[Federal Register Volume 72, Number 166 (Tuesday, August 28, 2007)]
[Rules and Regulations]
[Pages 49139-49155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16898]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 1, 2, 13 and 110
RIN 3150--AH74
Use of Electronic Submissions in Agency Hearings
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations to require the use of electronic submissions in all agency
hearings, consistent with the existing practice for the high-level
radioactive waste repository application (which is covered under a
separate set of regulations). The amendments require the electronic
transmission of electronic documents in submissions made to the NRC's
adjudicatory boards. Although exceptions to these requirements are
established to allow paper filings in limited circumstances, the NRC
maintains a strong preference for fully electronic filing and service.
The rule builds upon prior NRC rules and developments in the Federal
courts regarding the use of electronic submissions.
DATES: Effective date: This final rule will become effective October
15, 2007.
Applicability date: This final rule will apply only to new
proceedings noticed on or after that date. For any proceeding noticed
before that effective date, filings may be submitted via the E-Filing
system, but only after this rule's effective date and upon agreement of
all participants and the presiding officer.
ADDRESSES: This final rule and any related documents are available on
the NRC's interactive rulemaking Web site at http://ruleforum.llnl.gov.
For information about the interactive rulemaking site, contact Carol
Gallagher, telephone (301) 415-5905, e-mail [email protected]. Publicly
available NRC documents related to this final rule can also be viewed
on public computers located at the NRC's Public Document Room (PDR),
located at O-1F21, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland. The PDR reproduction contractor will make copies
of documents for a fee.
Publicly available documents created or received at the NRC after
November 1, 1999, are available electronically at the NRC's Electronic
Reading Room currently located at http://www.nrc.gov/reading-rm/adams.html.
From this site, the public can gain entry into the NRC's Agencywide
Documents 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 PDR Reference staff at 1(800) 397-4209, (301)
415-4737, or by e-mail at [email protected].
FOR FURTHER INFORMATION CONTACT: Darani Reddick, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
telephone (301) 415-3841, e-mail [email protected], or Steven Hamrick,
Office of the General Counsel, telephone (301) 415-4106, e-mail
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Overview of the Final Rule
III. Comments on the Proposed Rule
IV. Section-by-Section Analysis of Substantive Changes
V. Voluntary Consensus Standards
VI. Environmental Impact: Categorical Exclusion
VII. Paperwork Reduction Act Statement
VIII. Regulatory Analysis
IX. Regulatory Flexibility Certification
X. Backfit Analysis
XI. Congressional Review Act
I. Background
On December 16, 2005 (70 FR 74950), the NRC published a proposed
rule, E-Filing, to require that submissions in any adjudicatory hearing
governed by 10 CFR part 2, Subpart C, part 13, or part 110 be made
electronically. NRC's Electronic Information Exchange (EIE), a
component of the E-Filing system, permits users to make electronic
submissions to the agency in a secure manner using digital signature
technology to authenticate documents and validate the identity of the
person submitting the information. Upon receipt of a transmission, the
E-Filing system time-stamps documents transmitted to the NRC and sends
the submitter an e-mail notice confirming receipt of the documents.
In crafting the rule, the NRC relied upon its past experience with
electronic submissions and also examined Federal court practices. These
experiences are derived from the ``Electronic Maintenance and
Submission of Information'' final rule (``E-Rule''), issued October 10,
2003 (68 FR 58792), and the 10 CFR part 2, Subpart J procedures for
electronic filing in high-level waste proceedings. The NRC also looked
to the use of electronic filing by Federal courts. E-Filing adopts some
technical and procedural provisions nearly verbatim from the E-Rule, 10
CFR part 2, Subpart J, and the procedures adopted by the Federal
courts.
The E-Filing rule is accompanied by Guidance for Electronic
Submissions to the NRC (Guidance), a guidance document that is
currently available at http://www.nrc.gov/site-help/e-submittals.html.
This guidance document consolidates previous guidance set forth for
electronic submittal of information to the agency, and sets forth the
technical standards for electronic transmission and for formatting
electronic documents as well as instructions on how to obtain and use
[[Page 49140]]
the agency-provided digital identification (ID) certificate that a
participant must have to submit or retrieve an electronic filing
through the E-Filing system. These standards have not been included in
the rule so that it will be easier and faster for the NRC to amend the
Guidance, when warranted, to allow use of the most current technology.
Information on accessing and using the E-Filing system is also
available on the NRC Web site, http://www.nrc.gov.
II. Overview of the Final Rule
E-Filing represents a major revision to the NRC's methods of filing
and service in adjudicatory proceedings governed by the Part 2, Subpart
C and Part 13 requirements, and a minor revision to Part 110
requirements. The final rule is generally explained in section III of
this document; section IV provides a section-by-section analysis of
changes made from the proposed rule to the final rule. A thorough
explanation of the concepts involved in E-Filing can be found in the
proposed E-Filing rule (70 FR 74950; Dec. 16, 2005).
A. Conceptual Framework for Electronic Filing and Service
Filing and service involve the transfer of a document from one
participant to the presiding officer, the other participants in the
proceeding, and the Secretary of the Commission for inclusion in the
official proceeding docket. Two types of electronic filing and service
exist under E-Filing: fully electronic and partially electronic. Fully
electronic filing and service involves the electronic transmission of
an electronic document. Partially electronic filing and service entails
the physical delivery or mailing of optical storage media (OSM) (such
as a CD-ROM) containing an electronic document. While E-Filing permits
partially electronic filing and service in cases where necessary, the
rule generally calls for fully electronic filing (with certain
exceptions permitted by the rule and further described in the
Guidance).
B. Benefits of Electronic Filing and Service
The benefits of electronic filing and service originate from the
use of electronic transmission and electronic documents. The electronic
transmission of documents is more cost effective and faster than
physical delivery of paper mail. While the added cost and delay of
physically delivering or mailing one document may be small, the total
cost and delay could be significant over the course of a proceeding
with many filings and a large service list.
In addition, compared to paper documents, electronic documents save
resources and increase efficiency. Electronic documents are less
expensive to produce, store, transport, and retrieve than paper
documents. Electronic documents also have text-searching capability,
which allows users to review many documents quickly and find those
sections that are relevant to their needs, along with text-capture
capability, which enables users to transport entire passages from one
document to another quickly. Finally, the filing of electronic
documents in the appropriate and uniform format benefits the NRC
because the agency already processes filings into electronic formats
for storage as official agency records.
C. The E-Filing System
Under E-Filing, a participant wishing to file a document is
required to convert the document into the appropriate electronic format
and electronically transmit it via the agency's EIE to an electronic
system monitored by the NRC, called the E-Filing system. The NRC
established the E-Filing system, which can be accessed on the NRC's
public E-Submittal Web site at http://www.nrc.gov/site-help/e-submittals.html. The system receives, stores, and distributes documents
filed in proceedings covered by this final rule for which an electronic
hearing docket has been established.
To electronically submit a filing, a participant with an agency-
provided digital certificate completes the Adjudicatory Document
Submittal form on the E-Submittal system web page and selects the
appropriate proceeding docket from a provided drop-down list, which
lists all dockets in which that person is a participant. In the case of
all initial petitions to intervene or requests for hearings, the
potential submitter will follow the instructions in the Notice of
Opportunity for Hearing for the proposed licensing activity or as
stated on the NRC Web page for obtaining a digital certificate. In
essence, the stated process will require the potential submitter of an
initial document in a proceeding to contact the NRC Office of the
Secretary (SECY) and obtain authorization to apply for a digital
certificate. At that time, the initial filing submitter must identify
for SECY the matter in which it wants to file an intervention petition
or hearing request, including the licensing docket involved and the
Federal Register notice, if any, that provides an opportunity for
hearing. After SECY is contacted and authorizes obtaining a digital
certificate, SECY will establish a docket to receive the intervention
petition or other initial filing and any responses thereto filed using
the E-Submittal form. If an initial filing submitter already has a
digital ID certificate, he or she must still contact SECY so that it
can establish a docket to receive the initial filing. Upon being
authorized to obtain a digital certificate, the first time submitter,
following the procedures on the E-Submittal Web site, will then select
the appropriate docket for filing the submission. SECY will also
establish a service list that will include those who are identified for
service in the Notice of Opportunity for a Hearing.
Thereafter, the participant attaches, signs using the agency-
provided digital ID certificate, and transmits the document. For a
filing submitted under an order of the presiding officer that prevents
the disclosure of certain information except to certain individuals (a
protective order) the submitter selects the participants to be served
electronically from the electronic distribution list, which is a list
of the Atomic Safety and Licensing Board members and other individuals
involved in the proceeding as participants or party representatives.
For a public filing, the submitter may view the list of participants to
be served electronically but cannot alter the list. The transmission
process can be performed either by the participant signing the document
or another authorized individual, such as a secretary or clerk.
The E-Filing system serves all the persons selected by the
submitter (or pre-selected in the case of a public filing) to receive
service by sending an e-mail notifying them that a document has been
filed and providing them with a temporary link from which they can view
and save the document until it is made permanently available though the
Publicly Available Record System (PARS) or the Electronic Hearing
Docket (EHD). This e-mail constitutes service of the document upon the
participants to whom it was sent. Finally, the E-Filing system will
send an electronic acknowledgment to the filer, which is an e-mail that
confirms receipt of the filing and reports that an e-mail has been sent
to the selected persons on the electronic distribution list.
A person filing electronically may seek assistance through the
``Contact Us'' link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical help line,
which is available during normal business hours. The help line number
is 1 (800) 397-4209 or locally, (301) 415-4737.
[[Page 49141]]
D. Electronic Hearing Dockets
The EHD is a database that houses a visual presentation of the
docket for a particular proceeding and a link to all the filings in
that proceeding. The EHD can be accessed through the ``Electronic
Reading Room'' link on the NRC homepage. After an electronic docket has
been established, SECY will inform the participants of the docket's
existence. SECY will maintain that docket and all publicly available
filings will be accessible from the electronic hearing docket site.
Although the electronic hearing docket established by SECY after
the initial intervention petition or hearing request will bear the
licensing docket number under which the proceeding was designated in
the Federal Register notice, after a presiding officer is assigned to
the proceeding, SECY will replace the licensing docket number with a
proceeding docket number. The proceeding docket number will be exactly
the same numerical digits as the licensing docket number, except that a
two- or three-letter suffix is added to differentiate between multiple
hearings involving the same facility. SECY will inform the participants
of the modified proceeding docket number and will instruct them to use
the proceeding docket number rather than the licensing docket number
when accessing documents.
E. Digital ID Certificates
To access the E-Filing system, a participant must obtain a digital
ID certificate from the NRC, which will be supplied at no cost. A
digital ID certificate is a unique file downloaded onto a participant's
computer that identifies the participant to the E-Filing system. A
digital ID verifies the participant's identity for the E-Filing system
when making an electronic filing, and enables the participant to
digitally sign documents submitted to the system. Digital ID
certificates are linked to the e-mail address submitted by the
individual when applying for a certificate. Therefore, if a participant
changes his or her e-mail address, he or she must apply for a new
certificate.
