extension of the comment period.

This extension is requested to allow Clark County, Nevada, and other affected units of local government, whose funding for participation in the HLW proceeding has only recently been restored, sufficient time to review the proposed rule and submit comments. In response to this request, the NRC has decided to extend the comment period for 60 days.

• DATES: The comment period has been extended 60 days and will now expire on March 30, 1998. Comments submitted after this date will be considered if It la practical to do so, but assurance of consideration cannot be given except for comments received on or before this date.

ADOIESSES: Send comments by mail addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Attention: Rulemakings and Adjudications Staff.

Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:30 am and 4:15 pm on Federal workdays.

You may also provide comments via the NRC's interactive rulemaking web site through the NRC home page (http:/

/www.nrc.gov). This site provides the availability to upload comments as files (any format), if your web browser supports that function. For information about the interactive rulemaldng site, contact Ms. Carol Gallagher, (301) 415-5905; e-mail CAG@nrc.gov. **

Documents related to this rulemaking, including comments received, may be

60789 Proposed Rul~s Fedanlhglater Vol .62. No. *219 Thunday, No¥IIDlhar 13. 1997 Thia aection of the FEOERAl. REGISTER availability to upload comment.a as files which the ~ and the interests contains notices to the public of the proposed (any format), if your web browser ' affected by a n1lema'king meet to ll8uance of rules and regulationa. The supports that function. For informatlon attempt to reach a consenaua on a draft purpose of these notices Is to give lnlerelled about the interactive rulemaking site, proposed rule. ff a comensua is reached, persona an opportunity to participate In the contact Ms. Carol Gallagher, (301) 415-_ the agency publishes the negotiated rule

'incl.

rule making prior to the adoption of the Ina!

rules. - 5905; e-mail CAGOnrc~. as the agency's proposed rule. The

• Documents related to thia rulema'king. CommisaiQn sefected the negotiated commenta :n,a,ived, may be n1lemaking l\pproech to address the LSS NUCLEAR .REGULATORY exaTUined at the NRC Public Document issue for several reasom. In 1987, the COMMISSION Room, 2120 L Street NW., (Lower idea of uae of an electronic information Level), Washington., DC. These same management lystem in a Commission 10CFR Part2 documents also may be v i ~ and . adjudicatory proceeding was novel, not R1N 3150-AFIS downloaded electronically" via the only for the Commission, but in general.

interactive rulemaktng website Therefore, the development of the rules Procedura Appllcable to Proceedings established by NRC for this ndema'king for the use of IUch a system would for the Issuance of Licenses for the FOR FURTHER INFORMATION CONTACT: benefit from diacmsion and joint Receipt of High-level Radioactive Kathryn L. Winsberg. U.S. Nuclear . problem solving by those who might Waste at a Geologic Repository Regulatory Commission, Wuhington. ultimately use the system and bad DC 201555, telephone (301) 415-1641, experience with the Commlllllion's AG!NCY: Nuclear Regulatory e-mail KLWOmc.gov. tradltibnal adjudicatory process.

CommiMion. SUPPLDll!NTARY -.&TION: Furthermore, the potential uaers of the ACTION: Proposed rule. -- -r-- LSS possessed unique information that L Backgroand would be important to the design of the SUMIIARY: The Nuclear Regulatory The existing procedures for Hcensea . system, such as their computer Com.misafon J.s proposing to amend Im to receive high-level radioactive waste capability and the amount and types of Rules of Practice for the li.cenaing at a geologic repoattory wen, developed relevant documents that they m.ight proceeding on the disposal of high--level to address the Nuclear Regulatory generate. In addition, the JlOlential for radioactive waste at a geologic CommlllBion's concern regarding how COil58DSUII was enhanced by the fact that repository (HLW proceeding). The best to review the U.S. Department of the LSS rule focuaed on procedUI811 for proposed amendments are intended to Energy (DOE) license app*llcation~..auo.

..... for a conducting the licensing process that allow application of technological first-of-a-kind bigh-levol l'BGloactive might benefit all parties, rather than developmenm that have occurred since waste (HLW) repository during the 3- focusing on suhstantive technical the original rule was adopted in 1989, year time period dictated by Section criteria for a licensing process. Finally, while achieving the original goals of 114(d) of the Nuclear Waste Policy Act. the IIUCC8S8 of the LSS concept facilitating the Commfsslon's ability to The Commission believed i* necessary depended upon potential parties comply with the schedule for decision to reduce the time normally spent on

• voluntarily comp~ with the .

on the construction authorization for the the discovery process at the start of a licensing process fur document repository contained in Section 114(d) licensing proceeding and the time- identification and mbmiulon in the of the Nuclear Waste Polley Act, and conauming service of documents du,rlng period before the OOE license providinR for a thorough technical review of the license application and the proceeding if thfl OJmmfufon were - application WBII submitted. Therefore, to reach its decision within the allotted the involvement of interested parties in equitable access to information for lb~ time. The Llcensing Support System the development of the provisions to parties to the hearing. (LSS) concept, an electronic information govern the use of the LSS waa essential.

DATES: Submit commenm by January 27, managemimt system. was created to The Commission initiated the 1998. Comments received after this date achieve thia time reduction by making negotiated rulema'king in August 1987.

will be considered if it ill practical to do the informatlon and data supporting a The negotiating committee, composed of 110, but the NRC ill able to BA8Ul'9 DOE application available State. local, and tribal governments, conaideration only for comments simultaneously in a centralized database industry representatives, NRC, OOE, received on or before this date. to all interested parties before the* and environmental groups, completed ADDRESSES: Send comments by mail application is submitted and formal its work in July 1988. Except for the addressed to the Secretary, U.S. Nuclear NRC review begin.a. ~mging induatry coalition, all the parties on the Regulatory Commission, Washington, information management technologies negotiating committee agreed on the text OC 20555-0001. Attention: Rulemakings for issue identification, electronic

• ana supplementary information of a and Adjudications Staff. storage and retrieval, and electronic , draft proposed rule. However, even the Hand-deliver comments to: 11555 mail were recommended for these one dissenting party, the industry Rockville Pike, RockviLe, Maryland, functions to help achieve the objectives representative, had been a full and between 7:30 am and 4:15 pm on of more effective and efficient review. active participant in the drafting of the Federal workdays. . The Commission employed the regulatory text and supporting You may also provide comments via tecbnique of negotiated rulemaking to information. Industry did not join the the NRC's interactive rulemaking web develop the regulations governing the final consensus at the end of the process site through the NRC home page (http:/ development and use of the LSS. based on its belief that the use of a new

/www.nrc.gov). This site provides the Negotiated rulemaldng is the process by technology in the licensing process

60790 Federal Register / Vol 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules would not prove coat-beneficial. At that accumulation of potential licenaing geologic repository. This would time, the cost of the LSS was estimated infonnation. elJmlnate the LSS as a uniquely by OOB to be in the $200 million range. Because of the length of time involved designed stand-alone system, while still The Commission. recognlz1ng the and the narrowing of the repository maintaining the following primary agreement among the other parties on development program, much of the functions ol the LS8 as a mecbaniam. for the negotiating committee, decided to early material thought to be relevant at the:

publlah the negotiated draft proposed the time the rule was developed may no (1) Diacovery of documents before the rule as the Commission's proposed rule longer be relennt to the actual licensing llcenae application ii filed; in November 1988. Because ofthia proceeding that may not begin until (2) Blectronic transmission of fi1inp effort. the final LSS rule (10 CFR part 2, about 2002. Also because of the

• by the parties during the proceedini:

subpart D, "ProcedUl'88 Applicabfe to extended period of tfme It has taken to (3) Electronic transmlmon of onfm Proceeding for the lmlance of Licenses develop the LSS for DOE's use as a and decisions related to the proceeding; for the Receipt of Hlgh-,Level dcx:ument managernA11t system, it and .

