[Federal Register Volume 69, Number 113 (Monday, June 14, 2004)]
[Rules and Regulations]
[Pages 32836-32849]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-13113]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 2
RIN 3150-AH31
Licensing Proceeding for a High-Level Radioactive Waste Geologic
Repository; Licensing Support Network, Submissions to the Electronic
Docket
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission is amending its Rules of
Practice applicable to the use of the Licensing Support Network (LSN)
and the electronic hearing docket in the licensing proceeding on the
disposal of high-level radioactive waste at a geologic repository. The
amendments establish the basic requirements and standards for the
submission of adjudicatory materials to the electronic hearing docket
by parties to the high-level radioactive waste licensing proceeding.
The amendments also address the issue of reducing the unnecessary
loading of duplicate documents on individual participant LSN document
collection servers (Web sites); the continuing obligation of LSN
participants to update their documentary material after the initial
certification; the Secretary of the Commission's determination that the
DOE license application is electronically accessible; and the
provisions on material that may be excluded from the LSN.
DATES: Effective Date: July 14, 2004.
FOR FURTHER INFORMATION CONTACT: Francis X. Cameron, U.S. Nuclear
Regulatory Commission, Washington DC 20555-0001, telephone (301) 415-
1642, e-mail FXC@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Commission's regulations in 10 CFR Part 2, Subpart J, provide
for, among other things, the use of an electronic information
management system to provide documents related to the high-level
radioactive waste (HLW ) repository licensing proceeding. Originally
promulgated on April 14, 1989 (54 FR 14944), the information management
system required by Subpart J is to have the following functions:
(1) The Licensing Support Network (LSN) provides full text search
and retrieval access to the relevant documents of all parties and
potential parties to the HLW repository licensing proceeding beginning
in the time period before the U.S. Department of Energy (DOE) license
application for the repository is submitted;
(2) The NRC Electronic Information Exchange (EIE) provides for
electronic submission of filings by the parties, as well as the orders
and decisions of the Atomic Safety and Licensing Board Panel (ASLBP),
during the proceeding; and
(3) The Electronic Hearing Docket (EHD) provides for the
development and
[[Page 32837]]
access to an electronic version of the HLW licensing proceeding docket.
The creation of the LSN (originally called the ``Licensing Support
System'') was stimulated by the requirements of section 114(d) of the
Nuclear Waste Policy Act of 1982 (NWPA). This provision sets as a goal
Commission issuance of a final decision approving or disapproving
issuance of the construction authorization for a geologic repository
for HLW within three years of the docketing of the DOE license
application. The Commission anticipated that the HLW proceeding would
involve substantial numbers and volumes of documents created by well-
informed parties on numerous and complex issues. The Commission
believed that the LSN could facilitate the timely review of DOE's
application by providing for electronic access to relevant documents
via the LSN before the application is submitted, rather than the
traditional, and potentially time-consuming, discovery process
associated with the physical production of documents after an
application is submitted. In addition, the Commission believed that
early access to these documents in an electronically searchable form
would allow for a thorough and comprehensive technical review of the
license application by all parties and potential parties to the HLW
licensing proceeding, resulting in better focused contentions in the
proceeding.
The current requirements in 10 CFR 2.1003(a) require the DOE to
make its documentary material available in electronic form no later
than six months in advance of DOE's submission of its application to
the NRC. The NRC must make its documentary material available in
electronic form no later than thirty days after the DOE certification
of compliance. All other participants must make their documents
available in electronic form no later than ninety days after the DOE
certification of compliance. Originally, the LSN was conceived as a
large, centralized information management system administered by what
was then called the Licensing Support System Administrator (now the LSN
Administrator). To take advantage of the advances in technology that
occurred since the promulgation of the original rule, the Commission
revised the rule to use the Internet to link geographically dispersed
sites rather than rely on a complex and expensive centralized system
(63 FR 71729; December 30, 1998).
As noted, one of the objectives of the regulations in 10 CFR Part
2, Subpart J is to provide for electronic submission of filings by the
parties, as well as the orders and decisions of the ASLBP, during the
proceeding. The purpose of this function is to reduce the time that it
takes to serve filings by substituting electronic transmission for the
physical mailing of filings that is typically used in NRC licensing
proceedings. Shortening the amount of time for certain activities
during the hearing process will support the NRC's efforts to meet the
schedule in the NWPA. 10 CFR 2.1013(c)(1) requires that all filings in
the HLW adjudicatory proceeding be ``transmitted electronically''
(emphasis added) by the submitter to the Presiding Officer, the
parties, and the Secretary of the Commission. The Commission believes
that the majority of these filings will consist of simple documents
that can be readily transmitted by EIE. However, after further
considering the nature of some of the documents that may be submitted
by the parties during the proceeding, the Commission believes that it
is necessary to specify requirements for submitting large and/or
complex documents. This need was the reason the Commission initiated
the proposed rulemaking that is the subject of this final rule. The
proposed rule was published in the Federal Register on November 26,
2003 (68 FR 66372).
The proposed amendments addressed a number of aspects of the
current rules:
The requirements and standards for a party's submissions
to the electronic docket for the HLW repository licensing proceeding;
Those provisions that could result in the loading of
duplicate documents on individual participant LSN document collection
servers;
The provisions related to the Secretary of the
Commission's determination that the DOE license application is
electronically accessible; .
Those provisions related to the continuing obligation of
LSN participants to update their documentary material; and
Those provisions on material that may be excluded from the
LSN.
II. Public Comments
The Commission received nine comments on the proposed rule from the
following entities:
(1) U.S. Department of Energy (DOE).
(2) State of Nevada.
(3) Nuclear Energy Institute (NEI).
(4) Nevada Nuclear Waste Task Force, Incorporated.
(5) Nye County, Nevada.
(6) Lincoln County and the City of Caliente, Nevada.
(7) White Pine County, Nevada.
(8) Eureka County, Nevada.
(9) Progress Energy.
These comments addressed the following categories of issues:
1. Rule or Guidance
Two commenters (DOE, NEI) recommended that the technical standards
in proposed section 2.1013(c)(1) be incorporated into a guidance
document rather than in the NRC regulations. These commenters noted
that the proposed standards in section 2.1013(c)(1) were useful
clarifications, but it was not necessary to formalize them in a
rulemaking. The rationale for this recommendation was that technical
capabilities can change significantly over the period of time that the
HLW licensing proceeding will take place and that any needed changes to
reflect new technical capabilities could more efficiently be
implemented by revising guidance rather than by initiating a new
rulemaking. In addition, NEI was concerned about the need for stability
in the LSN regulatory framework as the date for submission of the DOE
license application draws closer. NEI also recommended that, if the NRC
decides to proceed with the rulemaking, it be done as expeditiously as
possible. NEI also requested that the NRC provide some assurance to LSN
participants on the stability of the LSN regulatory framework in the
interim period while a rule was being finalized. Finally, NEI urged the
Commission to issue the final revision to NRC Regulatory Guide 3.69 on
the Topical Guidelines that were issued for public comment in June,
2002, See ``Draft Regulatory Guide DG-3022 (Proposed Revision 1 of
Regulatory Guide 3.69).'' Another commenter, Progress Energy, expressed
the same concerns as NEI.
Response
The Commission has tried to balance the need for flexibility,
informality, and responsiveness, i.e., using guidance for the technical
standards, with the need to ensure that the fundamental compliance
requirements for LSN participants are clear, i.e., using a rule.
Accordingly, the Commission has expressed what it believes to be the
most important technical standards in Section 2.1013(c)(1) of the final
rule, while including the majority of the detailed technical
specifications in a guidance document, ``Guidance for the Submission of
Electronic Docket Materials Under 10 CFR Part 2, Subpart J'', U.S.
Nuclear Regulatory Commission, (Guidance Document). The Guidance
Document is available on the NRC Web site, http://www.nrc.gov.
The Guidance document can also be found in the Commission's
Agencywide Documents Access and Management
[[Page 32838]]
System (ADAMS) at Accession Number ML041560341. The Guidance Document
contains essential information in regard to the proper implementation
of the requirements of this rule.
In terms of providing an assurance of a stable regulatory
framework, the Commission is not imposing any new requirements that
would significantly alter the current regulatory framework.
Furthermore, the Commission does not anticipate adding any additional
requirements beyond those in this final rule before the repository
license application is submitted. As explained by the NRC staff at the
December 2003 meeting of the LSN Advisory Review Panel, the only
revision to the scope of documents covered by the Topical Guidelines in
Regulatory Guide 3.69, was a proposed new exclusion for ``congressional
correspondence.'' Therefore, the Commission does not believe that the
existing regulatory framework will in any way be ``destabilized.'' The
final revision of the Topical Guidelines will be completed immediately
after this rule is finalized.
2. Technical standards
DOE had several comments on the technical standards for the
submission of electronic filings to the adjudicatory proceeding.
