ML20041C076
| ML20041C076 | |
| Person / Time | |
|---|---|
| Site: | Point Beach  |
| Issue date: | 08/24/1976 |
| From: | Berkow H Office of Nuclear Reactor Regulation |
| To: | Office of Nuclear Reactor Regulation |
| Shared Package | |
| ML20041C070 | List: |
| References | |
| NUDOCS 8202260132 | |
| Download: ML20041C076 (10) | |
Text
Enclosura 2
- Sep, UNITED STATES NUCLEAR RECULATORY COMMISslON g
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WASHINGTON. D. C. 30806 AUG 241976 All PM Personnel PM OPERATING PROCEDURE 210. REVISION 1 PROCESSING REQUESTS TO WITHHOLD PROPRIETARY DATA FROM PUBLIC DISCLOSURE This Revision makes a change to Section D. Documentation by eliminating the requirement for a separate memorandum to the Branch Chief sumarizing the results of the review. The sample letters to the applicant are changed accordingly and incorporate the contents of the memorandum. The remainder of the procedure is essentially unchanged.
A., Application For Withholding Data A copy of 10 CFR 2.790 is provided as Enclosure 1 and contains de-tailed requirements. Generally, a person who proposes that a document or a part be withheld from public disclosure on the ground that it contains trade secrets or privileged or confidential comercial or financial infomation shall submit an application for
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withholding, accompanied by an affidavit which:
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(1) identifies the document or part sought to be withheld and the position of the person making the affidavit, and (2) contains a full statement of the reasons and bases on which the withholding is claimed. This statement should address specifically those considerations listed in Part B of this procedure.
The affidavit must be executed by the owner of the infomation even though the infomation sought to be withheld is submitted to the Comission by a third party (an applicant for example). The application and affidavit must be submitted whe'1 the information is filed. The infomation sought to be withheld should be bound separately from the application and affidavit.
B.
Criteria For Detemination 10 CFR 2.790 states that the Comission shall detemine whether in-formation sought to be withheld from public disclosure is a trade secret or confidential or privileged commercial information and, if so, should be withheld. The following must be considered in making this determination:
E, 8202260132 820225 PDRADOCK05000g
AUG 211976 2-i PM0P 210, Revision 1 (1) whether the infomation has been held in confidence by its owner (2) whether the information is of a type customarily held in confi-dence by its owner and whether there is a rational basis therefor (3) whether the information was transmitted to and received by the Comission in confidence (4) whether the information is available in public sources (5) whether public disclosure of the infomation sought to be with-held is likely to cause substantial ham to the competitive pos-ition of the owner of the infomation, taking into account the value of the information to the owner; the amount of effort or money, if any, expended by the owner in developing the infoma-tion; and the ease or difficulty with which the information could be properly acquired or duplicated by others.
If the staff determines that the information contains trade secrets or con-fidential or privileged comercial information based on the above considera-tions, it must then detemine whether the right of the public to be fully apprised outweighs the concern for protection of a competitive position. If the infomation is deemed to be irrelehnt or unnecessary to the perfomance
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of Comission functions, it shall be returned to the applicant.
Even if the request to withhold the information is approved, the Comission may require it to be subject to subsequent inspection:
(1) under a protective agreement, by contractor personnel or non-NRC government officials (2) by the presiding officer in a proceeding (3) under protective order, by parties to a proceeding.
(Note:
this may occur also while a decision on withholding is pending).
If the request for withholding infomation is denied, the applicant will be so notified and given the reasons. The document will be placed in the Public Document Room in not less that 30 days unless the applicant requests its with-drawal.
If withdrawal is not requested, the resjonsible PM will initiate a memo to the Chief of the Records Facilities Branch authorizing release of the documents to the public.
By definition, correspondence and reports to or from the'NRC which identify procedures for safeguarding special nuclear material or detailed security A ',
measures for the physical protection of a licensed facility or plant, or information submitted in confidence by a foreign source, is deemed to meet the requirements for withholding from public disclosure.