Radioactive Waste at a Geologic appears that.all accumulated documents (4) Access to an electronic version of Repoaitory'p, was promulgated on April may not have been identified and the docket.

24, 1989 (54 FR 14925). maintained properly for t:r&ckmg of The Commission believes that the The LSS rule uaigned the LSS Jmportant repository development proposed rule would continue to Ad.min.1atrator (LSSA) function to the *

• decision& In addition, because support the model schedule for NRC which would be raspomfble for the document capture may now involve conducting the licensing proceeding management. sdmfnfstratlon, operation, much l.aJ:xer b&cklogs than originally within the 3-year statutory period that and maintenance of the LSS; punuant contemplated, the risk of falling to wu published in the Statement of to DOB's agreement, gave 00B captore all the material originally Considerations for the origina.l 10 CFR respomibility for the design, . . required to be placed in the LSS la part 2, subpart J, rule pubfiahed on dmlopment, and Jmplementatlon of . su&.tantially larger than origlnally April 14, 1989 (54 FR 14925, 14939).

the LSS; and established the charter of assumed. In order for the current The proposed rule would elJminate the LSS Advisory Review Panel

• Subpait Jrules to apply, the LSSA mwrt the current prescriptive requirement in (LSSARP) to provide CODSemU.1 '" .

• certify that the DOE has complied with 10 CFR part 2, subpart J. for a guidance on the design and the requirement to enter all relevant centralized "Licensing Support System" o.evelopment of the LSS to both NRC documents In the LSS. Therefore, all of administered by the NRC and therefore and DOE. The LSS was intendecf to these factora combine to produce the also would elJminate the requirement provide a central, shared. federally high likelJ.bood that the current rule for an LSS Administrator to ensure the funded databese of licen.smg information b,,ginning in 1995, the year DOE was expected to submit its

• application for a const:ruction permit for the repoeitory. The Con:uniasion subpart J, will subpart G, the procedures for noa cannot be Jmplemented as originally envisioned. If not, then 10 CFR part 2, apply. Instead.

y appllcable ing proceedings.

viability of the central database. To replace these featurea of the existing rule, the proposed rule would require that all potential parties, Including the NRC and DOE, make their documentary material available in electronic form to minor amendment,, further will apply. Thia means that the,:e would me proceduree in a final be no_pre--license application acceas to all other participants beginning in the p on February 26, 1991 {56 documents. pre-liceme application phase. Thia FR7787). . Although the development of the LSS requirement is stated without unduly The Licenaing Support System has remained stalled, the state of restrictive technological specifications, Administrator (LSSA) Willi appointed. in technology in dodument automation and in order to accommodate flexible JanUBl'}' 1989. The LSSARP wu formed, retrieval has overtaken the 1986 . Jmplementation consistent with current holding its 8:rat meeting In December technology on which the original LSS or future technological developments.

1989. Also In December 1989, well was to bel>aSed. The use of computers Documentary material woula be before any serious development work to generate and maintain the complex defined as the material upon which a could be started on the LSS, the docu.ments of a party in litigation la party intends to rely in support of its Department of Energy revised its wideapread and commonplace. The position in the licensing proceed.Jng; repository program schedule to extend Internet ii universally available to tie any material which la relevant to, but its anticipated. license application data disparate and geographically dispersed does not support. that material or that from 1995 to 2001. Co.nSf!(luently, the systems together. Readily available party's position; and all reports and LSS development ~ u l e was commercial software applications can studies, prepared by or on behalf of the extended. . perfmm. the document management potential party, intereated !tOvarnmental functions of the LS8. Therefore, the participant. or party, including ell IL Dfa:uaaion centrallzed LSS envillioned at the time

• related "circulated drafts," relevant to The development of the LSS that was the LSS rule was developed has become the issues set forth in the Topical devised in the original procedural rules obsolete. The enormous expense of Guidelines in Regulatory Guide 3.69, in 10 CFR Pert 2, Subpart J, has not been designing and maintaining a stand-alone regardless of whether they will be relied accomplished during the time that has system required by the current rules upon and/or cited by a party. For the passed since adoption of the rule. Many appears to be an unJU5tifled expense, purposes of this rule, the J)rtr delays and changes in personnel and especia.!).y when it appears u.nllkely that application phase would begin on the program structure have attended the the rule will be able to be implemented. date thet the President submits the site Department of Energy's efforts to succesafully even if the LSS is cree.ted. recommendation to Congress. This develop the LSS. Budgetary shortfalls Consequently, the Commission is timing would ellow access to the and the ~cipated length of time . proposing to amend its rules to allow parties' documentary material enough that it has taken to develop the licensing more flexibility to incorporate the before DOE submits the license application for the repository not only advantages o f ~ information application to allow advance delayed the development of the LSS, but management technologies In the preparation of contentions and also resulted in ll6V8r8l additional years' procedural rules for the licensing of the discovery requests before the Uceme

Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60791 application, but late enough in the all reports end studies, prepared by or

• end also to refer to that act for the repository develojl~ent process to on behalf of the potential party, definition of effected Indian tribe. In.

provide meaningful information. interested governmental participant, or addition, any affected unit of local A Pre-License Application Presiding party, including all related "circulated government, the host State, end any Officer would resolve any disputes over drafts," relevant to the issues set forth affected Indian Tribe would be required electronic access to documents during in the Topical Guidelines in Regulatory to file a list of contentions.

the pre-license application phase. Guide 3.69, regardless of whether they Potential parties would be required to Potential Party will be relied upon and/or cited by a certify to the Pre-License Application party. This definition would be used in This definition would be reviaed to Presiding Officer that they have the rule in S2.1003 to define what remove the reference to the LSS, end to complied with the requirement to - material must be provided in electronic substitute the term integrated electronk provide electronic acceu to their form for llCC88S ~ in the pre- information to describe the material to documentary material. The license application phaae. Therefore the which the potential party will be given requirements of the current rule for an term "documentary material" would be acceaa.

e l ~ c hearing docket would be intended to describe the most important Pm-licen11e Application Electronlc retained, as well as the limitations on body of material and would be defined Docket*

the permissible forms of discovecy after clearly to require that all parties include the application is filed. electronic acceas to any relevant A new definition would be added to The Commlasion is considering two material in their posseuion that does describe NRC's electronic information alternatives regarding the I£S Adviaory not support their position in the system tQ_ receive, distribute, store, and Review Panel. In this proposed rule, licensing proceeding. as well as maintain ~C pre-license application because the concept of the I£S would providing acceas to the material that docket maieria1s during the pre-license be replaced, the requirement for en I£S does support their position, and any application phase.

Advisory Review Panel would be reports end studies prepared by the Pre-UC8IIB8 Application PhCJ$8 .

modified so the panel can advise the party on issues described in the Topical Secretary of the Commission regarding Thia definition is being specified for Guidelines, regardless of wheth81' or not standards end procedures for electronic they would be relied upon or cited by the purposes of this rule to begin on the access to documents end for date that the President submits the site the party. The scope of the documentary maintenance of the electronic docket. material would still '6e governed by the recommendation to the Congreas. This Thia would require renaming of the topical guidelinea. date baa been chosen to allow access to advisory committee and redrafting of the potential parties' docum~tary the committee charter. However, the Electronic Docket . material enough before the license Commission is also considering the A new definition would be added to application to allow advance alternative of replacing the Advisory describe NRC's electronic information preparation of contentions and Review Panel with a more informal system to receive, distribute, store, and discovery requests before the ,

wiers group, end particularly requests maintain NRC adjudicatory docket . application is filed, but late enough in comments from potential parties to the materials in the licensing proceeding. the repository development procesa to m.w repository licensing proceeding provide meaningful information.

