ML20134C206

Fourth Partial Response to FOIA Request for Documents. Forwards Documents Listed in App E Being Made Available in PDR

ML20134C206
Person / Time
Issue date:	01/30/1997
From:	Racquel Powell NRC OFFICE OF ADMINISTRATION (ADM)
To:	Strobel H AFFILIATION NOT ASSIGNED
Shared Package
ML20134C208	List: ML20134C206 ML20134C278 ML20134C285
References
FOIA-96-398 SECY-85-271-C, SECY-87-120-C, NUDOCS 9701310285
Download: ML20134C206 (2)

Text

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U.S. NUCLEAR REGULATORY COMMISSION NRC FOlA REQUESI NUMJER(S) j FOIA -

9d-398 k

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RESPONSE TYPE y-g i

RESPONSE TO FREEDOM OF l FINAL h l PARTIAL ( M h )

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INFORMATION ACT (FOlA) REQUEST DATE 30W e

DOCKET NUMBERtS) fitapphcablef REQUESTE R 4

MS. Heidi Strobel PART 1.-AGENCY RECORDS RELEASED OR NOT LOCATED (See checkedboxes/

No agency records subject to the request have been located.

No tdditional agency records subject to the request have been located.

Requested records are available through another public distribution program. See Comments section.

Agency records subject to the request that are identified in Appendix (es) are already available for public inspection and copying at the 1

NRC Public Document Room,2120 L Street, N.W., Washington, DC.

Agency records subject to the request that are identified in Appendixtes) b are being made available for public inspection and copying X

at the NRC Public Document Room,2120 L Street, N.W., Washington, DC, in a folder under this FOI A number, Ths nonproprietary version of the proposal (s) that you agreed to accept in a telephone conversation with a member of my staff is now being made available for public inspectio9 and copying at the NRC Public Document Room,2120 L Street, N.W., Washington, DC, in a folder under this FOI A number.

Agency records subject to the request that are identified in Appendix (es) may be inspected and copied at the NRC Local Public Document Room identified in the Comments section.

Enclosed is information on how you may obta n access to and the charges for copymg records located at the NRC Public Document Room,2120 L Street, N.W., Washington, DC.

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Agency records subject to the request are enclosed.

• Roccrds subject to the request have been referred to another Federal agency (ies) for review and direct response to you.

d Fees You will be billed by the NRC for fees totaling $

You will receive a refund from the NRC in the amount of $

In view of N AC's response to this request, no further action is being taken on appeal letter dated

, No.

PART 11. A-INFORMATION WITHHELD FROM PUBLIC DISCLOSURE Certiin information in the requested records is being withhe' j f om public disclosure g.ursuet to the exemptions described in and for the reasons stated in Part II, B, C, and D. Any released portions of the documents for which onN part of the record is being withheld are being made available for public i

insp:ction and copying in the NRC Public Document Room,2120 L Street, N.W., Washington, DC in a folder under this FOI A number.

COMMENTS

• The records identified on enclosed Appendix E are additional j

recorde responsive to your request.

Copies of these records are enclosed.

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4 SIGhATURE, DIRECTO, QfVISION DE F RE ED M F IP' ORMATION ANO PUBLICATIONS SE RVICES

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9701310285 970130 PDR FOIA STROBEL96-398 PDR GC FX^2 464 (Part il (1.91)

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i Re FOIA-96-398 APPENDIX E 1

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RECORDS MAINTAINED IN THE PDR UNDER THE ABOVE REQUEST NUMBER 4

NUMBER DATE DESCRIPTION /PAGES 1

i 1.

8/22/85 Memo for William J.

Dircks from Samuel Chilk, subject:

"SECY 1 271 - Proposed Technology Transfers to the People's Republic of China, 1

I (1 pg.).

I 2.

6/2/87 Memo for Harold Denton from Samuel Chilk, subject:

"SECY-87-120 -

Proposed Technology Transfers to the People's Republic of China, (1 pg.).

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JUL 31 REC'0 2.=.,

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July 26,1996 RESEARCH &

RETRIEVAL Freedom OfInformation Act Officer.

Headquarters, U.S. Department'of Energy

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1000 Independence Avenue, S.W.