A participant must request a digital ID certificate from the NRC
before submitting its first electronic filing with the NRC. If the
participant is an organization, the digital ID is assigned to a
participant representative, rather than the organization. The notices
of opportunity for hearing that the NRC publishes in the Federal
Register will remind potential participants of the requirement to
obtain a digital ID certificate. After contacting SECY to obtain
authorization for a digital ID, a participant should apply for a
digital ID on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html. A participant will be able to seek assistance in
obtaining a digital ID certificate through the ``Contact Us'' link on
the ``Electronic Submittals'' page located on the NRC Web site at
http://www.nrc.gov/site-help/e-submittals.html or through the NRC
technical help line. After a digital ID certificate is assigned, that
ID will provide the participant with access to all the E-Filing
proceedings to which it is a participant; therefore, only one digital
ID certificate with the appropriate level of access certification is
required per participant regardless of the number of proceedings in
which that participant is involved. The NRC reserves the right to
revoke a digital ID certificate if it is being abused. An individual or
organization who anticipates participation in NRC proceedings is
encouraged to request a digital ID certificate prior to publication of
a notice of opportunity for hearing.
In addition to digital ID certificates assigned to individuals,
Group digital ID certificates may be assigned to firms or other
organizations. Group digital ID certificates, which can be downloaded
onto several computers, allow multiple individuals who do not have an
individual digital ID certificate to be served with a filing to the E-
Filing system, thus permitting those individuals to retrieve documents
filed in the proceeding. Because Group digital ID certificates are
assigned to entities, the Group digital ID certificate does not have an
electronic signature associated with it and, thus, cannot be used to
electronically sign filings submitted to the E-Filing system. Thus, at
least one representative of the group must obtain an individual digital
ID certificate to be able to file electronically. Further, group
digital ID certificates cannot be used to receive filings subject to a
protective order because only those who have signed a non-disclosure
agreement will receive these filings. Participants or their
representatives who have signed non-disclosure agreements must obtain
individual digital ID certificates to be served with filings subject to
a protective order.
F. Electronic Distribution List
Each proceeding with an electronic docket will have a distribution
(electronic service) list, which includes the presiding officer, as
well as all of the participants (such as the intervenor(s), applicant/
licensee, interested government participant(s), and NRC staff) taking
part electronically in that specific proceeding. Upon receiving an
initial filing from a participant, SECY will add the participant to the
electronic distribution list, thereby providing the participant
notification of and access to documents that will be filed in the
proceeding and enabling the participant to electronically file and
serve the presiding officer and others on the distribution list.
Participants may retrieve documents filed more than 14 days previously
from the EHD Web site.
G. Certificates of Service and Service List
E-filing requires that submitters attach a certificate of service,
including a service list, to their filings to inform the recipients of
the entities who received the filing and how they were served. This
procedure is particularly important for protective order filings
because the E-Filing system will not automatically select a list of the
entities to receive the filing. That responsibility will be left to the
submitter to perform under the requirements of the protective order
governing filings and restrictions pertaining to service of protected
filings on recipients identified in the order or related disclosure
agreements. Also, the electronic distribution list may not be an all-
inclusive list of the participants in the proceeding because it will
not include any participants permitted to file and be served by paper.
H. Signatures
10 CFR 2.304(d) provides that all electronic documents must be
signed with the assigned digital ID certificate of a participant or a
participant's representative or attorney. It also allows for additional
signatures by participant representatives or attorneys using a typed
designation, as discussed below. The document, however, does not need
to be electronically signed and electronically submitted by the same
person with the same digital ID certificate. For example, an attorney
or participant's representative may electronically sign a document
using his or her digital ID certificate, but a secretary may submit the
document, using his or her own digital ID certificate.
The Commission considers documents that have been electronically
signed following the procedures outlined below to be the equivalent of
traditional signed paper documents. To sign a filing with a digital ID
certificate, Sec. 2.304(d)(1)(i) requires that a signature block be
added to the electronic document before it is submitted. The signature
block will consist of the phrase ``Signed (electronically) by,''
[[Page 49142]]
followed by the signer's name and the capacity in which the person is
signing. It will also contain the date of signature and the signer's
postal address, phone number, and e-mail address. The participant will
not need to sign a paper document. The digital signature will be added
at the time of submittal to the E-Filing system by the participant
clicking on the ``Click to Digitally Sign Documents'' button.
If additional signatures are added to an electronic document, these
signatures must be added using a typed ``Executed in Accord with 10 CFR
2.304(d)'' designation. To execute a pleading or other submitted
document with a typed-in ``Executed in Accord with 10 CFR 2.304(d)''
designation, the participant would add a signature block, as described
above, for the additional signatories and type in the phrase ``Executed
in Accord with 10 CFR 2.304(d)'' on the signature line of the signature
blocks for each added signer. As section 2.304(d)(1) indicates, a
person executing a pleading or other similar document submitted by a
participant using this designation is making a representation that the
document has been subscribed in the capacity specified with full
authority, that he or she has read it and knows the contents, that to
the best of his or her knowledge, information, and belief the
statements made in it are true, and that it is not interposed for
delay. The Commission also considers documents that have been signed
following this procedure to be the equivalent of traditional signed
paper documents. Therefore, in a change from the proposed rule, the
Commission will not require participants to retain paper copies of
handwritten signatures. The NRC staff could also use this method for
providing additional signatures, but would type in ``/RA/,'' meaning
``Record Approved,'' which is the agency's current method of signing
digitally stored documents.
Documents signed under oath or affirmation, such as affidavits,
should be executed in the form specified in 28 U.S.C. 1746 and signed
with the ``Executed in Accord with 10 CFR 2.304(d)'' designation as
well, which Sec. 2.304(d) now would specify is, in accord with 28
U.S.C. 1746, a representation that, under penalty of perjury, the
document is true and correct to the best of that individual's knowledge
and belief. The guidance document provides further explanation of
signing documents under oath or affirmation.
I. Electronic Transmission
Under E-Filing, participants should convert their documents into
the appropriate electronic formats detailed by the Guidance and
electronically transmit these documents to the presiding officer, the
other participants, and SECY. The Guidance sets technical standards for
filing and service under the rule and defines the file sizes and
formats for electronic transmissions. By putting the technical
provisions in the Guidance, the Commission is able to update the
electronic transmission standards to keep pace with technology and the
changing needs of the NRC and the participants in its adjudication
without additional rulemaking. Exemptions to the electronic
transmission requirement are discussed below. (See section II.K. of
this document).
J. Electronic Document Requirements
Because the E-Filing system can accept documents only in specified
electronic formats, E-Filing has specific electronic document standards
that are enumerated in the Guidance for Electronic Submissions to the
NRC (``Guidance''), which is available on the NRC Web site, http://www.nrc.gov. This guidance document replaces all previous agency
guidance on electronic submittals to the agency, including Appendix A:
Guidance for Electronic Submissions to the Commission (which
accompanied the E-Rule), Guidance for Submission of Electronic
Documents Under 10 CFR Part 2, Subpart J (which applies to the high-
level waste repository proceeding), and the E-Filing/E-Submittal
Proposed Guidance. For the foreseeable future, the only technically
compatible formats are certain types of portable document format (PDF)
file formats. In addition, individual submissions cannot exceed 50
megabytes (approximately 5000 pages of text), which the NRC considers
the current upper limit for practical Internet transmissions.
The Guidance creates three categories of documents: simple, large,
and complex. Simple documents are documents filed in a PDF format and
transmittable to the E-Filing system in a single transmission.
Large documents, meaning documents exceeding 50 megabytes, are also
filed in a PDF format. The Guidance currently recommends that these
large documents should be segmented into smaller files that meet the 50
megabyte limit and then transmitted to the E-Filing system, which
reunites the files as a package. Document size limits provided in the
Guidance are subject to change, to keep pace with the most current
technology. Participants are also asked to physically deliver to all
the participants in the proceeding OSMs containing the large document,
in its entirety, in a unified form that could be used as a reference
copy.
Complex documents are those that (1) are not entirely in an
acceptable PDF format; (2) contain Classified National Security
Information or Safeguards Information; or (3) exceed the 50 megabyte
limit and cannot be segmented. The Guidance asks participants to
electronically submit to the E-Filing system the sections of a complex
document that are in PDF, do not contain Classified National Security
Information or Safeguards Information, and can be segmented into less
than 50 megabytes. The Guidance also asks participants to deliver the
entire complex document on an OSM to all authorized participants in the
proceeding.
As was previously noted, the Guidance recognizes that only certain
forms of PDF are technically compatible with the NRC E-Filing system.
As part of the development of the NRC E-Filing system, the NRC chose
PDF formats over other formats based on the following considerations:
(1) The format is a type that can be entered as an official agency
record;
(2) The format behaves consistently over a broad range of operating
systems and platforms (meaning pagination remains identical regardless
of the printer used);
(3) The format can be easily accessed by most users;
(4) The format is one to which other document formats can be easily
converted;
(5) The format supports images, text, and other types of
documentary material that can be useful in a hearings context; and
(6) The format has text-searching and text-capture capabilities.
PDF has all of these features. Further, the National Archives has
identified certain PDF versions as acceptable for transfer of permanent
records to the archives.
K. Exemptions From the Electronic Filing and Service Requirements
In recent years, almost all participants in NRC adjudications have
been filing and serving documents via e-mail in addition to submitting
paper copies, which are generally regarded as the ``official'' versions
of the documents. This use of e-mail submissions exists because a vast
majority of the participants in NRC proceedings have ready access to
computers, word-
[[Page 49143]]
processing programs, and the Internet. This has led the NRC to conclude
that almost all participants are ready to take the next step and move
to a fully electronic environment. The NRC recognizes that implementing
a rule governing electronic submission could entail initial costs for
some persons because participants would need ready access to a computer
with word-processing software, software that will save/render documents
in PDF format, and the Internet. However, the participants are expected
to recoup these expenses through cost savings in labor, copying, and
mailing paper documents to multiple participants.
(1) Good Cause Required for Exemption From Electronic Filing
Despite these advantages, the NRC recognizes that some individuals
may conclude that they are not able to file electronically for a
variety of reasons. The NRC, therefore, will allow exemptions from the
E-Filing rule for certain participants in appropriate circumstances. To
participate using traditional paper filing and service, a participant
must request an exemption from the electronic filing requirement and
should submit a request for authorization from the presiding officer
with its first filing in the proceeding. ``Good cause'' for such an
exemption would depend on the participant's circumstances and could
include such matters as: disability, lack of readily-available Internet
access, or the cost of purchasing the necessary equipment or software.
The presiding officer will determine if a participant has demonstrated
good cause on a case-by-case basis.