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803 zS 1976 i
PM0P 210. Revision 1 \\
C.
Responsibilities In most cases, reviews for withholding proprietary data will be made or coordinated by the LPM. Where the information is specific to a licensing case, special project review, topical report program or generic review the project manager should do as much of the evaluation as possible.
If assistance of reviewers is required the project manager should arrange for the assistance and coordinate the activity to assure continuity and a timely determination. All proprietary reviews perfomed or coordinated by DPM personnel should be concurred in by appropriate DSS or DSE per-sonnel.
For certain documents, such as vendor information supplied in response to DSS or DSE requests, information provided at meetings and generic reports such as ECCS documentation DSS or DSE personnel will be re-sponsible for the evaluation and determination.
The responsible persen will do the following as soon as possible after receipt of the request:
(1) review the application and the affidavit to assure that they are complete and acceptable with respect to the requirements of 10 CFR 2.790 (b) (1) (see part A of this procedure).
e (2) review the material sought to be withheld with respect to the criteria of 10 CFR 2.790 (b) (4) (see part B of this procedure).
(3) balance the public's right to be fully apprised as to the bases fer and effects of the proposed action against leg.itimate concerns for protection of a competitive position.
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(4) make a determination as to whether the application should be appmved or rejected.
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D.
Documentation After completing the review and making the detemination the responsible person will prepare the following:
l (1) A letter to the applicant, for signature by'the Branch Chief and concurrence by appropriate review personnel and OELD, notifying him of approval or rejection of his request. The, letter should include a sumary of the results of the review with respect to the various considerations, the balancing of public interest vs. company interest, and any 'other considera-tions associated with 2.790 (b) (4). Enclosures 2 and 3 arn j c;,.,
samples of approval and rejection letters.
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PMOP 210. Revision 1
. (2) Occasionally it might be necessary to get clarification or additional justification from the applicant in order to make the detemination. Enclosure 4 is a sample of a letter re-questing additional infomation.
There are special situations where the same proprietary infomation will be used or referenced repeatedly over a period of time. An example is a vendor's analytical model which is used in support of several applications.
It isn't possible to grant a' blanket approval because the criteria for withholding are time-dependent. In such cases the complete review, as described in this procedure, will be made the first time the information is submitted. Subsequent submittals in connection with applications must be accompanied by a certification by the owner stating that his original application and affidavit which formed the basis of the staff's determina-tion are accurate and current. The responsible person sill do as much review as is necessary to reaffim or reject the original detemination.
He will prepare a brief memorandum to the Branch Chief presenting the finding. A letter to the applicant is necessary only if the original determination has changed.
Note that the application, affidavit and the letter to the applicant are
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placed in the Public Document Rooms.
erbert N. Berkow Program Assistant to Director Division of Project Management e
Enclosures:
1.
10 CFR 2.790 2.
Sample of Approval Letter to Applicant 3.
Sample of Rejection Letter to Applicant 4.
Sample of Letter Requesting Additional Infomation cc:.B. Rusche E. Case R. Heineman H. Denton V. Stello M. Grossman T. Engelhardt l
J. Maynard 1
J. Cooke i
J. Miller i
r T. Carter IL l
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i to absence of a ca=f=mg reason for In the ease of an alBdavit subensteed br mondisclosure after a balancing of the a company,the alBdavit shan be esecut-interests of the pereen er agency urging ed by an eScer er upper-livel manato.
nondtselosure and the public interest in ment otBelal who has been speementle disclosure, be exempt from disclosure delegated the fonctlen of reviewing the and wul be made avanable for inspection information sought to be withheld and and copying in $he NItC Public Docu-authorised to apply for its withhokung ment Room, except for matters that are: on behalf of the oompany.De alBdatts (1) (D Specifically autherland under shan be esecuted by the owner of the ta=
criteria estabushed by an Ezeoutive er-formation, even though the information der to be kept secret in the Interest of eeught to be withheld is submitted to i
national defense or foreign policy and the Comunnssion by another person.'the (tp are M fact properly cladstfled pur-appucation and alBdavit shall be sub-l suant to such Ezeeuteve order; mitted at the thne of Altng the Informa-l (2) Related solely to the hiernal per-tion sought to be withheld. De infor-sonnel rules and practices of the Com. madon sought to be withheld shan be in-
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mission:
corporated, as far as possible, into a
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(9) spec 1AcaDr exempted from disclo-separate paper.
