This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

60789

Vol. 62, No. 219

Thursday, November 13, 1997

NUCLEAR REGULATORY

COMMISSION

10 CFR Part 2

RIN 3150–AF88

Procedures Applicable to Proceedings

for the Issuance of Licenses for the

Receipt of High-Level Radioactive

Waste at a Geologic Repository

AGENCY: Nuclear Regulatory

Commission.

ACTION: Proposed rule.

SUMMARY: The Nuclear Regulatory

Commission is proposing to amend its

Rules of Practice for the licensing

proceeding on the disposal of high-level

radioactive waste at a geologic

repository (HLW proceeding). The

proposed amendments are intended to

allow application of technological

developments that have occurred since

the original rule was adopted in 1989,

while achieving the original goals of

facilitating the Commission’s ability to

comply with the schedule for decision

on the construction authorization for the

repository contained in Section 114(d)

of the Nuclear Waste Policy Act, and

providing for a thorough technical

review of the license application and

equitable access to information for the

parties to the hearing.

DATES: Submit comments by January 27,

1998. Comments received after this date

will be considered if it is practical to do

so, but the NRC is able to assure

consideration only for comments

received on or before this date.

ADDRESSES: Send comments by mail

addressed to the Secretary, U.S. Nuclear

Regulatory Commission, Washington,

DC 20555–0001. Attention: Rulemakings

and Adjudications Staff.

Hand-deliver comments to: 11555

Rockville Pike, Rockville, Maryland,

between 7:30 am and 4:15 pm on

Federal workdays.

You may also provide comments via

the NRC’s interactive rulemaking web

site through the NRC home page (http:/

/www.nrc.gov). This site provides the

availability to upload comments as files

(any format), if your web browser

supports that function. For information

about the interactive rulemaking site,

contact Ms. Carol Gallagher, (301) 415–

5905; e-mail 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 timeconsuming service of documents during

the proceeding if the Commission were

to reach its decision within the allotted

time. The Licensing Support System

(LSS) concept, an electronic information

management system, was created to

achieve this time reduction by making

the information and data supporting a

DOE application available

simultaneously in a centralized database

to all interested parties before the

application is submitted and formal

NRC review begins. Emerging

information management technologies

for issue identification, electronic

storage and retrieval, and electronic

mail were recommended for these

functions to help achieve the objectives

of more effective and efficient review.

The Commission employed the

technique of negotiated rulemaking to

develop the regulations governing the

development and use of the LSS.

Negotiated rulemaking is the process by

which the agency and the interests

affected by a rulemaking meet to

attempt to reach a consensus on a draft

proposed rule. If a consensus is reached,

the agency publishes the negotiated rule

as the agency’s proposed rule. The

Commission selected the negotiated

rulemaking approach to address the LSS

issue for several reasons. In 1987, the

idea of use of an electronic information

management system in a Commission

adjudicatory proceeding was novel, not

only for the Commission, but in general.

Therefore, the development of the rules

for the use of such a system would

benefit from discussion and joint

problem solving by those who might

ultimately use the system and had

experience with the Commission’s

traditional adjudicatory process.

Furthermore, the potential users of the

LSS possessed unique information that

would be important to the design of the

system, such as their computer

capability and the amount and types of

relevant documents that they might

generate. In addition, the potential for

consensus was enhanced by the fact that

the LSS rule focused on procedures for

conducting the licensing process that

might benefit all parties, rather than

focusing on substantive technical

criteria for a licensing process. Finally,

the success of the LSS concept

depended upon potential parties

voluntarily complying with the

licensing process for document

identification and submission in the

period before the DOE license

application was submitted. Therefore,

the involvement of interested parties in

the development of the provisions to

govern the use of the LSS was essential.

The Commission initiated the

negotiated rulemaking in August 1987.

The negotiating committee, composed of

State, local, and tribal governments,

industry representatives, NRC, DOE,

and environmental groups, completed

its work in July 1988. Except for the

industry coalition, all the parties on the

negotiating committee agreed on the text

and supplementary information of a

draft proposed rule. However, even the

one dissenting party, the industry

representative, had been a full and

active participant in the drafting of the

regulatory text and supporting

information. Industry did not join the

final consensus at the end of the process

based on its belief that the use of a new

technology in the licensing process
60790 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules

would not prove cost-beneficial. At that

time, the cost of the LSS was estimated

by DOE to be in the $200 million range.

The Commission, recognizing the

agreement among the other parties on

the negotiating committee, decided to

publish the negotiated draft proposed

rule as the Commission’s proposed rule

in November 1988. Because of this

effort, the final LSS rule (10 CFR part 2,

subpart J), ‘‘Procedures Applicable to

Proceeding for the Issuance of Licenses

for the Receipt of High-Level

Radioactive Waste at a Geologic

Repository’’, was promulgated on April

24, 1989 (54 FR 14925).

The LSS rule assigned the LSS

Administrator (LSSA) function to the

NRC which would be responsible for the

management, administration, operation,

and maintenance of the LSS; pursuant

to DOE’s agreement, gave DOE

responsibility for the design,

development, and implementation of

the LSS; and established the charter of

the LSS Advisory Review Panel

(LSSARP) to provide consensus

guidance on the design and

development of the LSS to both NRC

and DOE. The LSS was intended to

provide a central, shared, federally

funded database of licensing

information beginning in 1995, the year

DOE was expected to submit its

application for a construction permit for

the repository. The Commission

adopted minor amendments further

clarifying these procedures in a final

rule published on February 26, 1991 (56

FR 7787).

The Licensing Support System

Administrator (LSSA) was appointed in

January 1989. The LSSARP was formed,

holding its first meeting in December

1989. Also in December 1989, well

before any serious development work

could be started on the LSS, the

Department of Energy revised its

repository program schedule to extend

its anticipated license application date

from 1995 to 2001. Consequently, the

LSS development schedule was

extended.

II. Discussion

The development of the LSS that was

devised in the original procedural rules

in 10 CFR Part 2, Subpart J, has not been

accomplished during the time that has

passed since adoption of the rule. Many

delays and changes in personnel and

program structure have attended the

Department of Energy’s efforts to

develop the LSS. Budgetary shortfalls

and the unanticipated length of time

that it has taken to develop the licensing

application for the repository not only

delayed the development of the LSS, but

also resulted in several additional years’

accumulation of potential licensing

information.

