[Federal Register Volume 62, Number 219 (Thursday, November 13, 1997)]
[Proposed Rules]
[Pages 60789-60799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29884]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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

[[Page 60789]]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 2

RIN 3150-AF88


Procedures Applicable to Proceedings for the Issuance of Licenses 
for the Receipt of High-Level Radioactive Waste at a Geologic 
Repository

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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

DATES: Submit comments by January 27, 1998. Comments received after 
this date will be considered if it is practical to do so, but the NRC 
is able to assure consideration only for comments received on or before 
this date.

ADDRESSES: Send comments by mail addressed to the Secretary, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001. Attention: 
Rulemakings and Adjudications Staff.
    Hand-deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland, between 7:30 am and 4:15 pm on Federal workdays.
    You may also provide comments via the NRC's interactive rulemaking 
web site through the NRC home page (http://www.nrc.gov). This site 
provides the availability to upload comments as files (any format), if 
your web browser supports that function. For information about the 
interactive rulemaking site, contact Ms. Carol Gallagher, (301) 415-
5905; e-mail <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="01424046416f73622f666e772f">[email protected]</a>
    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 <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="7c37302b3c120e1f521b130a52">[email protected]</a>

SUPPLEMENTARY INFORMATION:

I. Background

    The existing procedures for licenses to receive high-level 
radioactive waste at a geologic repository were developed to address 
the Nuclear Regulatory Commission's concern regarding how best to 
review the U.S. Department of Energy (DOE) license application for a 
first-of-a-kind high-level radioactive waste (HLW) repository during 
the 3-year time period dictated by Section 114(d) of the Nuclear Waste 
Policy Act. The Commission believed it necessary to reduce the time 
normally spent on the discovery process at the start of a licensing 
proceeding and the time-consuming service of documents during the 
proceeding if the Commission were to reach its decision within the 
allotted time. The Licensing Support System (LSS) concept, an 
electronic information management system, was created to achieve this 
time reduction by making the information and data supporting a DOE 
application available simultaneously in a centralized database to all 
interested parties before the application is submitted and formal NRC 
review begins. Emerging information management technologies for issue 
identification, electronic storage and retrieval, and electronic mail 
were recommended for these functions to help achieve the objectives of 
more effective and efficient review.
    The Commission employed the technique of negotiated rulemaking to 
develop the regulations governing the development and use of the LSS. 
Negotiated rulemaking is the process by which the agency and the 
interests affected by a rulemaking meet to attempt to reach a consensus 
on a draft proposed rule. If a consensus is reached, the agency 
publishes the negotiated rule as the agency's proposed rule. The 
Commission selected the negotiated rulemaking approach to address the 
LSS issue for several reasons. In 1987, the idea of use of an 
electronic information management system in a Commission adjudicatory 
proceeding was novel, not only for the Commission, but in general. 
Therefore, the development of the rules for the use of such a system 
would benefit from discussion and joint problem solving by those who 
might ultimately use the system and had experience with the 
Commission's traditional adjudicatory process. Furthermore, the 
potential users of the LSS possessed unique information that would be 
important to the design of the system, such as their computer 
capability and the amount and types of relevant documents that they 
might generate. In addition, the potential for consensus was enhanced 
by the fact that the LSS rule focused on procedures for conducting the 
licensing process that might benefit all parties, rather than focusing 
on substantive technical criteria for a licensing process. Finally, the 
success of the LSS concept depended upon potential parties voluntarily 
complying with the licensing process for document identification and 
submission in the period before the DOE license application was 
submitted. Therefore, the involvement of interested parties in the 
development of the provisions to govern the use of the LSS was 
essential.
    The Commission initiated the negotiated rulemaking in August 1987. 
The negotiating committee, composed of State, local, and tribal 
governments, industry representatives, NRC, DOE, and environmental 
groups, completed its work in July 1988. Except for the industry 
coalition, all the parties on the negotiating committee agreed on the 
text and supplementary information of a draft proposed rule. However, 
even the one dissenting party, the industry representative, had been a 
full and active participant in the drafting of the regulatory text and 
supporting information. Industry did not join the final consensus at 
the end of the process based on its belief that the use of a new 
technology in the licensing process

[[Page 60790]]

would not prove cost-beneficial. At that time, the cost of the LSS was 
estimated by DOE to be in the $200 million range. The Commission, 
recognizing the agreement among the other parties on the negotiating 
committee, decided to publish the negotiated draft proposed rule as the 
Commission's proposed rule in November 1988. Because of this effort, 
the final LSS rule (10 CFR part 2, subpart J), ``Procedures Applicable 
to Proceeding for the Issuance of Licenses for the Receipt of High-
Level Radioactive Waste at a Geologic Repository'', was promulgated on 
April 24, 1989 (54 FR 14925).
    The LSS rule assigned the LSS Administrator (LSSA) function to the 
NRC which would be responsible for the management, administration, 
operation, and maintenance of the LSS; pursuant to DOE's agreement, 
gave DOE responsibility for the design, development, and implementation 
of the LSS; and established the charter of the LSS Advisory Review 
Panel (LSSARP) to provide consensus guidance on the design and 
development of the LSS to both NRC and DOE. The LSS was intended to 
provide a central, shared, federally funded database of licensing 
information beginning in 1995, the year DOE was expected to submit its 
application for a construction permit for the repository. The 
Commission adopted minor amendments further clarifying these procedures 
in a final rule published on February 26, 1991 (56 FR 7787).
    The Licensing Support System Administrator (LSSA) was appointed in 
January 1989. The LSSARP was formed, holding its first meeting in 
December 1989. Also in December 1989, well before any serious 
development work could be started on the LSS, the Department of Energy 
revised its repository program schedule to extend its anticipated 
license application date from 1995 to 2001. Consequently, the LSS 
development schedule was extended.

