[Federal Register Volume 68, Number 228 (Wednesday, November 26, 2003)]
[Proposed Rules]
[Pages 66372-66382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29557]


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

  Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / 
Proposed Rules  

[[Page 66372]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 2

RIN 3150-AH31


Licensing Proceeding for the Receipt of High-Level Radioactive 
Waste at a Geologic Repository: Licensing Support Network, Submissions 
to the Electronic Docket

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Nuclear Regulatory Commission is proposing to amend its 
Rules of Practice applicable to the use of the Licensing Support 
Network (LSN) and the electronic hearing docket in the licensing 
proceeding on the disposal of high-level radioactive waste at a 
geologic repository. The proposed amendments would establish the basic 
requirements and standards for the submission of adjudicatory materials 
to the electronic hearing docket by parties to the high-level 
radioactive waste licensing proceeding. The proposed amendments would 
also address the issue of reducing the unnecessary loading of duplicate 
documents on individual participant Licensing Support Network document 
collection servers; the continuing obligation of LSN participants to 
update their documentary material after the initial certification; the 
Secretary of the Commission's determination that the DOE license 
application is electronically accessible; and the provisions on 
material that may be excluded from the LSN.

DATES: Submit comments by January 12, 2004. Comments received after 
this date will be considered if it is practical to do so, but the 
Commission is able to ensure consideration only for comments received 
on or before this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include the following number RIN 3150-AH31 in the subject line 
of your comments. Comments on rulemakings submitted in writing or in 
electronic form will be made available to the public in their entirety 
on the NRC rulemaking web site. Personal information will not be 
removed from your comments.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
    E-mail comments to: [email protected]. If you do not receive a reply e-
mail confirming that we have received your comments, contact us 
directly at (301) 415-1966. You may also submit comments via the NRC's 
rulemaking Web site at http://ruleforum.llnl.gov. Address questions 
about our rulemaking Web site to Carol Gallagher (301) 415-5905; e-mail 
[email protected].
    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 am and 4:15 pm Federal workdays. (Telephone (301) 
415-1966).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
(301) 415-1101.
    Publicly available documents related to this rulemaking may be 
viewed electronically on the public computers located at the NRC's 
Public Document Room (PDR), O1 F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland. The PDR reproduction contractor 
will copy documents for a fee. Selected documents, including comments, 
may be viewed and downloaded electronically via the NRC rulemaking Web 
site at http://ruleforum.llnl.gov.
    Publicly available documents created or received at the NRC after 
November 1, 1999, are available electronically at the NRC's Electronic 
Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this 
site, the public can gain entry into the NRC's Agencywide Document 
Access and Management System (ADAMS), which provides text and image 
files of NRC's public documents. If you do not have access to ADAMS or 
if there are problems in accessing the documents located in ADAMS, 
contact the NRC Public Document Room (PDR) Reference staff at 1-800-
397-4209, 301-415-4737 or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Francis X. Cameron, U.S. Nuclear 
Regulatory Commission, Washington DC 20555-0001, telephone (301) 415-
1642, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The Commission's regulations in 10 CFR part 2, subpart J, provide 
for, among other things, the use of an electronic information 
management system to provide documents related to the high-level 
radioactive waste (HLW ) licensing proceeding. Originally promulgated 
on April 14, 1989 (54 FR 14944), the information management system 
required by Subpart J is to have the following functions:
    (1) The Licensing Support Network (LSN) provides full text search 
and retrieval access to the relevant documents of all parties and 
potential parties to the HLW licensing proceeding in the time period 
before the U.S. Department of Energy (DOE) license application for the 
repository is submitted;
    (2) The NRC Electronic Information Exchange (EIE) provides for 
electronic submission of filings by the parties, as well as the orders 
and decisions of the Atomic Safety and Licensing Board Panel (ASLBP), 
during the proceeding; and
    (3) The Electronic Hearing Docket (EHD) provides for the 
development and access to an electronic version of the HLW licensing 
proceeding docket.
    The creation of the LSN (originally called the ``Licensing Support 
System'') was stimulated by the requirements of Section 114(d)(2) of 
the Nuclear Waste Policy Act of 1982 (NWPA). This provision sets as a 
goal Commission issuance of a final decision approving or disapproving 
issuance of the construction authorization for a geologic repository 
for HLW within three years of the docketing of the DOE license 
application. The Commission anticipated that the HLW proceeding would 
involve substantial numbers and volumes of documents created by well-
informed parties on numerous and complex issues. The Commission 
believed that the LSN could facilitate the timely review of DOE's 
license application by providing for electronic access to relevant 
documents via the LSN before the license application is submitted, 
rather than the traditional, and potentially time-consuming, discovery 
process associated with the physical production of documents after

[[Page 66373]]

a license application is submitted. In addition, the Commission 
believed that early access to these documents in an electronically 
searchable form would allow for a thorough and comprehensive technical 
review of the license application by all parties and potential parties 
to the HLW licensing proceeding, resulting in better focused 
contentions in the proceeding. The LSN would also facilitate agency 
responses to Freedom of Information Act (FOIA) requests by providing 
the public with electronic access to relevant documents.
    The current requirements in 10 CFR 2.1003(a) require the DOE to 
make its documentary material available to other potential parties and 
the public in electronic form via the LSN no later than six months in 
advance of DOE's submission of its license application to the NRC. The 
NRC must make its documentary material available in electronic form via 
the LSN no later than thirty days after the DOE certification of 
compliance. All other participants must make their documents available 
in electronic form no later than ninety days after the DOE 
certification of compliance. Originally, the LSN was conceived of as a 
large, centralized information management system administered by what 
was then called the Licensing Support System Administrator (now the LSN 
Administrator). To take advantage of the advances in technology that 
occurred since the promulgation of the original rule, the Commission 
revised the rule to use the Internet to link geographically dispersed 
sites rather than relying on a complex and expensive centralized system 
(63 FR 71729; December 30, 1998).
    The proposed amendments would address a number of aspects of the 
current rules:
    [sbull] The requirements and standards for a party's submissions to 
the electronic docket for the HLW licensing proceeding;
    [sbull] Those provisions that could result in the loading of 
duplicate documents on individual participant LSN document collection 
servers;
    [sbull] The provisions related to the Secretary of the Commission's 
determination that the DOE license application is electronically 
accessible; .
    [sbull] Those provisions related to the continuing obligation of 
LSN participants to update their documentary material; and
    [sbull] Those provisions on material that may be excluded from the 
LSN.
    The Commission has consulted the LSN Advisory Review Panel (LSNARP) 
on the document format standards and the document duplication issues 
that are the subject of these proposed revisions. The Commission, which 
appreciates the advice of the LSNARP on these items, anticipates 
additional interaction with the LSNARP on matters raised in the 
proposed rule, and will further evaluate any LSNARP advice in 
conjunction with its evaluation of the public comments received on 
these proposed revisions.