Integrated Electronic_lnfonnation regarding these two alternative Searchable Full Tm arrangements.

• A new definition would be added to describe material made available in This definition would be revised to

m. Section-by-Section Description of electroilic form to potential parties, . remove references lo ASCII and to the Chor parties, or interested goverpmental LSS. .

In S2.1000, the reference to S2.709 participants to the licensing proceeding . Topical Guidelinea

• would be removed because it would for the high-level waste geo1ogic require compliance with § 2.708 that repository, either as part of the NRC's A new definition would be added to would not apply to this sub~ pre-license application electronic* describe the set of topics set forth in In S 2.1001, the following definitions. docket or electronic docket or purauant Regulatory Guide 3.69 that are intended would be added, amended, or removed: to elertronic BCC8l!I to documentary to guide the scope of documentary material made available by individual material under this subpart.

ASCII File Section 2.1002 would be removed potential parties, parties, end interested This definition would be removed governmental participants. Thia is a because the I£S would no longer be and no longer used in the rule. term for the information accesa that required. Acceas lo intew.ated electronic Prescriptive references to specific would replace the I.SS in this rule. information would provide the major technical standards would be removed functions which the I.SS was designed to allow flexible implementation LSS Administrator to provide. Paragraph& (c) and (d), .

consistent with developing technology. This term would be eliminated from which state that participation by the the rule because the concept of the I£S host State in the pre-application phase Documentmy Material would also be removed. The Pre-license will not affect its disapproval rights, end The definition of documentary Application Presiding Officer will that this subpart shall not effect any material would be revised to cover resolve disputes about electronic accesa participant's independent right to material upon which a party, potential to documents in the pre-license receive information, would be party, or interested governmental application phase. incorporated in the revised S 2.1003 as participant intends to rely end/or cite in paragraphs (a)(2) and (3).

support of its position in the licensing Party Section 2.1003 would be revised to proceeding; any material or other This definition would be revised to describe information that would be information which is relevant to, but add "affected unit of local government", required to be made available does not support, that material or

• as that term is defined in the Nuclear electronically by all potential parties, information or that party's position; and Waste Policy Act of 1982, as amended, parties, and interested governmental

60792 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules participants (including the NRC and than providing termJnals for access to proposed rule to accommodate a new OOi). This information would have to the I.SS. These systems must be purpose, the advisory committee would be made available to all other maintained by DOE and NRC at the have to be renamed and the committee participants beginning in the pre-license locations specifled in the current charter would have to be redrafted.

application phase, which starts at the version of the rule (except for the

• However, the Commission rs also date of the President's submission of the Uranium Recovery Field Office which considering the alternative of site recommendation to the Congress. no longer exists), beginning in the pre- eliminating the requirement for an The requirements of the rule would be license application phase. advisory committee chartered under the.

simplifled to require only that access to Section 2.1008 would be revised to Federal Advisory Committee Act, and an electronic file be provided. All allow electronic access to the integrated substituting a more informal vohi.ntary references to specific formats would be electronic information to any person users group to perform the functions of removed to allow flexibility in who complies with the requirements of discussing electronic format standards, implementation. The Commission Subpart J, including the requirement in procedures, and other details. II this intends that a potential party, party, or § 2.1003 to make documentary materlal option were adopted, the fl..nal rule interesbfd govemmentaf participant available, and who agrees to comply would be revised to refer to the u.ers might offer electronic accass to its with the orden of the Pre-licenae group. This group would be able to d~entary materlal in a number of Application Presiding Officer. The

• interact using Internet dlscusslon areas different waya. including by providing previous requirement to petition to the (like LSSNet) as well as meetings, video ita documents in electronic form either Pre-llcense Application Presiding

• conferencea, or teleconferences. This to the NRC or to the OOE, to have the Officer would be removed. Wl8l'll group would ideally make use of NRC or the OOH maintain the Section 2.1009 would be revised to the current LSSARP members' documents for electronic access. delete remencas to the LSS and the knowledge and experience. The Although the draft rule would require I.SSA, and to refer instead to the Com.mission is particularly requesting that documentary material be made ruaponsib~ to provide electronic files. comment from potential parties to tha available electronically Mglnning on the The respo le official for each HLW repository concerning their

• date of the President's lite potential party would be required to interest and support for the Informal recommendation to the Congieea, the certify to the Pre-Llcente Presiding users group alternative.

Cnrorninlon would encourage the Offl.cer that procedures to comply with earliest feasible availability of

• S2.1003 have been implemented and Section 2.1012(a) would be revised to documentary material in order to that Its documentary materlal has been allow the Director of the NRC Office of enhance the future smooth operation of made electronically available. A new Nuclear Material Safety and Safeguards the llcensing pmceeding. The ,requirement to update the certification (NMSS) to determine that the paragraplu relating to evaluations and at the request of the presiding officer application would not be acceptable If certiflcatiom by the LS8 Administrator would be added to replace a previous it is not able to be accessed through the would be removed because the LSS (and requirement to provide this certification electronic docket. Section 2.1012(b)(1)

I.SSA) concept would be removed. at 6 month intervals. would be revised to subetitute Section 2.1010 states that the Pre- Section 2.1010 would be revised to integrated electronic information for License Application Presiding Officer delete references to the LSS and the

• IJcenslng Support System so that a will resolve any disputes relating to I.SSA and to refer instead to electronic person who has had access to the electronic access to documents in the acceaa. The reference to petitions for integrated electronic information would pre-license application phae. accau. would be removed to conform to not &e granted party status in the Accordingly, the paragraphs which removal of thia ~ e n t .

• licensing proceeding lf it cannot stated that the application would hava Section 2.10114.& being comidered for demonstrate compliance with the to be docketed under Subpart G if the

• revision in either of two alternative requirements of SZ.1003. Section z.1012 I.SSA did not certify compUa.nce would ways and the Commiuion requests (d) would be nv;ised to substitutQ pre-be removei;i, and Subpart J (including specific comments on these alternatives. license application electronic docket or specifically referenced sectlona of . this proposed rule would revise electronic doclcet for Ucensing Support Subpart G) would unconditionally

• S 2.1011 to reflect that the electronic System to indicate that access to either embody the rules of procedure for~ availability of documentary matmial the pre-Iiceruse application electronic HLW licensing procee_dµ:ig. * .. that ta apecified in this rule no longer docket or the electronic dock.et may be Section 2.1004 would be revised to . requires special equipment. The name swtpended or terminated for failure to provide procedures for providing access and functions of die LSS Advisory comply with the orders of the Pre-License Application Presiding Officer or to a document that baa not previously* Review Panel would be amended to been provided in electronic form and to delete the reference to the LSS and the Presiding Officer.

delete previous references to the LSS substitute tha purpose of arriving at Section 2.1013 would be reviaed to and the I.SSA. standards and procedures to facilitate delete references to the LSS and I.SSA Section 2.10015 would be tevisad to the electronic aa;esa to material and to and would refer to the provision of delete reference to the LSS and to add the electronic docket..Because of the information in electronic form. The requirement in S2.1013(c}(5) to file one

~:a~=~=

an exclusion of readily available broad and non-prescriptive references, such as Journal articles or requ.iremants ~ providing signed paper copy of each filing with proceedings, which may be subject to electronic files in this proposed rule, the the Secretary, NRC, would be removed becaUAe the electronic docket would not co=; 2.1006 would b e ~

refer to providing a document in to procedures to ensure that all

=dry require signed paper copies.