Because of the length of time involved

and the narrowing of the repository

development program, much of the

early material thought to be relevant at

the time the rule was developed may no

longer be relevant to the actual licensing

proceeding that may not begin until

about 2002. Also because of the

extended period of time it has taken to

develop the LSS for DOE’s use as a

document management system, it

appears that all accumulated documents

may not have been identified and

maintained properly for tracking of

important repository development

decisions. In addition, because

document capture may now involve

much larger backlogs than originally

contemplated, the risk of failing to

capture all the material originally

required to be placed in the LSS is

substantially larger than originally

assumed. In order for the current

Subpart J rules to apply, the LSSA must

certify that the DOE has complied with

the requirement to enter all relevant

documents in the LSS. Therefore, all of

these factors combine to produce the

high likelihood that the current rule

cannot be implemented as originally

envisioned. If not, then 10 CFR part 2,

subpart J, will no longer apply. Instead,

subpart G, the generally applicable

procedures for licensing proceedings,

will apply. This means that there would

be no pre-license application access to

documents.

Although the development of the LSS

has remained stalled, the state of

technology in document automation and

retrieval has overtaken the 1986

technology on which the original LSS

was to be based. The use of computers

to generate and maintain the complex

documents of a party in litigation is

widespread and commonplace. The

Internet is universally available to tie

disparate and geographically dispersed

systems together. Readily available

commercial software applications can

perform the document management

functions of the LSS. Therefore, the

centralized LSS envisioned at the time

the LSS rule was developed has become

obsolete. The enormous expense of

designing and maintaining a stand-alone

system required by the current rules

appears to be an unjustified expense,

especially when it appears unlikely that

the rule will be able to be implemented

successfully even if the LSS is created.

Consequently, the Commission is

proposing to amend its rules to allow

more flexibility to incorporate the

advantages of new information

management technologies in the

procedural rules for the licensing of the

geologic repository. This would

eliminate the LSS as a uniquely

designed stand-alone system, while still

maintaining the following primary

functions of the LSS as a mechanism for

the:

(1) Discovery of documents before the

license application is filed;

(2) Electronic transmission of filings

by the parties during the proceeding;

(3) Electronic transmission of orders

and decisions related to the proceeding;

and

(4) Access to an electronic version of

the docket.

The Commission believes that the

proposed rule would continue to

support the model schedule for

conducting the licensing proceeding

within the 3-year statutory period that

was published in the Statement of

Considerations for the original 10 CFR

part 2, subpart J, rule published on

April 14, 1989 (54 FR 14925, 14939).

The proposed rule would eliminate

the current prescriptive requirement in

10 CFR part 2, subpart J, for a

centralized ‘‘Licensing Support System’’

administered by the NRC and therefore

also would eliminate the requirement

for an LSS Administrator to ensure the

viability of the central database. To

replace these features of the existing

rule, the proposed rule would require

that all potential parties, including the

NRC and DOE, make their documentary

material available in electronic form to

all other participants beginning in the

pre-license application phase. This

requirement is stated without unduly

restrictive technological specifications,

in order to accommodate flexible

implementation consistent with current

or future technological developments.

Documentary material would be

defined as the material upon which a

party intends to rely in support of its

position in the licensing proceeding;

any material which is relevant to, but

does not support, that material or that

party’s position; and all reports and

studies, prepared by or on behalf of the

potential party, interested governmental

participant, or party, including all

related ‘‘circulated drafts,’’ relevant to

the issues set forth in the Topical

Guidelines in Regulatory Guide 3.69,

regardless of whether they will be relied

upon and/or cited by a party. For the

purposes of this rule, the preapplication phase would begin on the

date that the President submits the site

recommendation to Congress. This

timing would allow access to the

parties’ documentary material enough

before DOE submits the license

application to allow advance

preparation of contentions and

discovery requests before the license
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60791

application, but late enough in the

repository development process to

provide meaningful information.

A Pre-License Application Presiding

Officer would resolve any disputes over

electronic access to documents during

the pre-license application phase.

Potential parties would be required to

certify to the Pre-License Application

Presiding Officer that they have

complied with the requirement to

provide electronic access to their

documentary material. The

requirements of the current rule for an

electronic hearing docket would be

retained, as well as the limitations on

the permissible forms of discovery after

the application is filed.

The Commission is considering two

alternatives regarding the LSS Advisory

Review Panel. In this proposed rule,

because the concept of the LSS would

be replaced, the requirement for an LSS

Advisory Review Panel would be

modified so the panel can advise the

Secretary of the Commission regarding

standards and procedures for electronic

access to documents and for

maintenance of the electronic docket.

This would require renaming of the

advisory committee and redrafting of

the committee charter. However, the

Commission is also considering the

alternative of replacing the Advisory

Review Panel with a more informal

users group, and particularly requests

comments from potential parties to the

HLW repository licensing proceeding

regarding these two alternative

arrangements.

III. Section-by-Section Description of

Changes

In § 2.1000, the reference to § 2.709

would be removed because it would

require compliance with § 2.708 that

would not apply to this subpart.

In § 2.1001, the following definitions

would be added, amended, or removed:

ASCII File

This definition would be removed

and no longer used in the rule.

Prescriptive references to specific

technical standards would be removed

to allow flexible implementation

consistent with developing technology.

Documentary Material

The definition of documentary

material would be revised to cover

material upon which a party, potential

party, or interested governmental

participant intends to rely and/or cite in

support of its position in the licensing

proceeding; any material or other

information which is relevant to, but

does not support, that material or

information or that party’s position; and

all reports and studies, prepared by or

on behalf of the potential party,

interested governmental participant, or

party, including all related ‘‘circulated

drafts,’’ relevant to the issues set forth

in the Topical Guidelines 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 prelicense application phase. Therefore the

term ‘‘documentary material’’ would be

intended to describe the most important

body of material and would be defined

clearly to require that all parties include

electronic access to any relevant

material in their possession that does

not support their position in the

licensing proceeding, as well as

providing access to the material that

does support their position, and any

reports and studies prepared by the

party on issues described in the Topical

Guidelines, regardless of whether or not

they would be relied upon or cited by

the party. The scope of the documentary

material would still be governed by the

topical guidelines.

Electronic Docket

A new definition would be added to

describe NRC’s electronic information

system to receive, distribute, store, and

maintain NRC adjudicatory docket

materials in the licensing proceeding.

Integrated Electronic Information

A new definition would be added to

describe material made available in

electronic form to potential parties,

parties, or interested governmental

participants to the licensing proceeding

for the high-level waste geologic

repository, either as part of the NRC’s

pre-license application electronic

docket or electronic docket or pursuant

to electronic access to documentary

material made available by individual

potential parties, parties, and interested

governmental participants. This is a

term for the information access that

would replace the LSS in this rule.

LSS Administrator

This term would be eliminated from

the rule because the concept of the LSS

would also be removed. The Pre-license

Application Presiding Officer will

resolve disputes about electronic access

to documents in the pre-license

application phase.

Party

This definition would be revised to

add ‘‘affected unit of local government’’,

as that term is defined in the Nuclear

Waste Policy Act of 1982, as amended,

and also to refer to that act for the

definition of affected Indian tribe. In

addition, any affected unit of local

government, the host State, and any

affected Indian Tribe would be required

to file a list of contentions.