II. Submissions to the Electronic Docket for the Hearing

    As noted, one of the objectives of the regulations in 10 CFR Part 
2, Subpart J is to provide for electronic submission of filings by the 
parties, as well as the orders and decisions of the ASLBP, during the 
proceeding. The objective of this function is to reduce the time that 
it takes to serve filings by substituting electronic transmission for 
the physical mailing of filings that is typically used in NRC licensing 
proceedings. Shortening the amount of time for certain activities 
during the hearing process will support the NRC's efforts to meet the 
schedule in the NWPA. Section 2.1013(c)(1) requires that all filings in 
the HLW licensing proceeding be transmitted electronically (emphasis 
added) by the submitter to the Presiding Officer, the parties, and the 
Secretary of the Commission. The Commission believes that the majority 
of these filings will consist of simple documents that can be readily 
transmitted by EIE. However, after further considering the nature of 
some of the documents that may be submitted by the parties during the 
proceeding, the Commission believes that it is necessary to specify 
requirements for submitting large and/or complex documents.
    Large documents consist of electronic files that, because of their 
size, create challenges for both the NRC staff, potential parties and 
the public when transmitting, viewing, or downloading the document 
(e.g., significant delays in transmission, uploading, or downloading 
times). The Commission anticipates that the potential license 
application and some filings in the HLW adjudicatory proceeding will be 
of a size that will create transmission, viewing, or downloading 
challenges. In electronic format, some of these files could be up to 
several hundreds of megabytes (MB) in size. Examples of potential large 
documents are:
    [sbull] DOE Site Characterization Plan
    [sbull] DOE License Application and supporting materials
    [sbull] DOE Environmental Impact Statement
    [sbull] Adjudicatory documents (e.g., motions, responses, 
transcripts, exhibits, and orders)
    Additionally, any or all of these types of documents could contain 
embedded photographs, charts, tables, and other graphics.
    Complex documents consist (entirely or in part) of electronic files 
having substantial portions that are neither textual nor image in 
nature. For example, these types of specialized documents may include:
    [sbull] Executable files, which can be opened (run) to execute a 
programmed series of instructions on a computer or network;
    [sbull] Runtime executable software, which generally is operational 
upon demand without being installed on a computer or network;
    [sbull] Viewer or printer executable software that causes images to 
be displayed on the computer monitor or pages to print on an attached 
printer;
    [sbull] Files from a dynamic link library (.dll), which are a 
collection of small, bundled executable programs that each provide one 
or more distinctive functions used by application programs and 
operating systems and are available when needed by applications or 
operating systems;
    [sbull] Large data sets associated with an executable; and
    [sbull] Actual software code for analytical programs that a party 
may intend to introduce into the proceeding.
    As part of complex document submittals, the NRC anticipates 
receiving files that--
    (1) Due to their file size, may preclude easy transmission, 
retrieval, and use; or
    (2) May require specialized software and/or hardware for faithful 
display and subsequent use; and
    (3) May not be suitable for inclusion in a ``generic'' file format 
such as the Adobe'' Acrobat Portable Document Format (PDF).
    Examples of files that could be part of a complex document are:
    [sbull] Maps.
    [sbull] Databases.
    [sbull] Simulations.
    [sbull] Audio files.
    [sbull] Video files.
    [sbull] Executable programs.
    Some of the problems posed by the electronic transmission of these 
large or complex documents are:

Electronic Submission Process

    When submitted via the Internet, very large documents or files can 
cause ``time-out'' problems for computers at either end of the 
transfer, resulting in a failed or canceled transfer. Time-outs occur 
when a computer program terminates prematurely, sometimes because the 
computer notices a lapse in interaction with the user during the long

[[Page 66374]]

amount of time needed to transfer a large document. Transmission times 
are dependent on the speed of the sender's communication device and the 
technology used by the Internet service provider. Large documents or 
files require lengthy transmission times during which the potential for 
error conditions or other service interruptions increases in direct 
proportion to the time the communication link must be maintained. 
Service interruptions can result from human error, excessive network 
traffic, or network component failure that prevent users from 
communicating with other users or networks over a local network 
connection or the Internet. The time-out problems could affect each 
party who receives the documents as part of the service of a filing. 
The actual transfer times for very large documents or files may 
approach 24 hours using standard Internet File Transfer Protocol (FTP) 
routines. In terms of ensuring timeliness, this may not be a 
significant improvement over the use of an overnight courier to send 
the files on optical storage media (e.g., CD-ROM).

Access to Large, Complex Documents in the Electronic Hearing Docket 
(EHD)

    Keeping a large document together in one very large file may allow 
users to easily search for, retrieve, and analyze the document in its 
entirety, but may result in service interruption problems similar to 
those described above. This is particularly true if a user wants to 
download the image file of one of these large documents. Retrieval time 
will be unacceptably slow, or will result in a time-out problem with 
the user's Internet connection. Users of the EHD may encounter 
comparable download delays because of the file size of large or complex 
documents and, depending on the nature of the file, the file may not be 
executable on a user's desktop personal computer because of 
configuration, memory, display, or other technical problems.

Use of Large, Complex Documents in a Hearing Room

    Large documents may be pre-filed in their entirety as potential 
exhibits in the hearing docket; however, in the hearing room, it is 
possible that only portions of such documents, i.e., chapters, pages, 
or paragraphs will be offered. In a dynamic and fast-paced hearing room 
environment, it would not be desirable to delay the proceeding to wait 
for a large file to load; navigate to the desired chapters, pages, or 
paragraphs; and then extract the appropriate selection for use in the 
proceeding. Complex documents may also require specialized hardware 
and/or software to execute software program files and access their 
associated data.

Official Record and Federal Records Management Considerations

    For both large and complex documents, the NRC must consider the 
need to generate an official record of the proceeding for use in 
potential appellate environments, see 10 CFR 2.1013(a), and for 
generating an Official Agency Record (OAR) version of the docketed 
materials for retirement to the National Archives and Records 
Administration (NARA). Each of these situations requires the ability to 
reassemble the record version of the documentary material (excluding 
software executables), independent of the media or software initially 
used to create it.
    In response to these potential problems, the Commission is 
proposing a revised framework for the submission of filings during the 
HLW licensing proceeding. This revised framework is based on segmenting 
large documents using manageable file size units to reduce the 
potential for interruption or delay in transmission, uploading, or 
downloading. For example, large documents could be segmented into 
pieces, which correspond to the organization (chapters or sections) of 
the document, in order to address the transfer and retrieval 
performance problems discussed above. The author of the document would 
be in the best position to break up document files into usable segments 
without adversely impacting the organization or content of the 
document.
    The electronic submission of filings in the HLW licensing 
proceeding must be made via the Internet using the NRC EIE, when 
practicable. The EIE is an electronic transfer mechanism being 
established by the NRC for electronic transmission of documents to the 
agency via the Internet. EIE provides for the transmission of documents 
in a verifiable and certifiable mode that includes digital signatures.
    The proposed amendments would revise Sec.  2.1001 to establish 
three categories of electronic filings for purposes of the HLW 
licensing proceeding and would revise Sec.  2.1013(c)(1) to specify the 
submission requirements for these three categories of electronic 
filings.
    ``Simple documents'' are textual or graphic oriented material that 
are less than 50 megabytes (MB) in size. These documents are 
transmitted electronically via EIE as contemplated by the current 10 
CFR 2.1011. Test results have demonstrated that 50 MB is a reasonable 
size for downloading files across wide area networks or from the 
Internet via phone lines.
    ``Large documents'' are those that have textual or graphic oriented 
material larger than 50 MB in size. Under proposed Sec.  
2.1013(c)(1)(ii), these documents must be submitted via the EIE in 
multiple transmissions of 50 MB each. The large document submission may 
also be supplemented with a courtesy copy on optical storage media to 
provide NRC staff, parties, and interested governmental participants in 
the HLW licensing proceeding with a useful reference copy of the 
document. For purposes of the NRC staff review of the DOE license 
application, as opposed to an electronic submission to the adjudicatory 
docket, the requirements for DOE's submission of the license 
application are already specified 10 CFR 63.22 of the Commission's 
regulations. Section 63.22(a) specifies that the application, any 
amendments to the application, and an accompanying environmental impact 
statement and any supplements, must be signed by the Secretary of 
Energy or the Secretary's representative and must be filed with the 
Director in triplicate on paper and optical storage media. In addition, 
10 CFR 63.22(b) requires that 30 additional copies of the license 
application be submitted on paper and optical storage media.
    ``Complex documents'' are any combination of the following:

