The first two of the NRC initiatives are the ones likely to be implemented within the next six months and thus raise the most immediate policy, technology, and legal issues. The rulemaking and adjudicatory initiatives nicely complement each other. Both are essentially character-based, with the possibility of embedded images; and thus differ in this fundamental way from the DOT system, which is image-based. The rulemaking initiative is intended to use World Wide Web applications on the Internet and thus to explore the potential and problems of open systems. The adjudicatory initiative uses a value added network and thus engages the advantages of a closed systems approach for information exchanges that require greater formality and greater security demands for functions like authentication and verification. 41 Both initiatives will reflect the Commission's strong commitment to the use of information technology to enhance public access, including a policy of not charging for information access.
It would begin by identifying a set of issues and then engage persons wishing to participate in an electronic discussion on those issues, giving a time limit of perhaps 10 days for that first phase of the rulemaking development activity. Then, the agency would formulate some basic alternatives, post those on the discussion space, and allow a period of time for participants to interact with respect to those issues, perhaps introducing personal involvement by members of the Commission for that second phase. The third phase would begin with the presentation of a text in electronic form, after which participants could continue their informal discussions and/or submit more conventional comments in electronic form. It should be relatively easy to build in caucusing capability 44 as a part of the process.
The rulemaking initiative uses nonproprietary Internet technology. Virtually anyone can participate in a rulemaking proceeding simply by establishing a space on an Internet server. Then, users supply client- side hardware and software, which involves nothing more than a cheap PC, user friendly World Wide Web browsers that are available either free or for less than $100, 14.4 bps or 28.8 bps modems available for about $100, and SLIP or PPP connections to the Internet 45 now available for $15 per month or less. Citizens unable to afford this PC level technology can find it readily available in public libraries and other non-profit institutions engaging in community service activities.
"NRC administrative law judges are already making extensive use of microcomputer technology to facilitate licensing panel proceedings. Pleadings and other materials are filed by litigants on diskette, transcripts of testimony are provided on diskette, ALJs have full text indexing software and microcom- puters, and ready access to electronic mail and computer aided legal research databases." 46
At the same time, the NRC was involved in an effort to define an electronic discovery database to be used in the Licensing Support System ("LSS") for the regulatory proceeding identifying high level nuclear waste repositories, one of the largest administrative litigation matters ever to come before the NRC. The LSS initiative used negotiated rulemaking 47 con- ducted by an advisory committee 48 to develop specifications for the database to be shared by all participants in the proceeding. One of the innovations coming out of the negotiation was an agreed-upon rule 49 on scanned images paralleled by character-based versions of the same material generated through OCR.
Under the final rule, participants in LSS will provide information in ASCII form with certain header in- formation, and also make available page images. In some instances, only page images and headers had to be provided and NRC would translate the documents into free text.
The public would have access to LSS only via terminals in public reference rooms. These terminals would provide full text search capability on headers and text of LSS documents. 50 Copies of the documents themselves would be available under the Freedom of Information Act ("FOIA"), and from LSS itself after notice of hearing was issued for the licensing proceeding. Remote access for the public from individual computer facilities was not to be available. LSS participants would have access from individual computer facilities during the pre-license phase and after the notice of hearing has been issued. LSS participants, however, would bear the cost of their own computer facilities and telephone connect charges, but would not be charged for access to the LSS.
Section 2.1013 of the NRC regulations establishes procedures for the electronic submission of pleadings, and provides for the electronic transmission of Board and Commission issuances and orders, as well as for on-line access to the LSS during the hearing. It requires the parties to submit ASCII files, images and bibliographic headers for documents. 51 The LSS electronic files are the official record of the proceeding. 52 Significantly, "[a]bsent good cause, all exhibits tendered during the hearing must have been entered into the Licensing Support System before the commencement of that portion of the hearing in which the exhibit will be offered." 53
Although the schedule for LSS implementation has slipped considerably, many of the LSS concepts provide useful models for automation of other NRC adjudicatory processes.