A. Complex Documents
Section 2.1013(c)(1)(iii) of the proposed rule would have required
that those portions of ``complex documents'' that are amenable to being
transmitted electronically as a filing in the HLW adjudicatory
proceeding be transmitted electronically, while those parts of complex
documents that were not amenable to electronic transmission be
submitted on optical media. DOE, in its comment letter, questioned the
advantage of electronically transmitting only some portions of a
complex document. If a complex document is not amenable to submittal in
its entirety via electronic transmission through the EIE, the advantage
of submitting only portions of it is unclear because those portions may
not be useful by themselves. DOE recommended that the entire document
be submitted on optical storage media, with a transmittal letter
submitted via the EIE providing notification of the submittal of that
document.
Response
The final rule maintains the approach of the proposed rule to the
submission of complex documents. In terms of the usefulness of
submitting portions of the document by electronic transmittal, the
Commission believes that this would serve several useful purposes.
First, it provides early notification that a complex document is coming
in and consequently allows other parties to plan their review and
possible response. Second, there often will be substantial benefit in
receiving the text portion of a complex document via electronic
transmission, notwithstanding the delay in receiving the additional
attachments. Various Atomic Safety and Licensing Boards have been
issuing orders for several years that use this practice. This has
allowed the parties and the Boards to review the text portion, which
contains the arguments of the parties, while awaiting the rest of the
pleading. However, for purposes of the service requirements in section
2.1013(c) or the computation of time requirements in section 2.1017,
the filing of a complex document or a large document is not complete
until all portions of the document have been submitted.
B. Image Resolution
Section 2.1013(c)(1)(iv) of the proposed rule would have required
that all electronic submissions to the EHD have 300 dots per inch (dpi)
minimum resolution for bi-tonal, color, and grayscale. DOE noted the
inconsistency between these EHD requirements and the requirements in
section 2.1011(b)(2)(iv) for documents placed on individual LSN
participant Web sites. The LSN participant Web site documents are
required to have 300 dpi for bi-tonal but 150 dpi minimum resolution
for grayscale and color. DOE recommended that the final rule on the EHD
be consistent with the LSN participant Web site requirements to avoid
having to convert the color and grayscale parts of existing documents
from 150 dpi to 300 dpi. According to DOE, this would not be ``an
efficient use of resources.'' The Commission interprets this latter
phrase to mean that the conversion would be not only costly, but
unnecessary because 150 dpi color and gray scale would be fully
readable. DOE also noted that the Guidance Document states that there
is flexibility with respect to the minimum resolution as long as the
integrity and quality of the document result in readable copies. The
DOE suggests that this flexibility should be added to the rule if the
technical requirements are to be retained in the rule.
Response
Records submitted to the NRC as part of the Electronic Hearing
Docket are Federal ``official agency records.'' The National Archives
and Records Administration (NARA) issued a standard that records
scanned after December 23, 2002, must meet the minimum standard of 300
dpi for bi-tonal, color, and grayscale documents. The NRC adopted this
standard on January 1, 2004, the effective date for the NRC final rule
on the electronic maintenance and submission of information to the NRC
(68 FR 58792; October 10, 2003). The NRC has considered the DOE's
concern with regard to the ``efficient use of resources.'' In response,
the NRC has modified language in the rule to: (1) require submitters to
use the 300 dpi standard for documents created after the January 1,
2004 effective date of the electronic maintenance rule, except in
limited circumstances in which (a) submitters may need to use an image
scanned before January 1, 2004, in a document created after January 1,
2004 or (b) the scanning process for a large, one-page image may not
successfully complete at the 300 dpi standard resolution; and (2)
require that documents created or scanned before January 1, 2004, (or
for those documents in 1(a) or (b) above), meet the standards for
documents placed on LSN participant Web sites in section
2.1011(b)(2)(iv) which is 150 dpi for color and grayscale documents and
300 dpi for bi-tonal documents. The Commission is also assuming that
this document image resolution requirement for LSN participant Web
sites would meet the criterion of ``readability.''
C. Image Format
Section 2.1013(c)(1)(v) of the proposed rule would have required
electronic submissions to be generated in Adobe Acrobat Portable
Document Format (PDF). DOE noted that this PDF requirement was
inconsistent with the requirement for LSN participant Web sites in
section 2.1011(b)(2)(iv) that allows Tagged Image File Format (TIFF).
DOE suggests that files on LSN participant Web sites that are submitted
to the adjudicatory proceeding be allowed to be submitted in the TIFF
format. Converting images in the LSN that are usable in TIFF format to
PDF format for the EHD would again, according to DOE, ``not be an
efficient use of resources.''
Response
The electronic documentary material submitted to the EHD will be
entered as official agency records in ADAMS. The PDF became the NRC
standard for official agency records on January 1, 2004, the effective
date for the NRC final rule on the electronic maintenance and
submission of information to the NRC (68 FR 58792; October 10, 2003).
The NRC has adopted PDF as the NRC
[[Page 32839]]
standard for this official agency records system based on the
following:
PDF represents a ``generic'' format that behaves
consistently across multiple hardware and operating systems;
When files are distributed in PDF, the information is
``locked down'' for the general user, who can access the content
through the use of PDF viewer software;
The PDF standard, though it is proprietary to Adobe, has
been published, is freely available, and the capability to create PDF
documents has been integrated into many other software applications;
PDF documents can be generated from any application that
can generate Postscript printer files; thus anything that can be
printed can be represented in PDF;
PDF supports file generation options for text-oriented
files produced on a word processing or publishing system;
PDF supports file generation options for scanned image-
oriented files; and
PDF supports file generation options for scanned text-
oriented files capable of full text search.
In contrast, adherence to the PDF standards for NRC official agency
records is not required for purposes of individual LSN participant Web
sites and therefore, TIFF is acceptable under section 2.1011(b)(2)(iv).
The Commission also believes that TIFFs can readily be converted to PDF
using features inherent in PDF-authoring software. In those rare
circumstances where technical reasons would prevent the successful
conversion to PDF, DOE or any other LSN participant, can submit the
image in TIFF and include a detailed statement of the technical reasons
that prevent conversion to PDF, in a transmittal letter to accompany
the filing.
D. Hyperlinks
Section 2.1013(c)(1)(vi) of the proposed rule requires that
documents be free of hyperlinks to other documents or Web sites other
than within a single PDF file. DOE notes that some documents may have
embedded hyperlinks that are difficult to remove. The DOE suggests that
the requirement be revised to state that use of the document in the EHD
should not depend on hyperlinks to other documents or Web sites. The
Commission understands this comment to suggest that there should be no
restriction in the rule on documents containing hyperlinks, but that
the use of the document in the hearing may not depend on those
hyperlinks.
Response
The Commission has considered the DOE comments and has revised the
final rule to allow hyperlinks to be contained in documents submitted
to the EHD. The Commission believes that it will be difficult and
costly to remove these hyperlinks. Instead of prohibiting a document
from being submitted with hyperlinks, section 2.1013(c)(1)(vi) of the
final rule would prohibit reliance on the hyperlinks for purposes of
providing additional evidentiary material or completing a submittal.
This would require the submitter to review all documents submitted to
the EHD for hyperlinks to the Internet or other documents. Any
necessary material would need to be included in the filing or as an
attachment to the filing.
However, the Commission is also concerned that hyperlinks in a
filing that do not function, or that link a user to an external website
that has changed or perhaps contains some type of offensive material,
could create a negative perception of the integrity of the EHD
database. Therefore, the final rule requires each electronic submission
to contain a disclaimer that notifies the reader that the hyperlinks in
the filing may not operate or may link the reader to material that is
not intended to be necessary, or in some cases, even related, to the
use of the filing in the proceeding. This disclaimer must either be in
the transmittal memorandum required for filings over 50 MB or in the
body of the pleading for filings under 50 MB. The single exception to
the use of hyperlinks in a filing is when the hyperlink connects to
another part of the same PDF file. The use of hyperlinks in this
context is permissible. This also has implications for the minimum size
of a file that is submitted to the EHD. The Commission encourages
submitters to combine small files that are components of a larger
document into one file to facilitate efficient distribution and use of
the documentary material. For example, if a document consists of 15
separate 2 MB files, those 15 files should be combined to result in one
30 MB file. This will allow submitters to use hyperlinks in a larger
file, i.e., a single electronic file up to 50 MB.
E. Definitions
DOE noted that the definition of complex documents in section
2.1001 of the proposed rule could be viewed as inconsistent with the
definition in the Supplementary Information for the proposed rule.
Proposed section 2.1001 states that a complex document has substantial
portions that are neither textual nor image. However, the Supplementary
Information (68 FR 66374) states that complex documents can also
include a textual or graphic file that cannot be segmented into 50
megabyte (MB) files. The DOE suggests that the description in the
Supplementary Information be used as the definition in section 2.1001
of the rule.
Response
The Commission agrees and has revised the definition accordingly.