Potential Party

This definition would be revised to

remove the reference to the LSS, and to

substitute the term integrated electronic

information to describe the material to

which the potential party will be given

access.

Pre-license Application Electronic

Docket

A new definition would be added to

describe NRC’s electronic information

system to receive, distribute, store, and

maintain NRC pre-license application

docket materials during the pre-license

application phase.

Pre-License Application Phase

This definition is being specified for

the purposes of this rule to begin on the

date that the President submits the site

recommendation to the Congress. This

date has been chosen to allow access to

the potential parties’ documentary

material enough before the license

application to allow advance

preparation of contentions and

discovery requests before the

application is filed, but late enough in

the repository development process to

provide meaningful information.

Searchable Full Text

This definition would be revised to

remove references to ASCII and to the

LSS.

Topical Guidelines

A new definition would be added to

describe the set of topics set forth in

Regulatory Guide 3.69 that are intended

to guide the scope of documentary

material under this subpart.

Section 2.1002 would be removed

because the LSS would no longer be

required. Access to integrated electronic

information would provide the major

functions which the LSS was designed

to provide. Paragraphs (c) and (d),

which state that participation by the

host State in the pre-application phase

will not affect its disapproval rights, and

that this subpart shall not affect any

participant’s independent right to

receive information, would be

incorporated in the revised § 2.1003 as

paragraphs (a)(2) and (3).

Section 2.1003 would be revised to

describe information that would be

required to be made available

electronically by all potential parties,

parties, and interested governmental
60792 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules

participants (including the NRC and

DOE). This information would have to

be made available to all other

participants beginning in the pre-license

application phase, which starts at the

date of the President’s submission of the

site recommendation to the Congress.

The requirements of the rule would be

simplified to require only that access to

an electronic file be provided. All

references to specific formats would be

removed to allow flexibility in

implementation. The Commission

intends that a potential party, party, or

interested governmental participant

might offer electronic access to its

documentary material in a number of

different ways, including by providing

its documents in electronic form either

to the NRC or to the DOE, to have the

NRC or the DOE maintain the

documents for electronic access.

Although the draft rule would require

that documentary material be made

available electronically beginning on the

date of the President’s site

recommendation to the Congress, the

Commission would encourage the

earliest feasible availability of

documentary material in order to

enhance the future smooth operation of

the licensing proceeding. The

paragraphs relating to evaluations and

certifications by the LSS Administrator

would be removed because the LSS (and

LSSA) concept would be removed.

Section 2.1010 states that the PreLicense Application Presiding Officer

will resolve any disputes relating to

electronic access to documents in the

pre-license application phase.

Accordingly, the paragraphs which

stated that the application would have

to be docketed under Subpart G if the

LSSA did not certify compliance would

be removed, and Subpart J (including

specifically referenced sections of

Subpart G) would unconditionally

embody the rules of procedure for the

HLW licensing proceeding.

Section 2.1004 would be revised to

provide procedures for providing access

to a document that has not previously

been provided in electronic form and to

delete previous references to the LSS

and the LSSA.

Section 2.1005 would be revised to

delete reference to the LSS and to add

an exclusion of readily available

references, such as journal articles or

proceedings, which may be subject to

copyright.

Section 2.1006 would be revised to

refer to providing a document in

electronic form and to delete references

to the LSS and the LSSA.

Section 2.1007 would be revised to

refer to providing systems for access to

integrated electronic information rather

than providing terminals for access to

the LSS. These systems must be

maintained by DOE and NRC at the

locations specified in the current

version of the rule (except for the

Uranium Recovery Field Office which

no longer exists), beginning in the prelicense application phase.

Section 2.1008 would be revised to

allow electronic access to the integrated

electronic information to any person

who complies with the requirements of

Subpart J, including the requirement in

§ 2.1003 to make documentary material

available, and who agrees to comply

with the orders of the Pre-license

Application Presiding Officer. The

previous requirement to petition to the

Pre-license Application Presiding

Officer would be removed.

Section 2.1009 would be revised to

delete references to the LSS and the

LSSA, and to refer instead to the

responsibility to provide electronic files.

The responsible official for each

potential party would be required to

certify to the Pre-License Presiding

Officer that procedures to comply with

§ 2.1003 have been implemented and

that its documentary material has been

made electronically available. A new

requirement to update the certification

at the request of the presiding officer

would be added to replace a previous

requirement to provide this certification

at 6 month intervals.

Section 2.1010 would be revised to

delete references to the LSS and the

LSSA and to refer instead to electronic

access. The reference to petitions for

access would be removed to conform to

removal of this requirement.

Section 2.1011 is being considered for

revision in either of two alternative

ways and the Commission requests

specific comments on these alternatives.

This proposed rule would revise

§ 2.1011 to reflect that the electronic

availability of documentary material

that is specified in this rule no longer

requires special equipment. The name

and functions of the LSS Advisory

Review Panel would be amended to

delete the reference to the LSS and

substitute the purpose of arriving at

standards and procedures to facilitate

the electronic access to material and to

the electronic docket. Because of the

broad and non-prescriptive

requirements regarding providing

electronic files in this proposed rule, the

Advisory Review Panel would be very

useful in discussing standards and

procedures to ensure that all

participants are able to access the

electronic information. Because the LSS

concept would be replaced, and the

requirement for an LSS Advisory

Review Panel would be modified in the

proposed rule to accommodate a new

purpose, the advisory committee would

have to be renamed and the committee

charter would have to be redrafted.

However, the Commission is also

considering the alternative of

eliminating the requirement for an

advisory committee chartered under the

Federal Advisory Committee Act, and

substituting a more informal voluntary

users group to perform the functions of

discussing electronic format standards,

procedures, and other details. If this

option were adopted, the final rule

would be revised to refer to the users

group. This group would be able to

interact using Internet discussion areas

(like LSSNet) as well as meetings, video

conferences, or teleconferences. This

users group would ideally make use of

the current LSSARP members’

knowledge and experience. The

Commission is particularly requesting

comment from potential parties to the

HLW repository concerning their

interest and support for the informal

users group alternative.

Section 2.1012(a) would be revised to

allow the Director of the NRC Office of

Nuclear Material Safety and Safeguards

(NMSS) to determine that the

application would not be acceptable if

it is not able to be accessed through the

electronic docket. Section 2.1012(b)(1)

would be revised to substitute

integrated electronic information for

Licensing Support System so that a

person who has had access to the

integrated electronic information would

not be granted party status in the

licensing proceeding if it cannot

demonstrate compliance with the

requirements of § 2.1003. Section 2.1012

(d) would be revised to substitute prelicense 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 PreLicense 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.
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60793

Section 2.1017 would use the

unavailability of the electronic docket

instead of the LSS as a justification for

extending the computation of time in

the proceeding.

Sections 2.1018 and 2.1019 would be

revised to delete references to the LSS

and instead to refer to providing

documents electronically.