II. Discussion

    The development of the LSS that was devised in the original 
procedural rules in 10 CFR Part 2, Subpart J, has not been accomplished 
during the time that has passed since adoption of the rule. Many delays 
and changes in personnel and program structure have attended the 
Department of Energy's efforts to develop the LSS. Budgetary shortfalls 
and the unanticipated length of time that it has taken to develop the 
licensing application for the repository not only delayed the 
development of the LSS, but also resulted in several additional years' 
accumulation of potential licensing information.
    Because of the length of time involved and the narrowing of the 
repository development program, much of the early material thought to 
be relevant at the time the rule was developed may no longer be 
relevant to the actual licensing proceeding that may not begin until 
about 2002. Also because of the extended period of time it has taken to 
develop the LSS for DOE's use as a document management system, it 
appears that all accumulated documents may not have been identified and 
maintained properly for tracking of important repository development 
decisions. In addition, because document capture may now involve much 
larger backlogs than originally contemplated, the risk of failing to 
capture all the material originally required to be placed in the LSS is 
substantially larger than originally assumed. In order for the current 
Subpart J rules to apply, the LSSA must certify that the DOE has 
complied with the requirement to enter all relevant documents in the 
LSS. Therefore, all of these factors combine to produce the high 
likelihood that the current rule cannot be implemented as originally 
envisioned. If not, then 10 CFR part 2, subpart J, will no longer 
apply. Instead, subpart G, the generally applicable procedures for 
licensing proceedings, will apply. This means that there would be no 
pre-license application access to documents.
    Although the development of the LSS has remained stalled, the state 
of technology in document automation and retrieval has overtaken the 
1986 technology on which the original LSS was to be based. The use of 
computers to generate and maintain the complex documents of a party in 
litigation is widespread and commonplace. The Internet is universally 
available to tie disparate and geographically dispersed systems 
together. Readily available commercial software applications can 
perform the document management functions of the LSS. Therefore, the 
centralized LSS envisioned at the time the LSS rule was developed has 
become obsolete. The enormous expense of designing and maintaining a 
stand-alone system required by the current rules appears to be an 
unjustified expense, especially when it appears unlikely that the rule 
will be able to be implemented successfully even if the LSS is created.
    Consequently, the Commission is proposing to amend its rules to 
allow more flexibility to incorporate the advantages of new information 
management technologies in the procedural rules for the licensing of 
the geologic repository. This would eliminate the LSS as a uniquely 
designed stand-alone system, while still maintaining the following 
primary functions of the LSS as a mechanism for the:
    (1) Discovery of documents before the license application is filed;
    (2) Electronic transmission of filings by the parties during the 
proceeding;
    (3) Electronic transmission of orders and decisions related to the 
proceeding; and
    (4) Access to an electronic version of the docket.
    The Commission believes that the proposed rule would continue to 
support the model schedule for conducting the licensing proceeding 
within the 3-year statutory period that was published in the Statement 
of Considerations for the original 10 CFR part 2, subpart J, rule 
published on April 14, 1989 (54 FR 14925, 14939).
    The proposed rule would eliminate the current prescriptive 
requirement in 10 CFR part 2, subpart J, for a centralized ``Licensing 
Support System'' administered by the NRC and therefore also would 
eliminate the requirement for an LSS Administrator to ensure the 
viability of the central database. To replace these features of the 
existing rule, the proposed rule would require that all potential 
parties, including the NRC and DOE, make their documentary material 
available in electronic form to all other participants beginning in the 
pre-license application phase. This requirement is stated without 
unduly restrictive technological specifications, in order to 
accommodate flexible implementation consistent with current or future 
technological developments.
    Documentary material would be defined as the material upon which a 
party intends to rely in support of its position in the licensing 
proceeding; any material which is relevant to, but does not support, 
that material or that party's position; and all reports and studies, 
prepared by or on behalf of the potential party, interested 
governmental participant, or party, including all related ``circulated 
drafts,'' relevant to the issues set forth in the Topical Guidelines in 
Regulatory Guide 3.69, regardless of whether they will be relied upon 
and/or cited by a party. For the purposes of this rule, the pre-
application phase would begin on the date that the President submits 
the site recommendation to Congress. This timing would allow access to 
the parties' documentary material enough before DOE submits the license 
application to allow advance preparation of contentions and discovery 
requests before the license

[[Page 60791]]

application, but late enough in the repository development process to 
provide meaningful information.
    A Pre-License Application Presiding Officer would resolve any 
disputes over electronic access to documents during the pre-license 
application phase. Potential parties would be required to certify to 
the Pre-License Application Presiding Officer that they have complied 
with the requirement to provide electronic access to their documentary 
material. The requirements of the current rule for an electronic 
hearing docket would be retained, as well as the limitations on the 
permissible forms of discovery after the application is filed.
    The Commission is considering two alternatives regarding the LSS 
Advisory Review Panel. In this proposed rule, because the concept of 
the LSS would be replaced, the requirement for an LSS Advisory Review 
Panel would be modified so the panel can advise the Secretary of the 
Commission regarding standards and procedures for electronic access to 
documents and for maintenance of the electronic docket. This would 
require renaming of the advisory committee and redrafting of the 
committee charter. However, the Commission is also considering the 
alternative of replacing the Advisory Review Panel with a more informal 
users group, and particularly requests comments from potential parties 
to the HLW repository licensing proceeding regarding these two 
alternative arrangements.

III. Section-by-Section Description of Changes

    In Sec. 2.1000, the reference to Sec. 2.709 would be removed 
because it would require compliance with Sec. 2.708 that would not 
apply to this subpart.
    In Sec. 2.1001, the following definitions would be added, amended, 
or removed:

ASCII File

    This definition would be removed and no longer used in the rule. 
Prescriptive references to specific technical standards would be 
removed to allow flexible implementation consistent with developing 
technology.

Documentary Material

    The definition of documentary material would be revised to cover 
material upon which a party, potential party, or interested 
governmental participant intends to rely and/or cite in support of its 
position in the licensing proceeding; any material or other information 
which is relevant to, but does not support, that material or 
information or that party's position; and all reports and studies, 
prepared by or on behalf of the potential party, interested 
governmental participant, or party, including all related ``circulated 
drafts,'' relevant to the issues set forth in the Topical Guidelines in 
Regulatory Guide 3.69, regardless of whether they will be relied upon 
and/or cited by a party. This definition would be used in the rule in 
Sec. 2.1003 to define what material must be provided in electronic form 
for access beginning in the pre-license application phase. Therefore 
the term ``documentary material'' would be intended to describe the 
most important body of material and would be defined clearly to require 
that all parties include electronic access to any relevant material in 
their possession that does not support their position in the licensing 
proceeding, as well as providing access to the material that does 
support their position, and any reports and studies prepared by the 
party on issues described in the Topical Guidelines, regardless of 
whether or not they would be relied upon or cited by the party. The 
scope of the documentary material would still be governed by the 
topical guidelines.

Electronic Docket

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

Integrated Electronic Information

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

LSS Administrator

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

Party

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

Potential Party

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

Pre-license Application Electronic Docket

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

Pre-License Application Phase

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

Searchable Full Text

    This definition would be revised to remove references to ASCII and 
to the LSS.

