Information Notice 2009-07, 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:
NBaker
MBartlett
RRodriguez
MAdams
TJohnson
KRamsey
NRivera
SEchols
MRaddatz
PHabighorst
TLiu
DTiktinsky
JDowns
BReilly
ADAMS Accession Number: ML082460249 OFFICE
UEB
UEB
Tech Editor
OIS
OGC(CRA)
NAME
TNaquin
VWilliams
KAzariah-Kribbs
SMagruder
GTrussel
CHolzle
DATE
9/29/08
9/30/08
10/03/08 e-mail
10/03/08
10/17/08
10/24/08 OFFICE
UEB
FCSS
FFLD
FCSS
NAME
CHolzle
BSmith
JSmith
AWong
DDorman
DATE
10/24/08
2/11/2009
2/13/2009
2/13/2009
2/13/2009
2/23/2009 OFFICE
D:MSSA
D:PMDA
PGCB:DPR
PGCB:DPR
BC:PGCB:DPR
D:DPR
NAME
RLewis
BGusack
DBeaulieu
CHawes
MMurphy
TMcGinty
DATE
2/26/2009
3/26/09
3/13/09
03/30/09
04/06/09
04/06/09 OFFICIAL RECORD COPY