Washington, DC 20585 REQUEST

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RE:

Freedom of Information Act (FOIA) Request; Date Rec'd-

/o '7-96 Action Off:

LA Related Case:

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J To FOIA Officer, Pursuant to the Freedom of Information Act ("FOIA"),5 U.S.C., section 522, as amended, I hereby request the following information:

All records pertaining to the Energy Secretary's determination, under 10 e

CFR Part 810, dated July, 21, 1987, concerning the application of Stone and Webster Engineering Corporation ("SWEC"), including without limitation the SWEC application referred to in the Secretary's determination, all specific authorization documents provided to SWEC, all records concerning SWEC's capacity to " team" with any other entity pursuant to the authority of that determmation and specific authorization, and all meeting notes' and correspondence concermng all the foregoing; g

All records dated after January 1,1982, pertaining to any. specific authorization 1

under 10 CFR Part 810 sought by or granted to Westinghour,e Electric Corporation (or any affiliate thereof) conccming direct or indirect assistance to the production of special nuclear material in the People's Republic of China (whether through manufactunng of nuclear fuel and/or' equipment in China or in a third country (e:g., Japan, Spain, Belgium)), including without limitation all records interpreting the scope of such specific authorization (s), all applications therefor, and all meeting records and correspondence concerning all the foregoing; and

_2 All other records pertaining to any determination by the Secretary.oflinergy, e

dated on or after January 1,1982, under 10 CFR Part 810 pursuant to whicfr any person was or is authorized to utilize U.S.-origin technology for the manufacture of nuclear power reactors (or their components) or the fabrication of nuclear power reactor fuel, for ultimate use in the People's Republic of China (regardless of whether such manufacture / fabrication would occur m China or a third country and regardless of whether the authorization covered only; China or other countries in addition to China),

including without limitation all records interpreting the scope of such authorizations, all applications therefor, and all meeting records and correspondence concerning all the foregoing.

If this request is denied, I would like a detailed statement of the reasons for withholding the information in questien. See Vaughn v. Rosen 484 F.2d 820 (DC Cir.1973), rg1L denied,415 US 977 (1974).- I also request the name(s) of the person (s) responsible for denying the request.

MAIN OFFICE 717D STREETNW, SUITE 200 WASHINGTON, DC 20004-2891 202-737-7111 800-S42-3320 202 737 3324 FAX f

NEW YORK OFFICE LoS ANGELES OFFICE DELAWARE OFFICE SEC OFFICE 800-477-3320 800-766-3320 800-68S-3320 800 466-3320 M7f' 212-349-4646 213-680-1972 302-426-9200 202 347-6665

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W Heidi M. Strobel i

July 26,1996 Page 2 l

In accordance with your regulations and with the terms of the FOIA, I agree to pay all reasonable search and copy charges upon presentation of an invoice, along with the requested material. I understand that in accordance with the regulations, a response to this request must be made by your office within ten (10) working days of its receipt.

I appreciate your attention to this matter. If you have any questions or problems, please contact

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me at (202) 737-7111.

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Sincerely,

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i Heidi M. Strobel

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Director, I2 gal Research l

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j Department of Energy Washington, DC 20585 October 2, 1996 Mr. Russell A. Powell OlNPA REQUEST Case No-Chief, FOIA/LPDR g g,4 y7_ g Division of Freedom ofInformation M s OH-N~

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U.S. Nuclear Regulatory Commission N

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Washington, D.C. 20555

Dear Mr. Powell:

Enclosed is a Freedom ofInformation Act request from Ms. Heidi Strobel and our response of September 25,1996. Ms. Strobel is seeking records pertaining to determinations made by the Secretary of Energy, pursuant to Department of Energy regulation 10 CFR, Part 810, for United l

States companies to engage in nuclear activities in the People's Republic of China. Documents being sought in this request are similar to earlier requests that were forwarded to your agency for response from Tim Peckinpaugh (May 1995), Jay Baylon (March 1995), and Woody Voinche l

(June 1995).

j We have informed Ms. Strobel that your agency will respond directly to her regarding any records originated by your agency falling within the scope of her request. We would appreciate q

receiving a copy of your response to Ms. Strobel.

Your cooperation and assistance in this matter are appreciated.

Sincerely, L

Trisha Dedik Director Export Control Division Office of Arms Controi and Nonproliferation Enclosures n

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September 25,1996 Ms. Heidi M. Strobel I

' Director, Legal Research Research Information Services, Inc.

i 717 D Street,.N.W.

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Washington, D. C. 20004-2891 i

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Dear Ms. Strobel:

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Your Freedom ofInformation Act (FOIA) request of July 26,1996, 'to the U. S. Department of Energy (DOE) has been referred to this office for reply.

Ira your letter you request, among other things, records on Part 810 detenninations for the People's Republic of China (PRC) after January 1,1982. In this regard, I wish to point out that j

specific detenninations by the Secretary of Energy authorizing nuclear cooperation with the PRC were suspended in February 1990. With the passage of Public Law 101-246, the Secretary of Energy was precluded from authorizing assistance to the PRC,under Section 57b.(2) of the i

Atomic Energy Act of 1954 thmugh its implementing regulation.10 CFR, Part 810. As a result, r

there have been no further Part 810 authorizations granted for the PRC since 1990.