Topical Guidelines

    A new definition would be added to describe the set of topics set 
forth in Regulatory Guide 3.69 that are intended to guide the scope of 
documentary material under this subpart.
    Section 2.1002 would be removed because the LSS would no longer be 
required. Access to integrated electronic information would provide the 
major functions which the LSS was designed to provide. Paragraphs (c) 
and (d), which state that participation by the host State in the pre-
application phase will not affect its disapproval rights, and that this 
subpart shall not affect any participant's independent right to receive 
information, would be incorporated in the revised Sec. 2.1003 as 
paragraphs (a)(2) and (3).
    Section 2.1003 would be revised to describe information that would 
be required to be made available electronically by all potential 
parties, parties, and interested governmental

[[Page 60792]]

participants (including the NRC and DOE). This information would have 
to be made available to all other participants beginning in the pre-
license application phase, which starts at the date of the President's 
submission of the site recommendation to the Congress. The requirements 
of the rule would be simplified to require only that access to an 
electronic file be provided. All references to specific formats would 
be removed to allow flexibility in implementation. The Commission 
intends that a potential party, party, or interested governmental 
participant might offer electronic access to its documentary material 
in a number of different ways, including by providing its documents in 
electronic form either to the NRC or to the DOE, to have the NRC or the 
DOE maintain the documents for electronic access.
    Although the draft rule would require that documentary material be 
made available electronically beginning on the date of the President's 
site recommendation to the Congress, the Commission would encourage the 
earliest feasible availability of documentary material in order to 
enhance the future smooth operation of the licensing proceeding. The 
paragraphs relating to evaluations and certifications by the LSS 
Administrator would be removed because the LSS (and LSSA) concept would 
be removed. Section 2.1010 states that the Pre-License Application 
Presiding Officer will resolve any disputes relating to electronic 
access to documents in the pre-license application phase. Accordingly, 
the paragraphs which stated that the application would have to be 
docketed under Subpart G if the LSSA did not certify compliance would 
be removed, and Subpart J (including specifically referenced sections 
of Subpart G) would unconditionally embody the rules of procedure for 
the HLW licensing proceeding.
    Section 2.1004 would be revised to provide procedures for providing 
access to a document that has not previously been provided in 
electronic form and to delete previous references to the LSS and the 
LSSA.
    Section 2.1005 would be revised to delete reference to the LSS and 
to add an exclusion of readily available references, such as journal 
articles or proceedings, which may be subject to copyright.
    Section 2.1006 would be revised to refer to providing a document in 
electronic form and to delete references to the LSS and the LSSA.
    Section 2.1007 would be revised to refer to providing systems for 
access to integrated electronic information rather than providing 
terminals for access to the LSS. These systems must be maintained by 
DOE and NRC at the locations specified in the current version of the 
rule (except for the Uranium Recovery Field Office which no longer 
exists), beginning in the pre-license application phase.
    Section 2.1008 would be revised to allow electronic access to the 
integrated electronic information to any person who complies with the 
requirements of Subpart J, including the requirement in Sec. 2.1003 to 
make documentary material available, and who agrees to comply with the 
orders of the Pre-license Application Presiding Officer. The previous 
requirement to petition to the Pre-license Application Presiding 
Officer would be removed.
    Section 2.1009 would be revised to delete references to the LSS and 
the LSSA, and to refer instead to the responsibility to provide 
electronic files. The responsible official for each potential party 
would be required to certify to the Pre-License Presiding Officer that 
procedures to comply with Sec. 2.1003 have been implemented and that 
its documentary material has been made electronically available. A new 
requirement to update the certification at the request of the presiding 
officer would be added to replace a previous requirement to provide 
this certification at 6 month intervals.
    Section 2.1010 would be revised to delete references to the LSS and 
the LSSA and to refer instead to electronic access. The reference to 
petitions for access would be removed to conform to removal of this 
requirement.
    Section 2.1011 is being considered for revision in either of two 
alternative ways and the Commission requests specific comments on these 
alternatives. This proposed rule would revise Sec. 2.1011 to reflect 
that the electronic availability of documentary material that is 
specified in this rule no longer requires special equipment. The name 
and functions of the LSS Advisory Review Panel would be amended to 
delete the reference to the LSS and substitute the purpose of arriving 
at standards and procedures to facilitate the electronic access to 
material and to the electronic docket. Because of the broad and non-
prescriptive requirements regarding providing electronic files in this 
proposed rule, the Advisory Review Panel would be very useful in 
discussing standards and procedures to ensure that all participants are 
able to access the electronic information. Because the LSS concept 
would be replaced, and the requirement for an LSS Advisory Review Panel 
would be modified in the proposed rule to accommodate a new purpose, 
the advisory committee would have to be renamed and the committee 
charter would have to be redrafted.
    However, the Commission is also considering the alternative of 
eliminating the requirement for an advisory committee chartered under 
the Federal Advisory Committee Act, and substituting a more informal 
voluntary users group to perform the functions of discussing electronic 
format standards, procedures, and other details. If this option were 
adopted, the final rule would be revised to refer to the users group. 
This group would be able to interact using Internet discussion areas 
(like LSSNet) as well as meetings, video conferences, or 
teleconferences. This users group would ideally make use of the current 
LSSARP members' knowledge and experience. The Commission is 
particularly requesting comment from potential parties to the HLW 
repository concerning their interest and support for the informal users 
group alternative.
    Section 2.1012(a) would be revised to allow the Director of the NRC 
Office of Nuclear Material Safety and Safeguards (NMSS) to determine 
that the application would not be acceptable if it is not able to be 
accessed through the electronic docket. Section 2.1012(b)(1) would be 
revised to substitute integrated electronic information for Licensing 
Support System so that a person who has had access to the integrated 
electronic information would not be granted party status in the 
licensing proceeding if it cannot demonstrate compliance with the 
requirements of Sec. 2.1003. Section 2.1012 (d) would be revised to 
substitute pre-license application electronic docket or electronic 
docket for Licensing Support System to indicate that access to either 
the pre-license application electronic docket or the electronic docket 
may be suspended or terminated for failure to comply with the orders of 
the Pre-License Application Presiding Officer or the Presiding Officer.
    Section 2.1013 would be revised to delete references to the LSS and 
LSSA and would refer to the provision of information in electronic 
form. The requirement in Sec. 2.1013(c)(5) to file one signed paper 
copy of each filing with the Secretary, NRC, would be removed because 
the electronic docket would not require signed paper copies.
    Section 2.1014(c)(4) would delete a reference to the LSS and make 
the failure of a petitioner to participate in the pre-license 
application phase a criterion in considering whether to grant a 
petition to intervene.

[[Page 60793]]

    Section 2.1017 would use the unavailability of the electronic 
docket instead of the LSS as a justification for extending the 
computation of time in the proceeding.
    Sections 2.1018 and 2.1019 would be revised to delete references to 
the LSS and instead to refer to providing documents electronically.
    In addition, minor editorial changes have been made throughout the 
proposed rule to improve readability.

Environmental Impact: Categorical Exclusion

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

Paperwork Reduction Act Statement

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

Regulatory Analysis

    The history of the development of the existing rule, 10 CFR part 2, 
subpart J, and the current regulatory problem are described in the 
Background and Discussion sections of this notice. To address the 
regulatory problem, several alternative approaches to amending the 
regulations in subpart J of part 2 were considered.