3. Docketing
Section 2.1012(a) provides that the DOE license application cannot
be docketed unless the Secretary of the Commission determines that the
license application can be effectively accessed through ADAMS. DOE is
concerned that this establishes a requirement on DOE that is beyond its
control. Entering documents into ADAMS is strictly a NRC function and
ADAMS is under the sole control of the NRC. Any accessibility problems
resulting from entering the license application into ADAMS would be the
responsibility of the NRC. DOE notes that, in preparing its electronic
license application, the DOE is responsible for meeting the NRC
requirements, as well as addressing any guidance that has been issued
by the NRC, and transmitting the license application to the proper
address and in the proper format(s) specified by the NRC for these
actions. If the DOE meets clearly defined specifications for such
transmittals, the NRC should be able to make the document available
through ADAMS.
The DOE recommends that section 2.1012(a) be revised to read: ``The
Director may determine that the tendered application is not acceptable
for docketing under this subpart if the application is not accompanied
by an updated certification pursuant to section 2.1009(b) or if the
application is not submitted on optical storage media in a format
consistent with NRC regulations and guidance.''
Response
The Commission agrees with this suggestion and has revised the
final rule accordingly. However, in addition to the above two criteria,
the Commission has also added a third criterion on non-compliance with
any other requirements in Subpart J.
4. The Continuing Need to Supplement Individual LSN Participant Web
Sites
Proposed section 2.1003(e) would have required an LSN participant
to
[[Page 32840]]
supplement its LSN Web site with any documentary material created after
the time of initial certification. NEI was concerned that this
requirement could continue indefinitely. It is NEI's opinion that the
requirement to supplement ends when discovery, in the form of document
production, is completed.
Response
The Commission agrees and has revised section 2.1003(e) to specify
that the requirement to supplement ends when discovery is complete. The
Commission anticipates that discovery will be complete by the time set
for the second Pre-Hearing Conference at which issues for hearing will
be finalized and schedules for prefiled testimony and hearing will be
set. See Appendix D to 10 CFR Part 2. However, it should be emphasized
that the Board could extend discovery beyond this time period.
Moreover, although there is no obligation on an LSN participant to add
new documents to its site after discovery closes, an LSN participant
does have an obligation to maintain its existing LSN collection intact
and available for the balance of the construction authorization
proceeding. Parties will have a continuing need to search LSN
participant databases during the evidentiary hearing and throughout the
NRC appellate process.
5. The Scope of the Congressional Exclusion
Nye County, Nevada expressed the view that the exclusion for
congressional correspondence in proposed section 2.1005(i) seems overly
broad. The commenter believes that it is entirely conceivable that
somewhere in correspondence with a member of Congress or with
congressional staff, DOE, or any other party, may have made relevant
and admissible statements about some technical issues affecting the
licensibility of Yucca Mountain. To exclude all such correspondence
categorically is unwarranted. According to Nye County, a better
approach would be to limit the exclusion to correspondence involving
such matters as budget, and program management.
Response
The Commission appreciates the thoughtful comments of Nye County on
this matter. However, the Commission continues to believe that this
type of material will not have a significant bearing on repository
licensing issues. Much of this material either relates to budgetary
issues and schedules or is merely a summary of information in an agency
primary document. It would normally not be the source of material that
a party would rely on for its case in the hearing or a source of
material that would be contrary to such reliance information. However,
most, if not all, of the material directed to Federal entities of
concern to Nye County, would still be available as part of the normal
Federal recordkeeping requirements. If a particular item of
Congressional correspondence does become relevant to a contention
admitted in the HLW proceeding, it can be made available at that time.
The Commission does not anticipate that any disputes over this clearly
and narrowly defined exclusion will be brought before the Pre-license
Application Presiding Officer (PAPO).
6. The Trigger for Participant Certification
Three commenters, the Agency for Nuclear Projects in the State of
Nevada's Governor's Office, the Nevada Nuclear Waste Task Force, and
Eureka County's Yucca Mountain Information Office, all raised concerns
on the timing of LSN participant certification in relation to DOE's
certification. The current requirements in 10 CFR 2.1003(a) require the
DOE to make its documentary material available in electronic form no
later than six months in advance of DOE's submission of its license
application to the NRC. The NRC must make its documentary material
available in electronic form no later than thirty days after the DOE
certification of compliance. All other participants must make their
documents available in electronic form no later than ninety days after
the DOE certification of compliance. However, these commenters noted
that although DOE may have all of its documentary material available on
its LSN document server by the time required for certification, it is
possible that the DOE collection would not yet have been indexed and
audited by the LSN Administrator. Therefore, the entire DOE collection
would not yet be ``available'' to the public. The commenters
recommended that the Commission add an additional certification by the
LSN Administrator that the DOE collection had been indexed and audited.
This LSN Administrator certification would then become the tolling
event for the certification by all other LSN participants, rather than
the DOE certification.
Response
At the outset, the Commission notes that an amendment such as that
recommended by the commenters is outside the scope of this rulemaking.
This issue was not raised in the proposed rule and was not intended to
be part of this rulemaking effort. However, the Commission also
recognizes the importance of this concern. The NRC is pursuing an
approach with DOE to ensure that the DOE collection has been indexed
and audited by the LSN Administrator in approximately the same time
frame as the DOE certification. This should ensure that an indexed and
baselined DOE collection will be available to other LSN participants
well in advance of the point at which the NRC dockets an acceptable DOE
license application.
7. Transportation Issues
Lincoln County and the City of Caliente, in their comments on the
proposed rule, urged the Commission to clarify the extent to which
Yucca Mountain repository system transportation related information
will be considered during licensing and, therefore, be required for
inclusion within the LSN. The County and the City believe that the
Yucca Mountain licensing proceeding should encompass all aspects of the
Yucca Mountain repository transportation system.
Response
The Commission recognizes that issues related to the transportation
of High Level Waste (HLW) and Spent Nuclear Fuel (SNF) to the Yucca
Mountain site in Nevada are of concern to members of the public. These
issues are complicated by the multi-agency coordination that is
required between DOE, the Department of Transportation (DOT), and the
NRC. As a preliminary matter, it is important to distinguish the role
of the NRC in matters related to transportation. The only role of the
NRC in the licensing proceeding for Yucca Mountain with respect to
transportation issues is to review the DOE Environmental Impact
Statement (EIS), for adoption to the extent practicable.
The Nuclear Waste Policy Act of 1982, 42 U.S.C. 10101, et seq., as
amended (NWPA), provides the primary framework for issues related to
the proposed Yucca Mountain repository, including transportation
issues. Section 114(f) of the NWPA requires DOE to prepare an EIS, part
of which may include an evaluation of transportation impacts.
Additionally, section 114(f) mandates that the NRC, to the extent
practicable, adopt the DOE EIS, including those parts of the EIS
related to transportation. Such adoption shall be deemed to satisfy the
responsibilities of the NRC under NEPA and ``no further consideration
shall be required.'' See NWPA section 114(f)(4). The Topical
[[Page 32841]]
Guidelines in Regulatory Guide 3.69 specifically address those aspects
of transportation that are included under documentary material for
purposes of the LSN.
III. The Final Rule
Submissions to the Electronic Docket for the Hearing
As noted, one of the objectives of the regulations in 10 CFR Part
2, Subpart J is to provide for electronic submission of filings by the
parties, as well as the orders and decisions of the Atomic Safety and
Licensing Board, during the proceeding. The purpose of this function is
to reduce the time that it takes to serve filings by substituting
electronic transmission for the physical mailing of filings that is
typically used in NRC licensing proceedings. Shortening the amount of
time for certain activities during the hearing process will support the
NRC's efforts to meet the schedule in the NWPA. 10 CFR 2.1013(c)(1)
requires that all filings in the HLW licensing proceeding be
transmitted electronically (emphasis added) by the submitter to the
Presiding Officer, the parties, and the Secretary of the Commission.
The Commission believes that the majority of these filings will consist
of simple documents that can be readily transmitted by EIE. However,
after further considering the nature of some of the documents that may
be submitted by the parties during the proceeding, the Commission
believes that it is necessary to specify requirements for submitting
large and/or complex documents.
Large documents consist of electronic files that, because of their
size, create challenges for both the NRC staff, potential parties and
the public when transmitting, viewing, or downloading the document
(e.g., significant delays in transmission, uploading, or downloading
times). The Commission anticipates that the potential license
application and some filings in the HLW repository adjudicatory
proceeding will be of a size that will create transmission, viewing, or
downloading challenges. In electronic format, some of these files could
be up to several hundreds of megabytes (MB) in size. Examples of
potential large documents are:
DOE Site Characterization Plan
DOE License Application and supporting materials
DOE Environmental Impact Statement
Some adjudicatory documents (e.g., motions, responses,
transcripts, exhibits, and orders)
Additionally, any or all of these types of documents could contain
embedded photographs, charts, tables, and other graphics.