Section 2.1014(c)(4) would delete a electronic fonn and to delete references participants are able to access the reference to the LSS and make the to the LSS and the I.SSA.

• electronic information. Because the LSS failure of a petitioner to participate In Section 2.1007 would be revtaed to concept would be replaced, and the the pre-license application phase a refer to providing systems for access to requirement for an LSS Advisory criterion in considering whether to grant integrated electronic information rather Review Panel would be modified in the a petition to intervene.

Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed l'lules 60793 Section 2.1017 would use the difficult to quantify, however the in the pre-application phase (presided unavailability of the electronic dochd lengthened discovery phase couJd over by a Pre-IJcense Application imtead of the LSS a a justification for prevent the ComrnlssiCJn from meeting Preaiding Officer). This definition of extending the computation of time in the statutory deadline for decision on documentary material would provide the proceeding. the application. This delay could also pre-application acceu to a more Section.11 2.1018 and 2.1019 would be result in possible increased spent fuel focuased l8t of the materlala most revised to delete references to the LS8 storage costs for the additional length of important to the i f = = i n g . h and instead to refer to providing documents electronically. -

the licensing p:roceeding would not.:\~

the entire acceu to of OOB and other In addition. minor editoriaJ changes Option 2: 10 CFR Part 2, Subpart G parties' material, aome of which may no have been made throughout the Because the NRC la developing a new longer be relevant to the licensing proposed rule to improve mdability. system called the Agency-wii:le - .

• proceeding. The electronic docket Documents Access and Management functionality of the LSS would be Envirommmt.1 1mp<<cb Categorical System (ADAMS), which will provide provided by the NRC agency-wide Exdusloa. an agency-wide electronic docket. it . l)'stem with superviaion of the The NRC baa detmmined that thia - would be pouible to rely on axf.sting / Presiding Officer. Participation In tbe proposed regulation is the type of action adjudicatory procedure rules In 10 CPR pre-license appllcation phase would be described in categorical excliimon 10 part 2, subpart G (which will have to be one criterion for participating in the CFR 51.22(c)(1}. Therefore, neither an updated to reflect the electronic docket) bee.ring. After the application is ft.led, in enviromnental impact statement norm to conduct the licensing proceeding. addition to the electronically available environ.mental assessment bu been However, this approach would not matmial, dilcovery would be limited to

• prepared for this proposed regulation. provide p~llcen.se application accea interrogatorlea IID'1. depositions aa in the Paperwork Reduction Act St19ment to documents and could J:eSult In

• cur:rent rule. The specific method of protracted discovery phue. The com of providing elsctronlc,accets1 to Thia proposed rule contains no ming this approach are difficult to clocwnentary would not be specified, information collection requiramenta quantify. However the leogthened which would allow flexibility to and, therefore, is not subject to the discovery phase could pl'8V8Dt the accommodate cummt and future niquirementa of the Paperwork C'.nrnroluion from meeting the statutory tecbnoloiw advancea. Indlvidual parties Reduction Act of 1995 (44 U.S.C. 3501 deedline for decision on the application may givetheir documents In electronic et .eq.). and result in pollible lncreued spent <<orm to NRC or OOE in order to provide hplatory Analysis fuel storage cost.a, u In 0pt!on 1. electronic accea. Becau.le this rule The history of the development of the Option 3. Bzi.slfing Rule Ulli.ng a would unconditionally provide the Distribuhld system procedural 1'l1U39 for the m..w licensing existing rule, 10 CFR part Z, .subpart J, proceeding, there would be no last and the current regulatory problem are This ~roach would allow using minute danger that the proceeding d.esc:rlbed In the Background and linked

• vidual Internet sites to serve would have to be conducted under 10 Diacwlsion sections of this notice. To as the LSS. However, this approach does CFR part 2, subpart G.

address the regulatory problem, aeveral not solve the problem dist:ussed in The C.Ommiu1on believes that Option eltematlve approaches to amending the Option 1 concerning the requirement to 4 provides the most effective solution regulations in subpart Jof part 2 were capture a huge backlog of material that .for maintaining the basic functionality considered. may not have been maintained in a of the LSS conceptual design, while Option 1: Existing Rnle _ manner that would ever permit moat flexibly accolll.lilOdf,ting cunent compliance with the rule, and which and future technological developments.

This approach would not take may not all be relevant to the future The Commission requBBts public advantage of cummt and future licenae application. Therefore, the coats comment on the draft regulatory technology. It would require an of this approach, as in Option 1, would analysis. Comments on the draft enormously expensive custom designed include the possibility thet the LSS rule analysis DlllJ be submitted,to the NRC system to be developed using old compliance finding could not be made as indicated under the Addresses UlfUIIlptions about technological and the proceeding would have to be heeding.

atandards and the universe of "relevant" conducted under 10 CFR part Z, subpart v - 1 ft..._ 11'1-...n.n- c.erti8catio material. At the time of the development G. A lengthened diacovery phase could ---&.......,., .__.., n of the existing rule, the cost of the LSS prevent the Commission from meeting The amendments would modify the was estimated by OOE to be in the $200 the statutory deadline for decision on. Commission's rules of practice and million range. Furthermore, given the the application and result In possible procedures. The rule would be amended large backlog that contains a substantial increased spent fuel storage costs, as in to allow more widely available amount of documents that may no Option 1. electronic access to information before longer be relevant because of the the license application is ft.led.

unanticipated delay In developing the Option 4: Revised Rule With More Participants would be required to make LSS as initially designed in 1988, there Realistic Document Discovery Approach their own documentary material is a substantial chance thet it would be This approach would remove the available electronically. This proposed impossible for the DOE to achieve, and requirement for a central LSS system _ rule would not have a significant for the LSSA to certtfy, compliance with and LSS Administrator, but would economic impact upon a substantiel the provisions of the current rule. in this require each potentiel party to provide number of small entities. The license ca&e, the proceeding would have to be for the electronic availability of both the applicant for the m..w repository would conducted under 10 CFR part 2, subpart materiel it intends to rely upon to be the Department of Energy . DOE G, and could result in a protracted support its position, any material which would not fall within the definition of discovery phase. In addition to the very does not support that material or that a "small entity" in the NRC's size costly and Ineffective system, the

• position. and any report.a or studies standards (10 CFR 2.810). Although a further costs of using this approach are prepared by or for the party, hflginnfng few of the lntervenors in the m..w

60794 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules proceeding would lik.aly qualify as 2111,2133, 2134, 2135);sec. 114(0, and LSS Administrator:; adding small entities, the impact on intervenors Pub. L. 97--425, 96 Stat. 2213, as definitions of Electronic docket, or potential lntervenors would not be emended (42 U.S.C. 10134(0); sec. 102, Integrated electronic mformation, Pre-significant. The requirement for Pub. L.91-190, 83 Stal 853, as license application electronic docket, participants to make their own emended (42 U.S.C. 4332); sec. 301, 88 and Topical Guidelmes; and revising the documentary material available Stat. 1248 (42 U.S.C. 5871). Section5 definitions of Documentary material, electronically Is stated In a manner that 2.102, 2.103, 2.104, 2.105, 2.721 alao Party, Potential party, Pre-license