sure by statute: -
The afBant may dealsnate with ap.
i (4) 'Itade secrets and commercial or propriate markings 2nformagon subm!(-
Anancial information obtained from a ted in the afBdavit as a trade secret or person and privileged or confidential:
conSdential or privileged commercial or (5) Interagency or intrangency mem. Anancial information within the mean-erandums or letters which would not be ing of I 9.5(a)(t) of this chapter and 1
avanable by law to a party other than such information shall be subject to dis-en agency in litigation with the Commis-closure only in accordance with the pro-ston:
visions of I 9.12 of this chapter.
(8) Personnel and medical flies and (2) A person who submita commercial similar fDen. the disclosure of which or Anancial informauon beueved to be would constitute a clearly tmwntranted privileged or confidential or a trade me-invasion of personal privacy:
cret shall be on mottee that it is the pol.
- (1) Investigatory records compned for icy of the Commission to achieve an law enforcement purposes, but only to effective balance betweenlegitimate con-the extent that the product'en of such cerns for protection of compettuve pos!-
records would (D jnterfere with enforce. tions and the right of the public to be
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ment proceedines. (111 deprive a veraon fuuy apprised as to the bases for and L
of a right to a fair trial or an impartial effects of Ilcensing or rule making sc.
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adjudication, (Illi conetitute on unwar-tions, and that it is within the discre-ranted invasfon of pervonal Privaav. (tv) tion of the Commission to withhold such disclose the identity of a conndential informauon from pubuc disclosure.
source and,in the case of a record com-(3) The Commtanton shall determine piled by a criminal lew enforcement at.-
whether information sought to be with-thority in the course of a criminal in-held from puhuc disclosure pursuant to vestigation.or by an spency coeducting a this paragraph: (1) is a trade secret or lawful national security inte111eente in-confidential or privileged commercial or vestigation. confidential lMormation fur-financial information; and (II) if so, nished only by the conAdential source, abould be withheld from public dis-(v) disclose investigative techniques and closure.
procedures, or (71) endaneer the life or (4) In making the deter ='nastaa'rea phraical safety of law enforcement per-quired by paragraph (b)(3)(D of this sonnel:
section, the Commission wlH *anaidae: ^ '
(8) Contained in or related to exam-(1) Whether the information has been tnation, operating, or condition reports held in confidence by its owner:
prepared by, on behalf of, or for the use (11) Whether the information is of a of an agency responsible for the regula-type customartir held in conSdence by tion or supervision of financial institu-its owner and whether there is a rat 8onal tions: or beats therefor:
(9) Ooolosteal and geophyeloal informa.
(111),Whether the information was taan and data including maps, concern-transmitted to and received by the Com-lag weds.
mission in canndance:
(b) (1) A person who proposes that a (iv) Whether the information is document or a part be withheld in whole availablein public sources:
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ground that it contains trade secrets or information sought to be withheld is (a) Subject to the provisions of para-privileged or confidential commercial or likely to cause substantial harm to the graphs (bl. (d) and (e) of this secuen. Anancial informauon shan submit an compeutive position of the owner of the Anal NRC records and documents." an-applicagon for withholding accom-informaUon, taking into account the studing but mot ilmited to correspond-panied by an afBdavit wh!ch:
value of the information to the owner; once to and from the NRC regarding the (1) Ident18es the decanent or part the amount of eBort or money, if any.
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lasuance, dental, amendment, transfer, sought to be withheld and the 3sition expended by the owner in developing the senewal, mod 1Sostion. suspension. revo. of the person making the alBdavit, and information; and the case or difBeulty estica, or Molation of a keense, permit.
