ML20059N540
| ML20059N540 | |
| Person / Time | |
|---|---|
| Issue date: | 08/07/1990 |
| From: | Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| References | |
| FRN-55FR33645, RULE-PR-9 PR-900807, NUDOCS 9010160154 | |
| Download: ML20059N540 (14) | |
Text
r C
% y to see g s DOCKET NUMBER
~ %c ! sent to fN 3
PROPOSED RULE Pil a
$ u$$'on~
i.
$0ffd 3 30'I5 p{fgG
~/1WeMeb&_//eg-NUCLEAR REGULATORY COMMISSION ~
'90 SEP -5 A8 :22 10 CFR PART 9 j g g.,,
RIN: 3150-AD45 kN[
Freeuom of Information Act, Privacy Act, Production or Disclosure in Response To Subpeona or Demands of coerts or Other Authoritiesi Office of the Inspector General AGENCY:
Nuclear Regulatory Commission.
ACTION:
Final' rule.
SUMMARY
- The Nuclear Reguletory Commission (NRC) is amending its regulations to reflect the establishment of the Office of the Inspector General.
This amendment will permit the Office of the-Inspector General to make independent disclosure determinations on (1) records originating in its office that are responsive to Freedom of Information Act reouests, and (2)_ records located in.
its office that are responsive to Privacy Act requests.
The final rule also requires personnel in the Office of= Inspector _-General to obtain the Inspector General's approval, instead of the General Counsel's approval, before responding to subpoenas or demands of courts or other authorities for the production or disclosure of NRC information.
EFFECTIVE DATE:
(Upon publication in the Federal Register)
FOR FURTHER INFORMATION CONTACT:
Donnie H. Grimsley, Director, Division of Freedom of Information and Puislications Services, Office of ' Administration,
.U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone
~ (301) 492-7211.
9010160154 900007 90 9
N 9 55FR33645 PDR
(
gI g
PDR PR psic
SUPPLEMENT;RY INFORMATION:
On April 17, 1989,'in accordance with Public Law 100-504, the Nuclear ReMatory Connission established the Office' of the Inspector General and abolished the Office of Inspector and Auditor.. In the reoracnization, the Assistant inspecLe General for Audits and the Assistant f
Inspector General for Investigations were designated as the initial deciding officials for audit related records and investigation related records respoC ively when responding to Freed'om of Information or Privacy Act requests.-
The Inspector General was designated as the official responsible for making final determinations en appeals from denials of records or denials of-correction of records.
The NRC is amendino 'ortions Ms regulations to reflect this action.
The amended provisions specify that the Assistant Inspector. General for Audits or the Assistant Inspector-General for Investigations will'be the initial der,ying official when responding to Freedom of Information or Privacy Act-requests, and that the. Inspector General is authorized to respond to an appeal of a denial of a Freedom of Information or Privacy Act request or an appeal to amend or correct a record denied in response to a Privacy Act request. These l
amendments also require personnel in.the Office of the Inspector General to l
obtain the Inspector General's approval, instead of the General Counsel's approval, before responding to a subpeona, order, or other demand for the j
production of records or disclosure of information, including testimony, that is issued by a court or other judicir.1 or quasi-judicial authority.
Because these are amer %nts dealing with agency practice and procedures, the notice and connent prov.sions of the Administrative Procesure Act do not apply pursuant to 5 U.S.C. 553(b)(A). The amendments are effective upon pubiication in the Federal Register. Good cause exists'to dispense with the 2
,1 l-
.)
usual 30-day delay in the effective date because these amendments are of a minor and administrative' nature dealing with agency organization.
i Environmental Impact:
Categorical Exclusion 4
The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22 (c)(1).
Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.
Paperwork Reduction Act -Statement l
This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
Existing requirements were approved by-the Office of Management and Budget approval number 3150-0043.
List of Subjects in 10 CFR Part 9 Freedom of Information, Penalty, Privacy,-Reporting and recordkeeping-requirements Sunshine Act.
