Information Notice 2009-07, Withholding of Proprietary Information from Public Disclosure

Withholding of Proprietary Information from Public Disclosure

ML082460249
Person / Time
Site:	Paducah Gaseous Diffusion Plant, Westinghouse, Erwin, 07001113, BWX Technologies, 07003098, 07003103, 04003392, 07001201, 07007003, 07007016, 07007004, Framatome ANP Richland, Eagle Rock, 04009058
Issue date:	03/30/2009
From:	Dan Dorman NRC/NMSS/FCSS/FCLD
To:
Tyrone Naquin, NMSS/FCSS, 301-492-3187
References
IN-09-007
Download: ML082460249 (6)

ML082460249 UNITED STATES

NUCLEAR REGULATORY COMMISSION

OFFICE OF NUCLEAR REACTOR REGULATION

OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS

OFFICE OF FEDERAL AND STATE MATERIALS AND

ENVIRONMENTAL MANAGEMENT PROGRAMS

OFFICE OF NEW REACTORS

WASHINGTON, DC 20555-0001

March 30, 2009

NRC INFORMATION NOTICE 2009-07:

WITHHOLDING OF PROPRIETARY

INFORMATION FROM PUBLIC DISCLOSURE

ADDRESSEES

All current holders of and potential applicants for licenses, certificates of compliance, permits, or

standard design certifications, as well as any other persons submitting a request that

information be withheld from public disclosure under the provisions of Title 10 of the Code of

Federal Regulations (10 CFR) Section 2.390, Public inspections, exemptions, requests for

withholding.

PURPOSE

The U.S. Nuclear Regulatory Commission (NRC) is issuing this information notice (IN) to inform

addressees of recent problems with licensee submittals that request withholding proprietary

information under 10 CFR 2.390. The NRC expects that recipients will review the information

for applicability to their facilities and consider actions, as appropriate, to avoid similar problems.

Suggestions contained in this IN are not NRC requirements; therefore, no specific action or

written response is required.

DESCRIPTION OF CIRCUMSTANCES

Over the last year, NRC staff has received several licensee requests for withholding of

proprietary information under 10 CFR 2.390 that were too broad in that most of the information

that the licensee requested be withheld from public disclosure did not satisfy the conditions of

10 CFR 2.390. Rather than limiting the request to the specific information in a document where

release to the public could harm private commercial interests, much of material that licensees

requested be withheld had no bearing on proprietary information. This resulted in agency

discussions and correspondence with the licensees to obtain revised 10 CFR 2.390 submittals.

DISCUSSION

The above describes problems with licensee 10 CFR 2.390 submittals in which most of the

information that the licensee requested be withheld from public disclosure did not satisfy the

conditions of 10 CFR 2.390. This resulted in delays and expenditure of resources to obtain

revised 10 CFR 2.390 submittals from these licensees. The following information describes existing NRC requirements, policies, and practices regarding 10 CFR 2.390 submittals related

to the problems discussed in this IN.

NRC Review. 10 CFR 2.390(b)(2) states that a person who submits commercial or financial

information believed to be privileged or confidential or a trade secret shall be on notice that it is

the policy of the Commission to achieve an effective balance between legitimate concerns for

protection of competitive positions and the right of the public to be fully apprised as to the basis

for and effects of licensing or rulemaking actions, and that it is within the discretion of the

Commission to withhold such information from public disclosure. The NRC is required by

10 CFR 2.390(b)(3) to determine whether information sought to be withheld from public

disclosure is a trade secret or confidential or privileged commercial or financial information and, if so, whether it should be withheld. The NRC staff reviews all proprietary submittals that

require NRC approval to ensure that the basis for withholding is supportable in accordance with

10 CFR 2.390(b)(4) and that submittals comply with the affidavit and marking requirements.

The staff must then, pursuant to 10 CFR 2.390(b)(5), determine (1) whether the right of the

public to be fully apprised of the proposed action outweighs the demonstrated concern for

protection of a competitive position, and (2) whether the information should be withheld.

Requirements for Submittals. 10 CFR 2.390(b)(1) states that the submitter shall request

withholding at the time the document is submitted and shall comply with the document marking

and affidavit requirements set forth in 10 CFR 2.390(b)(1).

(1)

Affidavit. 10 CFR 2.390(b)(1) states the affidavit must identify the document or part

sought to be withheld and must address the factors set out in 10 CFR 2.390(b)(4),

including the owner=s specific reasons as to why the document is considered to contain

proprietary information, the release of which would cause harm to the competitive

position of the owner of the information. 10 CFR 2.390(b)(1)(ii) and (iii) specifies that the

request for withholding and the affidavit must be submitted at the same time as the

proprietary information sought to be withheld and that the affidavit must

(a)

Identify the document or part sought to be withheld.