• would allow ftex.ibility in issued under secs. 102, 103, 104, 105, application phase, and Searchable full Implementation. Furthermore, it is 183, 189, 68 Stat. 936, 937, 938, 954, text, to read as follows:

consistent with current business 955, as amended (42 U.S.C. 2132, 2133, practice to create document5 2134, 2135, 2233, 2239). Section 2.105 I 2. 1001 Definitions.

electronically. Therefore, the exact also issued under Pub. L. 97--415, 96 * * * *

• additional cost5 involved In making the Stat. 2073 (42 U.S.C. 2239). Sections Documentary material means any documentary materials available 2.200-2.206 also wued under secs. material or other information upon electronically are difficult to quantify. 161b, i, o, 182, 186, 234, 68 Stat. 948- which a party, potential party, or However, to avoid those cost5, 951, 955, 83 Stat. 444, as emended (42 interested governmental participant participant5 would have the option of U.S.C. 2201 (b), (i), (o), 2236, 2282); sec. intends to rely and/or to cite in support providing their document5 to NRC or 206, 88 Stat 1246 (42 U.S.C. 5846). of its position in the proceeding for a DOE to maintain eleqronic availability. Section 2.205(1) also issued under Pub. license to receive and possess high-level Thus, in accordance with the Regulatory L. 101-410, 104 Stat. 890, ea amended radioactive waste at a geologic Flexibility Act, 5 U.S.C. 605(b), the NRC by Section 31001(s), Pub. L. 104-1S4, repository operation5 area pursuant to hereby certifles that this proposed rule 110 Stat. 1321-373 (28 U.S.C. 2461 part 60 of this chapter; any material or would not have a significant economic note.) Sections 2.600-2.606 also issued other information that is relevant to, but impact upon a substantial number of under~- 102, Pub. L.91-190, 83 Stat. does not support, that material or small entities. 853, as emended (42 U.S.C. 4332). information or that party's position; and Sections 2.7008, 2.719 also issued under all reports and studies, prepared by or Backfit Analysis 5 U.S.C. 554. Sections 2.754, 2.760, on behalf of the potential party, The NRC has determined that the 2.770, 2.780 also wued under 5 U.S.C. interested governmental participant, or bacldit rules in 10 CFR Chapter 1, 557. Section 2.764 also issued under party, including all related "circulated

§S 50.109, 72.62, and 76.76, do not .esecs. 135, 141, Pub. L. 97--425, gs Stat. drafts," relevant to the issues set forth apply to this rule, and therefore, a 2232, 2241 (42 u.s.c. 10155, 10161). in the Topical Guidelines in Regulatory bac:kfit analysis is not required because Section 2.790 also issued under sec. Guide 3.69, regardless of whether they these emendment5 do not involve any 103, 68 Stat. 936, as amended (42 U.S.C. will be relied upon and/or cited by a provisions that would impose backflt5 2133) and 5 U.S.C. 552. Sections 2.800 party. The scope of documentary as defined in those rules. and 2.808 also issued under 5 U.S.C. material shall be guided by the topical 553. Section 2.809 also issued under 5 guidelines in the applicable NRC List ofSubjecta in 10 CFR. Part 2 U.S.C. 553 and sec. 29, Pub. L.85-256, Regulatory Guide.

Admini5trative practice and 71 Stat. 579, as *amended (42 U.S.C. * * * *

• procedure, Antitrust, Byproduct 2039). Subpart K also issued under sec. Electronic docket means the NRC material, Classifled Information, 189, 68 Stat. 955 (42 U.S.C. 2239); sec. information system that receives, Environmental protection, Nuclear 134, Pub. L. 97--425t 96 Stal 2230 (42 distributes, stores, and retrieves the materials, Nuclear power plant5 and U.S.C. 10154). Subpart L also issued Commission's adjudicatory dock.et reactors, Penalties, Sex discrimination, under sec. 189, 68 Stal 955 (42 U.S.C. materials.

Source material, Special nuclear 2239). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 * * * *

• material, Waste treatment and disposal. Integrated electronic information For the reasons set out in the u.s.c. 2135). means the material that is made preamble and under the authority of the 2. Section 2.1000 is revised to read ea available electronically to parties, Atomic Energy Act of 1954; as amended, follows: potential parties, and interested the Energy Reorganization Act of 1974, governmental participants to the as emended; and 5 U.S.C. 553; the f 2.1000 Scope o f ~

The rules in this subpart govern the proceeding for a license to receive and Nuclear Regulatory Commission is possess high-level radioactive waste at a proposing to adopt the following procedure for applications for a license to receive and possess high-level geologic repository operations area amendments to 10 CFR part 2. pursuant to part 60 of this chapter, as radioactive waste at a geologic repository operations area noticed part of the electronic dock.et or PART 2-RULES OF PRACTICE FOR pursuant to S 2. 101(f)(8) or§ 2.105(a)(5). electronic access to documentary DOMESTIC LICENSING PROCEEDINGS The procedures in this subpart take material, beginning in the pre-license AND ISSUANCE OF ORDERS precedence over the 10 CFR part 2, application phase.

1. The authority citation for part 2 subpart G, rules of general applicability, * * * *

• continues to read as follows: except for the following provisions: Party for the purpose of this subpart Authority: Secs. 161, 161, 68 Stal 948, 953, ss 2.702, 2.703, 2.704, 2.707, 2.711, means the DOE, the NRC staff, the host as amended (42 U.S.C. 2201, 2231); sec. 191, 2.713, 2.715, 2.715a, 2.717, 2.718, Z.720, State, any affected unit of local as amended, Pub. L. 87-61~. 76 StaL 409 (42 2.721, 2.722, 2.732, 2.733, 2.734, 2.742, government as defined in section 2 of U.S.C. 2241); sec. 201, 88 StaL 1242, as 2.743, 2.750, 2.751, 2.753, 2.754, 2.755, the Nuclear Waste Policy Act of 1982, amended (42 U.S.C. 5841); 5 U.S.C. 552. 2.756, 2.757, 2.758, 2.759, 2.760, 2.761, as amended (42 U.S.C. 10101), any Section 2. 101 also issued under secs. 2.763, 2.770, 2.771, 2.772, 2.780, 2.781, affected Indian Tribe as defined in 53, 62, 63, 81, 103, 104, 105, 68 Stat. 2.788, 2.788, and 2.790. section 2 of the Nuclear Waste Policy 930,932,933,935,936,937,938,as 3. Section 2.1001 is emended by Act of 1982, as amended (42 U.S.C.

emended (42 U.S.C. 2073, 2092, 2093, removing.the definitions of ASCII File 10101), and a person admitted under

Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules , 60795

§ 2 1014 to the proceeding on an interested government participants or make available electronically a application for a license to receive and parties- bibliographic header for each possess high-level radioactive waste at a (1) An electronic file for all documentary material-geologic repository operatioru1 area documentary material (including (1) For which a claim of privilege is punuant to part 60 of this chapter; circulated drafts but excluding asserted; provided that a host State, affected unit preliminary drafts) generated by, or at (2) Which constitutes confidential of local government. or affected Indian the direction of, or acquired by, a financial or commercial information; or Tribe shall Ble a list of contentions in potential party, interested governmental (3) Which constitutes safeguards accordance with the provisions of participant, or party. Concurrent with information under § 73.21 of this

§S 2.1014(a)(2) (ii) and (iii). the production of the electronic file will chapter.

be an authentication statement that (d) Basic licensing documents

• * * *

• indicates where an authenticated image generated by DOE, such as the Site PotenUal party means any person Characterization Plan, the who, during the period before the copy of the document can be obtained.