If, after submitting its first filing electronically, a participant
wishes to request an exemption, the participant will, in addition to
the requisite showing of good cause, have to show that granting the
exemption late is in the interest of fairness. A participant may meet
this standard by demonstrating an unforeseen change in circumstances
that makes filing via the E-Filing system especially onerous. Until the
presiding officer rules on the request, the participant must continue
to file electronically.
E-Filing provides exemptions from the requirement to send the
filing to the E-Filing system electronically as well as from the
requirement to submit documents in computer file format. These are
discussed below.
(2) Electronic Transmission Exemption
A participant willing to submit a document formatted in PDF, but
capable only of delivering the PDF document via OSM, can request an
exemption from electronic transmission over the Internet to the E-
Filing system. This participant's filings would be exempt from the
requirement of being sent to the E-Filing system.
(3) Electronic Document Exemption
A participant can also request an exemption from the requirement to
file documents formatted in PDF as well as the electronic transmission
requirement through the E-Filing system. This participant would
physically file and serve paper documents on the presiding officer and
other participants in a manner determined by the presiding officer. In
return, the presiding officer, other participants and SECY would
physically serve paper documents on a participant who has been granted
this exemption.
Although these exemptions are available for participants in NRC
proceedings, the NRC believes that the cost savings from electronic
filing generally will exceed electronic filing associated equipment/
software/Internet access procurement costs and, thus, encourages
potential participants to move to electronic filing and service,
whenever possible, rather than seeking an exemption. When a participant
is granted either a document exemption or a transmission exemption, E-
Filing permits a mixed service proceeding, which is discussed in the
next section.
L. Mixed Service Proceedings and Computation of Time
The Commission recognizes the possibility that there could be a
proceeding in which a participant will receive an exemption permitting
the participant to file and serve paper copies, while the other
participants will file and serve documents electronically. As mentioned
previously, if an exemption from electronic filing and formatting is
granted, the NRC prefers mixed service proceedings to traditional
proceedings that rely solely on paper. Mixed service proceedings are
those in which some, but not all, of the participants file and serve by
the same non-electronic method. For example, rather than requiring that
all participants physically serve and file paper documents when one
participant to the proceeding is granted an electronic documents
exemption, mixed service proceedings allow the exempted participant to
file, serve, and be served physically, while the rest of the
participants file and serve each other electronically according to the
standards in the Guidance. Standards concerning timeliness and the
number of days for service will be established by the presiding officer
who grants the electronic filing exemption on a case-by-case basis as
fairness and efficiency considerations dictate. However, Sec. 2.306(c)
specifies that documents served in person or by expedited mail must be
served by 5:00 p.m. Eastern Time and a document served through the E-
Filing system must be served by 11:59 p.m. Eastern Time.
M. Completeness of Electronic Filings
Under Sec. 2.302(d)(1), filing by electronic transmission is
considered complete ``when the filer performs the last act that it must
perform to transmit a document, in its entirety, electronically.'' For
electronic transmissions, the ``last act'' would occur when the
participant hits the ``submit/transmission'' or ``send'' button. The
language in Sec. 2.302(d)(1) and the meaning of ``last act'' are taken
from the Advisory Committee Notes to the 2002 amendments to Rule
25(c)(4) of the Federal Rules of Appellate Procedure, which covers
service requirements. The NRC adopted the ``last act'' standard for
several reasons. First, the ``last act'' standard, which penalizes a
party only for events within its control, is fair. Upon selecting the
send or transmit button, a participant relinquishes all control over a
document and cannot be certain when the document will be received by
the NRC's system. Making completeness of filing dependent upon receipt
of the transmission would subject participants to the vagaries of
electronic transmission, which may include such problems as the filer's
Internet connection being slower on the day of filing, the filer's
Internet service disconnecting during transmission, or the filer's
connection to the E-Filing system server failing to connect because the
allotted time for connection expired.
Second, the ``last act'' standard conceptually coincides with the
standard for filing by mail, when a filing is considered complete upon
depositing the document, in its entirety, in a mailbox. In effect, the
``last act'' of depositing the document in the mailbox is equivalent to
hitting the ``submit/transmission'' or ``send'' button.
N. Completeness of Filing When Multiple Filing Methods Are Required
When two or more methods of filing are permitted in a mixed
proceeding, Sec. 2.302(d)(4) indicates that filing is complete when
all the methods of filing used are complete. For example, if a
participant needs to make a filing consisting of three electronic
documents, one of which is entirely Classified National Security
[[Page 49144]]
Information, the filer is to submit the two non-classified documents by
electronic transfer and all three documents on an OSM. If the
participant mails the OSM on Monday and performs the electronic
transfer on Tuesday, filing would be complete Tuesday. Although the OSM
mailed Monday would contain the entire filing, a filing would not be
complete until all required filing methods have been completed.
O. Retrieving Documents Filed in a Proceeding
Upon receiving an electronic filing, the E-Filing system will send
an e-mail notification to all persons on the electronic distribution
list. The e-mail will notify those on the list that a filing has been
made in the proceeding and will provide a link to the document that
will stay active for 14 days. Each person with access via an individual
or Group digital ID certificate can click on the link to access the
document for viewing and/or saving in PDF compatible software and can
save the document to his or her own computer. Thereafter, to re-open
the document, the person need only access it from his or her own
computer. Alternatively, once it is processed into the agency's ADAMS
system (usually within 72 hours of submission), a person can access a
publicly available document by logging onto the EHD located in the
Electronic Reading Room, which is available at http://www.nrc.gov/reading-rm.html. The EHD is a publicly available Web site; no digital
ID certificate is required to retrieve documents from the EHD. A link
to the EHD will be available on the NRC Web site.
P. Effective Date of the Rule
This rule will become effective on October 15, 2007. Although this
rule is legally applicable only to proceedings noticed after October
15, 2007, participants in ongoing proceedings may follow the rule upon
agreement of all participants and the presiding officer, but may submit
documents via the E-Filing system only after the effective date of this
rule. The NRC encourages participants in ongoing proceedings to follow
the rule.
III. Comments on the Proposed Rule
The NRC held a public meeting on January 10, 2006, to discuss and
receive comments on the proposed rule and to demonstrate electronic
filings. The NRC also received written comments on the proposed E-
Filing rule, which were due to the agency by March 1, 2006. The NRC
received comments on various areas of the proposed rule, including
comments on technical aspects of electronic filing contained in the
proposed E-Filing Guidance. The following summarizes the comments
either verbalized at the public meeting or submitted to the NRC in
writing and the agency's responses. Suggested editorial changes have
been reflected in the final rule and are not individually responded to
below. No commenter opposed the proposal to require electronic filing
or asserted that they would seek an exemption from the presiding
officer if they were seeking to participate in a proceeding in which
the rule was applicable.
A. Comments on the Proposed E-Filing Process
Comment. Is the E-Filing rule satisfied when a participant files by
attaching the document to electronic mail?
Response. No. The rule requires that filings in adjudicatory
proceedings must be submitted by attaching a document to the
Adjudicatory Docket Submission Form on the E-Submittal Web page.
Therefore, a document attached to an e-mail will not be accepted as a
properly submitted filing unless otherwise provided by order of the
presiding officer.
Comment. What exactly is being certified when the certificate of
service is submitted to the E-Filing system? Is there a way to verify
that the filing will be served on the people on the service list?
Response. Certifying an electronic certificate of service has the
same effect as certifying a paper copy certificate of service. The E-
Filing system automatically generates the service list for particular
proceedings and allows the participant to review the service list
before submitting a filing. For public filings, participants will be
able to review the service list but not change those people designated
to be served with the filing. For filings subject to a protective
order, participants can review the service list and must designate
those who should be served with the filing. In either instance,
however, as noted previously, a service list identical to the
traditional paper service list (i.e., listing those persons or entities
served) should also be included as part of the electronic filing or
submission.
Comment. When attaching declarations or affidavits signed under
oath and affirmation to a filing, must the person signing the affidavit
also electronically sign the filing?
Response. No. An oath or affirmation document should conclude with
a statement to this effect:
``I declare under penalty of perjury that the foregoing is true and
correct. Executed on [date].''
As the Guidance indicates, because the E-Filing system only
accommodates execution by one digital signatory for an affiant whose
declaration is included with a pleading or other document submitted by
a participant, participant's representative, or counsel, ``Executed in
Accord with 10 CFR 2.304(d)'' would be typed on the signature line of
the signature block of the oath or affirmation document to be
electronically submitted. Execution of an oath or affirmation document
in this manner will be considered the equivalent of a traditional
signed copy.
Comment. Will there be a help desk to answer questions on E-
Filings?
Response. Yes, assistance will be available through the ``Contact
Us'' link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling NRC technical support, which is
available during normal business hours. The help line number is 1 (800)
397-4209 or locally, (301) 415-4737.
Comment. Does the E-filing rule contain provisions for filing
proprietary information?
Response. Although the rule itself does not address handling of
proprietary information for electronic filing, the Guidance
accompanying the rule does. The guidance document provides that
sensitive information that is not Safeguards or Classified National
Security Information may be filed electronically to the E-Filing system
under the system's protective order file regime. Each sensitive
document should be clearly marked, and the cover letter should indicate
the sensitivity of each document. Once transmitted to the E-Filing
system, sensitive documents will be protected by being placed in
specific folders in the Electronic Hearing Docket (EHD) that permit
access only to those participants who have been authorized to receive
and review the sensitive material.
Comment. The Guidance contemplates filing Classified National
Security Information on an OSM. However, neither the rule nor the
Guidance provides an exemption for paper filing of classified
documents. What if the participant submitting the filing has the
appropriate security clearance to possess the classified information,
but does not have an NRC-approved classified computer system to process
the information on electronic media?
Response. The presiding officer in each proceeding will issue an
order, as
[[Page 49145]]
necessary, that will establish the procedures for the preparation,
submission, and service of documents containing classified information.
Accordingly, participants who cannot provide electronic versions of
documents containing classified information should bring this issue to
the attention of the presiding officer at the appropriate time.
Comment. How will documents filed under protective order be
accessed through the EHD? Once accessed through the EHD, may these
documents be printed?
Response. Those seeking to file and access protective order file
materials will be required to obtain a digital ID certificate from the
agency. The EHD will recognize a participant's digital ID certificate
as one that may have access to documents filed under protective order.
Once in the EHD, a secure login screen will appear only to those who
may access documents filed under a particular protective order,
prompting the participant to enter a login ID and password. With the
exception of NRC employees, who because of their responsibility under
NRC regulations not to disclose proprietary or other sensitive
information covered by a protective order generally are not asked to
sign non-disclosure agreements required by protective orders, SECY will
give the password only to those participants who have signed the non-
disclosure agreement required by the protective order in that
particular case. After the login ID and password are verified by the
EHD system, the participant may access documents filed under the
protective order by which that participant has been granted access.
Participants who have been granted an exemption from electronic
filing and, therefore, do not have digital certificates, but who have
signed a non-disclosure agreement required by a protective order, may
be granted access to protective order filings on the EHD on a case-by-
case basis in accordance with procedures specified by the protective
order. Documents under protective order may be printed from EHD, but
must be controlled as specified by the terms of the governing
protective order.