Option 1: Existing Rule

    This approach would not take advantage of current and future 
technology. It would require an enormously expensive custom designed 
system to be developed using old assumptions about technological 
standards and the universe of ``relevant'' material. At the time of the 
development of the existing rule, the cost of the LSS was estimated by 
DOE to be in the $200 million range. Furthermore, given the large 
backlog that contains a substantial amount of documents that may no 
longer be relevant because of the unanticipated delay in developing the 
LSS as initially designed in 1988, there is a substantial chance that 
it would be impossible for the DOE to achieve, and for the LSSA to 
certify, compliance with the provisions of the current rule. In this 
case, the proceeding would have to be conducted under 10 CFR part 2, 
subpart G, and could result in a protracted discovery phase. In 
addition to the very costly and ineffective system, the further costs 
of using this approach are difficult to quantify, however the 
lengthened discovery phase could prevent the Commission from meeting 
the statutory deadline for decision on the application. This delay 
could also result in possible increased spent fuel storage costs for 
the additional length of the licensing proceeding.

Option 2: 10 CFR Part 2, Subpart G

    Because the NRC is developing a new system called the Agency-wide 
Documents Access and Management System (ADAMS), which will provide an 
agency-wide electronic docket, it would be possible to rely on existing 
adjudicatory procedure rules in 10 CFR part 2, subpart G (which will 
have to be updated to reflect the electronic docket) to conduct the 
licensing proceeding. However, this approach would not provide pre-
license application access to documents and could result in a 
protracted discovery phase. The costs of using this approach are 
difficult to quantify. However the lengthened discovery phase could 
prevent the Commission from meeting the statutory deadline for decision 
on the application and result in possible increased spent fuel storage 
costs, as in Option 1.

Option 3: Existing Rule Using a Distributed System

    This approach would allow using linked individual Internet sites to 
serve as the LSS. However, this approach does not solve the problem 
discussed in Option 1 concerning the requirement to capture a huge 
backlog of material that may not have been maintained in a manner that 
would ever permit compliance with the rule, and which may not all be 
relevant to the future license application. Therefore, the costs of 
this approach, as in Option 1, would include the possibility that the 
LSS rule compliance finding could not be made and the proceeding would 
have to be conducted under 10 CFR part 2, subpart G. A lengthened 
discovery phase could prevent the Commission from meeting the statutory 
deadline for decision on the application and result in possible 
increased spent fuel storage costs, as in Option 1.

Option 4: Revised Rule With More Realistic Document Discovery Approach

    This approach would remove the requirement for a central LSS system 
and LSS Administrator, but would require each potential party to 
provide for the electronic availability of both the material it intends 
to rely upon to support its position, any material which does not 
support that material or that position, and any reports or studies 
prepared by or for the party, beginning in the pre-application phase 
(presided over by a Pre-License Application Presiding Officer). This 
definition of documentary material would provide pre-application access 
to a more focussed set of the materials most important to the licensing 
proceeding. It would not require electronic access to the entire 
backlog of DOE and other parties' material, some of which may no longer 
be relevant to the licensing proceeding. The electronic docket 
functionality of the LSS would be provided by the NRC agency-wide 
system with supervision of the Presiding Officer. Participation in the 
pre-license application phase would be one criterion for participating 
in the hearing. After the application is filed, in addition to the 
electronically available material, discovery would be limited to 
interrogatories and depositions as in the current rule. The specific 
method of providing electronic access to documentary would not be 
specified, which would allow flexibility to accommodate current and 
future technology advances. Individual parties may give their documents 
in electronic form to NRC or DOE in order to provide electronic access. 
Because this rule would unconditionally provide the procedural rules 
for the HLW licensing proceeding, there would be no last minute danger 
that the proceeding would have to be conducted under 10 CFR part 2, 
subpart G.
    The Commission believes that Option 4 provides the most effective 
solution for maintaining the basic functionality of the LSS conceptual 
design, while most flexibly accommodating current and future 
technological developments. The Commission requests public comment on 
the draft regulatory analysis. Comments on the draft analysis may be 
submitted to the NRC as indicated under the Addresses heading.

Regulatory Flexibility Certification

    The amendments would modify the Commission's rules of practice and 
procedures. The rule would be amended to allow more widely available 
electronic access to information before the license application is 
filed. Participants would be required to make their own documentary 
material available electronically. This proposed rule would not have a 
significant economic impact upon a substantial number of small 
entities. The license applicant for the HLW repository would be the 
Department of Energy . DOE would not fall within the definition of a 
``small entity'' in the NRC's size standards (10 CFR 2.810). Although a 
few of the intervenors in the HLW

[[Page 60794]]

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

Backfit Analysis

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

List of Subjects in 10 CFR Part 2

    Administrative practice and procedure, Antitrust, Byproduct 
material, Classified information, Environmental protection, Nuclear 
materials, Nuclear power plants and reactors, Penalties, Sex 
discrimination, Source material, Special nuclear material, Waste 
treatment and disposal.
    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954; as amended, the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 553; the Nuclear Regulatory 
Commission is proposing to adopt the following amendments to 10 CFR 
part 2.

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

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

    Authority: Secs. l6l, l8l, 68 Stat. 948, 953, as amended (42 
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 
5841); 5 U.S.C. 552.

    Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 
105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 
2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. L. 97-425, 
96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102, Pub. L. 91-
190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 
(42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also 
issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 
938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 
2239). Section 2.105 also issued under Pub. L. 97-415, 96 Stat. 2073 
(42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 161b, i, 
o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 
U.S.C. 2201 (b), (i), (o), 2236, 2282); sec. 206, 88 Stat 1246 (42 
U.S.C. 5846). Section 2.205(j) also issued under Pub. L. 101-410, 104 
Stat. 890, as amended by Section 31001(s), Pub. L. 104-134, 110 Stat. 
1321-373 (28 U.S.C. 2461 note.) Sections 2.600-2.606 also issued under 
sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). 
Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 
2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 also 
issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 
U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 68 
Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 
and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued 
under 5 U.S.C. 553 and sec. 29, Pub. L. 85-256, 71 Stat. 579, as 
amended (42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 
Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 
U.S.C. 10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42 
U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 91-560, 84 
Stat. 1473 (42 U.S.C. 2135).
    2. Section 2.1000 is revised to read as follows:


Sec. 2.1000  Scope of subpart.

    The rules in this subpart govern the procedure for applications for 
a license to receive and possess high-level radioactive waste at a 
geologic repository operations area noticed pursuant to 
Sec. 2.101(f)(8) or Sec. 2.105(a)(5). The procedures in this subpart 
take precedence over the 10 CFR part 2, subpart G, rules of general 
applicability, except for the following provisions: Secs. 2.702, 2.703, 
2.704, 2.707, 2.711, 2.713, 2.715, 2.715a, 2.717, 2.718, 2.720, 2.721, 
2.722, 2.732, 2.733, 2.734, 2.742, 2.743, 2.750, 2.751, 2.753, 2.754, 
2.755, 2.756, 2.757, 2.758, 2.759, 2.760, 2.761, 2.763, 2.770, 2.771, 
2.772, 2.780, 2.781, 2.786, 2.788, and 2.790.
    3. Section 2.1001 is amended by removing the definitions of ASCII 
File and LSS Administrator; adding definitions of Electronic docket, 
Integrated electronic information, Pre-license application electronic 
docket, and Topical Guidelines; and revising the definitions of 
Documentary material, Party, Potential party, Pre-license application 
phase, and Searchable full text, to read as follows:


Sec. 2.1001  Definitions.