For the reasons set out in the preamble and under the authority of the l
Atomic Energy Act of 1954, as amended, the Energy Reorganization. Act' of 1974, as amended, and 5 U.S.C 552 and 553,.the NRC is adopting the following amendments to 10 CFR Part 9.
Part 9 - Public Records 1.
The authority citation for Part 9 continues to read in part as follows:
AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 (U.S.C. 2201); sec. 201,88 Stat.1242,asamended(42U.S.C.5841)***.
3
2.
In 59.25, parag-aph {c) is revised to read as follows:
69.25 Initial disclosure determination.
(c) For agency records located in the office of a Commissioner or in the Office of the Secretary of the Commission, the Assistant Secretary of the Commission shall make the initial determination to deny agency records in-whole or in part under $9.17(a) instead of the Director, Division of Freedom-of Information and Publications Services.
For agencv "' cords located in' the Office of the Genera 1' Counsel, the General Counse' a the initial determination to deny agency records in whole or ii
,rt instead of the Director, Division of Freedom of Information and Publications Services.
For-agency records located in the Office of the Inspector General,'the Assistant-Inspector General for Audits or the Assistant Inspector General for-Investigations shall make the initial determination to deny agency records in whole or in part instead of the Director, Division of Freedom of Information and Publications Services.
If the Assistant Secretary of the Commission, the General Counsel, the Assistant Inspector General for Audits, or the Assistant Inspector General for Investigations cetermines that the agency records sought i
L are exempt from disclosure and that their disclosure is contrary to the public
~
interest and will adversely affect the rights of any person, the Assistant Secretary of the Commission, the General Counsel, the Assistant Inspector General for Audits, or the Assistant Inspector General for Investigations shall furnish that determination to the Director, Division of Freedom of Information and Publications Services, who shall notify the requester of the determination t
in the manner provided in 99.27.
3.
In 99.27, paragraph (b)(5) is revised to read as follows:
l 4
L
g:
69.27 Form and content of responses..
l s
s s
e s
(b)
(5) A statement that the denial may be appealed within 30 days from the receipt of the denial to the Executive Director for Operations,.to the
' Secretary of the Commission, or to the Inspector General, as aonropriate.
~
s s
s 4
In99.29, paragraph (a),theintroductorytextofparagraph(c)(1),
par?. graphs (c)(3) and (d) are revised as follows:
59.29 Appeal from initial determination.
A (a) A requester may appeal a notice of denial of a Freedom of Information Act request for agency records or a request for waiver or reduction of fees under this subpart within 30 days of the date of the NRC's denial..For agency records denied by an Office Director reporting to the Executive Director for I
Operations or for a denial of a reauest for a waiver or reduction of fees, the appeal must be in writing and addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Commission, Washington, DC 20555. For agency records denied by an Office Director reporting to the Commission, the-I Assistant Secretary of the Commission, or the Advisory Committee Management Officer, the appeal must be in writing and addressed to the Secretary of.the i
f Commission.
For agency records denied by the AssistantLInspector General for Audits or the Assistant inspector General for Investigations, the appeal must be in writing and addressed to the Inspector General. The appeal should clearly state on the envelope and in the letter that it is an " Appeal from Initial FOIA Decision." The NRC does not consider an appeal that is.not marked as indica'ted in this paragraph as received until-it is actually received by the Executive Director for Operations, Secretary of the Commission, or'the Inspector General.
2 5
L (c)(1) If.the appeal of the denial of the request for agency records-is j-upheld in whole or in part. the Executive Director for Operations, or a Deputy Director, or the Secretary of the Commission, or the Inspector General shall notify the reouester of the denial specifyino --
l l
\\
(3) The Executive Director for Operations, or a Deputy Executive Director, or the Secretary of the Commission, or the Inspector General'shall inform the requester t, hat the denial is a final agency action and that-
.iudicial review is available in a district court of 'the United States in the district in which the requester. resides or has a principal place of business, I
in which tht agency records are situated, or in the District of Columbia.