Comment. Is there a specified alternative method of filing that
should be used if the E-Filing system is unavailable due to technical
issues?
Response. Neither the rule nor the guidance document addresses
alternative methods for filing if the E-Filing system is unavailable.
Instead, the presiding officer in each proceeding will issue an order
that specifies a backup method for filing if the E-Filing system is
unavailable.
Comment. When changing to a new computer, must the participant re-
register for a digital certificate?
Response. Not necessarily. Digital ID certificates can be
downloaded and saved on a disk or memory stick so that when switching
to a different computer, the participant may import it off of the disk
or memory stick onto the new computer. However, digital ID certificates
are linked to a participant's e-mail address. If a participant's e-mail
address changes, the participant must apply for a new digital
certificate.
Comment. What is the need for group digital ID certificates, and
how would individuals belonging to a group ID be notified of a filing
by the E-Filing system?
Response. Group IDs may be assigned to law firms or other
organizations and can be downloaded onto several computers. This allows
multiple individuals who do not have an individual digital ID
certificate to be served with a filing to the E-Filing system and
permits those individuals to retrieve documents filed in the
proceeding. Notification of the filing would be sent to the e-mail
address associated with the Group ID, which generally would be a
central mailbox that the individuals belonging to the Group ID would be
able to access.
Comment. Proposed Sec. 2.306(b)(3) would give additional time to
all participants in a proceeding when multiple service methods are
used. The additional time would be computed based on the service method
used to deliver the entire document. There could be a circumstance
where not all participants receive the ``entire'' document. For
example, if part of the document is proprietary information under
protective order and is filed on a CD-ROM, a participant who has not
signed the protective order would not be served with that CD-ROM; thus,
the participant would not receive the ``entire'' document.
Response. Because a participant who has not signed the protective
order is not entitled to see the proprietary information, it is not
clear why, for service purposes, this participant has not received the
``entire'' document after a version containing all the nonproprietary
portions of the document has been provided (if such a version can be
provided appropriately). The agency believes that this scenario would
be a rare occurrence. Therefore, the presiding officer will have
discretion to set forth, on a case-by-case basis, the calculation of
additional time when a participant may not be entitled to receive an
entire filing served by multiple methods. This section of the final
rule has been revised to provide for this possibility.
Comment. Section 2.306(b)(5) of the proposed rule would add a day
to the response time for a document hand-delivered after 5:00 p.m. but
not for a document served by the E-Filing system at midnight. The same
additional day should be provided for any responses hand-served or
served by the E-Filing system after 5:00 p.m.
Response. The agency has reconsidered the computation of time set
forth in Sec. Sec. 2.306(b)(5), 13.27(c)(5) and 110.90(c)(5) of the
proposed rule. The agency has decided that, for fairness and
efficiency, the computation of time will begin the following day after
the document is served, unless the presiding officer in that proceeding
determines otherwise.
For example, if a pleading is served on Monday, regardless of the
time of day or method of service, the number of days to respond will be
calculated beginning on Tuesday. Sections 2.306(c), 13.27(d) and
110.90(d) of the final rule have been revised to eliminate the
computation of time method set forth in the proposed rule. This aspect
of the final rule also represents a change from current practice, which
allows an extra day for documents received electronically after 5:00
p.m.
These sections of the final rule also now specify that if a
document is served by the E-Filing system or by electronic mail, it
must be served by 11:59 p.m. Eastern Time of the day it is due in order
to be considered timely. The reason for this change is that the E-
Filing system requires periodic maintenance that is generally scheduled
after midnight Eastern Time on weekdays and results in the system being
temporarily unavailable. To ensure that electronic submittals are not
impacted by these post-midnight maintenance outages, the NRC is
mandating an 11:59 p.m. Eastern Time filing deadline. If a document is
served in person or by expedited service, the final rule mandates that
it must be served by 5 p.m. Eastern Time of the day it is due in order
to be considered timely.
Comment. Section 2.306(b)(5) of the proposed rule also appears to
afford ``all participants'' an additional day even if only one
participant is served by hand delivery after 5 p.m. This appears to be
impractical because it would be difficult for one participant to know
that another participant had been hand-served after 5 p.m., thus
affording all participants one additional day.
Response. The final rule has been revised to specify that, to be
considered timely, a document must be hand-
[[Page 49146]]
served by 5 p.m. Eastern Time, or served by the E-Filing system by
11:59 p.m. Eastern Time. As discussed above, redesignated Sec.
2.306(c) of the final rule has revised the computation of time method
outlined in the proposed rule so that it will begin the day after a
document is served. This will eliminate any ambiguity as to whether,
depending on the time a document has been served, the participants will
be afforded an additional day.
Comment. The proposed rule uses the term ``participant'' but does
not define this term. ``Participant'' should be defined in Sec. 2.4.
Response. The definition of ``Participant'' has been added to Sec.
2.4 of the final rule.
Comment. How will the E-Filing rule affect the use of the Digital
Document Management System (DDMS) in agency proceedings?
Response. The E-Filing rule will not affect the DDMS. The DDMS is
the Atomic Safety and Licensing Board Panel's hearing management
support system that combines web-based hearing and document management
with electronic evidence presentation, real-time transcription, and
digital recording to provide users with continual electronic access to
searchable evidentiary material and video transcripts, and a means to
present most evidence in an electronic fashion. In the near future, the
DDMS will be used by the Pre-License Application Presiding Officer
Board in the high level-waste repository licensing proceeding as well
as in other proceedings.
B. Comments on the Guidance Document Accompanying the Proposed Rule
Comment. Must electronically-filed documents be in a certain PDF
format?
Response. Yes. The Guidance enumerates the specific electronic
document standards to be used for electronic filings. Currently, the
only acceptable formats are certain types of PDFs and certain other
formats used for spreadsheets, when necessary.
Comment. The naming conventions set forth in the Guidance could
result in the loss of a file's interactive features. The Guidance
should allow exceptions or dual submittals to allow use of the original
file naming convention, and should also allow submittal of nested
folders because some of the features rely on unchanged relative path
files.
Response. The naming conventions in the Guidance are intended to
allow the NRC's profiling process to be more efficient because it
alerts the agency's Document Processing Center staff to the order in
which the electronically submitted files should be arranged. This
allows for easier viewing and use because files in a package will
already be arranged in the correct sequential order. Therefore,
participants should follow the naming conventions in the Guidance.
Further, participants should not file dual submissions to the E-Filing
system using different file naming conventions. If the NRC naming
convention causes the loss of an interactive file feature, the
participant should consider providing the necessary participants with,
for example, courtesy CD-ROM copies of the document, using the original
file naming convention.
Comment. Using an Adobe Acrobat[supreg] digital signature allows
documents to be internally authenticated. Participants should be
allowed to add certain digital security features in order to prevent
unwanted changes to a PDF document.
Response. The agency currently rejects and will continue to reject
all electronically-submitted files that contain security protections.
The NRC must maintain full access and use of the files. Allowing
participants to add certain digital security features would impede this
function. Participants can rely on the NRC's internal security and
archival processes to ensure that the integrity of submitted materials
is maintained.
Comment. The proposed guidance indicates no preference for the
auto-rotate setting, and should be revised to allow auto-rotate setting
of ``Collectively by File'' or ``individually.'' This would optimize a
PDF file for screen viewing in the case when a file contains text pages
oriented in portrait layout and table pages oriented in landscape
layout.
Response. The distiller settings for auto-rotate should be set to
``off'' as reflected in the Guidance. The NRC relies on participants to
correctly rotate pages before they are submitted in order to avoid the
possibility of errors attributed to the auto-correct function.
IV. Section-by-Section Analysis of Substantive Changes
Significant changes to certain sections in 10 CFR parts 2, 13, and
110 were explained in detail in the proposed E-Filing rule (see, 70 FR
74950; Dec. 16, 2005). Therefore, the section below will only address
changes made following publication of the proposed rule. These changes
were made primarily in response to public comments and agency
reconsideration.
A. Section 2.302--Filing of Documents
When Filings Are Complete
Section 2.302(d)(1) of the final rule clarifies that the last act
to transmit a document electronically means that it is the last act
required to transmit the entire document.
B. Section 2.304--Formal Requirements for Documents; Signatures;
Acceptance for Filing
1. Signatures
Section 2.304(d)(1) of the final rule has been revised to change
the method for providing additional signatures, that is, signatures
other than that of the person who is required to sign electronically
using a digital ID certificate. Although the proposed rule included
descriptions of signing electronic documents by digital ID certificate
and by the ``Original signed by'' designation, the agency recognized
that this provision needed clarification on the appropriate usage of
the different signature methods. All electronic documents submitted via
the E-Filing system must be electronically signed using a digital ID
certificate. The document must include a typed signature block with the
phrase ``Signed (electronically) by'' designating the individual who
signs the document using his or her digital ID certificate. Additional
signatures may be added to the document and to any attached affidavit
or other similar attachment, which should be executed as instructed by
the form specified in 28 U.S.C. 1746, by typing the ``Executed in
Accord with 10 CFR 2.304(d)'' designation on the signature line. The
Commission considers these typed-in designations to be official
signatures under Sec. 2.304(d)(1). Participants are no longer required
to retain paper copies of these additional signatures in keeping with
the paperwork reduction goal of this rule.
2. Pre-Filed Exhibits and Testimony
Currently, when parties submit pre-filed testimony and exhibits
electronically via e-mail, they often submit all of these documents as
one large file. For optimal use in the agency's EHD and DDMS, SECY and
the Atomic Safety and Licensing Board Panel must then separate the
single file into individual files so that the written testimony of each
witness/witness panel constitutes one file. The same is true for each
of the evidentiary exhibits. Although the presiding officer could issue
orders requiring parties to submit these documents as individual files,
it is more efficient generically to set forth this requirement in the
rules. Therefore, the final rule adds a new paragraph (g) to the end of
Sec. 2.304. This provision requires that when written testimony or
evidentiary exhibits are filed via the E-
[[Page 49147]]
Filing system in advance of a hearing, the written testimony of each
individual/panel and each exhibit must be submitted as a separate
electronic file. This provision does not apply to exhibits filed at
earlier stages of a proceeding, such as exhibits attached to a motion,
that are not expected to become part of the evidentiary record of the
proceeding.
C. Section 2.305--Service of Documents; Methods; Proof
Method of Service Accompanying a Filing
The provisions in section 2.305(c)(4)-(5) have been combined in the
final rule into Sec. 2.305(c)(4). Proposed Sec. 2.305(c)(4) would
have required a certificate of service to accompany any document served
upon participants. Proposed Sec. 2.305(c)(5) would have required the
certificate of service to state the name and address of persons served,
as well as the date and method of service. These requirements remain in
the final rule but have been combined into one provision for clarity
and brevity.
D. Section 2.306--Time Computation
The changes made to Sec. 2.306 of the final rule are threefold.