(b)

Identify the official position of the person making the affidavit. If the

affidavit has been submitted by a company, this person shall be an officer

or upper level management official who has been specifically delegated

the function of reviewing the information sought to be withheld and

authorized to apply for its withholding on behalf of the company. Further, the affidavit shall be executed by the owner of the information, even if the

information is submitted to the Commission by another person.

(c)

Declare the basis for proposing the information be withheld, including the

considerations set forth in 10 CFR 2.390(a).

(d)

Contain a specific statement of the harm that would result if the

information sought to be withheld is disclosed to the public.

(e)

Indicate the location(s) in the document of all information sought to be

withheld. (f)

Contain a full statement of the reason for claiming the information should

be withheld from public disclosure. The statement shall address, with

specificity, the considerations listed in 10 CFR 2.390(b)(4).

(2)

Marking of Information Sought To Be Withheld. 10 CFR 2.390(b)(1)(i) requires that the

submitter ensure that the document containing information sought to be withheld is

marked as specified in 10 CFR 2.390(b)(1)(i)(A) and (B). This includes marking the top

of the first page of the document and the top of each page containing such information

as "proprietary" to indicate it contains information the submitter seeks to have withheld

and must indicate, adjacent to the information, or at the top if the entire page is affected, the basis (i.e., trade secret, etc.) for proposing that the information be withheld from

public disclosure.

While 10 CFR 2.390 specifies that the information that the NRC determines is not exempt from

disclosure will be made public, the regulations do not describe how this is accomplished when

only a portion of the document is exempt. Although not explicitly required, the Commissions

expectation1 (which many licensees have adopted in their administrative procedure) is that the

submitter of the proprietary information should provide a nonproprietary version with brackets

showing where the proprietary information has been deleted. In instances in which a

nonproprietary version would be of no value to the public because of the extent of the

proprietary information, the agency does not expect a nonproprietary version to be submitted.

1 See NRC Management Directive 3.4, Release of Information to the Public, which can be found on the

NRCs public Web site in the Agencywide Documents Access and Management System (ADAMS), under

Accession No. ML080250350.

CONTACT

This information notice requires no specific actions or written response. If you have any

questions about the information in this notice, please contact the technical contact listed below

or the appropriate regional office.

/RA/

/RA/

Daniel H. Dorman, Director

Robert J. Lewis, Director

Division of Fuel Cycle Safety

Division of Materials Safety

and Safeguards

and State Agreements

Office of Nuclear Materials Safety

Office of Federal and State Materials and

and Safeguards

Environmental Management Programs

Theodore R. Quay for

/RA/

Timothy J. McGinty, Director

Barbara K. Gusack, Director

Division of Policy and Rulemaking

Division of Program Management, Office of Nuclear Reactor Regulation

Policy Development and Analysis

Office of New Reactors

Technical Contact:

T.D. Naquin, NMSS

(301) 492-3187

E-mail: Tyrone.Naquin@nrc.gov

Note: NRC generic communications may be found on the NRC public Web site, http://www.nrc.gov, under Electronic Reading Room/Document Collections.

CONTACT

This information notice requires no specific actions or written response. If you have any

questions about the information in this notice, please contact the technical contact listed below

or the appropriate regional office.

/RA/

/RA/

Daniel H. Dorman, Director

Robert J. Lewis, Director

Division of Fuel Cycle Safety

Division of Materials Safety

and Safeguards

and State Agreements

Office of Nuclear Materials Safety

Office of Federal and State Materials and

and Safeguards

Environmental Management Programs

Theodore R. Quay for

/RA/

Timothy J. McGinty, Director

Barbara K. Gusack, Director

Division of Policy and Rulemaking

Division of Program Management, Office of Nuclear Reactor Regulation

Policy Development and Analysis

Office of New Reactors

Technical Contact:

T.D. Naquin, NMSS

(301) 492-3187

E-mail: Tyrone.Naquin@nrc.gov

Note: NRC generic communications may be found on the NRC public Web site, http://www.nrc.gov, under Electronic Reading Room/Document Collections.

DISTIBUTION:

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RRodriguez

MAdams

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2/11/2009

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2/23/2009 OFFICE

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DATE

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3/26/09

3/13/09

03/30/09

04/06/09

04/06/09 OFFICIAL RECORD COPY