Complex documents consist (entirely or in part) of electronic files
having substantial portions that are neither textual nor image in
nature, and graphic or other Binary Large Objects that exceed 50 MB and
cannot be logically divided. For example, these types of specialized
documents may include:
Executable files, which can be opened (run) to execute a
programmed series of instructions on a computer or network;
Runtime executable software, which generally is
operational upon demand without being installed on a computer or
network;
Viewer or printer executable software that causes images
to be displayed on the computer monitor or pages to print on an
attached printer;
Files from a dynamic link library (.dll), which are a
collection of small, bundled executable programs that each provide one
or more distinctive functions used by application programs and
operating systems and are available when needed by applications or
operating systems;
Large data sets associated with an executable; and
Actual software code for analytical programs that a party
may intend to introduce into the proceeding.
As part of complex document submittals, the NRC anticipates
receiving files that--
(1) Due to their file size, may preclude easy transmission,
retrieval, and use; or
(2) May require specialized software and/or hardware for faithful
display and subsequent use; and
(3) May not be suitable for inclusion in a ``generic'' file format
such as the Adobe'' Acrobat Portable Document Format (PDF).
Examples of files that could be part of a complex document are:
Maps
Databases
Simulations
Audio files
Video files
Executable programs
There are several potential problems presented by the electronic
transmission of these large or complex documents, including the ``time
out'' problems when submitting very large documents via the Internet,
difficulty of use in the hearing room, and Federal records management
considerations. These potential problems are evaluated in more detail
in the regulatory analysis for this final rule.
In response to these potential problems, the Commission is revising
the framework for the submission of filings during the HLW licensing
proceeding. This revised framework is based on segmenting large
documents using manageable file size units to reduce the potential for
interruption or delay in transmission, uploading, or downloading. For
example, large documents could be segmented into pieces, which
correspond to the organization (chapters or sections) of the document,
in order to address the transfer and retrieval performance problems
discussed above. The author of the document would be in the best
position to break up document files into usable segments without
adversely impacting the organization or content of the document.
The electronic submission of filings in the HLW repository
proceeding must be made via the Internet using the NRC EIE, when
practicable. The EIE is an electronic transfer mechanism being
established by the NRC for electronic transmission of documents to the
agency via the Internet. EIE provides for the transmission of documents
in a verifiable and certifiable mode that includes digital signatures.
The final amendments revise section 2.1001 to establish three
categories of electronic filings for purposes of the HLW repository
proceeding and would revise section 2.1013(c)(1) to specify the
submission requirements for these three categories of electronic
filings.
``Simple documents'' are textual or graphic oriented material that
are less than 50 megabytes (MB) in size. These documents are
transmitted electronically via EIE as contemplated by the current 10
CFR 2.1011. Test results have demonstrated that 50 MB is a reasonable
size for downloading files across wide area networks or from the
Internet via phone lines.
``Large documents'' are those that have textual or graphic oriented
material larger than 50 MB in size. Under revised section
2.1013(c)(1)(ii), these documents must be submitted via the EIE in
multiple transmissions of 50 MB or less each. The large document
submission may also be supplemented with a courtesy copy on optical
storage media to provide NRC staff, parties, and interested
governmental participants in the HLW repository proceeding with a
useful reference copy of the document. For purposes of the NRC staff
review of the DOE license application, as opposed to an electronic
submission to the adjudicatory docket, the requirements for DOE's
submission of the license application are already specified in 10 CFR
63.22 of the Commission's regulations. 10 CFR 63.22(a) specifies that
the application, any amendments to
[[Page 32842]]
the application, and an accompanying environmental impact statement and
any supplements, must be signed by the Secretary of Energy or the
Secretary's representative and must be filed with the Director in
triplicate on paper and optical storage media. In addition, 10 CFR
63.22(b) requires that 30 additional copies of the license application
be submitted on paper and optical storage media.
``Complex documents'' are any combination of the following:
Textual or graphic-oriented electronic files
Electronic files that cannot be segmented into 50 MB files
Other electronic objects, such as computer programs,
simulations, video, audio, data files, and files with special printing
requirements.
Under final section 2.1013(c)(1)(iii), those portions of complex
documents that can be electronically submitted through the EIE, again
in 50 MB or less segments, will be transmitted electronically. Those
portions that are not amenable to electronic transmission will be
delivered on optical storage media. The optical storage media must
include the complete document, i.e., include the portions of the
document that have been delivered via the EIE.
In addition to these revisions, section 2.1013 (c)(1) is amended to
require the following:
Electronic submissions of files created after January 1,
2004 must have 300 dots per inch (dpi) as the minimum resolution for
bi-tonal, color, and grayscale, except in limited circumstances in
which (a) submitters may need to use an image scanned before January 1,
2004, in a document created after January 1, 2004, or (b) the scanning
process for a large, one-page image may not successfully complete at
the 300 dpi standard resolution.
Electronic submissions of files created before January 1,
2004, or electronic submissions created after January 1, 2004, which
cannot meet the 300 dpi standard for color and grayscale, must meet the
standard for documents placed on LSN participant Web sites (10 CFR Part
2.1011(b)(2)(iv)) which is 150 dpi for color and grayscale documents
and 300 dpi for bi-tonal documents.
Electronic submissions must be in the appropriate PDF
output format. These formats and their use are:
PDF--Formatted Text and Graphics--use for textualdocuments
converted from native applications
PDF--Searchable Image (Exact)--use for textual documents
converted from scanned documents
PDF--Image Only--use for graphic-, image-, and forms-
oriented documents
Tagged Image File Format (TIFF) images and the results of spreadsheet
applications will need to be converted to PDF, except in those rare
instances, examples of which are described in the Guidance Document,
where PDF conversion is not practicable. Spreadsheets may be submitted
using Microsoft[reg] Excel, Corel[reg] Quattro Pro, or Lotus[reg] 123.
Electronic submissions to the hearing docket cannot rely
on the use of any hyperlinks to other electronic files or websites to
generate additional documentary material. Any such documentary material
must be submitted either as an attachment to the filing or as a
separate filing. If a submittal contains hyperlinks, then it must
include a disclaimer to the effect that the hyperlinks may be
inoperable or are not essential to the use of the filing.
Electronic submissions to the EHD may rely on the use of
hyperlinks within the same PDF file.
Electronic submissions must be free of any security
restrictions imposed by the author (proposed section
2.1013(c)(1)(vii)).
Additional information on the submission of these filings will be
provided in the Guidance Document, discussed earlier. The Guidance
Document is available on the NRC Web site (http://www.nrc.gov). The NRC
expects parties, interested governmental participants, and potential
parties to use the detailed instructions in the Guidance Document to
ensure that their electronic filings are effectively submitted. Areas
covered by the Guidance Document address the need for and format of the
transmittal letter for electronic filings, file naming conventions,
copyrighted information, and instructions on sensitive or classified
information.
Docketing
The final revisions clarify the responsibility of the Secretary of
the Commission, under section 2.1012(a), to determine whether the DOE
license application for a HLW repository is in an electronic media form
and format that is acceptable for docketing. Under section 2.1012(a),
the DOE license application cannot be docketed unless the Secretary of
the Commission determines that the DOE license application has been
submitted on optical storage media in a format consistent with NRC
regulations and guidance.
Documentary Material
Section 2.1003 of the current LSN rule requires a party, a
potential party, or an interested governmental participant (hereinafter
``participant'') to make its documentary material available in
electronic form. The definition of ``documentary material'' includes
material prepared by an individual participant, for example, all
reports or studies prepared by, or on behalf of, a participant. It also
includes other material in the possession of the participant on which
the participant intends to rely and/or cite in support of its position
in the HLW repository proceeding or that doesn't support its position.
This provision can be read to obligate a party who possesses a document
prepared by another participant to make that document available on its
LSN document collection server even though it is already available on
the LSN document collection server of the party who had prepared the
document. For example, under this interpretation a document prepared by
DOE would not only need to be available through the centralized LSN Web
site from the DOE LSN document collection server, but also from the LSN
document collection server of other participants. Without compromising
the objective of ensuring that all documentary material is available on
the LSN, the Commission believes that it would be beneficial to
eliminate or at least significantly reduce the loading of duplicate
documents. Reducing duplication will not only alleviate burdens on the
participants, but will also make search and retrieval of the LSN
collection more efficient. Therefore, the final amendment to section
2.1003(a)(1) allows an LSN participant to avoid loading a document
created by another LSN participant if that document has already been
made available by the LSN participant who created the document or on
whose behalf the document was created.
If, in the process of eliminating duplicate documents, an LSN
participant identifies a document which the creator of that document
has not included on its LSN document collection server, as a practical
matter, the participant who identified the document should include it
on its LSN document collection server, as well as notifying the creator
of the document that it is taking that action. Moreover, in such
circumstances, it is not apparent what purpose would be served by
raising the issue before the PAPO unless the documentary material has
some readily apparent significance as a Class 2 document (as delineated
in the
[[Page 32843]]
discussion below) or a significant number of ``missing'' documents were
identified with regard to a particular LSN participant, so as to raise
the issue of a concerted, deliberate effort not to comply with the
regulations.
