ML20004C478
| ML20004C478 | |
| Person / Time | |
|---|---|
| Issue date: | 06/06/1980 |
| From: | Stoiber C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19295A142 | List: |
| References | |
| FOIA-80-635, TASK-CA, TASK-SE SECY-80-245A, NUDOCS 8106040151 | |
| Download: ML20004C478 (6) | |
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June 6, 1980 SECY-80-245A COMMISSIONER ACTION e
For:
The Ccmmissioners
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E From:
Carlton R. Stoiber,~ Deputy General Counse2 4
Sub-ject:
SECY-80-245, WITHEOLDING OF NRC SPENT FUEL ROUTE INFORMATION FROM PUBLIC DISCLOSURE, AS AFFECTED BY LATEST VERSION OF PROPOSED SAFEGUARDS INFORMATION LEGISLATION
Purpose:
To advise the CSmmission of possible impacts of the Safeguards Information legislation, if enacted as reported by conferees, on NRC decisions regarding withholding spent fuel route,information; a.id to explore whether any issues would remain in SECY-80-245 for the Commission to decide.
Backcround:
The Commission is currently considering SECY-80-245 which involves whether and to what extent the staff should continue to withhold spent fuel shipment route information from public disclosure.
SECY-80-245 recommended publication of the Interstate highway portions of approved routes and continued protection for the secondary routes. 1/
That recommendation was based on a combination'~of Staff beliefs:
that new final rules could be expected to result in greatly increased use of Interstate highways, that those Interstate highway segments would be readily identifiable by potential adversaries, and that release of the information would be in the public interest.
However, both OSD and I&E did not concur in the paper and preferred not to disclose any' spent fuel routing information.
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Commissioners' vote sheets received by the Secretariat to date recor.
Commissioner Bradford's approval of the paper's recommendation and disapproval by Commissioners Kennedy and Hendrie, who in effect agre with the OSD and I&E position.
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Contact:
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- , $. Marjorie S. Nordlinger, OGC
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Discussion:
The Commission's flexibility to withhold route information would be drastically-curtailed if the new safeguards information legislation is enacted.
'in its current form. 2/
The conference-provision would' create a new Section 147 of the Atomic Energy Act to provide a statutory exemption from the Freedom of Information Act's disclosure require-ments for certain safeguards information,'the unauthorized disclosure of which "could reasonably be expected to have'a significant, adverse effect i
on the health and' safe'ty of the public or'the-common defense and security by significantly increasleg the likelihood of theft, diversion or sabotage of such material or such facility." 3/
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References in this paper are to the conferees report as published-in the Congressional Record, Juna 4,1980, p. H 4472 eti seq.
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'The Commission shou'Id note that the conference narrowed the standard for withholding from that proposed by the NRC and included in the House' provision.
NRC had proposed that the standard should permit withholding of specified types of safeguards information if the disclosure of the information "could have" a'significant adverse effect.
The report states:
The conferees were concerned that this "could have" standard might_be interpreted as allowing NRC to.with-hold information without demonstrating even the slight-est probability that disclosure... would have a significant adverse effect.
As an alternative, the conferees considered an "is likely to" standard...
(that standard was rejected on NRC advice).
Under the compromise (reached), the NRC may withhold information that it determines "could reasonably be expected to have" a significant adverse effect.
The conferees intend... to require a showing by the NRC of some probability that disclosure would have significant adverse effect, latt not to require a showing that there would be a greater than 50-50 chance of such an adverse l
effect.
l While the "could reasonably be expected to-have" standard will be more difficult to meet than the "could have" standard, OGC believes that it is workable.- See e.g. Phillippi v. CIA, 546 F.2d 1009, 1015 n.14 (D.C. Cir. 1976).
Also as noted by the conference, the i
compromise standard is the same as that applied in Executive Order 12065 (protecting from disclosure nationcl s'ecurity informa-l tion) as. the standard for limiting the discretion of agencies or officials. invoking ' that executive order.
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However,.the bill also contains a provision which would prevent NRC from protecting information regarding spent fuel routes.
This^ provision states-
.that:
.Nothing in this Act shall authorize ti.t Commission.to prohibit the public disclo-sure of information pertaining to the routes and quantities of shipments of source material,' byproduct material, high level nuclear waste or irradiated nuclear reactor fuel.
The conference report includes the following statement about the limitation placed on the
_ Commission by the above stated language:
The compromise also expressly _ exempts l
from the provision information on the 4
routes and quantities of shipments of material, byproduct material,.high level nuclear waste or irradiated nuclear reactor fuel.
Otherwise stated, information on routes and. quantitie of the specified nuclear shipments are excluded from the coverage of the section insofar as it provides a statutory _ exemption for safeguards information from the disclosure requirements of the Freedom of Infort.4ation Act (FOIA)..
i As we shall explain below, the language of section 14 and the accompanying report not only fail to provide a FOIA exemption for spent fuel route information but also undercut the Commission's current legal position with regard to protecting such information, j
Effect of the conference bill and report language on spent fuel route disclosures 4
i The first question is whether the legislation, if enacted in its present form with the quoted report language would eliminate as a matter of law all l
possibilities of withholding spent' fuel route infor--
mation from an FOIA request for that information.