1. How Mixed Service Proceedings and Multiple Service Methods Affect
the Number of Additional Days Granted for Responding to the Service of
a Notice or Other Document
First, Sec. 2.306(b)(3) of the final rule gives the presiding
officer discretion to set forth the calculation of additional time in
the rare circumstance that a participant may not be entitled to receive
an entire filing served by multiple methods (e.g., when part of the
filing is public and part is encompassed by a protective order to which
the participant is not a party). This change is being made in response
to a comment on the proposed rule received by the agency, as discussed
previously in this document. Second, the agency reconsidered the
computation of time set forth in the proposed rule. Section 2.306(b)(5)
has been redesignated as Sec. 2.306(c) and no longer provides that an
extra response day will be added for documents served after a certain
time. Under the final rule, the computation of time will begin the
following day after a pleading is served with no day added, unless the
presiding officer determines otherwise. The agency changed the approach
from that in the proposed rule for simplicity and fairness.
2. Timely Service
An additional change to this section is in Sec. 2.306(c) of the
final rule, which now sets a specific deadline for timely filings. A
document served in person or by expedited service must be served by
5:00 p.m. Eastern Time of the day it is due. This deadline was implied
in the proposed rule but not specifically stated, so its applicability
has been clarified in the final rule. A document served by the E-Filing
system or by electronic mail must be served by 11:59 p.m. Eastern Time
of the day it is due. This change is necessary to accommodate overnight
maintenance periods when the E-Filing system will be inoperable.
E. Part 13--Program Fraud Civil Remedies
1. Section 13.2 Definitions
Revised Sec. 13.2 of the final rule adopts the definitions added
to Sec. 2.4.
2. Section 13.26 Filing and Service of Papers
Section 13.26(a)(6) of the proposed rule regarding signatures has
not been adopted because a new Sec. 13.26(b) that adopts the wording
of Sec. 2.304(d) has been added to the final rule. Sections 13.26(b)
and (c) of the proposed rule become Sec. Sec. 13.26(c) and (d) in the
final rule. Section 13.26(a)(7) of the proposed rule regarding
certificates of service has not been adopted because Sec. 13.26(c)(4)
contains a similar provision. The change to Sec. 13.26(a)(6) in the
final rule (Sec. 13.26(a)(8) in the proposed rule) conforms the filing
and service requirements of Part 13 to those in Sec. 2.302(d)(1).
3. Section 13.27 Computation of Time
Revised Sec. Sec. 13.27(c)(3) and (c)(5) of the final rule adopt
the wording of Sec. Sec. 2.306(b)(3) and (b)(5).
F. Part 110--Public Participation Procedures Concerning Export and
Import of Nuclear Equipment and Materials License Applications
1. Section 110.89 Filing and Service
The changes to Sec. 110.89 allow for, but do not require E-Filing,
and provide a reference to Sec. Sec. 2.302 and 2.305 for participants
who choose to file electronically. The changes also remove telegraph as
a method of service.
2. Section 110.90 Computation of Time
The changes to Sec. 110.90 of the final rule adopt the wording of
Sec. 2.306(b) for participants who choose to file electronically. The
changes also provide a new Sec. 110.90(d) that conforms to new Sec.
2.306(c).
3. Section 110.103 Acceptance of Hearing Documents
New Sec. 110.103(c) of the final rule references Sec. 2.304 for
participants who choose to file electronically. The previous subsection
110.103(c) has been redesignated Sec. 110.103(d).
V. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995,
Public Law 104-113, requires that Federal agencies use technical
standards that are developed by voluntary, private sector, consensus
standards bodies unless using such a standard is inconsistent with
applicable law or otherwise impractical. This rule establishes
requirements and standards for the submission of filings to an
electronic docket in hearings under 10 CFR part 2 Subpart C. Through
this rulemaking, the agency is implementing the requirement in the
Government Paperwork Elimination Act, Pub. L. 105-277 (44 U.S.C. 3504,
note), that Federal agencies allow electronic submissions of
information where practicable; therefore, this rule does not constitute
the establishment of a Government-unique standard as defined in Office
of Management and Budget (OMB) Circular A-199 (1998).
VI. Environmental Impact: Categorical Exclusion
This rule amends the filing and service procedures in 10 CFR part
2, Subpart C and makes conforming changes to other parts of Title 10
and, therefore, qualifies as an action eligible for the categorical
exclusion from environmental review under 10 CFR 51.22(c)(1).
Therefore, neither an environmental impact statement nor an
environmental assessment has been prepared for this final rule.
VII. Paperwork Reduction Act Statement
This rule does not contain 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.).
VIII. Regulatory Analysis
A regulatory analysis has not been prepared for this rule. The
amendments below will neither impose new, nor relax existing, safety
requirements and, thus, do not call for the sort of safety/cost
analysis described in the agency's regulatory analysis guidelines in
NUREG/BR-0058. Further, the NRC is required by the Government Paperwork
Elimination Act, Pub. L. 105-277 (44 U.S.C. 3504, note), to allow
electronic
[[Page 49148]]
submissions when practicable. The rule states the requirements for
electronic filing and service in NRC adjudicatory proceedings, except
those conducted on a high-level radioactive waste repository
application. The Commission, while strongly preferring that
participants file and serve their documents electronically, nonetheless
permits participants to submit paper filings if the participants
establish good cause for doing so. Preparation of an analysis of costs
and benefits, therefore, would not enhance the NRC's decision-making
process.
The NRC believes that this rule reduces the current filing costs of
persons who participate in agency adjudications. Currently, most
submissions to the Commission are electronically mailed with a
conforming paper copy to follow. This rule eliminates the need to mail
the paper copy. Because virtually all of the participants in NRC
hearings electronically mail filings, they already have most, if not
all, of the requisite equipment. Also, the cost of the additional
equipment and software is minimal in relation to the savings expected
from eliminating the expenses of copying and postage. Although a
participant may need to purchase a program that converts documents to
PDF format for approximately $500 each, the savings in copying and
postage costs could be hundreds, if not thousands, of dollars.
IX. Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
It is possible that some poorly funded entities seeking to intervene
would be adversely affected by this rule, but their number is likely to
be small and the final rules provide for exemptions from the electronic
filing requirements for good cause. In this regard, the NRC received no
comments raising implementation cost issues. This rule applies in the
context of Commission adjudicatory proceedings concerning nuclear
reactors or nuclear materials. Reactor licensees are large
organizations that do not fall within the definition of a small
business found in the Small Business Regulatory Enforcement Fairness
Act of 1996, 15 U.S.C. 632, within the small business standards set
forth in 13 CFR part 121, or within the size standards adopted by the
NRC (10 CFR 2.810). Based upon the historically low number of requests
for hearings involving materials licensees, it is not expected that
this rule would have any significant economic impact on a substantial
number of small businesses.
X. Backfit Analysis
The NRC has determined that the backfit rule does not apply to this
rule because these amendments modify the procedures to be used in NRC
adjudicatory proceedings, and do not involve any provisions that would
impose backfits as defined in 10 CFR 50.109, 70.76, 72.62, and 76.76.
Therefore, a backfit analysis has not been prepared for this final
rule.
XI. Congressional Review Act
The NRC has determined that this is not a major rule under the
Congressional Review Act, and the Office of Management and Budget has
confirmed this determination.
List of Subjects
10 CFR Part 1
Organization and function (Government agencies).
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.
10 CFR Part 13
Claims, Fraud, Organization and function (Government agencies),
Penalties.
10 CFR Part 110
Administrative practice and procedure, Classified information,
Criminal penalties, Export, Import, Intergovernmental relations,
Nuclear materials, Nuclear power plants and reactors, Reporting and
recordkeeping requirements, Scientific equipment.
0
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; the Government Paperwork Elimination Act; and 5
U.S.C. 552 and 553; the NRC has adopted the following amendments to 10
CFR parts 1, 2, 13, and 110.
PART 1--STATEMENT OF ORGANIZATION AND GENERAL INFORMATION
0
1. The authority citation for part 1 continues to read as follows:
Authority: Secs. 23, 161, 68 Stat. 925, 948, as amended (42
U.S.C. 2033, 2201); sec. 29, Pub. L. 85-256, 71 Stat. 579, Pub. L.
95-209, 91 Stat. 1483 (42 U.S.C. 2039); sec. 191, Pub. L. 87-615, 76
Stat. 409 (42 U.S.C. 2241); secs. 201, 203, 204, 205, 209, 88 Stat.
1242, 1244, 1245, 1246, 1248, as amended (42 U.S.C. 5841, 5843,
5844, 5845, 5849); 5 U.S.C. 552, 553, Reorganization Plan No. 1 of
1980, 45 FR 40561, June 16, 1980.
0
2. In Sec. 1.5, the introductory text of paragraph (a) is revised to
read as follows:
Sec. 1.5 Location of principal offices and Regional Offices.
(a) The principal NRC offices are located in the Washington, DC,
area. Facilities for the service of process and documents are
maintained in the State of Maryland at 11555 Rockville Pike, Rockville,
Maryland 20852-2738. The agency's official mailing address is U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001. The locations
of NRC offices in the Washington, DC, area are as follows:
* * * * *
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND
ISSUANCE OF ORDERS
0
3. The authority citation for part 2 is revised to read as follows:
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat.
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.
5841); 5 U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504
note).
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. 10143(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, 2.321 also issued under
secs. 102, 103, 104, 105, 183i, 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). Section 2.205(j) also issued under Pub. L. 101-
410, 104 Stat. 90, as amended by section 3100(s), Pub. L. 104-134,
110 Stat. 1321-373 (28 U.S.C. 2461 note). Subpart C also issued
under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Sections 2.600-2.606
also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended
(42 U.S.C. 4332). Section 2.301 also issued under 5 U.S.C. 554.
Sections 2.343, 2.346, 2.712, also issued under 5 U.S.C. 557.
Section 2.340 also issued under secs. 135, 141, Pub. L. 97-425, 96
Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.390 also issued
under sec. 103, 68 Stat. 936,
[[Page 49149]]
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). Subpart M also issued under sec. 184 (42 U.S.C. 2234) and
sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Subpart N also issued under
sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued
under sec. 6, Pub. L. 91-550, 84 Stat. 1473 (42 U.S.C. 2135).
0
4. Section 2.4 is amended by adding the definitions of Digital ID
certificate, Electronic acknowledgment, Electronic Hearing Docket, E-
Filing System, Guidance for Electronic Submissions to the NRC, Optical
Storage Medium, and Participant in alphabetical order:
Sec. 2.4 Definitions.
* * * * *
Digital ID certificate means a file stored on a participant's
computer that contains the participant's name, e-mail address, and
participant's digital signature, proves the participant's identity when
filing documents and serving participants electronically through the E-
Filing system, and contains public keys, which allow for the encryption
and decryption of documents so that the documents can be securely
transferred over the Internet.
* * * * *
Electronic acknowledgment means a communication transmitted
electronically from the E-Filing system to the submitter confirming
receipt of electronic filing and service.