* * * * *
    Documentary material means any material or other information upon 
which a party, potential party, or interested governmental participant 
intends to rely and/or to cite in support of its position in the 
proceeding for a license to receive and possess high-level radioactive 
waste at a geologic repository operations area pursuant to part 60 of 
this chapter; any material or other information that is relevant to, 
but does not support, that material or information or that party's 
position; and all reports and studies, prepared by or on behalf of the 
potential party, interested governmental participant, or party, 
including all related ``circulated drafts,'' relevant to the issues set 
forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of 
whether they will be relied upon and/or cited by a party. The scope of 
documentary material shall be guided by the topical guidelines in the 
applicable NRC Regulatory Guide.
* * * * *
    Electronic docket means the NRC information system that receives, 
distributes, stores, and retrieves the Commission's adjudicatory docket 
materials.
* * * * *
    Integrated electronic information means the material that is made 
available electronically to parties, potential parties, and interested 
governmental participants to the proceeding for a license to receive 
and possess high-level radioactive waste at a geologic repository 
operations area pursuant to part 60 of this chapter, as part of the 
electronic docket or electronic access to documentary material, 
beginning in the pre-license application phase.
* * * * *
    Party for the purpose of this subpart means the DOE, the NRC staff, 
the host State, any affected unit of local government as defined in 
section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 
U.S.C. 10101), any affected Indian Tribe as defined in section 2 of the 
Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), and a 
person admitted under

[[Page 60795]]

Sec. 2.1014 to the proceeding on an application for a license to 
receive and possess high-level radioactive waste at a geologic 
repository operations area pursuant to part 60 of this chapter; 
provided that a host State, affected unit of local government, or 
affected Indian Tribe shall file a list of contentions in accordance 
with the provisions of Secs. 2.1014(a)(2) (ii) and (iii).
* * * * *
    Potential party means any person who, during the period before the 
issuance of the first pre-hearing conference order under 
Sec. 2.1021(d), is given access to the integrated electronic 
information and who consents to comply with the regulations set forth 
in subpart J of this part, including the authority of the Pre-License 
Application Presiding Officer designated pursuant to Sec. 2.1010.
    Pre-license application electronic docket means the NRC's 
electronic information system that receives, distributes, stores, and 
maintains NRC pre-license application docket materials during the pre-
license application phase.
    Pre-license application phase means the time period before the 
license application to receive and possess high-level radioactive waste 
at a geologic repository operations area is docketed under 
Sec. 2.101(f)(3). For the purpose of this subpart, this period begins 
on the date that the President submits the site recommendation to the 
Congress pursuant to section 114(a)(2)(A) of the Nuclear Waste Policy 
Act of 1982, as amended (42 U.S.C. 10134(a)(2)(A)). .
* * * * *
    Searchable full text means the electronic indexed entry of a 
document that allows the identification of specific words or groups of 
words within a text file.
    Topical Guidelines means the set of topics set forth in Regulatory 
Guide 3.69, Topical Guidelines for the Licensing Support System, which 
are intended to guide the scope of ``documentary material''.


Sec. 2.1002  [Removed and reserved]

    4. Section 2.1002 is removed and reserved.
    5. Section 2.1003 is revised to read as follows:


Sec. 2.1003  Availability of material.

    (a) Beginning in the pre-license application phase, subject to the 
exclusions in Sec. 2.1005 and paragraphs (b) and (c) of this section, 
each potential party, interested governmental participant or party, 
shall make available to other potential parties, interested government 
participants or parties--
    (1) An electronic file for all documentary material (including 
circulated drafts but excluding preliminary drafts) generated by, or at 
the direction of, or acquired by, a potential party, interested 
governmental participant, or party. Concurrent with the production of 
the electronic file will be an authentication statement that indicates 
where an authenticated image copy of the document can be obtained.
    (2) The participation of the host State in the pre-license 
application phase shall not affect the State's ability to exercise its 
disapproval rights under section 116(b)(2) of the Nuclear Waste Policy 
Act, as amended, 42 U.S.C. 10136(b)(2).
    (3) This subpart shall not affect any independent right of a 
potential party, interested governmental participant or party to 
receive information.
    (b)(1) Each potential party, interested governmental participant, 
or party shall make available in electronic image form, subject to the 
claims of privilege in Sec. 2.1006, graphic-oriented documentary 
material that includes raw data, computer runs, computer programs and 
codes, field notes, laboratory notes, maps, diagrams and photographs 
which have been printed, scripted, or hand written. Text embedded 
within these documents need not be separately entered in searchable 
full text. Graphic-oriented documents may include--
    Calibration procedures, logs, guidelines, data and discrepancies;
    (ii) Gauge, meter and computer settings;
    (iii) Probe locations;
    (iv) Logging intervals and rates;
    (v) Data logs in whatever form captured;
    (vi) Text data sheets;
    (vii) Equations and sampling rates;
    (viii) Sensor data and procedures;
    (ix) Data Descriptions;
    (x) Field and laboratory notebooks;
    (xi) Analog computer, meter or other device print-outs;
    (xii) Digital computer print-outs;
    (xiii) Photographs;
    (xiv) Graphs, plots, strip charts, sketches;
    (xv) Descriptive material related to the information identified in 
paragraph (b)(1) of this section.
    (2) Each potential party, interested governmental participant, or 
party shall make available in an electronic file, subject to the claims 
of privilege in Sec. 2.1006, only a bibliographic header for each item 
of documentary material that is not suitable for image or searchable 
full text.
    (c) Each potential party, interested governmental participant, or 
party shall make available electronically a bibliographic header for 
each documentary material--
    (1) For which a claim of privilege is asserted;
    (2) Which constitutes confidential financial or commercial 
information; or
    (3) Which constitutes safeguards information under Sec. 73.21 of 
this chapter.
    (d) Basic licensing documents generated by DOE, such as the Site 
Characterization Plan, the Environmental Impact Statement, and the 
license application, or by NRC, such as the Site Characterization 
Analysis, and the Safety Evaluation Report, shall be made available in 
electronic form by the respective agency that generated the document.
    6. Section 2.1004 is revised to read as follows:


Sec. 2.1004  Amendments and additions.