That section 147.as modified by the conference would not permit withholding spent fuel' route information is clear on its face and is reinforced a
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4 by.the language of the draft conference report.
The remaining issue is whether there is any other j
persuasive authority for such withholding and
- whether any such authority would survive the enact-ment of the revised section 147.
.The plain: language of section 147 states that "nothing in this Act (referring to the Atomic Energy
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Act).shall authorize the Commission to prohibit disclosure" of such information.
This language
- precludes the possibility of asserting any section of the Act as authority for such_ withholding and arguably bars the Commission from exercising any 1
of its authority derived from the Act to prohibit disclosure.
In the past, spent fuel information has been withheld i
pursuant to Exemption 4 of the Freedom of Information Act.
That exemption protects from forced disclosure trade secrets and commercial or financial information By rule [10 CFR 2.790(d)) the Commission has decmed various types of information, including specific safeguards information, to be commercial or financial information for FOIA withholding purposes.
In car
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view to the extent that safeguards route information is involved, the Commission would be likely-to be -
barred from applying that regulation.
Even with its regulation in force, there has been continuing concer whether decisions to withhold safeguards information as commercial or financial matters could withstand legal challenge. 4/
For that reason the Commission has persistently sought a specific statutory exemp-j tion for such information.
In light of the enactment of legislation with an explicit expression that it did not exempt route information from FOIA, we do not believe that an Exemption 4 denial of such informatic
.would be sustained by a reviewing court.
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'In Porter County v. AEC, 380 F.Supp. 630, 6'34-7s (N.D. Ind. 1978) the pourt. upheld the AEC's withholding of security plan informa.
tion under Exemption 4.
The appropriateness of considering the information to be commercial information does not appear to have.
been a strongly contested issue.
The court's discussion emphasized t only the safety importance of confidentiality.
More recent FOIA cases have required that protection as commercial.information requires a showing of competitive injury from disclosure.
Public-Citizen Health Research-Group v. HEW, 477 F.Supp. 595, 605
-(1979) (holding also release of information will not impair government's ability to gather information).
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5 One. legal authority outside of the Atomic Energy Act that could arguably provide.an independent basis for refusing tx) disclose route.information is the Trade : Secrets Act,' 18 U.S.C. S 1905.
.That. criminal statute provides penalties for disclosure "not in
-accordance with law" of commercial'information.
received: by the government,, and may 's'erve as a substantive bar to disclosure.. Chrysler v. Brown, U.S.
.60 L.Ed.2d 208, 223 (1979).
The objection to an attempt to forbid-disclosure of-route information pursuant to this authority would be twofold.
First,.it is. questionable whether such information could properly be considered to fall within the protected category of commercial information. 5/
Second, in light of section 147's language, a court would -be unlikely to find that disclosure was "not in accordance with law." 6/
Accordingly, we conclude that enactment of the confer-ence version of section 147 would preclude denial of route information under FOIA.
Publication of Route Information SECY-80-245 goes beyond the FOIA requirement of.
making information available to a requester. within 10 days of receipt of the request. 2/
It recommends publication of a periodically updated NUREG report containing maps of interstate highway segments of approved routes.
Even if the conference version of the safeguards information legislation is enacted, the Commission still has the option of deciding whether or not to go forward with a NUREG publication.
In light of the inability to withhold route information from a requester, it can be argued that it would highlight individual shipments less to have a published list S/
See footnote 4.
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-Westinghouse Electric Corp. v. NRC, 555 F.2d 82 (3rd Cir. 1977),
decided in the affirmative the legality of NRC's disclosure of
" commercial information" in the face of an 18 U.S.C. 5 1905 challenge.
That decision remains good law after Chrysler.
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10- CFR 2.790 in effect requires that all non FOIA exempt materials be made available in the PDR for inspection and copying.
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of all approved routes rather than correspondence pinpointing each individual shipment.
Greater protection for route approvals might result from not publishing a list and taking advantage of the 10 day response time available under FOIA.
On the other
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hand, unless more route. variations are available than are now believed to be the case, the advantages of the latter procedure would be available only once or twice at th'e most.
Further, on the basis of the foregoing reasoning, if the Commission decides to proceed with publication of interstate routes it should also likely publish secondary routes.
If the availability of route information poses sufficiently great concern, the Commission may wish to consider recommending that the President veto the measure when (and if) it comes to him for signature.
Recommendation:
OGC recommends the Commission request Staff assistanc in re-evaluating SECY-80-245 in light of the foregoir.
discussion.
L Carlton R.
toiber Deputy General Counsel ~
Comissioners' coments should be provided directly to the Ofifce of the Secretary by c.c.b. Friday, June 20, 7980.
Comission Staff Office coments,.if any, shoul'd be submitted to i;he Commissioners NLT June 13, 1980, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Comissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION Comissioners Comission Staff Offices Exec Dir for Operations ACRS ASLBP 7
ASLAP Secretariat O
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