~
l (d) The Executive Director for Operations, or a Deputy Executive Director, or the Secretary of the Commission, or the Inspector General shall furnish copies of all appeals and written determinations on appeals to the Director Division of Freedom of Information and Publications Services.
5.
In 59.65, the introductory text of paragraph (a), paragraphs (a)(2),
(b), and (c) are to be revised to read as follows:
1 69.65 Access determinations; appeals.
i (a) Initial determinations.
For agency records located in the Office of the Inspector -General, the Acsistant Inspector General for Audits or the Assistant Inspector General for Investigations shall determine whether access to the record-is available under the Privacy Act.. For.all other agency' records, the Director, Office of Administration, or the Director's designee, with the advice of the system r.anaaer having control of the record to which access is requested, shell detersine whether access to the record is avai]able under the Privacy Act. The Cirector, Office of Administration, or the 6
1 1
Director's designee,- shall notify the requesting individual in person or in writing of the determination.
Unless the request presents unusual difficulties or involves extensive numbers of records, individuals shall be notified of determinations to grant or deny access within 30 working days after receipt of the request.
l (2) Notices denying access must state the reasons for the denial, and i
advise the individual that the denial may be appealed to the Inspector il General, for agency records located in the Office of Inspector _ General, or the Executive Director for Operations, for all other agency records, in accordance with the procedures set forth in this sectica.
t (b) Appeals f.~om denials of access.
If an individual has been denied access to a record the individual may request a final review and determination of that individual's request by the Inspector General or the E.ecutive Director i
for Operations as appropriate.
A request for final reviaw of an initial determination must be filed within 60 days of the receipt of the initial determination.
For agency records denied by the Assistant Inspector General l
for Audits or the Assistant Inspector General for Investigations, the appeal must be in writing and addressed to the Inspector General, U.S. Nuclear r
l j
Regulatory Commission, Washington, DC 20555.
For agency records denied by the Director, Office of Administration, or the Director's designee, the appeal must be in writing addressed to the Executive Director for Operations. 'The appeal should cleaily s1 ate on the envelope and in the letter " Privacy Act Appeal-Denial of Access." The NRC does not consider an. appeal that is not marked as indicated in this paragraph as received until it is actually received by the Inspector General or Executive Director for Operations.
1 (c) Final deterT.inations.
(1) The Inspector General, or the Executive Director for Operations or the ED0's designee, shall make a final determination 7
i
1 I
within 30 working days'of the receipt of the reouest for final review, ur,less the time is extended for good cause shown such as the need to obtain additional information, the volume of records involved, or the complexity of the. issue. The extension of time may not exceed 30 additional working days. The reauester shall be advised in advance of any extension of time and of the reasons therefor.
(2) If the Inspector General, or the Executive Director for Operations or the ED0's designee, determines that' access was properly denied because the information requested has been exenoted from disclosure, the Inspector General,_
or the Executive Director for Operations or the ED0's designee shall undertake-a review of the exemption to determine whether the information should continue to be exempt from disclosure. The Inspector General, or the Executive Director for Operations or the ED0's designee, shall notify the individual in writing of the final agency determination to grant or deny the request for access. Notices denying access mus' -' tate the reasons therefor and must advise the individual of his/i.cr right to judicial review pursuant to 5 U.S.C 552a(g).
6.
In 59.66, the introductory text of paragraph-(a)(1) and paragraphs (a)(2), (a)(3), (b), and (c) are revised to read as' follows.
I i
%9.66 Determinations authorizing or denying correction of records; appeals.
(a) Initial determinations.
(1)ForagencyrecordslocatedintheOfficeof the Inspector General,. the Assistant Inspector General for Audits or the Assistant Inspector General for Investigations shall determine whether to authorize or refuse correction or amendment of a record.
For all other agency records, the Director, Office of Administration, or the Director's designee, with the advice of the system manager having control of-the record, shall determine whether to authorize or refuse correction or amendment of a record. The Director, Office of Administration, or the Director's designee,.
8
a shall notify the revuesting individual.