    [sbull] Textual or graphic-oriented electronic files
    [sbull] Electronic files that cannot be segmented into 50 MB files
    [sbull] Other electronic objects, such as computer programs, 
simulations, video, audio, data files, and files with special printing 
requirements.
    Under proposed Sec.  2.1013(c)(1)(iii), those portions of complex 
documents that can be electronically submitted through the EIE, again 
in 50 MB or less segments, will be transmitted electronically. Those 
portions that are not amenable to electronic transmission will be 
delivered on optical storage media. The optical storage media must 
include the complete document, i.e., include the portions of the 
document that have been delivered via the EIE.
    In addition to these proposed revisions, Sec.  2.1013 (c)(1) would 
also be amended to require the following:
    [sbull] Electronic submissions must have 300 dots per inch (dpi) as 
the minimum resolution for bi-tonal, color, and grayscale resolution.
    [sbull] Electronic submissions must be in the appropriate PDF 
output format. These formats and their use are:

[[Page 66375]]

    [sbull] PDF--Formatted Text and Graphics--use for textual documents 
converted from native applications
    [sbull] PDF--Searchable Image (Exact)--use for textual documents 
converted from scanned documents +
    [sbull] PDF--Image Only--use for gra- phic-, image-, and forms-
oriented documents
    Tagged Image File Format (TIFF) images and the results of 
spreadsheet applications will need to be converted to PDF, except in 
those rare instances where PDF conversion is not practicable. 
Spreadsheets may be submitted using Microsoft[reg] Excel, Corel[reg] 
Quattro Pro, or Lotus[reg] 123.
    [sbull] Electronic submissions to the hearing docket cannot contain 
any hyperlinks to other documents or Web sites. Electronic submissions 
to the hearing docket, however, may contain hyperlinks within a single 
PDF file, if those links are created using PDF authoring software. 
Hyperlinks are electronic links that allow a user to automatically 
access a document or web site by clicking on the hyperlink. The 
existing NRC Document Management System used as the basis for the 
electronic hearing docket does not accept hyperlinks to other documents 
or websites. Even if the NRC Document Management System were changed in 
the future to include a hyperlink capability, questions about the 
integrity of the Commission's electronic hearing docket might arise if 
the hyperlink in a document did not function. This could happen because 
either a ``hyperlinked'' website is not operating or a ``hyperlinked'' 
document is not included in the electronic hearing docket. Furthermore, 
it is uncertain whether NARA will accept as an official record 
documents containing hyperlinks to other documents or web sites.
    [sbull] Electronic submissions must be free of any security 
restrictions imposed by the author (proposed Sec.  2.1013(c)(1)(vii)).
    Additional information on the submission of these filings will be 
provided in a guidance document from the NRC. See ``Guidance for 
Submission of Electronic Docket Materials Under 10 CFR Part 2, Subpart 
J'', U.S. Nuclear Regulatory Commission, October, 2003. The Guidance 
document is available on the NRC Web site (http://www.nrc.gov). The NRC 
expects parties, interested governmental participants, and potential 
parties to use the detailed instructions in the Guidance document to 
ensure that their electronic filings are effectively submitted. Areas 
covered by the guidance document address the need for and format of the 
transmittal letter for electronic filings, file naming conventions, 
copyrighted information, and instructions on sensitive or classified 
information.
    The proposed revisions would also clarify the responsibility of the 
Secretary of the Commission, under Sec. Sec.  2.1012(a) and 2.1013 
(a)(2), to determine if the DOE license application for a HLW 
repository can be properly accessed under the Commission's ``electronic 
docket rules''. Under Sec.  2.1012(a), the DOE license application 
cannot be docketed unless the Secretary of the Commission finds that it 
can be effectively accessed. The proposed revisions would not change 
this requirement. However, the Commission is clarifying that this 
compliance requirement refers to the accessibility of the DOE license 
application as part of the NRC staff licensing docket rather than the 
Commission's hearing docket (emphasis added). This is consistent with 
traditional NRC practice where a license application is part of the NRC 
staff licensing docket but is not added to the Commission's hearing 
docket unless a party offers all or part of the license application as 
evidence. Sections 2.1012(a) and 2.1013(a)(2) would be revised to 
specify that the Secretary's determination on electronic accessibility 
would be based on whether the DOE license application could be 
effectively accessed through the Commission's Agencywide Document 
Access and Management System (ADAMS) rather than the electronic hearing 
docket.