    Any document that has not been provided to other parties in 
electronic form must be identified in an electronic notice and made 
available for inspection and copying by the potential party, interested 
governmental participant, or party responsible for the submission of 
the document within two days after it has been requested unless some 
other time is approved by the Pre-License Application Presiding Officer 
or the Presiding Officer designated for the high-level waste 
proceeding. The time allowed under this paragraph will be stayed 
pending Officer action on a motion to extend the time.
    7. Section 2.1005 is revised to read as follows:


Sec. 2.1005  Exclusions.

    The following material is excluded from the requirement to provide 
electronic access, either pursuant to Sec. 2.1003, or through 
derivative discovery pursuant to Sec. 2.1019(i)--
    (a) Official notice materials;
    (b) Reference books and text books;
    (c) Material pertaining exclusively to administration, such as 
material related to budgets, financial management, personnel, office 
space, general distribution memoranda, or procurement, except for the 
scope of work on a procurement related to repository siting, 
construction, or operation, or to the transportation of spent nuclear 
fuel or high-level waste;
    (d) Press clippings and press releases;
    (e) Junk mail;
    (f) Preferences cited in contractor reports that are readily 
available;
    (g) Classified material subject to subpart I of this part;
    (h) Readily available references, such as journal articles and 
proceedings, which may be subject to copyright.

[[Page 60796]]

    8. Section 2.1006 is revised to read as follows:


Sec. 2.1006  Privilege.

    (a) Subject to the requirements in Sec. 2.1003(c), the traditional 
discovery privileges recognized in NRC adjudicatory proceedings and the 
exceptions from disclosure in Sec. 2.790 may be asserted by potential 
parties, interested governmental participants, and parties. In addition 
to Federal agencies, the deliberative process privilege may also be 
asserted by State and local government entities and Indian Tribes.
    (b) Any document for which a claim of privilege is asserted, but is 
denied in whole or in part by the Pre-License Application Presiding 
Officer or the Presiding Officer, must be provided in electronic form 
by the party, interested governmental participant, or potential party 
that asserted the claim to--
    (1) The other participants; or
    (2) To the Pre-License Application Presiding Officer or to the 
Presiding Officer, for entry into a Protective Order file, if the Pre-
License Application Presiding Officer or the Presiding Officer so 
directs under Secs. 2.1010(b) or 2.1018(c).
    (c) Notwithstanding any availability of the deliberative process 
privilege under paragraph (a) of this section, circulated drafts not 
otherwise privileged shall be provided for electronic access pursuant 
to Sec. 2.1003(a).
    9. Section 2.1007 is being revised to read as follows:


Sec. 2.1007  Access.

    (a)(1) A system to provide electronic access to the integrated 
electronic information shall be provided at the headquarters of DOE, 
and at all DOE Local Public Document Rooms established in the vicinity 
of the likely candidate site for a geologic repository, beginning in 
the pre-license application phase.
    (2) A system to provide electronic access to the integrated 
electronic information shall be provided at the headquarters Public 
Document Room of NRC, and at all NRC Local Public Document Rooms 
established in the vicinity of the likely candidate site for a geologic 
repository, and at the NRC Regional Offices beginning in the pre-
license application phase.
    (3) The systems for electronic access specified in paragraphs 
(a)(1) and (a)(2) of this section shall include locations at Las Vegas, 
Nevada; Reno, Nevada; Carson City, Nevada; Nye County, Nevada; and 
Lincoln County, Nevada.
    (b) Public availability of paper and electronic copies of the 
records, as well as duplication fees, and fee waiver for those records, 
is governed by the Freedom of Information Act (FOIA) regulations of the 
respective agencies.
    (c) Documents to which electronic access has been provided by other 
parties, potential parties, or interested governmental participants 
pursuant to this subpart shall not be considered as agency records of 
the Nuclear Regulatory Commission or the Department of Energy unless 
and until they have been entered into the docket of the proceeding 
pursuant to Sec. 2.702 for purposes of the FOIA, 5 U.S.C. 552, if these 
documents remain under the custody and control of the agency or 
organization that identified the documents. Requests for access 
pursuant to the FOIA to documents submitted by a Federal agency shall 
be transmitted to that Federal agency.
    10. Section 2.1008 is revised to read as follows:


Sec. 2.1008  Potential parties.

    Any person who complies with the regulations in this subpart, 
including Sec. 2.1003, and agrees to comply with the orders of the Pre-
License Application Presiding Officer designated under Sec. 2.1010, may 
have electronic access to the integrated electronic information made 
available pursuant to this subpart in the pre-license application 
phase.
    11. Section 2.1009 is revised to read as follows:


Sec. 2.1009  Procedures.

    (a) Each potential party, interested governmental participant, or 
party shall--
    (1) Designate an official who will be responsible for 
administration of its responsibility to provide electronic files of 
documentary material ;
    (2) Establish procedures to implement the requirements in 
Sec. 2.1003;
    (3) Provide training to its staff on the procedures for 
implementation of the responsibility to provide electronic files of 
documentary material;
    (4) Ensure that all documents carry the submitter's unique 
identification number;
    (5) Cooperate with the advisory review process established by the 
NRC under Sec. 2.1011(c).
    (b) The responsible official designated pursuant to paragraph 
(a)(1) of this section shall certify to the Pre-License Application 
Presiding Officer that the procedures specified in paragraph (a)(2) of 
this section have been implemented, and that to the best of his or her 
knowledge, the documentary material specified in Sec. 2.1003 has been 
identified and made electronically available. Upon order of a duly 
appointed presiding officer, the responsible official shall update this 
certification.
    12. Section 2.1010 is revised to read as follows:


Sec. 2.1010  Pre-License Application Presiding Officer.

    (a)(1) The Commission may designate one or more members of the 
Commission, or an atomic safety and licensing board, or a named officer 
who has been delegated final authority on the matter (Pre-License 
Application Presiding Officer) to rule on disputes over the electronic 
availability of documents during the pre-license application phase, 
including disputes relating to privilege, and disputes relating to the 
implementation of the recommendations of the Advisory Review Panel 
established under Sec. 2.1011(e).
    (2) The Pre-License Application Presiding Officer shall be 
designated before the integrated electronic information is scheduled to 
be available.
    (b) The Pre-License Application Presiding Officer shall rule on any 
claim of document withholding to determine--
    (1) Whether it is documentary material within the scope of this 
subpart;
    (2) Whether the material is excluded under Sec. 2.1005;
    (3) Whether the material is prvileged or otherwise excepted from 
disclosure under Sec. 2.1006;
    (4) If privileged, whether it is an absolute or qualified 
privilege;
    (5) If qualified, whether the document should be disclosed because 
it is necessary to a proper decision in the proceeding;
    (6) Whether the material should be disclosed under a protective 
order containing such protective terms and conditions (including 
affidavits of nondisclosure) as may be necessary and appropriate to 
limit the disclosure to potential participants, interested governmental 
participants and parties in the proceeding, or to their qualified 
witnesses and counsel. When Safeguards Information protected from 
disclosure under section 147 of the Atomic Energy Act of 1954, as 
amended, is received and possessed by a potential party, interested 
governmental participant, or party, other than the Commission staff, it 
shall also be protected according to the requirements of Sec. 73.21 of 
this chapter. The Pre-License Application Presiding Officer may also 
prescribe such additional procedures as will effectively safeguard and 
prevent disclosure of Safeguards