Automation of NRC adjudication can take place in a variety of ways, through narrowly focused experimentation, such as that contemplated in cooperation with JEDDI Corp. to learn more about various approaches to tagging electronic filings, through NRC-wide automation plans, or through a case handling system developed for the Atomic Safety and Licensing Board Panel.
NRC is exploring a variety of approaches to automate further its adjudication processes. The Electronic Hearing Docket Requirements and Alternatives Analysis completed in October, 1994, by the IRM contractors, Applied Management Systems ("AMS") and Battelle Memorial Institute, identified three configurations for further automation. All three emphasize off-the-shelf hardware and basically rely on PC and Windows workstations linked through a TCP/IP network. The specifications for the three approaches were based on a set of 51 critical, mandatory and desirable functional requirements developed by representatives of the major offices involved in adjudication, including the ASLBP.
All three approaches rely on receipt of documents in paper, FAX, or ASCII form and entry into the database in scanned or character form. Scanning is followed immediately by optical character reader ("OCR") conversion so that there is both a page image and full text character version of each document. A separate quality control step checks the OCR version against the page image. Differences among the three alternatives relate to whether filers may simultaneously serve different entities within the NRC and whether a centralized database is used.
A routine step is the transfer of public documents to the public document room. The link must be upgraded from a present 56 kbps link to a T1 line, and a microwave link also could be considered.
The NRC's adjudication initiative uses a Value Added Network ("VAN") 54 to solve authentication, verification, and signature issues. The cost of such an approach in terms of public participation is small because participants in adjudication are limited to a smaller class of formally designated parties. The agency already has experience using VANs in its involvement with the funds transfer system of the Treasury Department.
One pair of significant technology issues, also influencing the rulemaking initiative, is how much tagging should be required and, who should do the tagging. Tagging, 55 whether with EDI field boundaries 56 or HTML and SGML tags, serves a dissemination flow control purpose more than it serves a user retrieval purpose. Free text retrieval is the most cost effective way to allow broad classes of users and private sector intermediaries to retrieve agency-public information. But information filed with the agency needs to be routed to appropriate parts of the agency, and items within the agency store of information need to be controlled with respect to their status for dissemination purposes. For example, Privacy Act material, and commercial information and trade secrets must be protected from disclosure under FOIA or through agency dissemination systems, and the agency also may wish to protect from disclosure and dissemination information qualifying under FOIA § 552(b)(5) (deliberative privilege) or (b)(7) (investigatory records compiled for law enforcement purposes) exemptions. Tags on sections of documents are necessary if these screening and routing processes are to be automated. The Utah Court system is an example of this use of SGML tagging. The difficulty is in resisting the impulse to define a large number of mandatory tags, which ratchets up the resource requirements for anyone to participate as a filer or information manager.
The NRC hopes to gain experience with various approaches to tagging by working with the JEDDI Corp., 57 and by enlisting one law firm and several experts in the EDI field 58 to see how it can handle tagged documents, structured in an ANSI ASC X12 transaction set, in one completed adjudication. The test documents will be selected to include petitions, motions, briefs, discovery requests, and responses, along with associated correspondence. Nine data elements had been identified as of early 1995.
38 REGNET is a National Performance Review "laboratory" that helps agencies implement the National Performance Review's recommendations presented in "Improving Regulatory Systems" in a manner consistent with the National Information Infrastructure (NII) and the High Performance Computing and Communications (HPCC) Goals & Objectives. REGNET is intended to provide the public universal access to regulations and their development process; to provide "One- Stop" Regulatory Information, and to help agencies envision appropriate information technology architectures for the future. See http://www.npr.gov/NPR/R_Labs/files/_REGNET.html.
39 See generally 59 Fed.Reg. 61352 (Nov. 30, 1994) (announcing meeting between NIRMA and NRC staff to discuss electronic information exchange).
40 FedWorld is an electronic bulletin board system, accessible by dialup connection and via the Internet, which makes available materials from scores of federal programs.
41 See § ___ for a discussion of the advantages of closed and open network systems, and for an explanation of how open systems with firewalls combine some of the advantages.
42 Because of the greater use of hearings the tendency to reopen comment periods as the nature of a proposal changes, most current "informal" rulemaking is a hybrid of informal and more formal procedural elements.
