ML20154R411
| ML20154R411 | |
| Person / Time | |
|---|---|
| Issue date: | 09/22/1988 |
| From: | Davis A NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| To: | Jim Hickey SHAW, PITTMAN, POTTS & TROWBRIDGE |
| Shared Package | |
| ML20154R414 | List: |
| References | |
| NUDOCS 8810040254 | |
| Download: ML20154R411 (2) | |
Text
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j September 22, 1988
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Mr. J. Patrick Hickey, P.C.
Shaw, Pittman, Potts & Trowbridge 2300 N Street, N.W.
Washington, DC 20037
Dear Mr. Hickey:
Subject:
Request to Withhold January 25, 1988 Battelle Report entitled "Preliminary Analytical Results Antistatic Device Po-210 Release Measurements" from Public Disclosure This is in response to your letter to me dated July 5, 1988. We have reviewed four statements and find that they do not contain sufficient information to reverse our position as stated in our letter of June 3,1988.
In support of your request that we reverse our earlier determination you first state that the subject information is "commercial" and "confidential" and therefore exempt from publIc disclosure pursuant to Exemption 4 of the Freedom of Information Act (FOIA), While the NRC carefully attempts to protect business confidential (proprietary) information pursuant to the F0IA and our regulations, the staff previously reviewed the subject information and determined that its disclosure would not impair the ability of the NRC to receive similar information in the future and that the report discussed your products and tests performed in sumary fashion without specific details that would enable a competitor to exploit your product line.
In addition, you did not point out any specific portions of the report that might cause narm to your competitive position if released. Please be aware that the agency practice on of tests, end test results, etc.)y type information (model numbers tested, type test reports is to release sumar as non-proprietary and to withhold detailed test procedures if they reveal processes that ce proprietary.
In the case of the subject report the tests performed were not in and of themselves proprietary and the subject information was rather conclusory in nature.
On another point you argue that the reports qualify for the "self-evaluation analysis" privilege.
The subject document may be self-evaluation analysis, but it was not initiated on 3M's own thought and then merely shared with the NRC.
This report and reports of this type were prepared to answer NRC regulatory questions and the results were expected to be given to the NRC. Accordingly, this report does not qualify for this privilege.
$$kU 00f Ob
Mr. J. Patrick Hickey, P.C. September 22, 1988 Lastly, you ask to withdraw the document pursuant to 10 CFRl2.790(c) of the Comission's regulations. While I agree that 2.790 appears to provide an unqualified right of withdrawal, court cases -- including the case you cited,
_ General Electric Company v. NRC -- have detemined that this right is a qualified one. Once a document is the subject of a FOIA request, the NRC "reads Rule 790(c) as not applicable... This is a reasonable interpretation of its own regulation." General Electric Company v. NRC 750 F.2d at 1399.
Although we continue to believe that the Battelle report does not contain proprietary information and can be placed in the NRC Public Document Room (POR), we do desire to provide you another opportunity to identify specific tems or phrases in the report that you consider proprietary.
Accordingly, we will not place the report in the PDR for 20 days from the date of this letter.
If you identify specific terms or phrases to us during this time, we will review them for proprietary information prior to placing the report in the PDR.
Your identification should be accompanied by a justification that the terms or phrases provide the reader with specific details sufficient for a competitor to exploit your product line and that the terms are not otherwise in the public domain. As an example, the terms "microspheres" and "epoxy" already exist in 3M's promotional information, in 3M's Part 30 materials license file, and in the transcript of the February 11, 1988 Public Meeting held between the NRC and 3M in the NRC Region III office, all of which are available to the public.
Therefore, we do not see a basis for withholding these terms.
If you do not identify any terms or phrases to us or provide appropriate jus',1fication during this interim, we will place the Battelle report in the PDR.
If you have any legal questions, please contact Ed Shomaker in our Office of the General Counsel at (301) 492-1560.
If you have technical questions regarding your licensed activities, please contact C. Norelius or B. Mallett of my staff.
Sincerely, and "
A. Bert Davis Regional Administrator cc w/ltr dtd 07/05/88:
"0CD/DCB(RIDS)
L. Desimone, 3M
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