In addition, minor editorial changes

have been made throughout the

proposed rule to improve readability.

Environmental Impact: Categorical

Exclusion

The NRC has determined that this

proposed regulation is the type of action

described in categorical exclusion 10

CFR 51.22(c)(1). Therefore, neither an

environmental impact statement nor an

environmental assessment has been

prepared for this proposed regulation.

Paperwork Reduction Act Statement

This proposed rule contains no

information collection requirements

and, therefore, is not subject to the

requirements of the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501

et seq.).

Regulatory Analysis

The history of the development of the

existing rule, 10 CFR part 2, subpart J,

and the current regulatory problem are

described in the Background and

Discussion sections of this notice. To

address the regulatory problem, several

alternative approaches to amending the

regulations in subpart J of part 2 were

considered.

Option 1: Existing Rule

This approach would not take

advantage of current and future

technology. It would require an

enormously expensive custom designed

system to be developed using old

assumptions about technological

standards and the universe of ‘‘relevant’’

material. At the time of the development

of the existing rule, the cost of the LSS

was estimated by DOE to be in the $200

million range. Furthermore, given the

large backlog that contains a substantial

amount of documents that may no

longer be relevant because of the

unanticipated delay in developing the

LSS as initially designed in 1988, there

is a substantial chance that it would be

impossible for the DOE to achieve, and

for the LSSA to certify, compliance with

the provisions of the current rule. In this

case, the proceeding would have to be

conducted under 10 CFR part 2, subpart

G, and could result in a protracted

discovery phase. In addition to the very

costly and ineffective system, the

further costs of using this approach are

difficult to quantify, however the

lengthened discovery phase could

prevent the Commission from meeting

the statutory deadline for decision on

the application. This delay could also

result in possible increased spent fuel

storage costs for the additional length of

the licensing proceeding.

Option 2: 10 CFR Part 2, Subpart G

Because the NRC is developing a new

system called the Agency-wide

Documents Access and Management

System (ADAMS), which will provide

an agency-wide electronic docket, it

would be possible to rely on existing

adjudicatory procedure rules in 10 CFR

part 2, subpart G (which will have to be

updated to reflect the electronic docket)

to conduct the licensing proceeding.

However, this approach would not

provide pre-license application access

to documents and could result in a

protracted discovery phase. The costs of

using this approach are difficult to

quantify. However the lengthened

discovery phase could prevent the

Commission from meeting the statutory

deadline for decision on the application

and result in possible increased spent

fuel storage costs, as in Option 1.

Option 3: Existing Rule Using a

Distributed System

This approach would allow using

linked individual Internet sites to serve

as the LSS. However, this approach does

not solve the problem discussed in

Option 1 concerning the requirement to

capture a huge backlog of material that

may not have been maintained in a

manner that would ever permit

compliance with the rule, and which

may not all be relevant to the future

license application. Therefore, the costs

of this approach, as in Option 1, would

include the possibility that the LSS rule

compliance finding could not be made

and the proceeding would have to be

conducted under 10 CFR part 2, subpart

G. A lengthened discovery phase could

prevent the Commission from meeting

the statutory deadline for decision on

the application and result in possible

increased spent fuel storage costs, as in

Option 1.

Option 4: Revised Rule With More

Realistic Document Discovery Approach

This approach would remove the

requirement for a central LSS system

and LSS Administrator, but would

require each potential party to provide

for the electronic availability of both the

material it intends to rely upon to

support its position, any material which

does not support that material or that

position, and any reports or studies

prepared by or for the party, beginning

in the pre-application phase (presided

over by a Pre-License Application

Presiding Officer). This definition of

documentary material would provide

pre-application access to a more

focussed set of the materials most

important to the licensing proceeding. It

would not require electronic access to

the entire backlog of DOE and other

parties’ material, some of which may no

longer be relevant to the licensing

proceeding. The electronic docket

functionality of the LSS would be

provided by the NRC agency-wide

system with supervision of the

Presiding Officer. Participation in the

pre-license application phase would be

one criterion for participating in the

hearing. After the application is filed, in

addition to the electronically available

material, discovery would be limited to

interrogatories and depositions as in the

current rule. The specific method of

providing electronic access to

documentary would not be specified,

which would allow flexibility to

accommodate current and future

technology advances. Individual parties

may give their documents in electronic

form to NRC or DOE in order to provide

electronic access. Because this rule

would unconditionally provide the

procedural rules for the HLW licensing

proceeding, there would be no last

minute danger that the proceeding

would have to be conducted under 10

CFR part 2, subpart G.

The Commission believes that Option

4 provides the most effective solution

for maintaining the basic functionality

of the LSS conceptual design, while

most flexibly accommodating current

and future technological developments.

The Commission requests public

comment on the draft regulatory

analysis. Comments on the draft

analysis may be submitted to the NRC

as indicated under the Addresses

heading.

Regulatory Flexibility Certification

The amendments would modify the

Commission’s rules of practice and

procedures. The rule would be amended

to allow more widely available

electronic access to information before

the license application is filed.

Participants would be required to make

their own documentary material

available electronically. This proposed

rule would not have a significant

economic impact upon a substantial

number of small entities. The license

applicant for the HLW repository would

be the Department of Energy . DOE

would not fall within the definition of

a ‘‘small entity’’ in the NRC’s size

standards (10 CFR 2.810). Although a

few of the intervenors in the HLW
60794 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules

proceeding would likely qualify as

small entities, the impact on intervenors

or potential intervenors would not be

significant. The requirement for

participants to make their own

documentary material available

electronically is stated in a manner that

would allow flexibility in

implementation. Furthermore, it is

consistent with current business

practice to create documents

electronically. Therefore, the exact

additional costs involved in making the

documentary materials available

electronically are difficult to quantify.

However, to avoid those costs,

participants would have the option of

providing their documents to NRC or

DOE to maintain electronic availability.

Thus, in accordance with the Regulatory

Flexibility Act, 5 U.S.C. 605(b), the NRC

hereby certifies that this proposed rule

would not have a significant economic

impact upon a substantial number of

small entities.

Backfit Analysis

The NRC has determined that the

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,

as amended; and 5 U.S.C. 553; the

Nuclear Regulatory Commission is

proposing to adopt the following

amendments to 10 CFR part 2.

PART 2—RULES OF PRACTICE FOR

DOMESTIC LICENSING PROCEEDINGS

AND ISSUANCE OF ORDERS

1. The authority citation for part 2

continues to read as follows:

Authority: Secs. l6l, l8l, 68 Stat. 948, 953,

as amended (42 U.S.C. 2201, 2231); sec. 191,

as amended, Pub. L. 87–615, 76 Stat. 409 (42

U.S.C. 2241); sec. 201, 88 Stat. 1242, as

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

Section 2.101 also issued under secs.