l2) The participation of the host State Environmental Impact Statement, and issuance of the first pre-hearing the license application, or by NRC, such conference order under § 2.102 l(d), is in the pre-license application phase shall not affect the State's ability to as the Site Characterization Analysis, given access to the integrated electronic and the Safety Evaluation Report, shall exercise its disapproval rights under informatlpn and who consents to be made available in electronic form by section 116(b)(2) of the Nuclear Waste comply with the regulationa set forth in the respective agency that generated the Policy Act, as amended, 42 U.S.C.

subpart Jof thls part, including the 10136(b)(2). dOC1.I.IQ8Ilt.

authority of the Pre-Llcen.se Application (3) This subpart shall not affect any 6. Section 2.-2004 is revised to read as Presiding Officer designated pursuant to independent right of a potential party, follows:

§2.1010. interested governmental participant or Pre-license application electronic party to receive information.

t 2.1004 Amendmenta and additions.

docket means the NRC's electronic (b)(l) Each potential party, interested Any document that has not been information system that receives, governmental participant, or party shall provided to other parties in electronic distributes, stores, and maintains NRC make available in electronic image form, form must be identified In an electronic pre-license application docket materla.ls subject to the claims of privilege in notice and made available for inspection during the pre-license application S 2.1006, graphic-oriented documentary and copying by the potential party, phue. material that includes raw data, interested govern.mental participant, or Pre-license application phase means computer runs, computer programs and party responsible for the submission of the time period before the licenae codes, field notes, laboratory notes, the document within two days after it application to receive and possess high- maps, diagrams and photographs which has been requested unless some other level radioactive waste at a geologic have been printed, scripted, or hand time is approved by the Pre-Llcense repository operations area ls docketed written. Text embedded within these Application Presiding Officer or the under S 2.101(0(3). For the purpose of documents need not be separately Presiding Officer designated for the this subpart, this period begins on the entered in searchable full text Graphic- high-level waste proceeding. The time date that the President submits the site oriented documents may include-- allowed under this paragraph will be recommendation to the Congress Calibration procedures, l::igs, stayed pending Officer action on a pursuant to section 114(a)(2)(A) of the guidelines, data and discrepanciea: motion to extend the time.

Nuclear Waste Policy Act of 1982, as (ill Gauge, meter and computer 7. Section 2.1005 is revised to read as amended (42 U.S.C. 10134(a)(2}(A)).. settings; follows:

• * * * * (iii) Probe locations; I 2.1005 EKclwllona.

Searchable full text means the (iv) Logging intervah and rates; (v) Datilogs in whatever form The following material 111 excluded electronic indexed entry of a document from the requirement to provide that allows the identification of specific captured;

{vi) Text data eheetll; electronic access, either pursuant to words or groups of words within a text (vii) Equations and sampl.i.nR rates: S2.1003, or through derivative file. (viii) Sensor data and piocaaurea; discovery punruant to § 2.1019(i}-

Topical Guidelines means the set of (ix) Data Description.a; (a) Official notice Dlilu:lrials; c.. topics set forth in Regulatory Guide (x) Field and laboratory noteboob; (b) Reference books and text books:

3.69, Topical Guidelines for the (xi) Analog computer, meter or other (c) Material pertaining exclusively to Llcensing Support System, which are device print-outs; administration, such as material related Intended to guide the scope of (:xii) Digital computer print-oum; to budgets, financial management, "documentary material". (xiii) Pfiotograplis; personnel, office space, general (xiv) Graphs, plots, strip charts, distribution memoranda, or f 2. 1002 [Removed and NIMMld] sketches; procurement, except for the scope of

4. Section 2.1002 is removed and (xv) Descriptive material related to the work on a procurement related to reserved. , information identified in paragraph repository siting, construction, or

5. Section 2.1*003 is'revised to read as (b )( 1) of tlm section. operation. or to the transportation of follows: (2) Each potential party, interested spent nm;:lear fuel or high-level waste; governmental participant, or party shall (d) Press clippings and press releases; f 2.1003 Avallablllty of malerlal. make available in an electronic fl.le, (e} Junk man:

(a3 Beginning in the pre-license subject to the claims of privilege in (f) Preferences cited In contractor application phase, subject to the S 2.1006, only a bibliograp~c header for reports that are readily available; exclusions In § 2.1005 and paragraphs each item of documentary material that lg) Classified material subject to (bl and (cl of this section, each potential is not suitable for image or searchable subpart I of this part; party, interested governmental full text. (li) Readily available references, such participant or party, shall make (cl Each potential party. interested a.s journal articles and proceedings, aval)able to other potential parties, governmental participant, or party shall which may be subject to copyrighL

60796 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules

8. Section Z.1006 is revised to read as (b) Public availability of paper and and made electromcally available. Upon follows: electronic copies of the records, as well order of a duly appointed presiding as duplication fees, and fee waiver for officer, the responsible official shall f2.100I Prlvllege. those records, is governed by the update this certification.

(a) Subject to the requirements in Freedom of Information Act (FOIA) 12. Section 2.1010 is revised to read S2.1003(c), the traditional discovery regulations of the respective agencies. as follows:

priVlleges recognized in NRC (c) Documents to which electronic adjudicatory proceedings and the access has been provided by other f 2.1010 p,..Lfcense Application Preslclng exceptions from disclosure in § 2.790 Officer.

parties, potential parties, or interested may be asserted by potential parties, govern.mental participants pursuant to (a)(l) The Commission may designate interested governmental participanta, this subpart shall not be considered as one or more members of the and parties. In addition to Federal agency records of the Nuclear Commission, or an atomic safety and agencies, the deliberative process Regulatory Commission or the licensing board, or a named officer who privilege may also be asserted by State Department of Energy unless and until has been delegated final authority on and local government entities and they have been entered into the docket the matter (Pre-License Application Indian Tribes. of the proceeding pursuant to S2.702 for Presiding Officer) to rule on disputes (b) Any document for which a claim purposes of the FOIA, 5 U.S.C. 552, if over the electronic availability of of privilege is asserted, but is denied in these documents remain under the documents during the pre-license whole or in part by the Pre-License custody and control of tha agency or application phase, Including disputes Application Presiding Officer or the organization that identified the relating to prlvilege,'and disputes '-

Presiding Officer, must be provided in documents. Requests for access relating to the implementation of the electronic form by the party, interested pursuant to the FOIA to documentlJ recommendations of the Advisory governmental participant, or potential submitted by a Federal agency shall be Review Panel established under party that asserted the claim ter- l:rarulmitted to that Federal agency. § 2.101 l(e).

(1) The other participants; or 10. Section 2.1008 is revised to read (2) The Pre-License Application as follows: Presiding Officer shall be designated (2) To the Pre-License Application before the integrated electronic Presiding Officer or to the Presiding f 2.1008 Potential pmla. information is scheduled to be available.