Unless the request presents unusual l
difficulties or involves extensive numbers of records, individuals must be notified of determinations to authorize or refuse correction or amendment'of a record within 30 working days after receipt of the reauest.
In making this
^
determination, the NRC official shall be ouided by the following standards:
(2) For agency records located in the Office of 'nspector General, if correction or amendment of a record is authorized, the Assistant Inspector General for Audits or the Assistant Inspector General for Investigations shall correct or amend the record.
For all other agency records, the Director, Office of Administration, or the Director's designee, shall correct or amend t'1e record.
The Director, Office of Administration, or the Director's designee shall notify the reauesting individual in writing that the correctinn or amendment has been made and provide the individual with a courtesy copy of the-corrected record.
(3)
If correction or amendment of a record ~ is refused, the Director, Office of Administration or the Director's designee, shall notify the reouesting individual in writing of the refusal and the reasons therefor, and shall advise l
the individual that the refusal may be appealed to the Inspector General or the Executive Director for Operations, as appropriate, in accordance with the procedures set forth in this section.
L (b) Appeals from initial adverse determinations.
If an-individual's reouest to amend or correct a record has been denied, in whole or in part, the individual may request a final review and-determination of that individual's request by the Inspector General or the Executive Director for l
Operations, as appropriate. A request for final review of i.n initial determination must be filed within 60 days of the receipt of the initial determination.
For agency records located in the Office of the Inspector l
l 9
l l
General, the appeal must he in writing and addressed to the Inspector General, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
For agency records located in all other offices, the appeal must be in writing addressed to the Executive Director for Operations. The appeal should clearly state on the i
envelope and in the letter " Privacy Act Correction Appeal." The NRC does not.
consider an appeal that is not marked as indicated in this paragraph as received until it is actually received by the Inspector General or Executive Director for Operations.
Requests for final review must set forth the specific item of information sought to be corrected or amended and should include, where appropriate, documents supporting the correction =or amendment.
(c) Final determinations.
(1) The inspector General, for agency records-located in the Office of the Inspector General, or the Executive Director for Operat a ' or the ED0's designee, for all other agency records, shall make a final age 1.y determination within 30 working days of receipt of the request l
for final review, unless the time is extended for good cause shown such as the need to obtain additional information, the volume of records involved, or the complexity of the issue. The extension of time may not exceed 30 1
l additional working days. The requester shall be advised in advance of any extension of time and of. the reasons therefor.
(2) For agency records located in the Office of the Inspector General, if the Inspector General makes a final determination that an amendment or correction of the record is warranted on the facts, the Inspector General or the IG's designee, shall correct or amend the record pursuant 'to the procedures in69.66(a)(2). For all other agency records, if the Executive Director for Operations, or the ED0's designee, makes a final determination that an amendment or correction of the record is warranted on the facts, the ED0 or 10
1 the ED0's designee, shall notify the Director, Office of Administration, to correct or amend the record-to the procedures-in 59.66(a)(2).
(3) If the~ Inspector General, or the: Executive Director for Operations'
- or the ED0's designee, makes a final determination that an amendment or j
correction of the record is not warranted on the facts, the individual shall be notified in wr; ting of the refusal to authorite correction or as 4 ment of the record in whole or in part, and of the reasons therefor, and the individual shall be advised of.his/her'right to provide a " Statement of Disagreement" for the record and of his/her right to.iudicial review pursuant to 5 U.S.C. 552a(g).
7.
Section 9.67 is revised-to read as follows:
$9.67 Statements of disaoreement.
(a) Written "Str.tements of-Disagreement" may be furnished by the l
individual within 30 working days of the date of receipt of the final adverse
[
- determination of the Inspector GerIer'al or the Executive Director for.
. 0perations. " Statements of Disagreement" must be addressed, as appropriate, to the Inspector General or the Executive-Director for Operations, U.S. Nuclear Regulatory Comission, Washington, DC 20555, and should be i
clearly marked on the statement and on the envelope " Privacy Act Statement of Disagreement".