III. Documentary Material

    Section 2.1003 of the current LSN rule requires a party, a 
potential party, or an interested governmental participant (hereinafter 
``participant'') to make its documentary material available in 
electronic form. The definition of ``documentary material'' includes 
material prepared by an individual participant, for example, all 
reports or studies prepared by, or on behalf of, a participant. It also 
includes other material in the possession of the participant on which 
the participant intends to rely and/or cite in support of its position 
in the HLW licensing proceeding or that doesn't support its position. 
This provision can be read to obligate a party who possesses a document 
prepared by another participant to make that document available on its 
LSN document collection server even though it is already available on 
the LSN document collection server of the party who had prepared the 
document. For example, under this interpretation a document prepared by 
DOE would not only need to be available through the centralized LSN Web 
site from the DOE LSN document collection server, but also from the LSN 
document collection server of other participants. Without compromising 
the objective of ensuring that all documentary material is available on 
the LSN, the Commission believes that it would be beneficial to 
eliminate or at least significantly reduce the loading of duplicate 
documents. Reducing duplication will not only alleviate burdens on the 
participants, but will also make search and retrieval of the LSN 
collection more efficient. Therefore, the proposed amendment to Sec.  
2.1003(a)(1) would allow a LSN participant to avoid loading a document 
created by another LSN participant if that document has already been 
made available by the LSN participant who created the document or on 
whose behalf the document was created.
    If, in the process of eliminating duplicate documents, an LSN 
participant identifies a document which the creator of that document 
has not included on its LSN document collection server, as a practical 
matter, the participant who identified the document should include it 
on its LSN document collection server, as well as notifying the creator 
of the document that it is taking that action. Moreover, in such 
circumstances, it is not apparent what purpose would be served by 
raising the issue before the Pre-license application Presiding Officer 
(PAPO) unless the documentary material has some readily apparent 
significance as a Class 2 document (as delineated in the discussion 
below) or a significant number of ``missing'' documents were identified 
with regard to a particular LSN participant, so as to raise the issue 
of a concerted, deliberate effort not to comply with the regulations.
    The Commission is also proposing to amend Sec.  2.1003 by adding a 
new paragraph (e) to this section. Proposed Sec.  2.1003(e) would 
require LSN participants to supplement the documentary material 
provided under Sec.  2.1003(a) in its initial certification with 
documentary material produced after that event. While much of an LSN 
participant's documentary material will be made available early, it is 
reasonable to expect that additional material will be created after the 
initial compliance period specified in Sec.  2.1003(a). In addition, 
the ongoing performance confirmation program required of DOE by Sec.  
63.131 of the Commission's regulations will generate additional 
documentary material after the license application is docketed. In 
addition, during the proceeding, the Atomic Safety and Licensing Board 
can always

[[Page 66376]]

direct that additional discovery must take place.
    Finally, the Commission is providing further information and a 
clarification on the responsibilities of LSN participants in regard to 
the three classes of documentary material in Sec.  2.1001. These three 
classes are:
    1. Any information on which a party, potential party, or interested 
governmental participant intends to rely and/or cite in support of its 
position in the HLW proceeding;
    2. Any information that is known to, and in the possession of, or 
developed by the party that is relevant to, but does not support, that 
information noted in item 1 or that party's position; and
    3. All reports and studies prepared by or on behalf of a potential 
party, interested governmental participant, or party, including all 
related ``circulated drafts'' relevant to the license application and 
the issues set forth in the Topical Guidelines, regardless of whether 
they will be relied upon or cited by a party.
    The first two classes of documentary material are tied to a 
``reliance'' criterion. Reliance is fundamentally related to a position 
that a party in the HLW licensing proceeding will take in regard to 
compliance with the Commission regulations on the issuance of a 
construction authorization for the repository. These compliance issues 
take the form of ``contentions'' of law or fact that a party has 
successfully had admitted for litigation in the HLW proceeding under 
Sec.  2.1014(a)(2) of the regulations. The third class of material, 
``reports and studies prepared for or on behalf of the potential party, 
* * *'' has meaning independent of any contentions that might be 
offered. The material in this class must be available on the LSN 
regardless of whether it has any relation to a contention offered at 
the hearing. It is also a likely source of the material that a party 
would use to develop its contentions. ``Reports'' and ``studies'' will 
also include the basic documents relevant to licensing such as the DOE 
environmental impact statement, the NRC Yucca Mountain Review Plan, as 
well as other reports or studies prepared by a LSN participant or its 
contractor.
    To fall within the definition of ``documentary material'', reports 
or studies must have a nexus to both the license application (emphasis 
added) and the Topical Guidelines contained in NRC Regulatory Guide 
3.69. This dual requirement is designed to ensure that LSN participants 
do not have to identify, and include as documentary material, reports 
or studies that have no bearing on the DOE license application for a 
geologic repository at the Yucca Mountain site, such as reports or 
studies on other potential repository sites or on issues outside of the 
NRC licensing criteria. In addition, Sec.  63.21 of the Commission's 
regulations requires that the DOE Environmental Impact Statement (EIS) 
must accompany the license application. Therefore, reports and studies 
relevant to issues addressed by the DOE EIS must also be made available 
as Class 3 documentary material. This is also consistent with the 
coverage of the Topical Guidelines.
    To assist participants in identifying documentary material that may 
be relevant to the future license application in the time period before 
it is submitted, the Commission is recommending that LSN participants 
use the NRC Yucca Mountain Review Plan (NUREG-1804, Rev. 2, July, 2003) 
as a guide. The Yucca Mountain Review Plan provides guidance to the NRC 
staff on evaluating the DOE license application. As such, it 
anticipates the form and substance of the DOE license application and 
can be used as a reliable guide for identifying documentary material.
    The Commission also notes that the history of the LSN and its 
predecessor, the Licensing Support System, makes it apparent it was the 
Commission's expectation that the LSN, among other things, would 
provide potential participants with the opportunity to frame focused 
and meaningful contentions and to avoid the delay potentially 
associated with document discovery, by requiring parties and potential 
parties to the proceeding to make all their Subpart J-defined 
documentary material available through the LSN prior to the submission 
of the DOE application. These purposes still obtain. Nonetheless, the 
Commission is clarifying that, because the full scope of coverage of 
the reliance concept will only become apparent after proffered 
contentions are admitted by the Presiding Officer in the proceeding, an 
LSN participant would not be expected to identify specifically which of 
its documents fall within either Class 1 or Class 2 documentary 
material in the pre-license application phase.
    In this regard, the Commission still expects all participants to 
make a good faith effort to include on their LSN document collection 
servers all of the Class 1 and Class 2 documentary material that 
reasonably can be identified by the date specified for initial 
compliance in Sec.  2.1003(a) of the Commission's regulations. 
Thereafter, in conjunction with its license application submission, DOE 
would be required to supplement its Class 1 and Class 2 documents to 
the degree the application makes it apparent the scope of the DOE 
documentary material in those classes had changed, a process that might 
well be repeated by all parties following the admission of contentions. 
Finally, as part of the regular post-contention admission discovery 
process under Sec.  2.1018, a party could be required to identify the 
specific documents that comprise its Class 1 and Class 2 documentary 
material. As a consequence, while it is not possible to say there are 
no special circumstances that would necessitate a ruling by the PAPO on 
the availability of a particular document in the pre-license 
application stage based on its Class 1 or Class 2 status, disputes over 
Class 1 and Class 2 documentary material generally would be of a type 
that would be more appropriately raised before the Presiding Officer 
designated in the Notice of Hearing during the fifteen months following 
the admission of contentions that are allotted to the NRC staff to 
complete the Safety Evaluation Report in its entirety.