Officer, for entry into I Protective Order (b) The Pre-License Application file, if the Pre-License Application Any person who complies with the regulations in this subpart, including Presiding Officer shall rule on any claim Presiding Officer or the Presiding of document withholding to Officer so directs under§§ 2.1010(b) or § 2.1003, and agrees to comply with the orders of the Pre-License Application determine--

2.101a(c). (1) Whether it is documentary (c) Notwithstanding any availability Presiding Officer designated under

§ 2.1010, may have electronic access to material within the scope of this of the deliberative process privilege the integrated electronic information subpart; under paragraph (a) of this section, (2) Whether the material ls excluded circulated drafts not otherwise made available pursuant to thi.t subpart in the pre-license application phase. under§ 2.1005; privileged shall be provided for 11. Section 2.1009 is revised to read (3) Whether the material is prvileged electronic access pursuant to as follows: or otherwise excepted from discloaure S2.1003(a). under S2.1006;

9. Section 2.1007 is being revised to f 2.1009 ProcedurN. (4) If privileged, whether it is an read as follows: (a) Each potential party, interested absolute or qualified privilege; governmental participant, or party (5) If qualified, whether the document 12.1007 AcceA. should be dlsclosed because it is shall-(a){l) A system to provide electronic (1) Designate an official who will be necessary to a proper decision in the access to the integrated electronic responaible for administration of ita proceeding; information shall be provided at the responaibility to provide electronic files (6) Whether the material should be headquarters of DOE, and at all OOE of documentary material ; disclosed under a protective order Local Public Document Rooms (2) Establish procedures to implement contalning such protective terms and established in the vicinity of the likely the requirements in§ 2.1003; conditions (including affidavits of candidate site for a geologic repository, (3) Provida training to it& staff on the nondisclosure) as may be necessary and beginning in the pre-license application procedures for implementation of the appropriate to limit the disclo1ure to phase. responsibility to provide electronic Bies potential participants, interested (2) A system to provide electronic of documentary material; governmental participants and parties in access to the integrated electronic (4) Ensure that all documents carry the proceeding, or to their qualified information shall be provided at the the submitter's unique identification witnesses and counsel. When headquarters Public Document Room of i,.umber: Safeguards Information protected from NRC, and at all NRC Local Public (5) Cooperate with the advisory disclosure un-der section 147 of the Document Rooms established in the review process established by the NRC Atomic Energy Act of 1954, as amended, vicinity of the likely candidate site for under § 2.101 l(c). is received and possessed by a potential a geologic repository, and at the NRC (b) The 'responsible official designated party, interes'ted governmental Regional Offices beginning in the pre- pl.ll"8uant to paragraph (a)(l) of this participcJ.Ilt, or party, other than the license application phaae. section shall certify to the Pre-License Commission staff, it shall also be (3) The systems for electronic access Application Presiding Officer that the protected according to the requirements specified in paragraphs (a)(t) and (a)(Z) procedures specified in paragraph (a)(Z) of S 73.Zl of this chapter. The Pre*

of this section shall include locations at of this section have been implemented, License Appfication Presiding Officer Las Vegas, Nevada; Reno, Nevada; and thet to the best of his or her may also prescribe such additional Carson City, Nevada; Nye County, knowledge, the documentary material procedures as will effectively safeguard (

Nevada; and Lincoln County, Nevada. specified in S 2.1003 has been identified and prevent disclosure of Safeguards I-

Federal Register I Vol 62, No 219 / Thursday, November 13, 1997 / Proposed Rules 60797 Information to unauthonzed persons Committee members identified in through the Commission's electroruc with mmimum impairment of the paragraph (c)(2) of this section who docket procedural rights which would be wish to serve. The Secretary of the (b)(l) A person, including a potential available if Safeguards Information were Commission shall have the authority to party given access to the integrated not involved. In addition to any other appoint additional representatives lo the electronic information under this sanction that may be imposed by the Advisory Review Panel consistent with subpart, shall not be granted party status Pre-License Application Presiding the requirements of the Federal under S 2.1014, or status as an interested Officer for violation of an order Advisory Committee Act, 5 U.S.C. app. governmental participant under pertaining to the disclosure of I, giving particular colll!ideration to S 2.715(c), if it cannot demonstrate Safeguards Information protected from potential parties, parties, and interested substantial and timely compliance with disclosure under section 14 7 of the governmental participants who were not the requirements of§ 2.1003 at the time Atomic Energy Act of 1954, as amended, members of the NRC HLW Ucensing it requests participation in the high-the entity in violation may be subject to Support System Advisory Committee. level waste liceming proceeding under a civil penalty rmposed pursuant to (2) The Advisory Committee S 2.1014 or S 2...715(c).

§ 2.205. For the purpose of imposing the membership will initially include the * * *

• State of Nevada, a coalition of affected criminal penalties contained in section (d} Access to the pre-license 223 of the Atomic Energy Act of 1954, units of local government in Nevada application electronic dock.et or as amended, any order issued pursuant who were on the NRC High-Level Waste electronic dock.et may be suspended or to this paragraph with respect to Licensing Support System Advisory terminated by the Pre-License Safeguards Information shall be deemed Committee, DOE, NRC, the National Application Presiding Officer or the to be an order issued under section 161b Congress of American Indians, the Presiding Officer for any potential party, of the Atomic Energy Act of 1954, BB coalition of national environmental interested governmental participant or amended. groups who were on the NRC High- party who is in noncompliance with any (c) Upon a final determination that Level Waste Licensing Support System applicable order of the Pre-License the material is relevant, and not Advisory Committea and such other Application Presiding Officer or the privileged, exempt from disclosure, or members as the Commission may from Presiding Officer or the requirements of otherwise exempt from production time to time designate to perform the this subpart.

under § 2.1005, the potential party, responsibilities in paragraph {d) of this 15. Section 2.1013 is revised to read interested governmental participant, or section. as follows:

party who asserted the claim of (d)(1) The Advisory Review Panel withholding must make the document shall provid.e advice to- f 2.1013 Use of the electronic docket available in accordance with the {i) NRC on the fundamental issues of during the proceeding.

provisions of this subpart within two the type of computer system necessary (11.)(l) Pursuant to S2.702, the days to access the integrated electronic Secretary of the Commission will (d) The service of all pleadings a.nd information effectively under paragraph maintain the official dock.et of the answers, orders, and decisions during (b) of this section; and proceeding on the application for a the pre-license application phase shall (ii) The Secretary of the Commission license to receive and possess waste at be made according to the procedures on the operation and maintenance of the a geologic repository operations area.

specified in § 2.1013(c) and entered into electronic docket under the (2) Commencing with the docketing in the pre-license application electronic Commission's Rules of Practice (10 CFR an electronic form of the license dock.et part 2). application to receive and possess high-(e) The Pre-License Application (2) The responsibilities of the level radioactive waste at a geologic Presiding Officer shall possess all the Advisory Review Panel shall include repository operations area pursuant to general powers specified in S§ 2.721(c) advice on- part 60 of this chapter, the Secretary of and 2.718. (i) Format standards for providing electronic access to documentary the Commission, upon determining that (0 The Commission, in designating the application can be properly accessed the Pre-License Application Presiding material to the parties, interested under the Commission's electronic Officer in accordance with paragraphs governmental participants, or potential dock.et rules, will establish an electronic (a) (1) and (2) of this section, shall parties; (ii) The procedurea and standards for docket to contain the official record

• specify the jurisdiction of the Officer materials of the high-level radioactlve

13. Section 2.1011 is revi~ed to read the ele. TDnic transmission of filings, orders, and decisions during both the waste licensing proceeding in as follows: searchable full text, or for material that pre-license application phase and the

§ 2.1011 Management of electronic high-level waste licensing proceeding; is not suitable for entry in searchable Information. {iii) Other duties as specified in this full text, by header and image, as (a) Electronic document production subpart or as directed by the Secretary appropriate.

and the electronic docket are subject to of the Commission. (b) Absent good cause, all exhibits the provisions of this subpart. 14. [n § 2.1012,Jaragraphs (a), (b)(l), tendered during the hearing must have (bJ The NRC, DOE, parties, and and (d) are revise to read as follows: been made available to the parties in potential parties participating in electronic form before the accordance with the provisions of this f 2.1012 Compliance. commencement of that portion of the subpart shall be responsible for (a) In addition to the requirements of hearing in which the exhibit will be obtaining the computer system §2.101(0, the Di.rector of the NRC's offered. The electronic docket contains necessary to comply with the Office of Nuclear Materials Safety and a list of all exhibits, showing where in requirements for electronic document Safeguards may determine b.at the the transcript each was marked for productwn and service. tendered application is not acceptable identification and where it was received (c)(1) The Secretary oft.he for docketing under this subpart 1f the into evidence or rejected. Transcnpts Comm1ss1on shall establish an Advisory Secretary of the Commission determines will be entered into the electronic Review Panel composed of the Advisory that it cannot be effectively accessed docket on a daily basis in order to

60798 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 I Proposed Rules provide next-day availability at the § 2.1017 Computation of tlme. 19. 1n § 2 1019, paragraphs (d), (e),

hearing In computing any penod of time, the and (I) are revised to read as follows.