(b) The Inspector General or the Executive Director for Operations, or their designees, as appropriate, are responsible for ensuring that:
(1)The l
" Statement of Disagreement" is included in the system or systems of records in which the disputed item of information is maintained; and (2) the original.
record is marked to indicate the information disputed,. the existence of a "Stotament of Disagreement" and the location of the " Statement of Disagreemen't" within the system of records.
11 d
~..
8.
Section 9.68 is revised to read as-follows:-
69i68 NRC statement of explanation.
-l The Inspector General, or the Executive Director for Operations or the ED0's designee, may if deemed appropriate, prepare a concise statement of the l
reasons why the reauested amendments or corrections were not made. Any NRC
" Statement of Explanation" must be included in the system of records in the same manner as the " Statement of Disaareement".
Courtesy copies of the NRC statement and of the notation of the dispute as ma-ked on the original record
~
must be furnished to the individual who.reauested correction or amendment of the record.
9.-
Section 9.201 is revised to read as follows:
19.201 Production or disclosure prohibited unless-approved by appropriate NRC Offical.
l No employee of the NRC shall, in response to a demand of a court or other L
.iudicial or cuasi.iudicial authority, produce any material contained in the l
l files of the NRC or disclose, through testimony or other means, any information
[
t i
relating to material contained in the files of.the NRC, or disclose any information or produce any material acouired as part of the performance of that employee's official duties or official status without prior approval of the appropriate NRC official. When the demand is for material' contained in the files of the Office of the Inspector General or for information acouired l
by an employee of that Office, the Inspector General is'the appropriate NRC~
official.- In all other cases, the General Counsel is.the appropriate NRC l
official.
10.
In 69.202, paragraphs (a) and (c) are revised to read as follows:
69.202 Procedure in the event of a demand for production or disclosure.
1 (a) Prior to or simultaneous with a demand upon an employee of the NRC_
l for.the production of material or the disclosure of information described in 12 i
L
e 99,200, the party seeking production or disclosure shall' serve the General' Counsel of the NRC with an affidavit or statement as' described in paragraphs (b)(1) and (2) of this section.. Except fd employees in the Office of-Inspector General, whenever a demand is made upon an employee of the NRC for the production of material or the disclosure of information f
described in 69.200, that employee shall immediately notify the General Counsel.
If the demand is made upon a regional NRC employee, that employee shall immediately notify the Regional Counsel who, in-turn, shall inmediately reauest instructions from the General Counsel.
If the demand is made upon an employee in the Office of Inspector General, that employee shall immediately notify the Inspector General. The Inspector General shall immediately provide a copy of the demand to the General Counsel, and as deemed necessary, consult with the General Counsel.
(c) The Inspector General or the General Counsel will notify the employee and such other persons, as circumstances may warrant, of the decision on the matter.
- 11. Section 9.203 is revised to read as follows:
69.203 Procedure where response to demand is recuired prior to receivino instructions.
l If a response to the demand is required before the instructions from the Inspector General or the General Counsel are received, a U.S. attorney or NRC-attorney designated for the purpose shall appear with the employee of the NRC upon whom the demand has been made, and shall furnish the court or other c
l authority with a copy of the reaulaticac contained in this subpart and inform the court or other authority that the demand-has been, or is being, as the case may be, referred for the prompt consideration of the appropriate NRC l
l 13 l
I
ls official and shall respectfully reouest the court.or-autho ity to stay the c
demand pending receipt of the reouested instructions.
In the event that an l
immediate demand for production or disclosure is-made in citcumstances which would preclude the proper desionation or appearance of a U.S. or NRC attorney on the employee's behalf, the employee shall respectfully reouest the demanding authority for sufficient time to obtain advice of counsel.
g 890)
Dated at Rockville, Maryland, this f
of h, 1990.
FOR THE NUCLEAR REGULATORY COMMISSION,
. - //
}
M,/>
s
- 1. Taylor,,f "
Ex tive Director for Operations.
P l
e C
0 i
.ee n-a w
---.