IV. Exclusions

    The Commission has reviewed its procedural rules for the HLW 
licensing proceeding, including the LSN requirements, to assess whether 
they appropriately reflect the evolution of the relevant technology, 
law, and policy since the rules were originally promulgated in 1987, 
being mindful of a recent report by the House Committee on 
Appropriations, issued July, 2003, expressing concern on the extent of 
documentation that DOE may be required to provide as part of the LSN. 
The Committee encouraged the Commission to review its regulatory 
requirements regarding the LSN to ensure that they do not require the 
duplication of information otherwise easily obtainable, focus on 
information that is truly relevant to the substantive decisions that 
will have to be made, and establish a time frame in accord with the 
traditional conduct of an adjudicatory proceeding.\1\ Based on our 
review, the Commission has determined that the LSN rule could be 
further revised to address the Committee's concerns, while still 
maintaining the overall purpose and functionality of the LSN.
---------------------------------------------------------------------------

    \1\ H.R. Rep. No. 108, 108th Cong. 1st Sess. (2003).
---------------------------------------------------------------------------

    The Commission is proposing to revise Sec.  2.1005 of the rule to 
specify an additional category of documents, ``congressional 
correspondence'', that may be excluded from the LSN. Section 2.1005 of 
the Commission's regulations establishes several categories of 
documents that do not have to be

[[Page 66377]]

entered into the LSN, either under the documentary material 
requirements of Sec.  2.1003, or under the derivative discovery 
provisions of Sec.  2.1019. These include materials that are either 
widely available or do not have any significant relevance to the issues 
that might be litigated in the HLW licensing proceeding. The Commission 
is proposing to add ``correspondence between a party, potential party, 
or interested governmental participant and the Congress of the United 
States' to these exclusions. This reflects the Commission's current 
judgment that this type of material will not have a significant bearing 
on repository licensing issues. Much of this material either relates to 
budgetary issues or is merely a reiteration of an agency primary 
document. It would normally not be the source of material that a party 
would rely on for its case in the hearing or as a source of material 
that would be contrary to such reliance information. However, the 
material directed to Federal entities will still be available as part 
of the normal Federal recordkeeping requirements. If a particular item 
of Congressional correspondence does become relevant to a contention 
admitted in the HLW proceeding, it can be made available at that time. 
The Commission does not anticipate that any disputes over this clearly 
and narrowly defined exclusion would be brought before the PAPO.

Plain Language

    The Presidential memorandum dated June 1, 1998, entitled, ``Plain 
Language in Government Writing,'' directed that the Government's 
writing be in plain language. This memorandum was published June 10, 
1998 (63 FR 31883). In complying with this directive, editorial changes 
have been made in these proposed revisions to improve the organization 
and readability of the existing language of the paragraphs being 
revised. These types of changes are not discussed further in this 
document. The NRC requests comments on the proposed rule specifically 
with respect to the clarity of the language used. Comments should be 
sent to the address listed under the ADDRESSES caption of the preamble.

Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, Pub. 
L. 104-113, requires that Federal agencies use technical standards that 
are developed or adopted by voluntary consensus standards bodies unless 
using such a standard is inconsistent with applicable law or otherwise 
impractical. This proposed rule would establish requirements and 
standards for the submission of filings to the electronic docket for 
the HLW licensing proceeding. Although the specific standards in the 
proposed rule are unique to the Commission's HLW proceeding, they are 
based on industry-wide standards such as Portable Document Format 
(PDF).

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.

Paperwork Reduction Act Statement

    This proposed rule does not contain information collection 
requirements and, therefore, is not subject to the requirements of the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

Regulatory Analysis

    The following regulatory analysis identifies several alternatives 
to the Commission's proposal set forth in the proposed rule. Subpart J 
of 10 CFR part 2 establishes an electronic environment for the 
adjudicatory proceeding for consideration of a potential license 
application by the U.S. Department of Energy (DOE) to construct, 
receive, and emplace waste at the proposed HLW repository at Yucca 
Mountain, Nevada. The NRC expects to begin receiving and processing a 
significant volume of electronic documents associated with the 
adjudicatory proceeding in the near future. Some of these filings will 
consist of large or complex documents Examples of these large 
electronic files include maps, charts, video presentations, computer 
modeling or simulation programs with their associated databases, and 
narrative reports with extensive embedded graphic objects. Consistent 
with 10 CFR part 2, subpart J:
    [sbull] The NRC has established the Licensing Support Network (LSN) 
so that all parties, potential parties, and participants in the 
proceeding will be able to make their documentary material 
electronically available to meet discovery requirements through 
individual participant LSN Web sites.
    [sbull] The NRC will direct all participants in the adjudicatory 
proceeding to use the agency's EIE capabilities to submit their filings 
electronically to the NRC when practicable.
    [sbull] After processing, documents submitted in the HLW proceeding 
would be available in the Electronic Hearing Docket (EHD), which is 
accessible via the Internet; electronic objects that cannot be made 
directly accessible via the EHD Web site, such as computer simulation 
models, will be described in the EHD and made available on optical 
storage media.
    The assessment of existing and anticipated technology capabilities 
identified a number of potential issues that may make it difficult to 
meet the challenges of electronic submission of large documents as 
specified in 10 CFR part 2, subpart J. Those challenges are driven by 
the following fundamental issues:

    [sbull] Technology limitations of current electronic document and 
records transmission and management systems.
    [sbull] Maintaining document and object fidelity, integrity, and 
authenticity.
    [sbull] Receiving source document formats in an acceptable 
resolution.
    [sbull] Management of and access to non-textual information.
    [sbull] Federal recordkeeping requirements.
    [sbull] General usability of the electronic submittals.
    [sbull] Potential limitations of information technology (hardware, 
software, or Internet service provider) used by the general public.

The Nature of the Documents

    Documents may be large, complex, or a combination of both, as 
follows:
    [sbull] Large documents consist of electronic files that, because 
of their size, create challenges for both the NRC and the public when 
transmitting, viewing, or downloading the document (e.g., significant 
delays in transmission, uploading, or downloading times). The NRC 
anticipates that the potential license application and some filings in 
the HLW adjudicatory proceeding will be of a size that will create 
transmission, viewing, or downloading challenges. In electronic format, 
some of these files could contain several hundred megabytes.
    [sbull] Complex documents consist (entirely or in part) of 
electronic files having substantial portions that are neither textual 
nor image in nature. For example, specialized exhibits may include 
computer software programs and their operating components, large data 
files, and actual software code for analytical programs that a party 
may intend to introduce into the proceeding.

Articulation of the Issues

    Large and/or complex documents may pose challenges in any or all of 
the following general areas:
    [sbull] Electronic Submission Process.