53, 62, 63, 81, 103, 104, 105, 68 Stat.

930, 932, 933, 935, 936, 937, 938, as

amended (42 U.S.C. 2073, 2092, 2093,

2111, 2133, 2134, 2135); sec. 114(f),

Pub. L. 97–425, 96 Stat. 2213, as

amended (42 U.S.C. 10134(f)); sec. 102,

Pub. L. 91–190, 83 Stat. 853, as

amended (42 U.S.C. 4332); sec. 301, 88

Stat. 1248 (42 U.S.C. 5871). Sections

2.102, 2.103, 2.104, 2.105, 2.721 also

issued under secs. 102, 103, 104, 105,

183, 189, 68 Stat. 936, 937, 938, 954,

955, as amended (42 U.S.C. 2132, 2133,

2134, 2135, 2233, 2239). Section 2.105

also issued under Pub. L. 97–415, 96

Stat. 2073 (42 U.S.C. 2239). Sections

2.200–2.206 also issued under secs.

161b, i, o, 182, 186, 234, 68 Stat. 948–

951, 955, 83 Stat. 444, as amended (42

U.S.C. 2201 (b), (i), (o), 2236, 2282); sec.

206, 88 Stat 1246 (42 U.S.C. 5846).

Section 2.205(j) also issued under Pub.

L. 101–410, 104 Stat. 890, as amended

by Section 31001(s), Pub. L. 104–134,

110 Stat. 1321–373 (28 U.S.C. 2461

note.) Sections 2.600–2.606 also issued

under sec. 102, Pub. L. 91–190, 83 Stat.

853, as amended (42 U.S.C. 4332).

Sections 2.700a, 2.719 also issued under

5 U.S.C. 554. Sections 2.754, 2.760,

2.770, 2.780 also issued under 5 U.S.C.

557. Section 2.764 also issued under

secs. 135, 141, Pub. L. 97–425, 96 Stat.

2232, 2241 (42 U.S.C. 10155, 10161).

Section 2.790 also issued under sec.

103, 68 Stat. 936, as amended (42 U.S.C.

2133) and 5 U.S.C. 552. Sections 2.800

and 2.808 also issued under 5 U.S.C.

553. Section 2.809 also issued under 5

U.S.C. 553 and sec. 29, Pub. L. 85–256,

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

2039). Subpart K also issued under sec.

189, 68 Stat. 955 (42 U.S.C. 2239); sec.

134, Pub. L. 97–425, 96 Stat. 2230 (42

U.S.C. 10154). Subpart L also issued

under sec. 189, 68 Stat. 955 (42 U.S.C.

2239). Appendix A also issued under

sec. 6, Pub. L. 91–560, 84 Stat. 1473 (42

U.S.C. 2135).

2. Section 2.1000 is revised to read as

follows:

§ 2.1000 Scope of subpart.

The rules in this subpart govern the

procedure for applications for a license

to receive and possess high-level

radioactive waste at a geologic

repository operations area noticed

pursuant to § 2.101(f)(8) or § 2.105(a)(5).

The procedures in this subpart take

precedence over the 10 CFR part 2,

subpart G, rules of general applicability,

except for the following provisions:

§§ 2.702, 2.703, 2.704, 2.707, 2.711,

2.713, 2.715, 2.715a, 2.717, 2.718, 2.720,

2.721, 2.722, 2.732, 2.733, 2.734, 2.742,

2.743, 2.750, 2.751, 2.753, 2.754, 2.755,

2.756, 2.757, 2.758, 2.759, 2.760, 2.761,

2.763, 2.770, 2.771, 2.772, 2.780, 2.781,

2.786, 2.788, and 2.790.

3. Section 2.1001 is amended by

removing the definitions of ASCII File

and LSS Administrator; adding

definitions of Electronic docket,

Integrated electronic information, Prelicense application electronic docket,

and Topical Guidelines; and revising the

definitions of Documentary material,

Party, Potential party, Pre-license

application phase, and Searchable full

text, to read as follows:

§ 2.1001 Definitions.

* * * * *

Documentary material means any

material or other information upon

which a party, potential party, or

interested governmental participant

intends to rely and/or to cite in support

of its position in the proceeding for a

license to receive and possess high-level

radioactive waste at a geologic

repository operations area pursuant to

part 60 of this chapter; any material or

other information that is relevant to, but

does not support, that material or

information or that party’s position; and

all reports and studies, prepared by or

on behalf of the potential party,

interested governmental participant, or

party, including all related ‘‘circulated

drafts,’’ relevant to the issues set forth

in the Topical Guidelines in Regulatory

Guide 3.69, regardless of whether they

will be relied upon and/or cited by a

party. The scope of documentary

material shall be guided by the topical

guidelines in the applicable NRC

Regulatory Guide.

* * * * *

Electronic docket means the NRC

information system that receives,

distributes, stores, and retrieves the

Commission’s adjudicatory docket

materials.

* * * * *

Integrated electronic information

means the material that is made

available electronically to parties,

potential parties, and interested

governmental participants to the

proceeding for a license to receive and

possess high-level radioactive waste at a

geologic repository operations area

pursuant to part 60 of this chapter, as

part of the electronic docket or

electronic access to documentary

material, beginning in the pre-license

application phase.

* * * * *

Party for the purpose of this subpart

means the DOE, the NRC staff, the host

State, any affected unit of local

government as defined in section 2 of

the Nuclear Waste Policy Act of 1982,

as amended (42 U.S.C. 10101), any

affected Indian Tribe as defined in

section 2 of the Nuclear Waste Policy

Act of 1982, as amended (42 U.S.C.

10101), and a person admitted under
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60795

§ 2.1014 to the proceeding on an

application for a license to receive and

possess high-level radioactive waste at a

geologic repository operations area

pursuant to part 60 of this chapter;

provided that a host State, affected unit

of local government, or affected Indian

Tribe shall file a list of contentions in

accordance with the provisions of

§§ 2.1014(a)(2) (ii) and (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 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 highlevel radioactive waste at a geologic

repository operations area is docketed

under § 2.101(f)(3). For the purpose of

this subpart, this period begins on the

date that the President submits the site

recommendation to the Congress

pursuant to section 114(a)(2)(A) of the

Nuclear Waste Policy Act of 1982, as

amended (42 U.S.C. 10134(a)(2)(A)). .

* * * * *

Searchable full text means the

electronic indexed entry of a document

that allows the identification of specific

words or groups of words within a text

file.

Topical Guidelines means the set of

topics set forth in Regulatory Guide

3.69, Topical Guidelines for the

Licensing Support System, which are

intended to guide the scope of

‘‘documentary material’’.

§ 2.1002 [Removed and reserved]

4. Section 2.1002 is removed and

reserved.