The Commission is also amending section 2.1003 by adding a new
paragraph (e) to this section. Section 2.1003(e) requires LSN
participants to supplement the documentary material provided under
section 2.1003(a) in its initial certification with documentary
material produced after that event. While much of an LSN participant's
documentary material will be made available early, it is reasonable to
expect that additional material will be created after the initial
compliance period specified in section 2.1003(a). In addition, the
ongoing performance confirmation program required of DOE by section
63.131 of the Commission's regulations will generate additional
documentary material after the license application is docketed. The
Commission has revised section 2.1003(e) to specify that the
requirement to supplement ends when discovery is completed. The
schedule in Appendix D to 10 CFR Part 2 anticipates the close of
discovery to occur near the time of the second pre-hearing conference
held to finalize issues for hearing and schedules for prefiled
testimony and hearing. However, during the proceeding, the Atomic
Safety and Licensing Board can always direct that additional discovery
or discovery supplementation must take place. Moreover, it should be
added that while there is no obligation on an LSN participant to add
new documents to its site after discovery closes, an LSN participant
does have an obligation to maintain its existing LSN collection intact
and available for the rest of the proceeding. Parties will have a
continuing need to search LSN participant databases during the
evidentiary hearing and throughout the NRC appellate process.
Finally, the Commission is providing further information and a
clarification on the responsibilities of LSN participants in regard to
the three classes of documentary material in section 2.1001. These
three classes are:
1. Any information on which a party, potential party, or interested
governmental participant intends to rely and/or cite in support of its
position in the HLW repository proceeding;
2. Any information that is known to, and in the possession of, or
developed by the party that is relevant to, but does not support, that
information noted in item 1 or that party's position; and
3. All reports and studies prepared by or on behalf of a potential
party, interested governmental participant, or party, including all
related ``circulated drafts'' relevant to the application and the
issues set forth in the Topical Guidelines, regardless of whether they
will be relied upon or cited by a party.
The first two classes of documentary material are tied to a
``reliance'' criterion. Reliance is fundamentally related to a position
that a party in the HLW repository proceeding will take in regard to
compliance with the Commission regulations on the issuance of a
construction authorization for the repository. These compliance issues
take the form of ``contentions'' of law or fact that a party has
successfully had admitted for litigation in the HLW repository
proceeding under the rules of practice in 10 CFR Part 2. The third
class of material, ``reports and studies prepared for or on behalf of
the potential party'' has meaning independent of any contentions that
might be offered. The material in this class must be available on the
LSN regardless of whether it has any relation to a contention offered
at the hearing. It is also a likely source of the material that a party
would use to develop its contentions. ``Reports'' and ``studies'' will
also include the basic documents relevant to licensing such as the DOE
EIS, the NRC Yucca Mountain Review Plan, as well as other reports or
studies prepared by a LSN participant or its contractor.
To fall within the definition of ``documentary material'', reports
or studies must have a nexus to both the license application (emphasis
added) and the Topical Guidelines contained in NRC Regulatory Guide
3.69. This dual requirement is designed to ensure that LSN participants
do not have to identify, and include as documentary material, reports
or studies that have no bearing on the DOE license application for a
geologic repository at the Yucca Mountain site, such as reports or
studies on other potential repository sites or on issues outside of the
NRC licensing criteria. In addition, Sec. 63.21 of the Commission's
regulations requires that the DOE Environmental Impact Statement (EIS)
must accompany the license application. Therefore, reports and studies
relevant to issues addressed by the DOE EIS must also be made available
as Class 3 documentary material. This is also consistent with the
coverage of the Topical Guidelines.
To assist participants in identifying documentary material that may
be relevant to the license application in the time period before it is
submitted, the Commission is recommending that LSN participants use the
NRC Yucca Mountain Review Plan (NUREG-1804, Rev. 2, July, 2003) as a
guide. The Yucca Mountain Review Plan provides guidance to the NRC
staff on evaluating the DOE license application. As such, it
anticipates the form and substance of the DOE license application and
can be used as a reliable guide for identifying documentary material.
The Commission also notes that the history of the LSN and its
predecessor, the Licensing Support System, makes it apparent it was the
Commission's expectation that the LSN, among other things, would
provide potential participants with the opportunity to frame focused
and meaningful contentions and to avoid the delay potentially
associated with document discovery, by requiring parties and potential
parties to the proceeding to make all their Subpart J-defined
documentary material available through the LSN prior to the submission
of the DOE application. These objectives are still operational.
Nonetheless, the Commission is clarifying that, because the full scope
of coverage of the reliance concept will only become apparent after
proffered contentions are admitted by the Presiding Officer in the
proceeding, an LSN participant would not be expected to identify
specifically documents that fall within either Class 1 or Class 2
documentary material in the pre-license application phase.
In this regard, the Commission still expects all participants to
make a good faith effort to have made available all of the documentary
material that may eventually be designated as Class 1 and Class 2
documentary material by the date specified for initial compliance in
section 2.1003(a) of the Commission's regulations. Thereafter, in
conjunction with its license application submission, DOE would be
required to supplement its Class 1 and Class 2 documents to the degree
the application makes it apparent the scope of the DOE documentary
material in those classes had changed, a process that might well be
repeated by all parties following the admission of contentions.
Finally, as part of the regular post-contention admission discovery
process under section 2.1018, a party could be required to identify the
specific documents that comprise its Class 1 and Class 2 documentary
material. As a consequence, while it is not possible to say there are
no special circumstances that would necessitate a ruling by the PAPO on
the availability of a particular document in the pre-license
application stage based on its Class 1 or Class 2 status, disputes over
Class 1 and Class 2 documentary material generally would be of a type
that would be more appropriately raised before the Presiding Officer
designated
[[Page 32844]]
during the time following the admission of contentions when the NRC
staffis working to complete the Safety Evaluation Report in its
entirety.
Exclusions
The Commission has reviewed its procedural rules for the HLW
repository licensing proceeding, including the LSN requirements, to
assess whether they appropriately reflect the evolution of the relevant
technology, law, and policy since the rules were originally promulgated
in 1987, being mindful of a recent report by the House Committee on
Appropriations (Committee), issued July 2003, expressing concern on the
extent of documentation that DOE may be required to provide as part of
the LSN. The Committee encouraged the Commission to review its
regulatory requirements regarding the LSN to ensure that they do not
require the duplication of information otherwise easily obtainable,
focus on information that is truly relevant to the substantive
decisions that will have to be made, and establish a time frame in
accord with the traditional conduct of an adjudicatory proceeding.\1\
Based on our review, the Commission has determined that the LSN rule
could be further revised to address the Committee's concerns, while
still maintaining the overall purpose and functionality of the LSN.
---------------------------------------------------------------------------
\1\ H.R. Rep. No. 108, 108th Cong. 1st Sess. (2003).
---------------------------------------------------------------------------
The Commission is revising section 2.1005 of the rule to specify an
additional category of documents, ``congressional correspondence,''
that may be excluded from the LSN. Section 2.1005 of the Commission's
regulations establishes several categories of documents that do not
have to be entered into the LSN, either under the documentary material
requirements of section 2.1003, or under the derivative discovery
provisions of section 2.1019. These include materials that are either
widely available or do not have any significant relevance to the issues
that might be litigated in the HLW licensing proceeding. The Commission
is adding ``correspondence between a party, potential party, or
interested governmental participant and the Congress of the United
States' to these exclusions. This reflects the Commission's current
judgment that this type of material will not have a significant bearing
on repository licensing issues. Much of this material either relates to
budgetary issues and schedules or is merely a summary of an entity's
primary document. It would normally not be the source of material that
a party would rely on for its case in the hearing or as a source of
material that would be contrary to such reliance information. However,
the correspondence generated by Federal entities will still be
available as part of the normal Federal recordkeeping requirements. If
a particular item of Congressional correspondence does become relevant
to a contention admitted in the HLW proceeding, it can be made
available at that time. The Commission does not anticipate that any
disputes over this clearly and narrowly defined exclusion would be
brought before the PAPO.
Plain Language
The Presidential memorandum dated June 1, 1998, entitled, ``Plain
Language in Government Writing,'' directed that the Government's
writing be in plain language. This memorandum was published June 10,
1998 (63 FR 31883). In light of this directive, editorial changes have
been made in these proposed revisions to improve the organization and
readability of the existing language of the paragraphs being revised.
These types of changes are not discussed further in this document. The
NRC requested comment on the proposed rule specifically with respect to
the clarity of the language used. The Commission did not receive any
comments on this aspect of the proposed rule.
Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995, Pub.