During the past year, we have had other FOIA inquiries for records similar to that which you i

have requested. As a result', we have placed, with some exceptions, in the Freedom of Information Reading Room all records pertaining to specific determinations made by thd Secretary of Energy authorizing U. S. firms, such as Westinghouse and Stone & Webster, to l

engage in specifically authorized activities in the PRC. The Reading Room is located at DOE l

Headquarters, Room 1E-190,1000 Independence Ave., S.W., Washington, D.C. To insure that

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you have acces' to all 810 documents in the Reading Room, it is suggested that you direct your s

inquiries to Ms. Jennifer Houghton in that office at (202) 586-8050.

I Excepted records, i.e., those records falling within the scope of your request that are not in the DOE Reading Room, at this time, are those originated by other Executive Branch agencies or designated as classified for national security reasons, and Stone & Webster's letter of application that led to the July 21,1987, determination by the Secretary of Energy.

- Access to Part 810 records originated by other Executive Branch agencies can be requested specifically from each of the agencies involved. I have forwarded your inquiry to the following agencies with a request that each agency respond to you separately: Departments of State, Commerce, and Defense; the Nuclear Regulatory Commission; the Arms Control and Q m

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4 Disarmament Agency; and the CentralIntelligence Agency. Any DOE classified records pertaining to Part 810 determinations falling within the scope of your request have either-

.been declassified and placed in the Reading Room or are undergoing declassification review.

Once declassified, any.such documents will be placed in the Reading Room. Authority for

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withholding these two categories of records pending declassification review and review by other agencies is set forth in 10 CFR, Part 1004.4(f) and 6(e).

Records pertaining to Part 810 authorizations granted to Stone & Webster to conduct activities in the PRC are in the Reading Room, albeit, most in redacted form. DOE made,every effort to comply with FOIA regulations to make Stone & Webster's records publicly available, which explains ne heavily redacted version of some of these docurnents now in the Reading Room. As noted above, Stone & Webster's application that led to the Secretary's July 21,1987, determination is not in the Reading Room. Stone & Webster states that the withheld letter of application and the other records before being redacted are proprietary and constitute commercial information that reflects the corporation's current business development plans for China's nuclear power service market and the types and scopes of services they can offer. As such, they state that the public rel' ease of these records could cause substantial competitive hann by revealing key elements of business strategy.

DOE agrees with this and has determined that this information is commercial or financial information obtained from persons that is privileged or confidential, the release.of which would be likely to cause substantial harm to the competitive position of those persons. It is, therefore, exempt from mandatory disclosure pursuant to Exemption 4 of the Freedom ofInfonnation Act, 4

5 U.S.C. section 552(b)(4),10 CFR Section 1004.10(b)(4). This information has been held in confidence by the persons to whom it pertains. It is of a type customarily held in confidence by those persons, and there is'a reasonable basis for doing so. The information was transmitted to and received by DOE in confidence; it is not available in public sources and, as previously stated,

' disclosure is likely to cause substantial hann to the competitive positions of the persons.from whom it was obtained. See 10 CFR Section 1004.11(f).

Discretionary disclosure of this information would not be in the public interest. Exemption 4 protects information implicating private commercial interests that is not ordinarily subject to

. discretionary FOlA disclosure. In addition, the Trade Secrets Act,18 U.S.C. section 1905, a criminal statute effectively prohibiting the unauthorized disclosure of all data protected by Exemption 4, prohibits discretionary release of this information since no other law authorizes its release.

The Denying Official for this determination is Kenneth N. Luongo, Senior hdvisor to the Secretary for Nonproliferation Policy and Director of the Office of Arms Control and Nonproliferation.

Should you wish to appeal this decision, your written appeal should be sent within 30 working days of your receipt of this letter to the Director, Office of Hearing and Appeals, HG-1, U. S.

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3 Department of Energy,1000 Independence Avenue, S.W., Washington, D.C. 20585. The written appeal, including envelope, must clearly indicate that a Freedom ofInformation appeal is being made, and the appeal must contain all other elements required by Title 10, Code of Federal Regulations,'Section 1004.8. Judicial review will thereafter be available to you: (1) in the district where you reside; (2) where you have your principal place of business; (3) where the DOE records are situated; or (4) in the District of Columbia.

Sincerely, Kenneth N. Luongo Senior Advisor to the Secretary.

.for Nonproliferation and Policy and Director of the Office of Arms Control and Nonproliferation

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