[[Page 66378]]

    When submitted via the Internet, very large documents or files can 
cause ``time-out'' problems for computers at either end of the 
transfer, resulting in a failed or canceled transfer. Transmission 
times are dependent on the speed of the sender's communication device 
and the technology used by the Internet service provider. Very large 
document or files require lengthy transmission times during which the 
potential for error conditions or other service interruptions increases 
in direct proportion to the time the communication link must be 
maintained. The time-out problems could affect each party who receives 
the documents as part of the service of a filing. The actual transfer 
times for very large documents or files may approach 24 hours using 
standard Internet File Transfer Protocol (FTP) routines. In terms of 
ensuring timeliness, this may not be a significant improvement over the 
use of an overnight courier to send the files on optical storage media 
(e.g., CD-ROM).
    [sbull] Access to Large, Complex Documents in the Electronic 
Hearing Docket (EHD).
    Keeping a large document together in one very large file may allow 
users to easily search for, retrieve, and analyze the document in its 
entirety, but may result in service interruption problems similar to 
those described above. This is particularly true if a user wants to 
download the image file of one of these large documents. Retrieval time 
will be unacceptably slow, or will result in a time-out problem with 
the user's Internet connection.
    Users of the EHD may encounter comparable download delays because 
of the file size of large or complex documents and, depending on the 
nature of the file, the file may not be executable on a user's desktop 
personal computer because of configuration, memory, display, or other 
technical problems.
    [sbull] Use of Large, Complex Documents in a Hearing Room.
    Large documents may be pre-filed as potential exhibits in the 
docket; however, in a hearing room, it is possible that only portions 
of such documents, i.e., specified chapters, pages, or paragraphs' will 
be offered. In a dynamic and fast-paced hearing room environment, it 
would not be desirable to delay the proceeding to wait for a large file 
to load; navigate to the desired chapters, pages, or paragraphs; and 
then extract the appropriate selection for use in the proceeding. 
Complex documents may also require specialized hardware and/or software 
to execute software program files and access their associated data.
    [sbull] Official Record and Federal Records Management 
Considerations.
    For both large and complex documents, the NRC must consider the 
need to generate an official record of the proceeding for use in 
potential appellate environments, see 10 CFR 2.1013(a), and for 
generating an Official Agency Record (OAR) version of the docketed 
materials for retirement to the National Archives and Records 
Administration (NARA). Each of these situations requires the ability to 
reassemble the record version of the documentary material (excluding 
software executables), independent of the media or software initially 
used to create it.
    Coupled with the project objectives and technical requirements 
(discussed in the next section), these issues represent the framework 
for potential solutions. The NRC analysis distilled and assessed the 
objectives, technical requirements, and issues and developed four 
designs.

Technical Requirements

    Given the anticipated size and complexity of individual documents, 
and the quantity of submittals, the need to transmit, manage, and 
retrieve electronic documents and objects challenges both the NRC's 
current processes and its information technology/information management 
(IT/IM) infrastructures, and the information technology (hardware, 
software, Internet service provider) in use by the general public. 
Examples of potential large documents are:
    [sbull] The DOE Site Characterization Plan;
    [sbull] The DOE License Application and supporting materials;
    [sbull] The DOE Environmental Impact Statement;
    [sbull] Adjudicatory documents (e.g., motions, responses, 
transcripts, exhibits, and orders).
    Any or all of these types of documents may contain embedded 
photographs, charts, tables, and other graphics that contribute to the 
understanding of the narrative.
    The NRC also anticipates receiving files that could be part of 
complex document submittals that:
    (1) Due to their file size, may preclude easy transmission, 
retrieval, and use; or
    (2) May require specialized software and/or hardware for faithful 
display and subsequent use; and
    (3) May not be suitable for inclusion in a ``generic'' file format 
such as PDF. The PDF standard, though it is proprietary to Adobe[reg], 
has been published and is available for use by software vendors. Users 
can access the content of a PDF format file through the use of the 
Adobe Reader[reg] viewer software.
    Examples of files that could be part of complex documents include 
maps, databases, simulations, audio files, video files, and executable 
programs.
    The analysis of the challenges of handling large documents in the 
NRC and public IT environments considered the following functional 
areas:
    [sbull] Transmit activities entail sending a submittal from the 
submitter to the NRC, either via electronic format (through 
transmission or media) or as a physical object (e.g., video or audio).
    [sbull] Capture relates to the receipt of electronic objects, with 
notifications provided according to an approved service list, 
preferably through e-mail. Upon receipt at the NRC, each submittal is 
staged for additional processing.
    [sbull] Index & Cross-Reference are two distinct processes. Each 
submittal must be indexed based on prescribed profile templates. In 
addition, as part of the cataloging process, a submittal may be 
identified (or cross-referenced) as part of a package or compound 
document.
    [sbull] Store manages the storage location of a submittal, i.e., 
within a folder or larger collection for electronic submittals, or the 
physical media location for submittals provided on optical storage 
media (e.g., CD-ROM) containing text, data, and objects. This process 
involves applying security and audit controls, as well as the 
appropriate retention schedule.
    [sbull] Search & Retrieve operations involve querying the 
bibliographic header and content, displaying the pertinent object(s), 
and, if desired, printing all or part of the displayed object(s).
    [sbull] Create & Revise activities facilitate the creation or 
revision of new documents using content that has been extracted (copied 
and pasted) from original submittals.
    [sbull] Copy & Distribute activities involve maintaining 
distribution (service) lists and providing the means to copy or 
download an individual document or a collection of documents.
    These activities may also involve reproduction when the need arises 
to generate a hard copy of a submittal (e.g., ``8.5'' x 11'' paper'', 
drawings, etc.).
    Finally, there was an assessment of the existing NRC document and 
records management systems environment as well as requirements for 
enhancements to support the large document business requirements.

Assessment and Alternatives

    The NRC assessed a number of alternatives to the existing 
technology

[[Page 66379]]

infrastructure, current and planned operating procedures for processing 
documents, and regulatory requirements to determine how the identified 
objectives, issues, and technical requirements can be addressed while 
ensuring that--
    [sbull] Document fidelity and integrity is preserved (e.g. 
organization, accuracy, completeness);
    [sbull] Documents are accessible to users via commonly used 
computer configurations;
    [sbull] The information is available on reliable and controllable 
media; and
    [sbull] Unique submittals with special software/hardware components 
can be handled.
    The assessment also considered that the NRC should provide guidance 
to participants in the proceeding well in advance of when large, 
complex filings are reasonably anticipated. The guidance, as well as 
the underlying technology and procedures, would address matters such as 
processes, file sizes, file formats, document organization overviews to 
facilitate reconstruction of the complete filing, labeling formats, and 
alternative transfer media.
    This section presents general concepts and four alternatives for 
handling large, complex electronic submittals in the HLW proceeding.