L. 104-113, requires that Federal agencies use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
using such a standard is inconsistent with applicable law or otherwise
impractical. This final rule would establish requirements and standards
for the submission of filings to the electronic docket for the HLW
licensing proceeding. Although the specific standards in the final rule
are unique to the Commission's HLW repository proceeding, they are
based on industry-wide standards such as Portable Document Format
(PDF).
Environmental Impact: Categorical Exclusion
The NRC has determined that this final regulation is the type of
action described in categorical exclusion 10 CFR 51.22(c)(1).
Therefore, neither an environmental impact statement nor an
environmental assessment has been prepared.
Paperwork Reduction Act Statement
This final rule does not contain information collection
requirements and, therefore, is not subject to the requirements of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Regulatory Analysis
The Commission did not receive any specific comments on the
regulatory analysis for the proposed rule. The regulatory analysis for
the final rule has not been changed.
The following regulatory analysis identifies several alternatives
to the rule set forth in the final rule. Subpart J of 10 CFR Part 2
establishes an electronic environment for the adjudicatory proceeding
for consideration of a potential license application by the U.S.
Department of Energy (DOE) for a proposed HLW repository at Yucca
Mountain, Nevada. The NRC expects to begin receiving and processing a
significant volume of electronic documents associated with the
adjudicatory proceeding in the near future. Some of these filings will
consist of large or complex documents. Examples of material in these
large electronic files include maps, charts, video presentations,
computer modeling or simulation programs with their associated
databases, and narrative reports with extensive embedded graphic
objects. Consistent with 10 CFR Part 2, Subpart J:
The NRC has established the Licensing Support Network
(LSN) so that all parties, potential parties, and participants in the
proceeding will be able to make their documentary material
electronically available to meet document discovery requirements.
The NRC will direct all participants in the adjudicatory
proceeding to use the agency's EIE capabilities to submit their filings
electronically to the NRC when practicable.
After processing, documents submitted in the HLW
repository proceeding would be available in the Electronic Hearing
Docket (EHD), which is accessible via the Internet; electronic objects
that cannot be made directly accessible via the EHD Web site, such as
computer simulation models, will be described in the EHD and made
available on optical storage media.
The assessment of existing and anticipated technology capabilities
identified a number of potential issues that may make it difficult to
meet the challenges of electronic submission of large documents as
specified in 10 CFR Part 2, Subpart J. Those challenges are driven by
the following fundamental issues:
[[Page 32845]]
Technology limitations of current electronic document and
records transmission and management systems.
Maintaining document and object fidelity, integrity, and
authenticity.
Receiving source document formats in an acceptable
resolution.
Management of and access to non-textual information.
Federal recordkeeping requirements.
General usability of the electronic submittals.
Potential limitations of information technology (hardware,
software, or Internet service provider) used by the general public.
The Nature of the Documents
Documents may be large, complex, or a combination of both, as
follows:
Large documents consist of electronic files that, because
of their size, create challenges for both the NRC and the public when
transmitting, viewing, or downloading the document (e.g., significant
delays in transmission, uploading, or downloading times). The NRC
anticipates that the potential license application and some filings in
the HLW repository adjudicatory proceeding will be of a size that will
create transmission, viewing, or downloading challenges. In electronic
format, some of these files could contain several hundred megabytes.
Complex documents consist (entirely or in part) of
electronic files having substantial portions that are neither textual
nor image in nature, and graphic or other Binary Large Objects that
exceed 50 MB and cannot be logically divided. For example, specialized
exhibits may include computer software programs and their operating
components, large data files, and actual software code for analytical
programs that a party may intend to introduce into the proceeding.
Articulation of the Issues
Large and/or complex documents may pose challenges in any or all of
the following general areas:
Electronic Submission Process
When submitted via the Internet, very large documents or files can
cause ``time-out'' problems for computers at either end of the
transfer, resulting in a failed or canceled transfer. Transmission
times are dependent on the speed of the sender's communication device
and the technology used by the Internet service provider. Very large
documents or files require lengthy transmission times during which the
potential for error conditions or other service interruptions increases
in direct proportion to the time the communication link must be
maintained. The time-out problems could affect each party who receives
the documents as part of the service of a filing. The actual transfer
times for very large documents or files may approach 24 hours using
standard Internet File Transfer Protocol (FTP) routines. In terms of
ensuring timeliness, this may not be a significant improvement over the
use of an overnight courier to send the files on optical storage media
(e.g.,CD-ROM).
Access to Large, Complex Documents in the Electronic Hearing
Docket (EHD)
Keeping a large document together in one very large file may allow
users to easily search for, retrieve, and analyze the document in its
entirety, but may result in service interruption problems similar to
those described above. This is particularly true if a user wants to
download the image file of one of these large documents. Retrieval time
will be unacceptably slow, or will result in a time-out problem with
the user's Internet connection.
Users of the EHD may encounter comparable download delays because
of the file size of large or complex documents and, depending on the
nature of the file, the file may not be executable on a user's desktop
personal computer because of configuration, memory, display, or other
technical problems.
Use of Large, Complex Documents in a Hearing Room
Large documents may be pre-filed as potential exhibits in the
docket; however, in a hearing room, it is possible that only portions
of such documents, e.g., specified chapters, pages, or paragraphs will
be offered. In a dynamic and fast-paced hearing room environment, it
would not be desirable to delay the proceeding to wait for a large file
to load; navigate to the desired chapters, pages, or paragraphs; and
then extract the appropriate selection for use in the proceeding.
Complex documents may also require specialized hardware and/or software
to execute software program files and access their associated data.
Official Record and Federal Records Management Considerations
For both large and complex documents, the NRC must consider the
need to generate an official record of the proceeding for use in
potential appellate environments, see 10 CFR 2.1013(a), and for
generating an Official Agency Record (OAR) version of the docketed
materials for retirement to the National Archives and Records
Administration (NARA). Each of these situations requires the ability to
reassemble the record version of the documentary material (excluding
software executables), independent of the media or software initially
used to create it.
Coupled with the project objectives and technical requirements
(discussed in the next section), these issues represent the framework
for potential solutions. The NRC analysis distilled and assessed the
objectives, technical requirements, and issues and developed four
designs.
Technical Requirements
Given the anticipated size and complexity of individual documents,
and the quantity of submittals, the need to transmit, manage, and
retrieve electronic documents and objects challenges both the NRC's
current processes and its information technology/information management
(IT/IM) infrastructures, and the information technology (hardware,
software, Internet service provider) in use by the general public.
Examples of potential large documents are:
The DOE Site Characterization Plan;
The DOE License Application and supporting materials;
The DOE Environmental Impact Statement;
Adjudicatory documents (e.g., motions, responses,
transcripts, exhibits, and orders).
Any or all of these types of documents may contain embedded
photographs, charts, tables, and other graphics that contribute to the
understanding of the narrative.
The NRC also anticipates receiving files that could be part of
complex document submittals that:
(1) Due to their file size, may preclude easy transmission,
retrieval, and use; or
(2) May require specialized software and/or hardware for faithful
display and subsequent use; and
(3) May not be suitable for inclusion in a ``generic'' file format
such as PDF. The PDF standard, though it is proprietary to Adobe[reg],
has been published and is available for use by software vendors. Users
can access the content of a PDF format file through the use of the
Adobe Reader[reg] viewer software.
Examples of files that could be part of complex documents include
maps, databases, simulations, audio files, video files, and executable
programs.
The analysis of the challenges of handling large documents in the
NRC and public IT environments considered the following functional
areas:
[[Page 32846]]
Transmit activities entail sending a submittal from the
submitter to the NRC, either via electronic format (through
transmission or media) or as a physical object (e.g., video or audio).
Capture relates to the receipt of electronic objects, with
notifications provided according to an approved service list,
preferably through e-mail. Upon receipt at the NRC, each submittal is
staged for additional processing.
Index & Cross-Reference are two distinct processes. Each
submittal must be indexed based on prescribed profile templates. In
addition, as part of the cataloging process, a submittal may be
identified (or cross-referenced) as part of a package or compound
document.
Store manages the storage location of a submittal, i.e.,
within a folder or larger collection for electronic submittals, or the
physical media location for submittals provided on optical storage
media (e.g., CD-ROM) containing text, data, and objects. This process
involves applying security and audit controls, as well as the
appropriate retention schedule.
Search & Retrieve operations involve querying the
bibliographic header and content, displaying the pertinent object(s),
and, if desired, printing all or part of the displayed object(s).
Create & Revise activities facilitate the creation or
revision of new documents using content that has been extracted (copied
and pasted) from original submittals.
Copy & Distribute activities involve maintaining
distribution (service) lists and providing the means to copy or
download an individual document or a collection of documents.
These activities may also involve reproduction when the need arises
to generate a hard copy of a submittal (e.g., ``8.5[sec]x``11[sec]
paper'', drawings, etc.).