(c)(l) All filings in the adjudicatory day of the act, event, or default after proceeding on the license application to § 2.1019 Depositions.

which the designated period of time receive and possess high-level * * * *

• begl.D.S to run is not mcluded. The last radioactive waste at a geologic day of the period so computed is (d) When the testi~ony is fully repository operations area pursuant to included unless it Is a Saturday, transcribeQ, the deposition shall be part 60 of this chapter shall be Sunday, or legal holiday at the place submitted to the deponent for transmitted electronically by the where the action or event is to occur, in examination and signature unless the submitter to the Presiding Officer, which event the period runs until the deponent is ill or cannot be found o~

parties, and the Secretary of the end of the next day which is neither a refuses to sign. The officer shall certify Commission, according to established Saturday, Sunday, nor holiday. the deposition or, if the deposition Is .

format requirements. Parties and not signed by the deponent. shall certify Whenever a party, potential party. or interested governmental participants the reasons for the failure to sign, and interested governmental participant, has will be required to use a password shall promptly transmit an electronic the right or is required to do some act copy of the deposition to the Secretary security code for the electronic within a prescribed period aft.er the transmission of these documents. of the Commission for entry into the service of a notice or other document electronic docket.

(2) Filings required to be served shall upon It, one day shall be added to the be served upon either the partiea and (e) Where the deposition is to be taken prescribed period. If the electronic on written questions as authorized interested governmental participants, or dock.et is unavailable for more than four their designated representatives. When a under§ 2.1018(a)(2). the party or access hours of any day that would be interested governmental participant party or interested governmente' counted in the computt.tion oftime, that participant has appeared by attorney, taking the deposition shall serve a copy day will not be counted in the of the questioD.!I, showing each question service must be made upon the attorney computation of time.

of record. separately and consecutively numbered,

18. In S 2.1018, paragraph (a)(l) and on every other party and interested (3} Service upon a party or interestqd the introductory text of paragraph (e) are governmental participant is completed governmental participant with a notice revised to read as follows: stating the name and address of the when the sender receives electronic acknowledgment ("delivery receipt") § 2.1018 Discovery. person who is to answer them. and the that the electronic submission has been name, description, title, and address of (a)(l} Parties, potential parties, and placed in the recipient's electronic the officer before whom they are to be interested governmental p~c!pants in asked. Within ten days aft.er service, any mailbox. the high-level waste licensing (4} Proof of service, stating the name other party or interested governm~ntal proceeding may obtain discovery by one participant may serve cross-questions.

and address of the person on whom or more of the following methods:

served and the manner and date of The questioru1, cross-questions, and (1) Access to the documentary answers shall be recorded and signed, service, shall be shownfor each material made available pursuant to document filed, by- and the deposition certified, returned,

§2.1003; (i) Electronic acknowledgment and transmitted In electronic form to the (ii) Entry upon land for Inspection,

("delivery receipt"): Secretary of the Commission for entry access to raw data, or other purposes into the electronic docket as in the case (ii) The affidavit of the person making pursuant to§ 2.1020; the service; or of a deposition on oral examination.

(ili) Access to, ot the production of, (iii) The certificate of counsel. copies of documentary material for * * * * *

(5) All Presiding Officer and which bibliographic headers only have (1)(1) After receiving written notice of Commission issuances and orders will been submitted pursuant to S 2.1003 (b) the deposition under paragraph (a) or be transmitted electronically to the and (c): paragraph (e) of this section, and ten parties and interested governmental (1-:) Depositions upon oral days before the scheduled date of the participants. examination pursuant to§ 2.1019; deposition, the deponent shall submi~

(d} Online access to the electronic (v) Requests for admission pursuant to an electronic index of all documents m dock.et, Including a Protective Order §2.742; his or her possession, relevant to the File if authorized by a Presiding Officer, (vi) Informal requests for information subject matter of the deposition, shall be provided to the Presiding not made electronically available, such including the categories of documents Officer, the representatives of the parties as the names of witnesses and the set forth in paragraph (i)(2} of this and interested governmental subjects they plan to address; and section, to all parties and interested participants, and the witnesses while (vii) InteITOgatories and depositions governmental participants. The index testifying, for use during the hearing. upon written questions, as provided in shall identify those records which have Use of paper copy and other images will paragraph (a)(2) of this section. already been made available also be permitted at the hearing. electronically. All documents that are

16. In§ 2.1014, paragraph (c)(4) is * * * *

• not identical to documents already revised to read as follows: (e) A party, potential party, or made available electronically , whether interested governmental participant .by reason of subsequent modification or t 2.1014 Intervention. who has made available in electronic by ti:.: addition of notations. shall be

• *

• form all material relevant to any treated as separate documents .

(c) * *

• discovery request or who has responded (2) The following material 1s excluded

{4) The failure of the petitioner to to a request for discovery with a from the initial requirements of§ 2 1003 participate as a potential party in the response that was complete when made to be made available electronically, but pre-license application phase. is under no duty to supplement its is subject to derivative discovery under

• * * *

• response to include information paragraph (i)(l) of this section-

17. Section 2.1017 is revised to read thereafter acquired, except as follows: (i) Personal records; as follows: * * * * * (ii) Travel vouchers;

Federal Register / Vol 62. No. 219 / Thursday,, November 13, 1997 / 1-'ropc,,t>d Kult*~ 60i99 (iii) Speeches; (iv) Preliminary drafts; (v) Marginalia.

(3) Subject to paragraph (!)(6) of this sect.Ion, any party or interested governmental participant may request from the deponent a paper copy of any or all of the documents on the index that have not already been providtnl electronically.

(4) Subject to paragraph (i)(6) of this secuon, the deponent shall bring a paper copy of all documents, on the index that the deposing party or interested governmental participant requests that have not already been provided electronically to an oral deposition conducted pursuant to paragraph (a) of this section, or In the case of a deposition taken on written questions pursuant to paragraph (e) of this section, shall submit such documents with the certified deposition.

(5) Subject to paragraph (i)(6) of this section, a party or interested governmental participant may request that any or all documents on the index that have not already been provided electronically, and on which it intenda to rely at hearing, be made electronically available by the deponent.

(6) The deposing party or interested governmental participant shall assume the responsibility for the obligations set forJijn paragraphs (i)(l), (1)(3), (1)(4),

and (i)(S) of this section when deposing someone other than a party or interested governmental participant.

Dated at Rockv11le, MD, this 6th day of November, 1997.

For the Nuclear Regulatory Comnusslon.

John C. Hoyle, Secn,ta,y of the Commission.

[FR Doc 97-29884 Filed 11-12-97; 8:45 am)

IIUJNO CODI! 7HO-C1..fll