General Concept

    The overall information infrastructure for receiving and managing 
HLW-related documents involves several existing agency information 
systems. Participants in the proceeding will primarily send submittals 
to the NRC in the preferred PDF format via EIE, which provides a Web-
form (an entry form similar to that of an overnight express mail 
carrier shipping form) for the submitter to accurately identify what is 
being transmitted. Upon receipt, each submittal would be entered into 
ADAMS. Once captured within ADAMS, the submittal would be available for 
internal use by agency staff, and the information would be made 
publicly available (as appropriate) via the EHD. Variations on this 
general process and issues associated with large, complex documents are 
described in the following sections.
Aternative 1
    Description: Documents, images, and other submittal components are 
submitted through the EIE as a single file, and the EIE Web-form serves 
as the transmittal letter. The NRC captures large files as single 
units, without the need for any manual manipulation, such as breaking a 
submission into workable pieces. Based on the service list, an e-mail 
is sent to provide notification of receipt and a link from the EIE 
server to the file for immediate access by parties and participants to 
the proceeding. In addition, the file is made available (as 
appropriate) to the EHD. Interested parties can search on the 
bibliographic header information, the content, or a combination of the 
two. Retrieval of a document is directly to the user's desktop.
    Positives: This alternative would satisfy the electronic 
transmission requirements of 10 CFR Part 2, Subpart J. This alternative 
primarily benefits and is less restrictive to the submitter. That is, 
the submitter dictates the form and format of the content, and the 
submittal comes in as a single optimized PDF format file.
    Negatives: Submittal file size could be very large (potentially 
several hundred MB), particularly if graphics are widely used. The 
transmission may be problematic because of service interruptions or 
time-outs attributable to the very long transfer times required for 
large files. File sizes could also make this alternative unfeasible for 
subsequent users of a file, primarily because of download delays and 
time-outs. In addition, although any executables contained in the 
submittal could be stored in the EHD, they could not be indexed for 
search and retrieval or accessed online. The executable file would need 
to be downloaded and run locally.
Alternative 2
    Description: The only object transmitted through the EIE is the 
transmittal letter for the large, complex document, which notifies the 
NRC of an impending package submittal. All other electronic files 
pertaining to the submittal are sent on optical storage media (e.g., 
CD-ROM), which is delivered to the NRC via an overnight express mail 
carrier. Based on the service list, the NRC sends an e-mail containing 
links from the EIE server to the transmittal letter for immediate 
access by parties and participants to the proceeding. All text-based 
components (e.g., narrative with embedded graphics) are rendered as 
optimized PDF format files. The NRC extracts each file from the optical 
storage media (e.g., CD-ROM) and makes the files available (as 
appropriate) to the EHD as either individual objects or a compound 
document, depending on the document organization. The NRC also links a 
bibliographic header to the appropriate optical storage media (e.g., 
CD-ROM) for files or objects that are not candidates for extraction 
(because of some technical constraint). Interested parties can search 
the EHD on the bibliographic header, the content, or a combination of 
the two. Retrieval of a document or specified component(s) is directly 
to the user's desktop. Additionally, the NRC provides copies (upon 
request and for a fee) of the optical storage media (e.g., CD-ROM) for 
public access.
    Positives: The NRC provides guidance to the submitter to facilitate 
processing and use within the agency. This alternative also avoids 
potential problems associated with submitting large files via the EIE.
    Negatives: This alternative does not meet the electronic service 
requirements of 10 CFR part 2, subpart J. There may also be a delay in 
parties and participants receiving documents. As compared with 
Alternative 1, additional processing will be required to extract, 
profile, and store files in a timely manner. In addition, use of this 
alternative could adversely affect document fidelity and integrity 
(e.g. organization, accuracy, or completeness) which could affect the 
efficient conduct of an adjudication, as well as for agency 
recordkeeping and eventual turnover to NARA.
Alternative 3
    Description: Documents, images, and other components (including the 
transmittal letter and enhanced Web-form) are transmitted through the 
EIE as multiple segmented files (``chunks'') of a single submittal. All 
text-based components (e.g., narrative with embedded graphics) are 
rendered as optimized PDF format files. Based on the service list, the 
NRC sends an e-mail containing links from the EIE server to the 
transmittal letter and the various segmented files for immediate access 
by parties and participants to the proceeding. Upon receipt and 
subsequent processing, the NRC makes the segmented files available (as 
appropriate) to the EHD as a ``package'' or ``compound document.'' 
Interested parties can search on the bibliographic headers, or content, 
or a combination of both. Retrieval of selected components is direct to 
the user's computer.
    Positives: This alternative satisfies electronic transmission 
requirements of 10 CFR part 2 and allows submission via the EIE. It 
also allows the NRC to provide guidance to have precisely defined 
segments and bibliographic header information associated with each 
segment. The segmentation facilitates later use and access.
    Negatives: This alternative requires the EIE to facilitate the 
transfer, segregate component content from

[[Page 66380]]

bibliographic header information and the transmittal letter, and make 
that information available to the EHD. A possible fatal flaw is that 
some file types may not be able to be segmented into manageable sizes 
(e.g., graphic-oriented materials showing subsurface geology in color 
or computer modeling information and/or software), and some materials 
may not be accessible via the EHD.
Alternative 4
    Description: All text-based components (e.g. narrative with 
embedded graphics) are rendered as optimized PDF format files and 
transmitted in manageable segments. All non-text components (e.g., 
runtime executable software, viewer or printer executables) that are 
not suitable for an optimized PDF file are placed on optical storage 
media (e.g., CD-ROM). When necessary, due to the nature of the 
submittal, a submittal letter identifies all electronic files that 
comprise the submission, clearly indicating which components are 
submitted via EIE, and which are submitted on optical storage media 
(e.g., CD-ROM). The submittal letter, enhanced Web-forms, and all 
segmented text files are sent through the EIE. The optical storage 
media (e.g., CD-ROM) containing the complete submission (i.e., text-
based segments submitted via EIE and any files submitted only on 
optical storage media) are delivered to the NRC and other parties via 
an overnight mail carrier or other overnight delivery service. The NRC 
links a bibliographic header to the optical storage media (e.g., CD-
ROM) component of the submission.
    Based on the service list, the NRC sends an e-mail containing links 
from the EIE server to the transmittal letter and the various 
components submitted through the EIE for immediate access by parties 
and participants to the proceeding. The NRC indexes the text-based 
components sent via EIE and makes them available to the EHD as a 
``package'' or ``compound document.'' Additionally, the NRC provides 
copies (upon request and for a fee) of the optical storage media (e.g., 
CD-ROM) for the public. Interested parties can search on the 
bibliographic header information, content, or a combination of both. 
Retrieval of text-based components is directly to the user's computer, 
and non-text components are retrievable from the optical storage media 
(e.g., CD-ROM).
    Positives: This alternative combines the best features and 
advantages of Alternatives 2 and 3, including text-based component 
submission through the EIE and non-text component submissions via 
optical storage media (e.g., CD-ROM). This alternative provides several 
means to optimize a submission and allows the NRC to process the 
submission appropriately; provide access to end-users (i.e., 
adjudicatory proceeding participants and the general public); and 
prepare for the eventual transfer to NARA.
    Negatives: Processing by the NRC staff will need to be closely 
coordinated to maintain the integrity of the various submittal 
components (segmented files stored in ADAMS with the bibliographic 
header records that point to optical storage media, such as a CD-ROM).
    Documentary material submitted on optical storage media and sent by 
overnight mail (or other expedited delivery services) would not meet 
the electronic transmission requirements of 10 CFR part 2, subpart J. 
There may be a delay in parties and participants receiving document 
components contained only on the optical storage media (e.g., CD-ROM).