Electronic Hearing Docket means the publicly available Web site
which houses a visual presentation of the docket and a link to its
files.
E-Filing System means an electronic system that receives, stores,
and distributes documents filed in proceedings for which an electronic
hearing docket has been established.
* * * * *
Guidance for Electronic Submissions to the NRC means the document
issued by the Commission that sets forth the transmission methods and
formatting standards for filing and service under E-Filing. The
document can be obtained by visiting the NRC's Web site at http://www.nrc.gov.
* * * * *
Optical Storage Media means any physical computer component that
meets E-Filing Guidance standards for storing, saving, and accessing
electronic documents.
* * * * *
Participant means an individual or organization that has petitioned
to intervene in a proceeding or requested a hearing but that has not
yet been granted party status by an Atomic Safety and Licensing Board
or other presiding officer. Participant also means a party to a
proceeding and any interested State, local governmental body, or
affected Federally-recognized Indian Tribe that seeks to participate in
a proceeding under Sec. 2.315(b). For the purpose of service of
documents, the NRC staff is considered a participant even if not
participating as a party.
* * * * *
0
5. Section 2.302 is revised to read as follows:
Sec. 2.302 Filing of documents.
(a) Documents filed in Commission adjudicatory proceedings subject
to this part shall be electronically transmitted through the E-Filing
system, unless the Commission or presiding officer grants an exemption
permitting an alternative filing method or unless the filing falls
within the scope of paragraph (g)(1) of this section.
(b) Upon an order from the Commission or presiding officer
permitting alternative filing methods, or as otherwise set forth in
Guidance for Electronic Submissions to the NRC, documents may be filed
by:
(1) First-class mail: Office of the Secretary, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, Attention:
Rulemakings and Adjudications Staff; or
(2) Courier, express mail, and expedited delivery services: Office
of the Secretary, Sixteenth Floor, One White Flint North, 11555
Rockville Pike, Rockville, MD 20852, Attention: Rulemakings and
Adjudications Staff.
(c) All documents offered for filing must be accompanied by a
certificate of service stating the names and addresses of the persons
served as well as the manner and date of service.
(d) Filing is considered complete:
(1) By electronic transmission when the filer performs the last act
that it must perform to transmit a document, in its entirety,
electronically;
(2) By first-class mail as of the time of deposit in the mail;
(3) By courier, express mail, or expedited delivery service upon
depositing the document with the provider of the service; or
(4) If a filing must be submitted by two or more methods, such as a
filing that the Guidance for Electronic Submission to the NRC indicates
should be transmitted electronically as well as physically delivered or
mailed on optical storage media, the filing is complete when all
methods of filing have been completed.
(e) For filings by electronic transmission, the filer must make a
good faith effort to successfully transmit the entire filing.
Notwithstanding paragraph (d) of this section, a filing will not be
considered complete if the filer knows or has reason to know that the
entire filing has not been successfully transmitted.
(f) Digital ID Certificates.
(1) Through digital ID certificates, the NRC permits participants
in the proceeding to access the E-Filing system to file documents,
serve other participants, and retrieve documents in the proceeding.
(2) Any participant or participant representative that does not
have a digital ID certificate shall request one from the NRC before
that participant or representative intends to make its first electronic
filing to the E-Filing system. A participant or representative may
apply for a digital ID certificate on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html.
(3) Group ID Certificate. A participant wishing to obtain a digital
ID certificate valid for several persons may obtain a group digital ID
certificate. A Group ID cannot be used to file documents. The Group ID
provides access to the E-Filing system for the individuals specifically
identified in the group's application to retrieve documents recently
received by the system. The Group ID also enables a group of people,
all of whom may not have individual digital ID certificates, to be
notified when a filing has been made in a particular proceeding.
(g) Filing Method Requirements.
(1) Electronic filing. Unless otherwise provided by order, all
filings must be made as electronic submissions in a manner that enables
the NRC to receive, read, authenticate, distribute, and archive the
submission, and process and retrieve it a single page at a time.
Detailed guidance on making electronic submissions may be found in the
Guidance for Electronic Submissions to the NRC and on the NRC Web site
at http://www.nrc.gov/site-help/e-submittals.html. If a filing contains
sections of information or electronic formats that may not be
transmitted electronically for security or other reasons, the portions
not containing those sections will be transmitted electronically to the
E-Filing system. In addition, optical storage media (OSM) containing
the entire filing must be physically delivered or mailed. In such
cases, the submitter does not need to apply to the Commission or
presiding officer for an exemption to deviate from
[[Page 49150]]
the requirements in paragraph (g)(1) of this section.
(2) Electronic transmission exemption. Upon a finding of good
cause, the Commission or presiding officer can grant an exemption from
electronic transmission requirements found in paragraph (g)(1) of this
section to a participant who is filing electronic documents. The exempt
participant is permitted to file electronic documents by physically
delivering or mailing an OSM containing the documents. A participant
granted this exemption would still be required to meet the electronic
formatting requirement in paragraph (g)(1) of this section.
(3) Electronic document exemption. Upon a finding of good cause,
the Commission or presiding officer can exempt a participant from both
the electronic (computer file) formatting and electronic transmission
requirements in paragraph (g)(1) of this section. A participant granted
such an exemption can file paper documents either in person or by
courier, express mail, some other expedited delivery service, or first-
class mail, as ordered by the Commission or presiding officer.
(4) Requesting an exemption. A filer seeking an exemption under
paragraphs (g)(2) or (g)(3) of this section must submit the exemption
request with its first filing in the proceeding. In the request, a
filer must show good cause as to why it cannot file electronically. The
filer may not change its formats or delivery methods for filing until a
ruling on the exemption request is issued. Exemption requests under
paragraphs (g)(2) or (g)(3) of this section sought after the first
filing in the proceeding will be granted only if the requestor shows
that the interests of fairness so require.
0
6. Section 2.304 is revised to read as follows:
Sec. 2.304 Formal requirements for documents; signatures; acceptance
for filing.
(a) Docket numbers and titles. Each document filed in an
adjudication to which a docket number has been assigned must contain a
caption setting forth the docket number and the title of the proceeding
and a description of the document (e.g., motion to quash subpoena).
(b) Paper documents. In addition to the requirements in this part,
paper documents must be stapled or bound on the left side; typewritten,
printed, or otherwise reproduced in permanent form on good unglazed
paper of standard letterhead size; signed in ink by the participant,
its authorized representative, or an attorney having authority with
respect to it; and filed with an original and two conforming copies.
(c) Format. Each page in a document must begin not less than one
inch from the top, with side and bottom margins of not less than one
inch. Text must be double-spaced, except that quotations may be single-
spaced and indented. The requirements of this paragraph do not apply to
original documents, or admissible copies, offered as exhibits, or to
specifically prepared exhibits.
(d) Signatures. The original of each document must be signed by the
participant or its authorized representative, or by an attorney having
authority with respect to it. The document must state the capacity of
the person signing; his or her address, phone number, and e-mail
address; and the date of signature. The signature of a person signing a
pleading or other similar document submitted by a participant is a
representation that the document has been subscribed in the capacity
specified with full authority, that he or she has read it and knows the
contents, that to the best of his or her knowledge, information, and
belief the statements made in it are true, and that it is not
interposed for delay. The signature of a person signing an affidavit or
similar document, which should be submitted in accord with the form
outlined in 28 U.S.C. 1746, is a representation that, under penalty of
perjury, the document is true and correct to the best of that
individual's knowledge and belief. If a document is not signed, or is
signed with intent to defeat the purpose of this section, it may be
struck.
(1) An electronic document must be signed using a participant's or
a participant representative's digital ID certificate. Additional
signatures can be added to the electronic document, including to any
affidavits that accompany the document, by a typed-in designation that
indicates the signer understands and acknowledges that he or she is
assenting to the representations in paragraph (d) of this section.
(i) When signing an electronic document using a digital ID
certificate, the signature page for the electronic document should
contain a typed signature block that includes the phrase ``Signed
(electronically) by'' typed onto the signature line; the name and the
capacity of the person signing; the person's address, phone number, and
e-mail address; and the date of signature.
(ii) If additional individuals need to sign an electronic document,
including any affidavits that accompany the document, such individuals
must sign by inserting a typed signature block in the electronic
document that includes the phrase ``Executed in Accord with 10 CFR
2.304(d)'' or its equivalent typed on the signature line as well as the
name and the capacity of the person signing; the person's address,
phone number, and e-mail address; and the date of signature to the
extent any of these items are different from the information provided
for the digital ID certificate signer.
(2) Paper documents must be signed in ink.
(e) Designation for service. The first document filed by any
participant in a proceeding must designate the name and address of a
person on whom service may be made. This document must also designate
the e-mail address, if any, of the person on whom service may be made.
(f) Acceptance for filing. Any document that fails to conform to
the requirements of this section may be refused acceptance for filing
by the Secretary or the presiding officer and may be returned with an
indication of the reason for nonacceptance. Any document that is not
accepted for filing will not be entered on the Commission's docket.
(g) Pre-filed written testimony and exhibits. In any instance in
which a participant submits electronically through the E-Filing system
written testimony or hearing exhibits in advance of a hearing, the
written testimony of each individual witness or witness panel and each
individual exhibit shall be submitted as an individual electronic file.
0
7. Section 2.305 is revised to read as follows:
Sec. 2.305 Service of documents; methods; proof.
(a) Service of documents by the Commission. Except for subpoenas,
the Commission shall serve all orders, decisions, notices, and other
documents to all participants, by the same delivery method those
participants use to file and accept service.
(b) Who may be served. Any document required to be served upon a
participant shall be served upon that person or upon the representative
designated by the participant or by law to receive service of
documents. When a participant has appeared by attorney, service shall
be made upon the attorney of record.
(c) Method of service accompanying a filing. Service must be made
electronically to the E-Filing system. Upon an order from the
Commission or presiding officer permitting alternative filing methods
under Sec. 2.302(g)(4),
[[Page 49151]]
service may be made by personal delivery, courier, expedited delivery
service, or by first-class, express, certified or registered mail. As
to each participant that cannot serve electronically, the Commission or
presiding officer shall require service by the most expeditious means
permitted under this paragraph that are available to the participant,
unless the Commission or presiding officer finds that this requirement
would impose undue burden or expense on the participant.
(1) Unless otherwise provided in this section, a participant will
serve documents on the other participants by the same method by which
those participants filed.
(2) A participant granted an exemption under Sec. 2.302(g)(2) will
serve the presiding officer and the participants in the proceeding that
filed electronically by physically delivering or mailing optical
storage media containing the electronic document.
(3) A participant granted an exemption under Sec. 2.302(g)(3) will
serve the presiding officer and the other participants in the
proceeding by physically delivering or mailing a paper copy.
(4) To provide proof of service, any paper served upon participants
to the proceeding as may be required by law, rule, or order of the
presiding officer must be accompanied by a signed certificate of
service stating the names and addresses of the persons served as well
as the method and date of service.