5. Section 2.1003 is revised to read as

follows:

§ 2.1003 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 available in electronic image form,

subject to the claims of privilege in

§ 2.1006, graphic-oriented documentary

material that includes raw data,

computer runs, computer programs and

codes, field notes, laboratory notes,

maps, diagrams and photographs which

have been printed, scripted, or hand

written. Text embedded within these

documents need not be separately

entered in searchable full text. Graphicoriented documents may include—

Calibration procedures, logs,

guidelines, data and discrepancies;

(ii) Gauge, meter and computer

settings;

(iii) Probe locations;

(iv) Logging intervals and rates;

(v) Data logs in whatever form

captured;

(vi) Text data sheets;

(vii) Equations and sampling rates;

(viii) Sensor data and procedures;

(ix) Data Descriptions;

(x) Field and laboratory notebooks;

(xi) Analog computer, meter or other

device print-outs;

(xii) Digital computer print-outs;

(xiii) Photographs;

(xiv) Graphs, plots, strip charts,

sketches;

(xv) Descriptive material related to the

information identified in paragraph

(b)(1) of this section.

(2) Each potential party, interested

governmental participant, or party shall

make available in an electronic file,

subject to the claims of privilege in

§ 2.1006, only a bibliographic header for

each item of documentary material that

is not suitable for image or searchable

full text.

(c) Each potential party, interested

governmental participant, or party shall

make available electronically a

bibliographic header for each

documentary material—

(1) For which a claim of privilege is

asserted;

(2) Which constitutes confidential

financial or commercial information; or

(3) Which constitutes safeguards

information under § 73.21 of this

chapter.

(d) Basic licensing documents

generated by DOE, such as the Site

Characterization Plan, the

Environmental Impact Statement, and

the license application, or by NRC, such

as the Site Characterization Analysis,

and the Safety Evaluation Report, shall

be made available in electronic form by

the respective agency that generated the

document.

6. Section 2.1004 is revised to read as

follows:

§ 2.1004 Amendments and additions.

Any document that has not been

provided to other parties in electronic

form must be identified in an electronic

notice and made available for inspection

and copying by the potential party,

interested governmental participant, or

party responsible for the submission of

the document within two days after it

has been requested unless some other

time is approved by the Pre-License

Application Presiding Officer or the

Presiding Officer designated for the

high-level waste proceeding. The time

allowed under this paragraph will be

stayed pending Officer action on a

motion to extend the time.

7. Section 2.1005 is revised to read as

follows:

§ 2.1005 Exclusions.

The following material is excluded

from the requirement to provide

electronic access, either pursuant to

§ 2.1003, or through derivative

discovery pursuant to § 2.1019(i)—

(a) Official notice materials;

(b) Reference books and text books;

(c) Material pertaining exclusively to

administration, such as material related

to budgets, financial management,

personnel, office space, general

distribution memoranda, or

procurement, except for the scope of

work on a procurement related to

repository siting, construction, or

operation, or to the transportation of

spent nuclear fuel or high-level waste;

(d) Press clippings and press releases;

(e) Junk mail;

(f) Preferences cited in contractor

reports that are readily available;

(g) Classified material subject to

subpart I of this part;

(h) Readily available references, such

as journal articles and proceedings,

which may be subject to copyright.
60796 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules

8. Section 2.1006 is revised to read as

follows:

§ 2.1006 Privilege.

(a) Subject to the requirements in

§ 2.1003(c), the traditional discovery

privileges recognized in NRC

adjudicatory proceedings and the

exceptions from disclosure in § 2.790

may be asserted by potential parties,

interested governmental participants,

and parties. In addition to Federal

agencies, the deliberative process

privilege may also be asserted by State

and local government entities and

Indian Tribes.

(b) Any document for which a claim

of privilege is asserted, but is denied in

whole or in part by the Pre-License

Application Presiding Officer or the

Presiding Officer, must be provided in

electronic form by the party, interested

governmental participant, or potential

party that asserted the claim to—

(1) The other participants; or

(2) To the Pre-License Application

Presiding Officer or to the Presiding

Officer, for entry into a Protective Order

file, if the Pre-License Application

Presiding Officer or the Presiding

Officer so directs under §§ 2.1010(b) or

2.1018(c).

(c) Notwithstanding any availability

of the deliberative process privilege

under paragraph (a) of this section,

circulated drafts not otherwise

privileged shall be provided for

electronic access pursuant to

§ 2.1003(a).

9. Section 2.1007 is being revised to

read as follows:

§ 2.1007 Access.

(a)(1) A system to provide electronic

access to the integrated electronic

information shall be provided at the

headquarters of DOE, and at all DOE

Local Public Document Rooms

established in the vicinity of the likely

candidate site for a geologic repository,

beginning in the pre-license application

phase.

(2) A system to provide electronic

access to the integrated electronic

information shall be provided at the

headquarters Public Document Room of

NRC, and at all NRC Local Public

Document Rooms established in the

vicinity of the likely candidate site for

a geologic repository, and at the NRC

Regional Offices beginning in the prelicense application phase.

(3) The systems for electronic access

specified in paragraphs (a)(1) and (a)(2)

of this section shall include locations at

Las Vegas, Nevada; Reno, Nevada;

Carson City, Nevada; Nye County,

Nevada; and Lincoln County, Nevada.

(b) Public availability of paper and

electronic copies of the records, as well

as duplication fees, and fee waiver for

those records, is governed by the

Freedom of Information Act (FOIA)

regulations of the respective agencies.

(c) Documents to which electronic

access has been provided by other

parties, potential parties, or interested

governmental participants pursuant to

this subpart shall not be considered as

agency records of the Nuclear

Regulatory Commission or the

Department of Energy unless and until

they have been entered into the docket

of the proceeding pursuant to § 2.702 for

purposes of the FOIA, 5 U.S.C. 552, if

these documents remain under the

custody and control of the agency or

organization that identified the

documents. Requests for access

pursuant to the FOIA to documents

submitted by a Federal agency shall be

transmitted to that Federal agency.

10. Section 2.1008 is revised to read

as follows:

§ 2.1008 Potential parties.

Any person who complies with the

regulations in this subpart, including

§ 2.1003, and agrees to comply with the

orders of the Pre-License Application

Presiding Officer designated under

§ 2.1010, may have electronic access to

the integrated electronic information

made available pursuant to this subpart

in the pre-license application phase.

11. Section 2.1009 is revised to read

as follows:

§ 2.1009 Procedures.

(a) Each potential party, interested

governmental participant, or party

shall—

(1) Designate an official who will be

responsible for administration of its

responsibility to provide electronic files

of documentary material ;

(2) Establish procedures to implement

the requirements in § 2.1003;

(3) Provide training to its staff on the

procedures for implementation of the

responsibility to provide electronic files

of documentary material;

(4) Ensure that all documents carry

the submitter’s unique identification

number;

(5) Cooperate with the advisory

review process established by the NRC

under § 2.1011(c).