43 The original concept was for a simple, fast, and relatively informal dialogue between agency and interested public.
44 Caucusing capability would enable a subset of participants to confer electronically in private, without other participants or the agency seeing their messages.
45 Serial Line Internet Protocol ("SLIP") and Point to Point Protocol ("PPP") permit a computer to function as a full-featured Internet node through a dialup voice-grade telephone connection.
46 Henry H. Perritt, Jr., ELECTRONIC ACQUISITION AND RELEASE OF FEDERAL AGENCY INFORMATION, Report Prepared for the Administrative Conference of the United States § III(K) (October 1, 1988) (citing Cotter, When the Electronic Judge Meets the Electronic Lawyer, THE JUDGES JOURNAL 4 (Spring 1988)).
47 See Perritt, Negotiated Rulemaking before Federal Agencies: Evaluation of Rec- ommendations by the Administrative Conference of the United States, 74 GEO.L.J. 1625 (1986); Perritt, Administrative Alternative Dispute Resolution: The Development of Negotiated Rulemaking and Other Processes, 14 PEPPER- DINE L.REV. 863 (1987).
48 52 FED.REG. 29024 (Aug. 5, 1987); 53 FED.REG. 3404 (Feb. 5, 1988).
49 53 Fed. Reg. 44411 (Nov. 3, 1988) (proposed rule developed by rule negotiation committee), proposing amendments to 10 C.F.R. §§ 2.1-2.1117 (1989).
50 See 10 C.F.R. §2.1007 (1995) (allowing access to full headers of all documents and images of non-privileged documents on terminals in public reference rooms).
51 10 C.F.R. § 2.1003.
52 Id. § 2.1013(a)(2).
53 Id. § 2.1013(b).
54 A value added network is a proprietary closed network.
55 Tagging is the process of inserting format codes into a document, to permit the tagged parts to be identified for retrieval or to be output in a particular way, as with italic style.
56 This might more appropriately be described as "chunking."
57 The JEDDI Corporation is a non profit corporation concerned with developing standards for and otherwise promoting electronic filing with courts and agencies. The author of this report is a member of the board of directors of JEDDI Corp.
58 "Electronic data interchange ("EDI") means a technique for electronically transferring and storing formatted information between computers utilizing established and published formats and codes, as authorized by the applicable federal information processing standards." 60 Fed. Reg. 34741 (July 3, 1995) (interim rule proposing 48 C.F.R. § 4.501 definitions; also defining ANSI X12 and electronic commerce). EDI in the private sector refers to structuring and tagging messages used in commerce, such as solicitations of proposals, bids, purchase orders, invoices, and payment orders. EDI is implemented through "transaction sets" which define the structure and tags to be used in formatting a commercial document of a particular type. For example, there is one transaction set for invoices, and another for purchase orders. EDI transaction sets are developed and adopted in the United States by accredited standards organization X12 under the American National Standards Institute. The federal government has actively encouraged the use of EDI for its own commercial transactions. See, e.g., 60 Fed. Reg. 34735, 34736 (July 3, 1995) (proposed interim federal acquisition regulation change pertaining to electronic contracting; explaining advantages of EDI), and had committed itself to use public standards. See 60 Fed.Reg. 16854 (Apr. 3, 1995) (NIST Notice and request for comments on proposed revisions of federal information processing standard ("FIPS") 161-1 pertaining to electronic data interchange; requiring use of X12 of UN/EDI FACT standards when agencies implement EDI systems). The State Justice Institute has expressed particular interest in supporting efforts to determine the benefits and problems resulting from use of EDI so that courts can process or perform work electronically on submitted documents. 60 Fed. Reg. 44936, 44948 (Aug. 29, 1995) (grant guidelines). See also 60 Fed. Reg. 34741 (July 3, 1995) (interim rule, defining the federal acquisition computer network (FACNet) to mean "the government wide electronic commerce/electronic data interchange (EC/EDI) systems architecture for the acquisition of supplies and services that provides for electronic data interchange of acquisition information between the government and the private sector, employs nationally and internationally recognized data formats, and provides universal user access.")
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