ML20134E760

Fifth Partial Response to FOIA Request for Documents. Documents in App F Being Withheld in Entirety (Ref Exemption 1)

ML20134E760
Person / Time
Issue date:	02/03/1997
From:	Racquel Powell NRC OFFICE OF ADMINISTRATION (ADM)
To:	Strobel H AFFILIATION NOT ASSIGNED
References
FOIA-96-398 NUDOCS 9702070084
Download: ML20134E760 (3)

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FOIA 398 j RESPONSE TYPE

i RESPONSE TO FREEDOM OF l FINAL l)( l PARTIAL ( 5 t h 1

/ M} elINFORMATION ACT (FOIA) REQUEST 4 DATE essee FEB 0 31997 DOCKET NUMBERIS)(If appiscable)

REQUESTE R Ms. Heidi Strobel PART l.-AGENCY RECORDS RELEASED OR NOT LOCATED (See checAed boAes)

No agency records subject to the request have been located.

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

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

Agency records subject to the request that are identified in Appendix (es) are being made available for public inspection and copying at the NRC Public Document Room,2120 L Street, N.W., Washington, DC,in a folder under this FOIA number.

Thal 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 inspection and copying at the N RC 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 obtain access to and the charges for copying records located at the NRC Public Document Room,2120 L Street, N.W., Washington, DC.

Agency records subject to the request are enclosed.

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

Fees You will be billed by the NRC for fees totahng $

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

in view of N RC's response to this request, no further action is being taken on appeal letter dated , No.

PART II. A-INFORMATION WITHHELD FROM PUBLIC DISCLOSURE i I

COrtain information in the requested records is being withheld from public disclosure pursuant to the exemptions described in and for the reasons stated l in Pcrt 11, B, C, and D. Any released portions of the documents for which only part of the record is being withheld are being made available for public I

)( enspIction 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 F are additional records which are responsive to your request. However, these records are being withheld in their entirety.

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j . s RESPONSE TO FREEDOM OF i INFORMATION ACT (FOIA) REQUEST FOIA 398 (CONTINUATION) h93M l PART 11.8- APPLICABLE EXEMPTIONS

. Records subject to the request that are described in the enclosed Appendix (es) f are being withheld in their entirety or in part under the Exemption No.(s) and for the reason (s) given below pursuant to 5 U.S.C. 552(b) and 10 CF R 9.17(a) of N RC regulations.

1. The withheld mformation es properly classified pursuant to Executive Order. (Exemption 1)

2. The withheld mformation relates solely to the mternal personnel rules and procedures of NRC. (Exemption 2)

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l l3. The withheld mformation is specifically exempted from public disclosure by statute indicated. (Exemption 3)

Sections 141 145 of the Atomic Energy Act, which prohibits the disclosure of Restricted Data or Formerly Restricted Data (42 U.S.C. 21612165).

Section 147 of the Atomic Energy Act, which prohibits the disclosure of Unclassified Safeguards information (42 U.S.C. 2187).

4. The withheld information is a trade secret or commercial or fmancial information that is bemg withheld for the reason (s) indicated. (Exemption 4)

The mformate is considered to be conhdential business (propnetary) inturmation.

The mformatson is considered to be proprietary mformation pursuant to 10 CFR 2.790tdH1)

The snformation was submitted and received in confidence pursuant to 10 CFR 2 '90 ldh 21

5. The witnheid mformation consists of mteragency or mtraagency records that are not available through discovery durmg 161sgation (Exemption 5). Applicable Privilege:

Delsberative Process. Disclosure of predecisional mformation would tend to inhibit the open and frank enchange of ideas essential to the deliberative process Where records are withheld m these entirety. the f acts Jre inextricably intertwined with the predeCitional mformation There also are no reasonably segregable factual portions because the release of the f acts would permit an mdirect movery into the predecisional process of the agency Attorney work product privilege IDocuments prepared by an attorney in contemplation of litigation 1 Attorney-chent privilege. (Confidential communications between an attorney and his/her client.)