Finally, there was an assessment of the existing NRC document and
records management systems environment as well as requirements for
enhancements to support the large document business requirements.
Assessment and Alternatives
The NRC assessed a number of alternatives to the existing
technology infrastructure, current and planned operating procedures for
processing documents, and regulatory requirements to determine how the
identified objectives, issues, and technical requirements can be
addressed while ensuring that--
Document fidelity and integrity is preserved (e.g.
organization, accuracy, completeness);
Documents are accessible to users via commonly used
computer configurations;
The information is available on reliable and controllable
media; and
Unique submittals with special software/hardware
components can be handled.
The assessment also considered that the NRC should provide guidance
to participants in the proceeding well in advance of when large,
complex filings are reasonably anticipated. The guidance, as well as
the underlying technology and procedures, would address matters such as
processes, file sizes, file formats, document organization overviews to
facilitate reconstruction of the complete filing, labeling formats, and
alternative transfer media.
This section presents general concepts and four alternatives for
handling large, complex electronic submittals in the HLW repository
proceeding.
General Concept
The overall information infrastructure for receiving and managing
HLW-related documents involves several existing agency information
systems. Participants in the proceeding will primarily send submittals
to the NRC in the preferred PDF format via EIE, which provides a Web-
form (an entry form similar to that of an overnight express mail
carrier shipping form) for the submitter to accurately identify what is
being transmitted. Upon receipt, each submittal would be entered into
the Agencywide Document and Management System (ADAMS). Once captured
within ADAMS, the submittal would be available for internal use by
agency staff, and the information would be made publicly available (as
appropriate) via the EHD. Variations on this general process and issues
associated with large, complex documents are described in the following
sections.
Alternative 1
Description: Documents, images, and other submittal components are
submitted through the EIE as a single file, and the EIE Web-form serves
as the transmittal letter. The NRC captures large files as single
units, without the need for any manual manipulation, such as breaking a
submission into workable pieces. Based on the service list, an e-mail
is sent to provide notification of receipt and a link from the EIE
server to the file for immediate access by parties and participants to
the proceeding. In addition, the file is made available (as
appropriate) to the EHD. Interested parties can search on the
bibliographic header information, the content, or a combination of the
two. Retrieval of a document is directly to the user's desktop.
Positives: This alternative would satisfy the electronic
transmission requirements of 10 CFR Part 2, Subpart J. This alternative
primarily benefits and is less restrictive to the submitter. That is,
the submitter dictates the form and format of the content, and the
submittal comes in as a single optimized PDF format file.
Negatives: Submittal file size could be very large (potentially
several hundred MB), particularly if graphics are widely used. The
transmission may be problematic because of service interruptions or
time-outs attributable to the very long transfer times required for
large files. File sizes could also make this alternative unfeasible for
subsequent users of a file, primarily because of download delays and
time-outs. In addition, although any executables contained in the
submittal could be stored in the EHD, they could not be indexed for
search and retrieval or accessed online. The executable file would need
to be downloaded and run locally.
Alternative 2
Description: The only object transmitted through the EIE is the
transmittal letter for the large, complex document, which notifies the
NRC of an impending package submittal. All other electronic files
pertaining to the submittal are sent on optical storage media (e.g.,
CD-ROM), which is delivered to the NRC via an overnight express mail
carrier. Based on the service list, the NRC sends an e-mail containing
links from the EIE server to the transmittal letter for immediate
access by parties and participants to the proceeding. All text-based
components (e.g., narrative with embedded graphics) are rendered as
optimized PDF format files. The NRC extracts each file from the optical
storage media (e.g., CD-ROM) and makes the files available (as
appropriate) to the EHD as either individual objects or a compound
document, depending on the document organization. The NRC also links a
bibliographic header to the appropriate optical storage media (e.g.,
CD-ROM) for files or objects that are not candidates for extraction
(because of some technical constraint). Interested parties can search
the EHD on the bibliographic header, the content, or a combination of
the two. Retrieval of a document or specified component(s) is directly
to the user's desktop. Additionally, the NRC provides copies (upon
request and for a fee) of the
[[Page 32847]]
optical storage media (e.g., CD-ROM) for public access.
Positives: The NRC provides guidance to the submitter to facilitate
processing and use within the agency. This alternative also avoids
potential problems associated with submitting large files via the EIE.
Negatives: This alternative does not meet the electronic service
requirements of 10 CFR Part 2, Subpart J. There may also be a delay in
parties and participants receiving documents. As compared with
Alternative 1, additional processing will be required to extract,
profile, and store files in a timely manner. In addition, use of this
alternative could adversely affect document fidelity and integrity
(e.g. organization, accuracy, or completeness) which could affect the
efficient conduct of an adjudication, as well as for agency
recordkeeping and eventual turnover to NARA.
Alternative 3
Description: Documents, images, and other components (including the
transmittal letter and enhanced Web-form) are transmitted through the
EIE as multiple segmented files (``chunks'') of a single submittal. All
text-based components (e.g., narrative with embedded graphics) are
rendered as optimized PDF format files. Based on the service list, the
NRC sends an e-mail containing links from the EIE server to the
transmittal letter and the various segmented files for immediate access
by parties and participants to the proceeding. Upon receipt and
subsequent processing, the NRC makes the segmented files available (as
appropriate) to the EHD as a ``package'' or ``compound document.''
Interested parties can search on the bibliographic headers, or content,
or a combination of both. Retrieval of selected components is direct to
the user's computer.
Positives: This alternative satisfies electronic transmission
requirements of 10 CFR Part 2 and allows submission via the EIE. It
also allows the NRC to provide guidance to have precisely defined
segments and bibliographic header information associated with each
segment. The segmentation facilitates later use and access.
Negatives: This alternative requires the EIE to facilitate the
transfer, segregate component content from bibliographic header
information and the transmittal letter, and make that information
available to the EHD. A possible fatal flaw is that some file types may
not be able to be segmented into manageable sizes (e.g., graphic-
oriented materials showing subsurface geology in color or computer
modeling information and/or software), and some materials may not be
accessible via the EHD.
Alternative 4
Description: All text-based components (e.g. narrative with
embedded graphics) are rendered as optimized PDF files and transmitted
in manageable segments. All non-text components that are not suitable
for an optimized PDF file are submitted on optical storage media (e.g.,
CD-ROM). When necessary, due to the nature of the submittal, a
submittal letter identifies all electronic files that comprise the
submission, clearly indicating which components are submitted via EIE,
and which are submitted on optical storage media (e.g., CD-ROM). The
submittal letter, enhanced Web-forms, and all segmented text files are
sent through the EIE. The optical storage media (e.g., CD-ROM)
containing the complete submission (i.e., text-based segments submitted
via EIE and any files submitted only on optical storage media) are
delivered to the NRC and other parties via an overnight mail carrier or
other overnight delivery service. The NRC links a bibliographic header
to the optical storage media (e.g., CD-ROM) component of the
submission.
Based on the service list, the NRC sends an e-mail containing links
from the EIE server to the transmittal letter and the various
components submitted through the EIE for immediate access by parties
and participants to the proceeding. The NRC indexes the text-based
components sent via EIE and makes them available to the EHD as a
``package'' or ``compound document.'' Additionally, the NRC provides
copies (upon request and for a fee) of the optical storage media (e.g.,
CD-ROM) for the public. Interested parties can search on the
bibliographic header information, content, or a combination of both.
Retrieval of text-based components is directly to the user's computer,
and non-text components are retrievable from the optical storage media
(e.g., CD-ROM).
Positives: This alternative combines the best features and
advantages of Alternatives 2 and 3, including text-based component
submission through the EIE and non-text component submissions via
optical storage media (e.g., CD-ROM). This alternative provides several
means to optimize a submission and allows the NRC to process the
submission appropriately; provide access to end-users (i.e.,
adjudicatory proceeding participants and the general public); and
prepare for the eventual transfer to NARA.
Negatives: Processing will need to be closely coordinated to
maintain the integrity of the various submittal components (segmented
files stored in ADAMS with the bibliographic header records that point
to optical storage media, such as a CD-ROM).
Documentary material submitted on optical storage media and sent by
overnight mail (or other expedited delivery services) would not meet
the electronic transmission requirements of 10 CFR Part 2, Subpart J.
There may be a delay in parties and participants receiving document
components contained only on the optical storage media (e.g., CD-ROM).
Planned Actions
Alternative 4 is the recommended approach for the NRC to meet the
identified objectives. The NRC believes that this alternative provides
the best means for transferring the wide variety of file types and
sizes received from parties and participants in the proceeding, as well
as the most practical means for delivering electronic information to
parties and participants in the HLW repository adjudicatory proceeding,
the presiding officer, and the Office of the Secretary (SECY), under
the requirements of 10 CFR Part 2, Subpart J.