(til Contains a full statement of the with which the information could be properly acquired or duplicated by
( Nder,orregardingarulemaWpro reasons on the basis of whic clahned that the information should be others.
tag astbject to this part shan not. an withheld from puhuc disclosure. Such (s) If the m==^ eon determines.
statement shan address with spectacity pdreuant to paragraph (b)(48 of this eamm sw. ares ame emmes de not ts. the considerations listed in paragraph secUon, that the record or document contains trade secrets or privtleged or etude hamesrtsten motse ame erafts.
(b)(4) of this section.
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oonadenual commerclat or Ansactal in-er appliennt's procedures far safeguard.
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formation. the Commission wtB then de-sng Isoensed special nuclear material er detailed security measures for the phyel.
i.1 termine (1) whether the right of the pub-est protection of a licensed factitty er Ile to be fully apprised as to the benes plant in which Meensed special nuclear for and eSects of the proposed action matarla1 le posessed or used; outweighs the demonstrated concern for (3) Informa48on submitted in one8-protecuon of a competitive positlers and dance to the hhah kr a fertisn till whether the informauen should be withheld from public disclosure pursuant source.
to this paragraph. H the record oy docu-(e) The presiding ofBear,if any.or the ment for which withholding is sought is Commission may. with reference to the deemed by the Commission to be irrele-NRC records and documente made avall-able pursuant to this section.lssue orders vant or unnecessary to the performance consistent with the provisions of this sec-of its functions, it shall be returned to tion and i 2.740(c).
the applicant.
Efective date his amendment chan (8) Withholding from pubtle laspec.
tion shau not afect the right. If any. become eSective on AprB 31.1916.
of persons properly and directly con * (sec.1st. Pub. L es-1es, se aest. ese (as cerned to inspect the document. he Us.c. Saon: see. see. Put. E es-ves. es Commission may require informauon stas. ese (as vs.c. 21:3): see not.?ma. E claimed to be a trade secret or privileged es-ess, se stat.1ses (es UA.C. sost).)
Dated at WashWk D~C. this 18th enaneki or confidential commercial er information to be subject to inspection: day of 3darch.1976..
(1) under a protective agreement. try contractor personnel or government otB.
Pbr the Nuclear Regulatory Commis.
c1als other than NRC othesals: (11) by the alon.
84sross J. Catac, presiding o! Beer in a proceeding 1 and Secretary of the Co'amiesdom,
( 111) under protective order. by parties to a proceeding. pending a decialen of lFa Doc.16-4340 Fuss 8-16-ye a 45 ass l the Commission on the matter of whether the information should be made pubUcly available or when a decision has been made that the *nformation should be withheld from public disclosure. In camera sessions of hearings may be held when the information sought to be with-held is produced or offered in evidence.
If the Commission subsequently deter.
mines that the informauon should be C
disclosed, the information and the trsn.
script of such in camera ses-lon will be made pubuc!y available.
(c) If a request for withholding pur-suant to paragraph (b) of this secuan is denied, the Commission will notify an appucant for withholding of the denial with a statement of reasons. He notice of denial w111 specify a time.not less than thirty (30) days after the date of the no-tice, when the document will be placed in the Public Document Room. If.within the time specified in the notice, the ap-plicant roguests withdrawal of the docu.
ment, the document will not be placed in the Pubuc Dcoument Room and will be returned to the applicant: Provided.
That information submitted'in a rule making proceeding whlch subsequently forms the basin for the final rule will not be withheld from pubile diaclosure try the Commission and will not be. returned to the applicant after dental of any ap-placation for withholding submitted in connecuon with that information. If a request for withholding pursuant to paragraph (b) of this section is granted, the Commission will notify the appilcant of its determirmtion to withhold the in-e formation from pubue disclosure.
(d) ne fonowing informauon abau be deemed to be comunerciial or Ananekt information within the meaning of I 9.5 (nH4) of this chapter and shan be sub-N' ject to disclosure on191n accordance with the provisions of I 9.12 of this chapter:
(1) Correspon'dence and reports to or k
fren the NRC which identify a licensee's N.