(b) The responsible official designated

pursuant to paragraph (a)(1) of this

section shall certify to the Pre-License

Application Presiding Officer that the

procedures specified in paragraph (a)(2)

of this section have been implemented,

and that to the best of his or her

knowledge, the documentary material

specified in § 2.1003 has been identified

and made electronically available. Upon

order of a duly appointed presiding

officer, the responsible official shall

update this certification.

12. Section 2.1010 is revised to read

as follows:

§ 2.1010 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

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 prvileged

or otherwise excepted from disclosure

under § 2.1006;

(4) If privileged, whether it is an

absolute or qualified privilege;

(5) If qualified, whether the document

should be disclosed because it is

necessary to a proper 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 PreLicense Application Presiding Officer

may also prescribe such additional

procedures as will effectively safeguard

and prevent disclosure of Safeguards
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60797

Information to unauthorized persons

with minimum impairment of the

procedural rights which would be

available 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

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

Commission shall establish an Advisory

Review Panel composed of the Advisory

Committee members identified in

paragraph (c)(2) of this section who

wish to serve. The Secretary of the

Commission shall have the authority to

appoint additional representatives to the

Advisory Review Panel consistent with

the requirements of the Federal

Advisory Committee Act, 5 U.S.C. app.

I, giving particular consideration to

potential parties, parties, and interested

governmental participants who were not

members of the NRC HLW Licensing

Support System Advisory Committee.

(2) The Advisory Committee

membership will initially include the

State of Nevada, a coalition of affected

units of local government in Nevada

who were on the NRC High-Level Waste

Licensing Support System Advisory

Committee, DOE, NRC, the National

Congress of American Indians, the

coalition of national environmental

groups who were on the NRC HighLevel Waste Licensing Support System

Advisory Committee and such other

members as the Commission may from

time to time designate to perform the

responsibilities in paragraph (d) of this

section.

(d)(1) The Advisory Review Panel

shall provide advice to—

(i) NRC on the fundamental issues of

the type of computer system necessary

to access the integrated electronic

information effectively under paragraph

(b) of this section; and

(ii) The Secretary of the Commission

on the operation and maintenance of the

electronic docket under the

Commission’s Rules of Practice (10 CFR

part 2).

(2) The responsibilities of the

Advisory Review Panel shall include

advice on—

(i) Format standards for providing

electronic access to documentary

material to the parties, interested

governmental participants, or potential

parties;

(ii) The procedures and standards for

the electronic transmission of filings,

orders, and decisions during both the

pre-license application phase and the

high-level waste licensing proceeding;

(iii) Other duties as specified in this

subpart or as directed by the Secretary

of the Commission.

14. In § 2.1012, paragraphs (a), (b)(1),

and (d) are revised to read as follows:

§ 2.1012 Compliance.

(a) In addition to the requirements of

§ 2.101(f), the Director of the NRC’s

Office of Nuclear Materials Safety and

Safeguards may determine that the

tendered application is not acceptable

for docketing under this subpart if the

Secretary of the Commission determines

that it cannot be effectively accessed

through the Commission’s electronic

docket.

(b)(1) A person, including a potential

party given access to the integrated

electronic information under this

subpart, shall not be granted party status

under § 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 highlevel waste licensing proceeding under

§ 2.1014 or § 2.715(c).

* * * * *

(d) Access to the pre-license

application electronic docket or

electronic docket may be suspended or

terminated by the Pre-License

Application Presiding Officer or the

Presiding Officer for any potential party,

interested governmental participant or

party who is in noncompliance with any

applicable order of the Pre-License

Application Presiding Officer or the

Presiding Officer or the requirements of

this subpart.

15. Section 2.1013 is revised to read

as follows:

§ 2.1013 Use of the electronic docket

during the proceeding.

(a)(1) Pursuant to § 2.702, the

Secretary of the Commission will

maintain the official docket of the

proceeding on the application for a

license to receive and possess waste at

a geologic repository operations area.

(2) Commencing with the docketing in

an electronic form of the license

application to receive and possess highlevel radioactive waste at a geologic

repository operations area pursuant to

part 60 of this chapter, the Secretary of

the Commission, upon determining that

the application can be properly accessed

under the Commission’s electronic

docket rules, will establish an electronic

docket to contain the official record

materials of the high-level radioactive

waste licensing proceeding in

searchable full text, or for material that

is not suitable for entry in searchable

full text, by header and image, as

appropriate.

(b) Absent good cause, all exhibits

tendered during the hearing must have

been made available to the parties in

electronic form before the

commencement of that portion of the

hearing in which the exhibit will be

offered. The electronic docket contains

a list of all exhibits, showing where in

the transcript each was marked for

identification and where it was received

into evidence or rejected. Transcripts

will be entered into the electronic

docket on a daily basis in order to
60798 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules

provide next-day availability at the

hearing.

(c)(1) All filings in the adjudicatory

proceeding on the license application to

receive and possess high-level

radioactive waste at a geologic

repository operations area pursuant to

part 60 of this chapter shall be

transmitted electronically by the

submitter to the Presiding Officer,

parties, and the Secretary of the

Commission, according to established

format requirements. Parties and

interested governmental participants

will be required to use a password

security code for the electronic

transmission of these documents.

(2) Filings required to be served shall

be served upon either the parties and

interested governmental participants, or

their designated representatives. When a

party or interested governmental

participant has appeared by attorney,

service must be made upon the attorney

of record.

(3) Service upon a party or interested

governmental participant is completed

when the sender receives electronic

acknowledgment (‘‘delivery receipt’’)

that the electronic submission has been

placed in the recipient’s electronic

mailbox.

(4) Proof of service, stating the name

and address of the person on whom

served and the manner and date of

service, shall be shown for each

document filed, by—

(i) Electronic acknowledgment

(‘‘delivery receipt’’);

(ii) The affidavit of the person making

the service; or

(iii) The certificate of counsel.

(5) All Presiding Officer and

Commission issuances and orders will

be transmitted electronically to the

parties and interested governmental

participants.

(d) Online access to the electronic

docket, including a Protective Order

File if authorized by a Presiding Officer,

shall be provided to the Presiding

Officer, the representatives of the parties

and interested governmental

participants, and the witnesses while

testifying, for use during the hearing.

Use of paper copy and other images will

also be permitted at the hearing.

16. In § 2.1014, paragraph (c)(4) is

revised to read as follows:

§ 2.1014 Intervention.

* * * * *

(c) * * *

(4) The failure of the petitioner to

participate as a potential party in the

pre-license application phase.

* * * * *

17. Section 2.1017 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

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 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 § 2.1018(a)(2), the party or

interested governmental participant

taking the deposition shall serve a copy

of the questions, showing each question

separately and consecutively numbered,

on every other party and interested

governmental participant with a notice

stating the name and address of the

person who is to answer them, and the

name, description, title, and address of

the officer before whom they are to be

asked. Within ten days after service, any

other party or interested governmental

participant may serve cross-questions.