[[Page 60797]]

Information to unauthorized persons with minimum impairment of the 
procedural rights which would be available if Safeguards Information 
were not involved. In addition to any other sanction that may be 
imposed by the Pre-License Application Presiding Officer for violation 
of an order pertaining to the disclosure of Safeguards Information 
protected from disclosure under section 147 of the Atomic Energy Act of 
1954, as amended, the entity in violation may be subject to a civil 
penalty imposed pursuant to Sec. 2.205. For the purpose of imposing the 
criminal penalties contained in section 223 of the Atomic Energy Act of 
1954, as amended, any order issued pursuant to this paragraph with 
respect to Safeguards Information shall be deemed to be an order issued 
under section 161b of the Atomic Energy Act of 1954, as amended.
    (c) Upon a final determination that the material is relevant, and 
not privileged, exempt from disclosure, or otherwise exempt from 
production under Sec. 2.1005, the potential party, interested 
governmental participant, or party who asserted the claim of 
withholding must make the document available in accordance with the 
provisions of this subpart within two days.
    (d) The service of all pleadings and answers, orders, and decisions 
during the pre-license application phase shall be made according to the 
procedures specified in Sec. 2.1013(c) and entered into the pre-license 
application electronic docket.
    (e) The Pre-License Application Presiding Officer shall possess all 
the general powers specified in Secs. 2.721(c) and 2.718.
    (f) The Commission, in designating the Pre-License Application 
Presiding Officer in accordance with paragraphs (a) (1) and (2) of this 
section, shall specify the jurisdiction of the Officer.
    13. Section 2.1011 is revised to read as follows:


Sec. 2.1011  Management of electronic information.

    (a) Electronic document production and the electronic docket are 
subject to the provisions of this subpart.
    (b) The NRC, DOE, parties, and potential parties participating in 
accordance with the provisions of this subpart shall be responsible for 
obtaining the computer system necessary to comply with the requirements 
for electronic document production and service.
    (c)(1) The Secretary of the Commission shall establish an Advisory 
Review Panel composed of the Advisory Committee members identified in 
paragraph (c)(2) of this section who wish to serve. The Secretary of 
the Commission shall have the authority to appoint additional 
representatives to the Advisory Review Panel consistent with the 
requirements of the Federal Advisory Committee Act, 5 U.S.C. app. I, 
giving particular consideration to potential parties, parties, and 
interested governmental participants who were not members of the NRC 
HLW Licensing Support System Advisory Committee.
    (2) The Advisory Committee membership will initially include the 
State of Nevada, a coalition of affected units of local government in 
Nevada who were on the NRC High-Level Waste Licensing Support System 
Advisory Committee, DOE, NRC, the National Congress of American 
Indians, the coalition of national environmental groups who were on the 
NRC High-Level Waste Licensing Support System Advisory Committee and 
such other members as the Commission may from time to time designate to 
perform the responsibilities in paragraph (d) of this section.
    (d)(1) The Advisory Review Panel shall provide advice to--
    (i) NRC on the fundamental issues of the type of computer system 
necessary to access the integrated electronic information effectively 
under paragraph (b) of this section; and
    (ii) The Secretary of the Commission on the operation and 
maintenance of the electronic docket under the Commission's Rules of 
Practice (10 CFR part 2).
    (2) The responsibilities of the Advisory Review Panel shall include 
advice on--
    (i) Format standards for providing electronic access to documentary 
material to the parties, interested governmental participants, or 
potential parties;
    (ii) The procedures and standards for the electronic transmission 
of filings, orders, and decisions during both the pre-license 
application phase and the high-level waste licensing proceeding;
    (iii) Other duties as specified in this subpart or as directed by 
the Secretary of the Commission.
    14. In Sec. 2.1012, paragraphs (a), (b)(1), and (d) are revised to 
read as follows:


Sec. 2.1012  Compliance.

    (a) In addition to the requirements of Sec. 2.101(f), the Director 
of the NRC's Office of Nuclear Materials Safety and Safeguards may 
determine that the tendered application is not acceptable for docketing 
under this subpart if the Secretary of the Commission determines that 
it cannot be effectively accessed through the Commission's electronic 
docket.
    (b)(1) A person, including a potential party given access to the 
integrated electronic information under this subpart, shall not be 
granted party status under Sec. 2.1014, or status as an interested 
governmental participant under Sec. 2.715(c), if it cannot demonstrate 
substantial and timely compliance with the requirements of Sec. 2.1003 
at the time it requests participation in the high-level waste licensing 
proceeding under Sec. 2.1014 or Sec. 2.715(c).
* * * * *
    (d) Access to the pre-license application electronic docket or 
electronic docket may be suspended or terminated by the Pre-License 
Application Presiding Officer or the Presiding Officer for any 
potential party, interested governmental participant or party who is in 
noncompliance with any applicable order of the Pre-License Application 
Presiding Officer or the Presiding Officer or the requirements of this 
subpart.
    15. Section 2.1013 is revised to read as follows:


Sec. 2.1013  Use of the electronic docket during the proceeding.

    (a)(1) Pursuant to Sec. 2.702, the Secretary of the Commission will 
maintain the official docket of the proceeding on the application for a 
license to receive and possess waste at a geologic repository 
operations area.
    (2) Commencing with the docketing in an electronic form of the 
license application to receive and possess high-level radioactive waste 
at a geologic repository operations area pursuant to part 60 of this 
chapter, the Secretary of the Commission, upon determining that the 
application can be properly accessed under the Commission's electronic 
docket rules, will establish an electronic docket to contain the 
official record materials of the high-level radioactive waste licensing 
proceeding in searchable full text, or for material that is not 
suitable for entry in searchable full text, by header and image, as 
appropriate.
    (b) Absent good cause, all exhibits tendered during the hearing 
must have been made available to the parties in electronic form before 
the commencement of that portion of the hearing in which the exhibit 
will be offered. The electronic docket contains a list of all exhibits, 
showing where in the transcript each was marked for identification and 
where it was received into evidence or rejected. Transcripts will be 
entered into the electronic docket on a daily basis in order to