Toward that end, the agency will take the following steps:
Develop guidance for use in generating HLW proceeding
submissions that specifies the size, file characteristics, and method
(either EIE or optical storage media) for different submittal types
(i.e. simple, large, or complex). This guidance will also provide
direction concerning the information the agency requires to ensure
proper identification of each segment.
Implement enhancements to the agency's existing IT/IM
systems (such as an improved EIE capability) in anticipation of
storage, search, and retrieval needs, as they pertain to Alternative 4.
Implement enhancements to the agency's current document
processing work flows in anticipation of the receipt, indexing, and
distribution of information, as they pertain to Alternative 4.
Develop a rule change to implement the recommended
alternative. The final rule reflects this approach.
Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)),
the Commission has evaluated the impact of the final rule on small
entities. The NRC has established standards for
[[Page 32848]]
determining who qualifies as small entities (10 CFR 2.810). The
Commission certifies that this final rule, if adopted, would not have a
significant economic effect on a substantial number of small entities.
The amendments would modify the NRC's rules of practice and procedure
in regard to the HLW repository licensing proceeding. Parties to the
HLW repository licensing proceeding will be required to submit their
filings during the proceeding according to the standards in the
proposed rule. Some of the participants affected by the final rule, for
example, DOE, NRC, the State of Nevada, would not fall within the
definition of ``small entity'' under the NRC's size standards. Other
parties and potential parties may qualify as ``small entities'' under
these size standards. However, the required standards will overall make
it easier for those parties who are small entities to participate in
the HLW repository licensing proceeding.
Backfit Analysis
The NRC has determined that a backfit analysis is not required for
this final rule because these amendments would not include any
provisions that require backfits as defined in 10 CFR Chapter I.
List of Subjects in 10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Environmental protection, Nuclear
materials, Nuclear power plants and reactors, Penalties, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
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; and 5 U.S.C. 552 and 553; the Nuclear Regulatory
Commission is adopting the following amendments to 10 CFR Part 2.
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND
ISSUANCE OF ORDERS
0
1. The authority citation for Part 2 continues to read as follows:
Authority: Secs.161, 181, 68 Stat. 948, 953, as amended (42
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat.
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.
5841); 5 U.S.C. 552; 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(O)); 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, 104, 105, 163, 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 2.700a also
issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.754, 2.712 also
issued under 5 U.S.C. 557. Section 2.764 also issued under secs.
135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155,
10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as
amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808
also issued under 5 U.S.C. 553. Section 2.809 also issued under 5
U.S.C. 553, and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended
(42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955
(42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C.
10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42
U.S.C. 2239). 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
2. In Sec. 2.1001, definitions of ``Complex document,'' ``Large
document,'' and ``Simple document'' are added in alphabetical order to
read as follows:
Sec. 2.1001 Definitions.
* * * * *
``Complex document'' means a document that consists (entirely or in
part) of electronic files having substantial portions that are neither
textual nor image in nature, and graphic or other Binary Large Objects
that exceed 50 megabytes and cannot logically be divided. For example,
specialized submissions may include runtime executable software, viewer
or printer executables, dynamic link library (.dll) files, large data
sets associated with an executable, and actual software code for
analytical programs that a party may intend to introduce into the
proceeding.
* * * * *
``Large document'' means a document that consists of electronic
files that are larger than 50 megabytes.
* * * * *
``Simple document'' means a document that consists of electronic
files that are 50 megabytes or less.
* * * * *
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3. In Sec. 2.1003, the introductory text of paragraph (a) and
paragraph (a)(1) are revised, and paragraph (e) is added, to read as
follows:
Sec. 2.1003 Availability of material.
(a) Subject to the exclusions in Sec. 2.1005 and paragraphs (b),
(c), and (e) of this section, DOE shall make available, no later than
six months in advance of submitting its license application for a
geologic repository, the NRC shall make available no later than thirty
days after the DOE certification of compliance under Sec. 2.1009(b),
and each other potential party, interested governmental participant or
party shall make available no later than ninety days after the DOE
certification of compliance under Sec. 2.1009(b)--
(1) An electronic file including bibliographic header for all
documentary material (including circulated drafts but excluding
preliminary drafts) generated by, or at the direction of, or acquired
by, a potential party, interested governmental participant or party;
provided, however, that an electronic file need not be provided for
acquired documentary material that has already been made available by
the potential party, interested governmental participant or party that
originally created the documentary material. Concurrent with the
production of the electronic files will be an authentication statement
for posting on the LSN Web site that indicates where an authenticated
image copy of the documents can be obtained.
* * * * *
(e) Each potential party, interested governmental participant or
party shall continue to supplement its documentary material made
available to other participants via the LSN with any additional
material created after the time of its initial certification in
accordance with paragraph (a)(1) through (a)(4) of this section until
the discovery period in the proceeding has concluded.
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4. In Sec. 2.1005, paragraph (i) is added to read as follows:
Sec. 2.1005 Exclusions.
* * * * *
(i) Correspondence between a potential party, interested
governmental participant, or party and the Congress of the United
States.
0
5. In Sec. 2.1012, paragraph (a) is revised to read as follows:
[[Page 32849]]
Sec. 2.1012 Compliance.
(a) If the Department of Energy fails to make its initial
certification at least six months prior to tendering the application,
upon receipt of the tendered application, notwithstanding the
provisions of Sec. 2.101(f)(3), the Director of the NRC's Office of
Nuclear Material Safety and Safeguards will not docket the application
until at least six months have elapsed from the time of the
certification. The Director may determine that the tendered application
is not acceptable for docketing under this subpart if the application
is not accompanied by an updated certification pursuant to Sec.
2.1009(b), or if the Secretary of the Commission determines that the
application is not submitted on optical storage media in a format
consistent with NRC regulations and guidance, or for non-compliance
with any other requirements identified in this subpart.
* * * * *
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6. In Sec. 2.1013, paragraphs (a)(2) and (c)(1) are revised to read as
follows:
Sec. 2.1013 Use of the electronic docket during the proceeding.
(a) * * *
(2) The Secretary of the Commission will establish an electronic
docket to contain the official record materials of the high-level
radioactive waste repository licensing proceeding in searchable full
text, or, for material that is not suitable for entry in searchable
full text, by header and image, as appropriate.
* * * * *
(c)(1) All filings in the adjudicatory proceeding on the
application for a high-level radioactive waste geologic repository
under part 60 or 63 of this chapter shall be transmitted by the
submitter to the Presiding Officer, parties, and Secretary of the
Commission, according to the following requirements--
(i) ``Simple documents'' must be transmitted electronically via
EIE;
(ii) ``Large documents'' must be transmitted electronically in
multiple transmissions of 50 megabytes or less each via EIE;
(iii) ``Complex documents'':
(A) Those portions that can be electronically submitted through the
EIE, in 50 MB or less segments, must be transmitted electronically,
along with a transmittal letter; and
(B) Those portions that are not capable of being transmitted
electronically must be submitted on optical storage media which must
also include those portions of the document that had been or will be
transmitted electronically.
(iv) Electronic submissions must have the following resolution--
(A) Electronic submissions of files created after January 1, 2004
must have 300 dots per inch (dpi) as the minimum resolution for bi-
tonal, color, and grayscale, except in limited circumstances where
submitters may need to use an image scanned before January 1, 2004, in
a document created after January 1, 2004, or the scanning process for a
large, one-page image may not successfully complete at the 300 dpi
standard resolution.
(B) Electronic submissions of files created before January 1, 2004,
or electronic submissions created after January 1, 2004, which cannot
meet the 300 dpi standard for color and grayscale, must meet the
standard for documents placed on LSN participant Web sites in Sec.
2.1011(b)(2)(iv) of this subpart, which is 150 dpi for color and
grayscale documents and 300 dpi for bi-tonal documents.
(v) Electronic submissions must be generated in the appropriate PDF
output format by using:
(A) PDF--Formatted Text and Graphics for textual documents
converted from native applications;
(B) PDF--Searchable Image (Exact) for textual documents converted
from scanned documents; and
(C) PDF--Image Only for graphic-, image-, and forms-oriented
documents. In addition, Tagged Image File Format (TIFF) images and the
results of spreadsheet applications must to be converted to PDF, except
in those rare instances where PDF conversion is not practicable.
(vi) Electronic submissions must not rely on hyperlinks to other
documents or Web sites for completeness or access except for hyperlinks
that link to material within the same PDF file. If the submittal
contains hyperlinks to other documents or Web sites, then it must
include a disclaimer to the effect that the hyperlinks may be
inoperable or are not essential to the use of the filing. Information
contained in hyperlinks to a Web site on the Internet or to another PDF
file, that is necessary for the completeness of a filing, must be
submitted in its entirety in the filing or as an attachment to the
filing.
(vii) All electronic submissions must be free of author-imposed
security restrictions.
* * * * *
Dated at Rockville, Maryland, this 4th day of June, 2004.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 04-13113 Filed 6-10-04; 8:45 am]
BILLING CODE 7590-01-P