(d) Method of service not accompanying a filing. Service of
demonstrative evidence, e.g., maps and other physical evidence, may be
made by first-class mail in all cases, unless the presiding officer
directs otherwise or the participant desires to serve by a faster
method. In instances when service of a document, such as a discovery
document under Sec. 2.336, will not accompany a filing with the
agency, the participant may use any reasonable method of service to
which the recipient agrees.
(e) Service on the Secretary. (1) All motions, briefs, pleadings,
and other documents must be served on the Secretary of the Commission
by the same or equivalent method, such as by electronic transmission or
first-class mail, that they are served upon the presiding officer, so
that the Secretary will receive the filing at approximately the same
time that it is received by the presiding officer to which the filing
is directed.
(2) When pleadings are personally delivered to a presiding officer
conducting proceedings outside the Washington, DC area, service on the
Secretary may be accomplished electronically to the E-Filing system, as
well as by courier, express mail, or expedited delivery service.
(3) Service of demonstrative evidence (e.g., maps and other
physical exhibits) on the Secretary of the Commission may be made by
first-class mail in all cases, unless the presiding officer directs
otherwise or the participant desires to serve by a faster method. All
pre-filed testimony and exhibits shall be served on the Secretary of
the Commission by the same or equivalent method that it is served upon
the presiding officer to the proceedings, i.e., electronically to the
E-Filing system, personal delivery or courier, express mail, or
expedited delivery service.
(4) The addresses for the Secretary are:
(i) Internet: The E-Filing system at http://www.nrc.gov.
(ii) First-class mail: Office of the Secretary, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, Attention:
Rulemakings and Adjudications Staff; and
(iii) Courier, express mail, and expedited delivery services:
Office of the Secretary, Sixteenth Floor, One White Flint North, 11555
Rockville Pike, Rockville, Maryland 20852, Attention: Rulemakings and
Adjudications Staff.
(f) When service is complete. Service upon a participant is
complete:
(1) By the E-Filing system, when filing electronically to the E-
Filing system is considered complete under Sec. 2.302(d).
(2) By personal delivery, upon handing the document to the person,
or leaving it at his or her office with that person's clerk or other
person in charge or, if there is no one in charge, leaving it in a
conspicuous place in the office, or if the office is closed or the
person to be served has no office, leaving it at his or her usual place
of residence with some person of suitable age and discretion then
residing there;
(3) By mail, upon deposit in the United States mail, properly
stamped and addressed;
(4) By expedited service, upon depositing the document with the
provider of the expedited service; or
(5) When service cannot be effected by a method provided by
paragraphs (f)(1)-(4) of this section, by any other method authorized
by law.
(6) When two or more methods of service are required, service is
considered complete when service by each method is complete under
paragraphs (f)(1)-(4) of this section.
(g) Service on the NRC staff.
(1) Service shall be made upon the NRC staff of all documents
required to be filed with participants and the presiding officer in all
proceedings, including those proceedings where the NRC staff informs
the presiding officer of its determination not to participate as a
party. Service upon the NRC staff shall be by the same or equivalent
method as service upon the Office of the Secretary and the presiding
officer, e.g., electronically, personal delivery or courier, express
mail, or expedited delivery service.
(2) If the NRC staff decides not to participate as a party in a
proceeding, it shall, in its notification to the presiding officer and
participants of its determination not to participate, designate a
person and address for service of documents.
0
8. Section 2.306 is revised to read as follows:
Sec. 2.306 Computation of time.
(a) 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 or Sunday, a Federal legal holiday at the place where the
action or event is to occur, or a day upon which, because of an
emergency closure of the Federal government in Washington, DC, NRC
Headquarters does not open for business, in which event the period runs
until the end of the next day that is not a Saturday, Sunday, Federal
legal holiday, or emergency closure.
(b) Whenever a 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 him or her, no additional time is added to the prescribed
period except in the following circumstances:
(1) If a notice or document is served upon a participant, by first-
class mail only, three (3) calendar days will be added to the
prescribed period for all the participants in the proceeding.
(2) If a notice or document is served upon a participant, by
express mail or other expedited service only, two (2) calendar days
will be added to the prescribed period for all the participants in the
proceeding.
(3) If a document is to be served by multiple service methods, such
as partially electronic and entirely on optical storage media, the
additional number of days is computed according to the service method
used to deliver the entire document, excluding courtesy copies, to all
of the other participants in the proceeding. The presiding officer
[[Page 49152]]
may determine the calculation of additional days when a participant is
not entitled to receive an entire filing served by multiple methods.
(4) In mixed service proceedings when all participants are not
using the same filing and service method, the number of days for
service will be determined by the presiding officer based on
considerations of fairness and efficiency.
(c) To be considered timely, a document must be served:
(1) By 5 p.m. Eastern Time for a document served in person or by
expedited service; and
(2) By 11:59 p.m. Eastern Time for a document served by the E-
Filing system.
0
9. In Sec. 2.346, the introductory text is revised to read as follows:
Sec. 2.346 Authority of the Secretary.
When briefs, motions or other documents are submitted to the
Commission itself, as opposed to officers who have been delegated
authority to act for the Commission, the Secretary or the Assistant
Secretary is authorized to:
* * * * *
0
10. In Sec. 2.390, paragraph (b)(1)(iii) is revised to read as
follows:
Sec. 2.390 Public inspections, exemptions, requests for withholding.
* * * * *
(b) * * *
(1) * * *
(iii) In addition, an affidavit accompanying a withholding request
based on paragraph (a)(4) of this section must contain a full statement
of the reason for claiming the information should be withheld from
public disclosure. This statement must address with specificity the
considerations listed in paragraph (b)(4) of this section. In the case
of an affidavit submitted by a company, the affidavit shall be executed
by an officer or upper-level management official who has been
specifically delegated the function of reviewing the information sought
to be withheld and authorized to apply for its withholding on behalf of
the company. The affidavit shall be executed by the owner of the
information, even though the information sought to be withheld is
submitted to the Commission by another person. The application and
affidavit shall be submitted at the time of filing the information
sought to be withheld. The information sought to be withheld shall be
incorporated, as far as possible, into a separate document. The affiant
must designate with appropriate markings information submitted in the
affidavit as a trade secret, or confidential or privileged commercial
or financial information within the meaning of Sec. 9.17(a)(4) of this
chapter, and such information shall be subject to disclosure only in
accordance with the provisions of Sec. 9.19 of this chapter.
* * * * *
0
11. In Sec. 2.808, the introductory text is revised to read as
follows:
Sec. 2.808 Authority of the Secretary to rule on procedural matters.
When briefs, motions or other documents listed herein are submitted
to the Commission itself, as opposed to officers who have been
delegated authority to act for the Commission, the Secretary or the
Assistant Secretary is authorized to:
* * * * *
PART 13--PROGRAM FRAUD CIVIL REMEDIES
0
12. The authority citation for part 13 is revised to read as follows:
Authority: Public Law 99-509, secs. 6101-6104, 100 Stat. 1874
(31 U.S.C. 3801-3812); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504
note). Sections 13.13 (a) and (b) also issued under section 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).
0
13. Section 13.2 is amended by adding the definitions of Digital ID
certificate, Electronic acknowledgment, Electronic Hearing Docket, E-
Filing System, Guidance for Electronic Submissions to the NRC, Optical
Storage Medium, and Participant in alphabetical order:
Sec. 13.2 Definitions.
* * * * *
Digital ID certificate means a file stored on a participant's
computer that contains the participant's name, e-mail address, and
participant's digital signature, proves the participant's identity when
filing documents and serving participants electronically through the E-
Filing system, and contains public keys, which allow for the encryption
and decryption of documents so that the documents can be securely
transferred over the Internet.
Electronic acknowledgment means a communication transmitted
electronically from the E-Filing system to the submitter confirming
receipt of electronic filing and service.
Electronic Hearing Docket means the publicly available Web site
which houses a visual presentation of the docket and a link to its
files.
E-Filing System means an electronic system that receives, stores,
and distributes documents filed in proceedings for which an electronic
hearing docket has been established.
* * * * *
Guidance for Electronic Submissions to the NRC means the document
issued by the Commission that sets forth the transmission methods and
formatting standards for filing and service under E-Filing. The
document can be obtained by visiting the NRC's Web site at http://www.nrc.gov.
* * * * *
Optical Storage Media means any physical computer component that
meets E-Filing Guidance standards for storing, saving, and accessing
electronic documents.
Participant means an individual or organization that has petitioned
to intervene in a proceeding or requested a hearing but that has not
yet been granted party status by an Atomic Safety and Licensing Board
or other presiding officer. Participant also means a party to a
proceeding and any interested State, local governmental body, or
affected Federally-recognized Indian Tribe that seeks to participate in
a proceeding in accordance with Sec. 2.315(b). For the purpose of
service of documents, the NRC staff is considered a participant even if
not participating as a party.
* * * * *
0
14. In Sec. 13.9, paragraph (a) is revised to read as follows:
Sec. 13.9 Answer.
(a) The defendant may request a hearing by filing an answer with
the reviewing official within thirty (30) days of service of the
complaint. Service of an answer shall be made by electronically
delivering a copy to the reviewing official in accordance with Sec.
13.26. An answer shall be deemed a request for hearing.
* * * * *
0
15. Section 13.26 is revised to read as follows:
Sec. 13.26 Filing and service of papers.
(a) Filing. (1) Unless otherwise provided by order, all filings
must be made as electronic submissions in a manner that enables the NRC
to receive, read, authenticate, distribute, and archive the submission,
and process and retrieve it a single page at a time. Detailed guidance
on making electronic submissions may be found in the E-Filing Guidance
and on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html. If a filing contains sections of information or
electronic formats that may not be transmitted electronically for
security or other reasons, portions not containing those
[[Page 49153]]
sections will be transmitted electronically to the E-Filing system. In
addition, optical storage media (OSM) containing the entire filing must
be physically delivered or mailed. In such cases, the submitter does
not need to apply to the Commission for an exemption to deviate from
the requirements in paragraph (a) of this section.
(2) Electronic transmission exemption. The ALJ may relieve a
participant who is filing electronic documents of the transmission
requirements in paragraph (a) of this section. Such a participant will
file electronic documents by physically delivering or mailing an OSM
containing the documents. The electronic formatting requirement in
paragraph (a) of this section must be met.
(3) Electronic document exemption. The ALJ may relieve a
participant of both the electronic (computer file) formatting and
transmission requirements in paragraph (a)(1) of this section. Such a
participant will file paper documents physically or by mail to the
Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, Attention: Rulemakings and Adjudications Staff. Filing by mail is
complete upon deposit in the mail.
(4) Requesting an exemption. A participant seeking an exemption
under paragraphs (a)(2) or (a)(3) of this section must submit the
exemption request with its first filing in the proceeding. In the
request, the requestor must show good cause as to why it cannot file
electronically. The filer may not change its formats and delivery
methods for filing until a ruling on the exemption request is issued.