[[Page 60798]]

provide next-day availability at the hearing.
    (c)(1) All filings in the adjudicatory proceeding on the license 
application to receive and possess high-level radioactive waste at a 
geologic repository operations area pursuant to part 60 of this chapter 
shall be transmitted electronically by the submitter to the Presiding 
Officer, parties, and the Secretary of the Commission, according to 
established format requirements. Parties and interested governmental 
participants will be required to use a password security code for the 
electronic transmission of these documents.
    (2) Filings required to be served shall be served upon either the 
parties and interested governmental participants, or their designated 
representatives. When a party or interested governmental participant 
has appeared by attorney, service must be made upon the attorney of 
record.
    (3) Service upon a party or interested governmental participant is 
completed when the sender receives electronic acknowledgment 
(``delivery receipt'') that the electronic submission has been placed 
in the recipient's electronic mailbox.
    (4) Proof of service, stating the name and address of the person on 
whom served and the manner and date of service, shall be shown for each 
document filed, by--
    (i) Electronic acknowledgment (``delivery receipt'');
    (ii) The affidavit of the person making the service; or
    (iii) The certificate of counsel.
    (5) All Presiding Officer and Commission issuances and orders will 
be transmitted electronically to the parties and interested 
governmental participants.
    (d) Online access to the electronic docket, including a Protective 
Order File if authorized by a Presiding Officer, shall be provided to 
the Presiding Officer, the representatives of the parties and 
interested governmental participants, and the witnesses while 
testifying, for use during the hearing. Use of paper copy and other 
images will also be permitted at the hearing.
    16. In Sec. 2.1014, paragraph (c)(4) is revised to read as follows:


Sec. 2.1014  Intervention.

* * * * *
    (c) * * *
    (4) The failure of the petitioner to participate as a potential 
party in the pre-license application phase.
* * * * *
    17. Section 2.1017 is revised to read as follows:


Sec. 2.1017  Computation of time.

    In computing any period of time, the day of the act, event, or 
default after which the designated period of time begins to run is not 
included. The last day of the period so computed is included unless it 
is a Saturday, Sunday, or legal holiday at the place where the action 
or event is to occur, in which event the period runs until the end of 
the next day which is neither a Saturday, Sunday, nor holiday. Whenever 
a party, potential party, or interested governmental participant, has 
the right or is required to do some act within a prescribed period 
after the service of a notice or other document upon it, one day shall 
be added to the prescribed period. If the electronic docket is 
unavailable for more than four access hours of any day that would be 
counted in the computation of time, that day will not be counted in the 
computation of time.
    18. In Sec. 2.1018, paragraph (a)(1) and the introductory text of 
paragraph (e) are revised to read as follows:


Sec. 2.1018  Discovery.

    (a)(1) Parties, potential parties, and interested governmental 
participants in the high-level waste licensing proceeding may obtain 
discovery by one or more of the following methods:
    (i) Access to the documentary material made available pursuant to 
Sec. 2.1003 ;
    (ii) Entry upon land for inspection, access to raw data, or other 
purposes pursuant to Sec. 2.1020;
    (iii) Access to, or the production of, copies of documentary 
material for which bibliographic headers only have been submitted 
pursuant to Sec. 2.1003 (b) and (c);
    (iv) Depositions upon oral examination pursuant to Sec. 2.1019;
    (v) Requests for admission pursuant to Sec. 2.742;
    (vi) Informal requests for information not made electronically 
available, such as the names of witnesses and the subjects they plan to 
address; and
    (vii) Interrogatories and depositions upon written questions, as 
provided in paragraph (a)(2) of this section.
* * * * *
    (e) A party, potential party, or interested governmental 
participant who has made available in electronic form all material 
relevant to any discovery request or who has responded to a request for 
discovery with a response that was complete when made is under no duty 
to supplement its response to include information thereafter acquired, 
except as follows:
* * * * *
    19. In Sec. 2.1019, paragraphs (d), (e), and (i) are revised to 
read as follows:


Sec. 2.1019  Depositions.

* * * * *
    (d) When the testimony is fully transcribed, the deposition shall 
be submitted to the deponent for examination and signature unless the 
deponent is ill or cannot be found or refuses to sign. The officer 
shall certify the deposition or, if the deposition is not signed by the 
deponent, shall certify the reasons for the failure to sign, and shall 
promptly transmit an electronic copy of the deposition to the Secretary 
of the Commission for entry into the electronic docket.
    (e) Where the deposition is to be taken on written questions as 
authorized under Sec. 2.1018(a)(2), the party or interested 
governmental participant taking the deposition shall serve a copy of 
the questions, showing each question separately and consecutively 
numbered, on every other party and interested governmental participant 
with a notice stating the name and address of the person who is to 
answer them, and the name, description, title, and address of the 
officer before whom they are to be asked. Within ten days after 
service, any other party or interested governmental participant may 
serve cross-questions. The questions, cross-questions, and answers 
shall be recorded and signed, and the deposition certified, returned, 
and transmitted in electronic form to the Secretary of the Commission 
for entry into the electronic docket as in the case of a deposition on 
oral examination.
* * * * *
    (i)(1) After receiving written notice of the deposition under 
paragraph (a) or paragraph (e) of this section, and ten days before the 
scheduled date of the deposition, the deponent shall submit an 
electronic index of all documents in his or her possession, relevant to 
the subject matter of the deposition, including the categories of 
documents set forth in paragraph (i)(2) of this section, to all parties 
and interested governmental participants. The index shall identify 
those records which have already been made available electronically. 
All documents that are not identical to documents already made 
available electronically , whether by reason of subsequent modification 
or by the addition of notations, shall be treated as separate 
documents.
    (2) The following material is excluded from the initial 
requirements of Sec. 2.1003 to be made available electronically, but is 
subject to derivative discovery under paragraph (i)(1) of this 
section--
    (i) Personal records;
    (ii) Travel vouchers;

[[Page 60799]]

    (iii) Speeches;
    (iv) Preliminary drafts;
    (v) Marginalia.
    (3) Subject to paragraph (i)(6) of this section, any party or 
interested governmental participant may request from the deponent a 
paper copy of any or all of the documents on the index that have not 
already been provided electronically.
    (4) Subject to paragraph (i)(6) of this section, the deponent shall 
bring a paper copy of all documents on the index that the deposing 
party or interested governmental participant requests that have not 
already been provided electronically to an oral deposition conducted 
pursuant to paragraph (a) of this section, or in the case of a 
deposition taken on written questions pursuant to paragraph (e) of this 
section, shall submit such documents with the certified deposition.
    (5) Subject to paragraph (i)(6) of this section, a party or 
interested governmental participant may request that any or all 
documents on the index that have not already been provided 
electronically, and on which it intends to rely at hearing, be made 
electronically available by the deponent.
    (6) The deposing party or interested governmental participant shall 
assume the responsibility for the obligations set forth in paragraphs 
(i)(1), (i)(3), (i)(4), and (i)(5) of this section when deposing 
someone other than a party or interested governmental participant.
* * * * *
    Dated at Rockville, MD, this 6th day of November, 1997.

    For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 97-29884 Filed 11-12-97; 8:45 am]
BILLING CODE 7590-01-P


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