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SAMPLE OF APPROVAL LETTER TO APPLICANT Docket No.
Gentlemen:
By your application and affidavit dated (
)yousubmitted (description of documents) and requested that they be withheld from public disclosure pursuant to 10 CFR 2.790.
Your reasons for requesting our withholding of this information were (describe justifications given in application).
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We have reviewed your application and material based on the requirements and criteria of 10 CFR 2.790. (Give a brief description of the balancing of interests).-
.We have detemined that disclosure of the infomation addressed in your application is not required in the public interest nor by 10 CFR 9.
We
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therefore approve your request for withholding pursuant to Section 2.790
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of 10 CFR Part 2.
In accordance with 10 CFR 2.790, we are withholding (description of docu-ments) from public inspection as proprietary. Withholding from public inspection shall not affect the right, if ary, of persons properly and directly concerned to inspect the documents'. If the need arises, we may send copies of this infomation to our consultants working in this area.
We will, of course, assure that the consultants have signed the appropriate agreements for handling proprietary data.
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Sincerely.
Branch Chief Concurrence: originator, B.C., appropriate reviewers OELD (J. Maynard)
Distribution: Central Files, PDR, LPDR, Boyd, appropriate branch file, AD, LA, BC, originator OELD, ACRS (16), others as appro-priate
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SAMPLE OF REJECTION LETTER TO APPLICANT Docket No.
s Gentlemen:
By your application and affidavit dated (
) you submitted (description of documents) and requested that they be withheld from public disclosure pursuant to 10 CFR 2.790.
Your reasons for requesting our withholding of this information were' (describe justifications given in application).
On (date), we notified you that we had completed our review of the applica-tion and documents and concluded that you had not supplied sufficient justi-fication (information) for our withholding this information from public
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disclosure (for our making the necessary detemination). On (date) we re-ceived your additional information.*
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We have reviewed your application and all the supporting infomation based on the requirements and criteria of 10 CFR 2.790.
(Give a brief descrip-tionofthebalancingofintertsts.)
We have concluded that you have not provided adequate justification for withholding this information from public disclosure. (Describe bases for denial of request.)
We also have concluded that disclosure of this infomation is required in the public interest and by 10 CFR Part 9.
Therefore, in accordance with 10 CFR 2.790 your request to withhold (description of documents) from public disclosure is denied.
- This paragraph to be inserted only if a request for additional infomation was previously sent.
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In not less than thirty days from the date of this letter, the subject j
documents will be placed in the Public Document Rooms. If,within thirty days of the date of this letter, you request withdrawal of the documents, they will not be placed in the Public Document Room and will be returned to-you.
t Sincerely.
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Branch Chief Concurrence: originator, B.C., appropriate reviewers, OELD (J. Maynard)
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Distribution: Central Files, PDR, LpDR, Boyd, appropriate branch file, AD, LA, BC, originator, OELD, ACRS (16), others as appro-priate
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NUCLEAR REGULATORY COMMisslON 4
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StMPLE OF LETTER REQUESTING ADDITIONAL INFORMATION Docket No.
Dear Applicant:
By your application and affidavit dated (
) you submitted (description of documents) and requested that they be withheld from public disclosure pursuant to 10 CFR 2.790.
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Your reasons for requesting our withholding of this information were (describe justifications given in application).
We have reviewed your application and conclude that you have not presented sufficient justification (information) for our withholding this information from public disclosure (for our making the necessary determination).
(Give specific reasons and requests as appropriate).
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Accordingly, in not less than thirty days from the date of this letter, we will place the subject material in the Public Document Room unless you. pro-vide additional justification (information) or request withdrawal of the documents.
Sincerely.
Branch Chief l
Concurrence: originator, B. C., OELD (J. Haynard)
Distribution: Central Files, PDR, LPDR, Boyd, appropriate branch file, AD, LA, BC, originator OELD, others as appropriate.
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