6. The withheld mformation is esempted from pubhc disclosure because its disclosure would result m a clearly unwarranted invasen of personal pnvecy (Exemption 6) j 7. The withheld ir formation consists of records competed for law enforcement purposes and is being withheld for the reason (s) sndscated (Exemption 7)

I Disclosure could reasonably be expects. .o interfere with an enforcernent proceedmg because it could reveal the scope. direction, and focus of enforcement efforts, and thus could possibly allow recipients to take action to shield potential wrongdoeng or a violation of NRC requirements from investigators. (E uomption 7 ( A))

Disclosure would constitute an unwarranted mvasion of personal privacy. (Exemption 7(C))

The mformation consists of names of individuais and other mformation the disclosure of which could reasonably be enDetted to revealidentities of conhdential sources. (Exemption 7 (D))

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l PART 11. C-DENYlNG OFFICIALS Pursuant to 10 CFR 9.25tb) and or 9 251c) of the U S Nuclear Regulatory Commiss.on regulations. it has been determined that the information withheld ss exempt from pro. j 4 duction or disclosure, and that its production or d sclosure es contrary to the pubhc interest The persons responsible for the denial are those officials identified below as denying off:cials and the D> rector. Div+on of Freedom of Information and Publications Services, Off.ce of Administration for any denials that may be appeaied to the Enecutive Director for Operations (E DO).

DENYING OFFICIAL TI T L E'OFF ICE RECORDS DENIED APPELLATE OFFICIAL l

EDO SECRETARY so I Sandv Joosten Executive Assistant. SECY A_p_p . F X l

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I l PART 11. D- APPEAL RIGHTS The denial by each denymg official identified in Part ll.C may be appealed to the Appellate Official identified there. Any such appeal must be made in writing withm 30 days of receipt of this response. Appeals must be addressed, as appropriate, to the E xecutive Director for Operations, to the Secretary of the Commission. or to the Inspector General. U.S. Nuclear Reg.alstory Commission. Washmgton, DC 20555. and should clearly state on the envelope and m the letter that it is an " Appeal from an initial FOl A Decision."

NRC FORM 464 (Part 2) (191) U.S. NUCLEAR REGULATORY COMMISSION l

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Re FOIA-96-398 APPENDIX F DOCUMENTS BEING WITHHELD IN THEIR ENTIRETY NUMBER DATE DESCRIPTION / EXEMPTION /PAGES l 1. 8/22/86 SECY-86-253, Memo for the i Commission from Victor Stello, l subject: " Proposed Technology

! Transfers to the People's Republic of China," (4 pgs.) - EX. 1.

2. 5/11/87 SECY-87-120, Memo for the Commission-from Harold Denton, subject: " Proposed Technology Transfers to the People's Republic of China," (5 pgs.) - EX. 1.

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DOCUMENT RESEARCH &

July 26,1996 RETRIEVAL Freedom OfInformation Act Officer ~

Headquarters, U.S. Department of Energy 1000 Independence Avenue, S.W.

Washington, DC 20585

[g W,-398 RE: Freedom of Infonnation Act (FOIA) Request. Date Recth /o '7-96

. Action Off: %k Related Case: 'b oE  ;

To FOLA Officer,  !

Pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C., section 522, as amended, I l

hereby request the following information:

0 All records pertaining to the Energy Secretary's determination, under 10 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 l wthorization 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 concerning all the foregoing; g l

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

under 10 CFR Part 810 sought by or granted to Westinghouse Electric Corporation (or any affiliate thereof) concerning 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 i concerning all the foregoing; and _

y e All other records pertaining to any determination by the Secretary.oflinergy, dated on or after January 1,1982, under 10 CFR Part 810 pursuant to whicfrany 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 Peo11e's Republic of China (regardless of whether such manufacture / fabrication wouk 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 i i

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 question. See Vaughn v. Rosen 484 F.2d 820 (DC Cir.1973), ram denied,415 US 977 (1974). I also request the name(s) of the person (s) responsible for denying the request.

MAIN OFFICE 717 D STREET NW, SUITE 200 WASHINGTON, DC 20004 2891 202-737-7111 800-542-3320 202 737-3324 FAX NEW YORK OFFICE i.OS ANGELES OFFICE DELAWARE OFFICE SEC OFFICE 800-866-3320 -<f 800-477-3320 800 766-3320 800 685-3320 302 426-9200 202 347-6666 fO 213-680-1972 212-349-4646 O'

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i Heidi M. Strobel

! July 26,1996 Page 2

. 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 a material. I understand that in accordance with :he regulations, a response to this request must j be made by your office within ten (10) working days of its mceipt.