Exemption requests submitted after the first filing in the proceeding
will be granted only if the requestor shows that the interests of
fairness so require.
(5) Every pleading and document filed in the proceeding shall
contain a caption setting forth the title of the action, the case
number assigned by the presiding officer, and a designation of the
document (e.g., motion to quash subpoena).
(6) Filing is complete when the filer performs the last act that it
must perform to submit a document, such as hitting the send/submit/
transmit button for an electronic transmission or depositing the
document, in its entirety, in a mailbox.
(b) Signatures. The original of each document must be signed by the
participant or its authorized representative, or by an attorney having
authority with respect to it. The document must state the capacity of
the person signing; his or her address, phone number, and e-mail
address; and the date of signature. The signature of a person signing a
pleading or other similar document submitted by a participant is a
representation that the document has been subscribed in the capacity
specified with full authority, that he or she has read it and knows the
contents, that to the best of his or her knowledge, information, and
belief the statements made in it are true, and that it is not
interposed for delay. The signature of a person signing an affidavit or
similar document, which should be submitted in accord with the form
outlined in 28 U.S.C. 1746, is a representation that, under penalty of
perjury, the document is true and correct to the best of that
individual's knowledge and belief. If a document is not signed, or is
signed with intent to defeat the purpose of this section, it may be
struck.
(1) An electronic document must be signed using a participant's or
a participant representative's digital ID certificate. Additional
signatures can be added to the electronic document, including to any
affidavits that accompany the document, by a typed-in designation that
indicates the signer understands and acknowledges that he or she is
assenting to the representations in paragraph (d) of this section.
(i) When signing an electronic document using a digital ID
certificate, the signature page for the electronic document should
contain a typed signature block that includes the phrase ``Signed
(electronically) by'' typed onto the signature line; the name and the
capacity of the person signing; the person's address, phone number, and
e-mail address; and the date of signature.
(ii) If additional individuals need to sign an electronic document,
including any affidavits that accompany the document, these individuals
must sign by inserting a typed signature block in the electronic
document that includes the phrase ``Executed in Accord with 10 CFR
2.304(d)'' or its equivalent typed on the signature line as well as the
name and the capacity of the person signing; the person's address,
phone number, and e-mail address; and the date of signature to the
extent any of these items are different from the information provided
for the digital ID certificate signer.
(2) Paper documents must be signed in ink.
(c) Service. A participant filing a document with the ALJ shall at
the time of filing, serve a copy of such document on every other
participant. Service upon any participant of any document other than
those required to be served as prescribed in Sec. 13.8 shall be made
electronically to the E-Filing system. When a participant is
represented by a representative, service shall be made upon such
representative in lieu of the actual participant. Upon an order from
the ALJ permitting alternative filing methods under paragraphs (a)(2)
or (a)(3) of this section, service may be made by physical delivery or
mail. As to each participant that cannot serve electronically, the ALJ
shall require service by the most expeditious means permitted under
this paragraph that are available to the participant, unless the ALJ
finds that this requirement would impose undue burden or expense on the
participant.
(1) Unless otherwise provided in this paragraph, a participant will
serve documents on the other participants by the same method that those
participants filed.
(2) A participant granted an exemption under paragraph (a)(2) of
this section will serve the participants in the proceeding that filed
electronically by physically delivering or mailing an OSM containing
the electronic document.
(3) A participant granted an exemption under paragraph (a)(3) will
serve the other participants in the proceeding by physically delivering
or mailing a paper copy.
(4) A certificate of service stating the names and addresses of the
persons served as well as the method and date of service must accompany
any paper served upon participants to the proceeding.
(5) Proof of service, which states the name and address of the
person served as well as the method and date of service, may be made as
required by law, by rule, or by order of the Commission.
0
16. Section 13.27 is revised to read as follows:
Sec. 13.27 Computation of time.
(a) In computing any period of time under this part or in an order
issued thereunder, the time begins with the day following the act,
event, or default, and includes the last day of the period, unless it
is a Saturday or Sunday, a Federal legal holiday at the place where the
action or event is to occur, or a day on which, because of emergency
closure of the federal government in Washington, DC, NRC Headquarters
does not open for business, in which event it includes the next day
that is not a Saturday, Sunday, holiday or emergency closure.
(b) When the period of time allowed is less than seven (7) days,
intermediate
[[Page 49154]]
Saturdays, Sundays, Federal legal holidays, and emergency closures
shall be excluded from the computation.
(c) Whenever an action is required within a prescribed period by a
document served pursuant to Sec. 13.26, no additional time is added to
the prescribed period except in the following circumstances:
(1) If a notice or document is served upon a participant, by first-
class mail only, three (3) calendar days will be added to the
prescribed period for all the participants in the proceeding.
(2) If a notice or document is served upon a participant, by
express mail or other expedited service only, two (2) calendar days
will be added to the prescribed period for all the participants in the
proceeding.
(3) If a document is to be served by multiple service methods, such
as partially electronic and entirely on an OSM, the additional number
of days is computed according to the service method used to deliver the
entire document, excluding courtesy copies, to all of the other
participants in the proceeding. The presiding officer may determine the
calculation of additional days when a participant is not entitled to
receive an entire filing served by multiple methods.
(4) In mixed service proceedings where all participants are not
using the same filing and service method, the number of days for
service will be determined by the presiding officer based on
considerations of fairness and efficiency. The same number of
additional days will be added to the prescribed period for all the
participants in the proceeding with the number of days being determined
by the slowest method of service being used in the proceeding.
(d) To be considered timely, a document must be served:
(1) By 5 p.m. Eastern Time for a document served in person or by
expedited service; and
(2) By 11:59 p.m. Eastern Time for a document served by the E-
Filing system.
PART 110--EXPORT AND IMPORT OF NUCLEAR EQUIPMENT AND MATERIAL
0
17. The authority citation for part 110 continues to read as follows:
Authority: Secs. 51, 53, 54, 57, 63, 64, 65, 81, 82, 103, 104,
109, 111, 126, 127, 128, 129, 134, 161, 170H., 181, 182, 187, 189,
68 Stat. 929, 930, 931, 932, 933, 936, 937, 948, 953, 954, 955, 956,
as amended (42 U.S.C. 2071, 2073, 2074, 2077, 2092-2095, 2111, 2112,
2133, 2134, 2139, 2139a, 2141, 2154-2158, 2160d., 2201, 2210h.,
2231-2233, 2237, 2239); sec. 201, 88 Stat. 1242, as amended (42
U.S.C. 5841); sec. 5, Pub. L. 101-575, 104 Stat. 2835 (42 U.S.C.
2243); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
Sections 110.1(b)(2) and 110.1(b)(3) also issued under Pub. L.
96-92, 93 Stat. 710 (22 U.S.C. 2403). Section 110.11 also issued
under sec. 122, 68 Stat. 939 (42 U.S.C. 2152) and secs. 54c and 57d,
88 Stat. 473, 475 (42 U.S.C. 2074). Section 110.27 also issued under
sec. 309(a), Pub. L. 99-440. Section 110.50(b)(3) also issued under
sec. 123, 92 Stat. 142 (42 U.S.C. 2153). Section 110.51 also issued
under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section
110.52 also issued under sec. 186, 68 Stat. 955 (42 U.S.C. 2236).
Sections 110.80-110.113 also issued under 5 U.S.C. 552, 554.
Sections 110.130-110.135 also issued under 5 U.S.C. 553. Sections
110.2 and 110.42(a)(9) also issued under sec. 903, Pub. L. 102-496
(42 U.S.C. 2151 et seq.).
0
18. Section 110.89 is revised to read as follows:
Sec. 110.89 Filing and service.
(a) Hearing requests, intervention petitions, answers, replies and
accompanying documents must be filed with the Commission by delivery or
by mail to the Secretary, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, Attention: Rulemakings and Adjudications
Staff or via the E-Filing system, following the procedure set forth in
10 CFR 2.302. Filing by mail is complete upon deposit in the mail.
Filing via the E-Filing system is completed by following the
requirements described in 10 CFR 2.302(d).
(b) All filing and Commission notices and orders must be served
upon the applicant; the General Counsel, U.S. Nuclear Regulatory
Commission, Washington, DC 20555; the Executive Secretary, Department
of State, Washington, DC 20520; and participants if any. Hearing
requests, intervention petitions, and answers and replies must be
served by the person filing those pleadings.
(c) Service is completed by:
(1) Delivering the paper to the person; or leaving it in his office
with someone in charge; or, if there is no one in charge, leaving it in
a conspicuous place in the office; or, if he has no office or it is
closed, leaving it at his usual place of residence with some occupant
of suitable age and discretion;
(2) Following the requirements for E-Filing in 10 CFR 2.305;
(3) Depositing it in the United States mail, express mail, or
expedited delivery service, properly stamped and addressed; or
(4) Any other manner authorized by law, when service cannot be made
as provided in paragraphs (c)(1) through (3) of this section.
(d) Proof of service, stating the name and address of the person
served and the manner and date of service, shall be shown, and may be
made by:
(1) Written acknowledgment of the person served or an authorized
representative;
(2) The certificate or affidavit of the person making the service;
or
(3) Following the requirements for E-Filing in 10 CFR 2.305.
(e) The Commission may make special provisions for service when
circumstances warrant.
0
19. Section 110.90 is revised to read as follows:
Sec. 110.90 Computation of time.
(a) 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 or Sunday, a Federal legal holiday at the place where the
action or event is to occur, or a day upon which, because of an
emergency closure of the Federal government in Washington, DC, NRC
Headquarters does not open for business, in which event the period runs
until the end of the next day that is not a Saturday, Sunday, holiday,
or emergency closure.
(b) In time periods of less than seven (7) days, intermediate
Saturdays, Sundays, Federal legal holidays, and emergency closures are
not counted.
(c) Whenever an action is required within a prescribed period by a
document served under Sec. 110.89 of this part, no additional time is
added to the prescribed period except as set forth in 10 CFR 2.306(b).
(d) To be considered timely, a document must be served:
(1) By 5 p.m. Eastern Time for a document served in person or by
expedited service; and
(2) By 11:59 p.m. Eastern Time for a document served by the E-
Filing system.
0
20. Section 110.103 is revised to read as follows:
Sec. 110.103 Acceptance of hearing documents.
(a) Each document filed or issued must be clearly legible and bear
the docket number, license application number, and hearing title.
(b) Each document shall be filed in one original and signed by the
participant or their authorized representative, with their address and
date of signature indicated. The signature is a representation that the
document is submitted with full authority, the signer knows its
contents, and that, to the best of his knowledge, the statements made
in it are true.
[[Page 49155]]
(c) Filings submitted using the E-filing system must follow the
requirements outlined in 10 CFR 2.304.
(d) A document not meeting the requirements of this section may be
returned with an explanation for nonacceptance and, if so, will not be
docketed.
Dated at Rockville, Maryland, this 21st day of August, 2007.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. E7-16898 Filed 8-27-07; 8:45 am]
BILLING CODE 7590-01-P