Planned Actions

    Alternative 4 is the recommended approach for the NRC to meet the 
identified objectives. The NRC believes that this alternative provides 
the best means for transferring the wide variety of file types and 
sizes received from parties and participants in the proceeding, as well 
as the most practical means for delivering electronic information to 
parties and participants in the HLW adjudicatory proceeding, the 
presiding officer, and the Office of the Secretary (SECY), under the 
requirements of 10 CFR part 2, subpart J.
    Toward that end, the agency will take the following steps:
    [sbull] Develop guidance for use in generating HLW proceeding 
submissions that specifies the size, file characteristics, and method 
(either EIE or optical storage media) for different submittal types 
(i.e. simple, large, or complex). This guidance will also provide 
direction concerning the information the agency requires to ensure 
proper identification of each segment.
    [sbull] Implement enhancements to the agency's existing IT/IM 
systems (such as an improved EIE capability) in anticipation of 
storage, search, and retrieval needs, as they pertain to Alternative 4.
    [sbull] Implement enhancements to the agency's current document 
processing work flows in anticipation of the receipt, indexing, and 
distribution of information, as they pertain to Alternative 4.
    [sbull] Develop a rule change to implement the recommended 
alternative.

Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)), 
the Commission has evaluated the impact of the proposed rule on small 
entities. The NRC has established standards for determining who 
qualifies as small entities (10 CFR 2.810). The Commission certifies 
that this proposed rule, if adopted, would not have a significant 
economic effect on a substantial number of small entities. The proposed 
amendments would modify the NRC's rules of practice and procedure in 
regard to the HLW licensing proceeding. Parties to the HLW licensing 
proceeding will be required to submit their filings during the 
proceeding according to the standards in the proposed rule. Some of the 
participants affected by the proposed rule, for example, DOE, NRC, the 
State of Nevada, would not fall within the definition of ``small 
entity'' under the NRC's size standards. Other parties and potential 
parties may qualify as ``small entities'' under these size standards. 
However, the required standards will overall make it easier for those 
parties who are small entities to participate in the HLW licensing 
proceeding.

Backfit Analysis

    The NRC has determined that a backfit analysis is not required for 
this proposed rule because these amendments would not include any 
provisions that require backfits as defined in 10 CFR chapter I.

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 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:


[[Page 66381]]


    Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 
5841); 5 U.S.C. 552.
    Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 
105, 68 Stat. 930, 932, 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. 161 b, 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). Sections 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. In Sec.  2.1001, definitions of ``Complex document,'' ``Large 
document,'' and ``Simple document'' are added to read as follows:


Sec.  2.1001  Definitions.

* * * * *
    Complex document means a document that consists (entirely or in 
part) of electronic files having substantial portions that are neither 
textual nor image in nature. For example, specialized submissions may 
include runtime executable software, viewer or printer executables, 
dynamic link library (.dll) files, large data sets associated with an 
executable, and actual software code for analytical programs that a 
party may intend to introduce into the proceeding.
* * * * *
    Large document means a document that consists of electronic files 
that are larger than 50 megabytes.
* * * * *
    Simple document means a document that consists of electronic files 
that are 50 megabytes or less.
* * * * *
    3. In Sec.  2.1003, the introductory text of paragraph (a) and 
paragraph (a)(1) are revised, and paragraph (e) is added, to read as 
follows:


Sec.  2.1003  Availability of Material.

    (a) Subject to the exclusions in Sec.  2.1005 and paragraphs (b), 
(c), and (e) of this section, DOE shall make available, no later than 
six months in advance of submitting its license application to receive 
and possess high-level radioactive waste at a geologic repository 
operations area, the NRC shall make available no later than thirty days 
after the DOE certification of compliance under Sec.  2.1009(b), and 
each other potential party, interested governmental participant or 
party shall make available no later than ninety days after the DOE 
certification of compliance under Sec.  2.1009(b)--
    (1) An electronic file including bibliographic header for all 
documentary material (including circulated drafts but excluding 
preliminary drafts) generated by, or at the direction of, or acquired 
by, a potential party, interested governmental participant or party; 
provided, however, that an electronic file need not be provided for 
acquired documentary material that has already been made available by 
the potential party, interested governmental participant or party that 
originally created the documentary material. Concurrent with the 
production of the electronic files will be an authentication statement 
for posting on the LSN website that indicates where an authenticated 
image copy of the documents can be obtained.
* * * * *
    (e) Each potential party, interested governmental participant or 
party shall continue to make available to other participants via the 
LSN documentary material created after the time of its initial 
certification in accordance with paragraph (a)(1) through (a)(4) of 
this section.
    4. In Sec.  2.1005, paragraph (i) is added to read as follows:


Sec.  2.1005  Exclusions.

* * * * *
    (i) Correspondence between a potential party, interested 
governmental participant, or party and the Congress of the United 
States.
    5. In Sec.  2.1012, paragraph (a) is revised to read as follows:


Sec.  2.1012  Compliance.

    (a) If the Department of Energy fails to make its initial 
certification at least six months prior to tendering the application, 
upon receipt of the tendered application, notwithstanding the 
provisions of Sec.  2.101(f)(3), the Director of the NRC's Office of 
Nuclear Material Safety and Safeguards will not docket the application 
until at least six months have elapsed from the time of the 
certification. The Director may determine that the tendered application 
is not acceptable for docketing under this subpart if the application 
is not accompanied by an updated certification pursuant to Sec.  
2.1009(b), or if the Secretary of the Commission determines that the 
application cannot be effectively accessed through the Commission's 
Agencywide Documents Access and Management System (ADAMS).
* * * * *
    6. In Sec.  2.1013, paragraph (a)(2) and (c)(1) are revised to read 
as follows:


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

* * * * *
    (a) * * *
    (2) The Secretary of the Commission 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.
* * * * *
    (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 under part 60 or 63 of this chapter 
shall be transmitted by the submitter to the Presiding Officer, 
parties, and Secretary of the Commission, according to the following 
requirements--
    (i) ``Simple documents'' must be transmitted electronically via the 
NRC Electronic Information Exchange (EIE);
    (ii) ``Large documents'' must be transmitted electronically in 
multiple transmissions of 50 megabytes each via EIE;
    (iii) Those portions of complex documents that are amenable to 
electronic submission must be transmitted electronically. Those 
portions that are not amenable to electronic transmission must be 
delivered on optical storage media. The optical storage media must 
include the complete document, including the

[[Page 66382]]

portions of the document that have been transmitted electronically;
    (iv) Electronic submissions must have 300 dots per inch (dpi) as 
the minimum resolution for bi-tonal, color resolution, and grayscale 
resolution.
    (v) Electronic submissions must be generated in the appropriate PDF 
output format by using:
    (A) PDF--Formatted Text and Graphics for textual documents 
converted from native applications;
    (B) PDF--Searchable Image (Exact) for textual documents converted 
from scanned documents; and
    (C) PDF--Image Only for graphic-, image-, and forms-oriented 
documents. In addition, Tagged Image File Format (TIFF) images and the 
results of spreadsheet applications must to be converted to PDF, except 
in those rare instances where PDF conversion is not practicable.
    (vi) All electronic submissions must be free of hyperlinks to other 
documents or websites, provided, however, that electronic submissions 
to the hearing docket may contain hyperlinks within a single PDF file, 
if those links are created using PDF authoring software;
    (vii) All electronic submissions must be free of author-imposed 
security restrictions.
* * * * *

    Dated at Rockville, Maryland, this 20th day of November, 2003.

    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 03-29557 Filed 11-25-03; 8:45 am]
BILLING CODE 7590-01-P