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

, , me at (202) 737-7111.

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, Sincerely, l Heidi M. Strobel Director, Legal Research 1

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Department of En rgy Washington, DC 20585 l

October 2, 1996 GlNPA HEQUEST Mr. Russell A. Powell

Chief, FOIA/LPDR Case No: $ IMiH

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Dear Mr. Powell:

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

(June 1995).

We have informed Ms. Sirobel 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 receiving a copy of your response to Ms. Strobel.

Your cooperation and assistance in this matter are appreciated.

Sincerely,

i. L Trisha Dedik

Director Export Control Division Office of Arms Control and Nonproliferation 1

Enclosures a

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1 ,' .. . Department of Energy j Washington, DC 20585 k

September 25,1996 Ms. Heidi M. Strobel .

Director, Legal Research Research Information Services, Inc.

717 D Street, N.W.

Suite 200 Washington, D. C. 20004-2891

Dear Ms. Strobel:

Your Freedom ofInformation Act (FOIA) request ofJuly 26, f996, to the U. S. Department of Energy (DOE) has been referred to this office for reply.

In your letter you request, among other things, records on Part 810 determinations for the People's Republic of China (PRC) after January 1,1982. In this regard, I wish to point out that specific detenninations by the Secretary of Energy authorizing nuclear cooperation with the PRC were suspended in Febmary 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 Atomic Energy Act of 1954 through its implementing reguiation,10 CFR, Part 810. As a result,

.r there hav.e been no further Part 8'10 authorizations granted for the PRC since 1990.

During the past year, we have had other FOIA inquiries for records similar to that which you have requested. As a result, we have placed, with some exceptions, in the Freedom of Information Reading Room all records pertaming to specific deterininations made by the' Secretary of Energy authorizing U. S. firms, such as Westinghause and Stone & Webster, to engage in specifically authorized ~ activities in the PRC. The Reading Room is located at DOE Headquarters, Room 1E-190,1000 Independence Ave., S.W., Washington, D.C. To insure that you have acces's to all 810 documents in the Reading Room, it is suggested that you direct your inquiries to Ms. Jennifer Houghton in that office at (202) 586-8050.

Excepted rdcords,'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 "a

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Disarmament Agency; and the Central Intelligence Mency. Any DOE classified records pertaining to Part 810 deni==tions falling within the scope of your request have either

', been declassified and placed in the R=iiag Room or are undergoing declassification review.

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Once dc61assified, any such'docuinents'will be placed in thEReading Rooin. Authority for 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 r~iw~i form. DOE made every effort to l

comply with FOIA regulations to make Stone & Webster's records publicly available, which

' i explains the heavily rai-*~i version of some of these documents now in the FeadinrRoom. 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 I

power service market and the types and scopes of services they can offer. As such, they state that the public refease of these records could cause subcantial competitive harm by revealing key elements of business strategy.

s DOE agrees with this and has determined that this information is commercial or fmancial information obtained from persons.that is privileged or confidential, the release.of which would l 1

be likely to cause substantial harm to the competitive position of those persons. It is, therefore,

'l exempt fiom mandatory disclosure pursuant to Exemption 4 of the Freedom ofInformation Act,'

5 U.S.C. section 552(b)(4),10 CFR Section 1004.10(b)(4). His 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. He information was trannnitted to ,

and received by DOE in confidence; it is not available in public sources and, as previously stated,

' disclosure is likely to cause substantial harm to the competitive positions of the persons fmm 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 EDIA disclosure,_In addition, the Trade Secrets Act,18 U.S.C. section 1905, a , l J

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 Offici'al for this determination is Kenneth N. Luongo, Senior Advisor 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. j

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4 Department of Energy,1000 Ladapadence Avenue, S.W., Washington, D.C. 20585. The written .

j appeal, including envelope, must clearly indicate that a Freedom ofInformation appeal is being made, and the appeal must contain all other elements required by Ti.tle 10, Code of Federal -

' REgulatioiii,'SEctiori 1004.8. Judicial review will thereafter be available to your (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.

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l Sincerely, h KennethN.Luongo j Senior Advisor to the Secretary

. forNonproliferation and Policy and i ' Director of the Office of Arms ' Control and Nonproliferation J

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