The questions, cross-questions, and

answers shall be recorded and signed,

and the deposition certified, returned,

and transmitted in electronic form to the

Secretary of the Commission for entry

into the electronic docket as in the case

of a deposition on oral examination.

* * * * *

(i)(1) After receiving written notice of

the deposition under paragraph (a) or

paragraph (e) of this section, and ten

days before the scheduled date of the

deposition, the deponent shall submit

an electronic index of all documents in

his or her possession, relevant to the

subject matter of the deposition,

including the categories of documents

set forth in paragraph (i)(2) of this

section, to all parties and interested

governmental participants. The index

shall identify those records which have

already been made available

electronically. All documents that are

not identical to documents already

made available electronically , whether

by reason of subsequent modification or

by the addition of notations, shall be

treated as separate documents.

(2) The following material is excluded

from the initial requirements of § 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;
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60799

(iii) Speeches;

(iv) Preliminary drafts;

(v) Marginalia.

(3) Subject to paragraph (i)(6) of this

section, any party or interested

governmental participant may request

from the deponent a paper copy of any

or all of the documents on the index

that have not already been provided

electronically.

(4) Subject to paragraph (i)(6) of this

section, the deponent shall bring a

paper copy of all documents on the

index that the deposing party or

interested governmental participant

requests that have not already been

provided electronically to an oral

deposition conducted pursuant to

paragraph (a) of this section, or in the

case of a deposition taken on written

questions pursuant to paragraph (e) of

this section, shall submit such

documents with the certified

deposition.

(5) Subject to paragraph (i)(6) of this

section, a party or interested

governmental participant may request

that any or all documents on the index

that have not already been provided

electronically, and on which it intends

to rely at hearing, be made

electronically available by the deponent.

(6) The deposing party or interested

governmental participant shall assume

the responsibility for the obligations set

forth in paragraphs (i)(1), (i)(3), (i)(4),

and (i)(5) of this section when deposing

someone other than a party or interested

governmental participant.

* * * * *

Dated at Rockville, MD, this 6th day of

November, 1997.

For the Nuclear Regulatory Commission.

John C. Hoyle,

Secretary of the Commission.

[FR Doc. 97–29884 Filed 11–12–97; 8:45 am]

BILLING CODE 7590–01–P

NATIONAL CREDIT UNION

ADMINISTRATION

12 CFR Part 792

The Freedom of Information Act and

Privacy Act

AGENCY: National Credit Union

Administration (NCUA).

ACTION: Proposed rule.

SUMMARY: NCUA proposes to revise its

regulations governing the disclosure of

information pursuant to the Freedom of

Information Act (FOIA) to reflect recent

changes to FOIA brought about by the

enactment of the Electronic Freedom of

Information Act Amendments of 1996

(E–FOIA). The proposed rule, among

other things, sets forth new procedures

NCUA will employ to implement

provisions of E–FOIA, such as

expedited treatment of requests and

multi-track processing. The proposed

rule also clarifies the information which

must be included in FOIA requests so

that NCUA can process them. Other

proposed changes to the rule are

designed to provide guidance to the

public on how to obtain records

contained in the files of the Office of

Inspector General.

DATES: Comments must be submitted on

or before January 12, 1998.

ADDRESSES: Comments should be

directed to Becky Baker, Secretary of the

Board. Mail or hand-deliver comments

to: National Credit Union

Administration, 1775 Duke Street,

Alexandria, Virginia 22314–3428. Fax

comments to (703) 518–6319. E-mail

comments to boardmail@ncua.gov.

Please send comments by one method

only.

FOR FURTHER INFORMATION CONTACT:

Dianne Salva, Staff Attorney, or Sheila

Albin, Associate General Counsel, (703)

518–6540.

SUPPLEMENTARY INFORMATION:

Background

The Freedom of Information Act

(FOIA) was enacted in 1966 to establish

the right of any member of the public to

obtain access to government

information. FOIA was amended several

times before 1996, when the Electronic

Freedom of Information Act

Amendments of 1996, Pub. L. 104–231,

was enacted. E–FOIA has twin goals of

making records contained in

government files more easily accessible

to the public and improving

administration of FOIA programs in the

agencies. In particular, Congress moved

to amend the FOIA because it found that

government agencies were increasingly

using computers to conduct agency

business and store valuable agency

records and information. When the

Senate passed FOIA in 1966, the

government is reported to have had just

1,826 computers in use. By 1994, in

addition to the proliferation of

individual personal computers used by

government employees, the number of

government computers had climbed to

almost 35,000. In recognition of the vast

amount of information the government

maintains in electronic format, E–FOIA

was designed to ensure continued

public access to government

information, including that maintained

in electronic format.

FOIA ensures that the public has

access to government information by

requiring agencies to disclose

information in three ways. First, FOIA

requires agencies to disclose basic

information about agency structure and

general rules of procedure within the

agency by publication in the Federal

Register. Second, FOIA requires

agencies to make certain categories of

records available for the public to

inspect and copy. Many agencies have

established public reading rooms to

comply with this requirement. And,

third, FOIA requires agencies to respond

to individual requests for other specific

agency records. Records must be

released unless one or more of FOIA’s

nine statutory exemptions applies.

Under E–FOIA, public access to

‘‘reading room’’ records, which are

those records that must be made

available for inspection and copying,

will be enhanced in two ways. The

categories of records which fall within

the ‘‘reading room’’ provision of FOIA

have been expanded. Previously, three

categories of records were required to be

made available for inspection and

copying: Final opinions, including

concurring and dissenting opinions, as

well as orders, made in the adjudication

of cases; statements of policy and

interpretations which have been

adopted by the agency and are not

published in the Federal Register; and

administrative staff manuals and

instructions to staff that affect a member

of the public. Under E–FOIA two new

categories have been added: Records

released under the FOIA after March 31,

1997, which the agency determines have

become or are likely to become the

subject of subsequent requests, and a

general index of the new category of

records.

Public access to reading room records

will be further enhanced by the

provision in E–FOIA which requires

that agencies make their reading room

records available electronically, if they

are created by the agency on or after

November 1, 1996. The ‘‘electronic

reading room’’ can be implemented by

placing records on the internet.

As for individual requests, E–FOIA

clarifies that reasonable efforts must be

made to search for records

electronically. It also requires agencies

to provide requesters with records in the

form or format the requester chooses, if

the agency can readily do so. Perhaps

most fundamental to the new law is its

provision that clarifies that records, if

they meet other legal requirements, are

subject to FOIA even though they are

maintained in electronic format.

The other goal of E–FOIA was to

improve the administration of FOIA

programs in the agencies. Congress

found that due to a lack of resources,

some agencies suffered stubborn