ML20210T399

Proposed Rule 10CFR9, Electronic Freedom of Info Act. Rule Would Amend Regulations to Implement Electronic Freedom of Info Act Into Info & Electronic Age by Clarifying That FOIA Applies to Records Maintained in Hardcopy

ML20210T399
Person / Time
Issue date:	08/19/1997
From:	Levin A NRC
To:
References
FRN-62FR46922, RULE-PR-9 PR-970819, NUDOCS 9709150100
Download: ML20210T399 (49)

Text

'

00Ch 01 P)'

NUCLEAR REGULATORY-COMMISSION 97 SEP 'i P2 :18 10 CFR Part 9 ..

RIN 3150 AF78 0FFICE OF SECitETAR'(

00CKETH:G ', ',ER /iC:

Electronic Freedom of Information Act: ImplementatioMAl#h Nuclear Regulatory Commission. DOCKET NLMBER

-AGENCY:

PROPOSED RULE PR 9

((ca FR 469.2;;t)

ACTION: Proposed rule,

SUMMARY

The Nuclear Regulatory Commission (NRC) is proposing to amend its regulations to implement the Electronic Freedom of Information Act Amendments of 1996 (EF01A), which are designed to bring the Freedom of Information Act (FOIA) into the information and electronic age by clarifying that FOIA applies to records maintained in hardcopy or electronic format. The proposed rule would implement statutory provisions of the law that broaden public access to government information by placing more records on-line and expanding the role of the agency public document room. The proposed rule would implement statutory amendments that recognize the difficulty in responding to requests in the 10 working days formerly required and extend that time to 20 working days. It also provides procedures for agencies to discuss ways of tailoring requests to improve responsiveness. The proposed rule would amend NRC's F0IA '

Certain other regulations to comply with the requirements of the new statute.

changes have been made to correct administrative errors and to update or remove obsolete information.

Ww lo, l'79 7 Submit coments by 30 dm i,om s te of cublication DATES:

~%-\ 0 h .f o g &

r>gaioo97oe19 Se - g/y/sy h

9 62FR46922 PDR llkh 3 s// a

Comments received after this date will: be considered if it is practical 1

-to dc so, but the NRC is able to assure consideration only for comments x

, u received on or'before this date.

-ADDRESSES: Send comments to: Secretary, U.S. Nuclear Regulatory Commission.

Washington, DC 20555 0001. Attention: Rulemakings and Adjudications Staff.

Hand deliver coments to: 11555 Rockville Pike. Rockville. Maryland, between 7:30 am and 4:15 pm Federal workdays.

For information on submitting comments electronically, see the discussion under Electronic Access in the Supplementary Information section.

Examine comments received at: The NRC Public Document Room. 2120 L Street, NW (Lower Level), Washington. DC.

FOR FURTHER INFORMATION CONTACT: Russell A. Dowell, Chief Freedom of Information/ Local Public Document Room Branch. Office of Chief Information Officer. U.S.-Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: (301) 415-7169. e-mail: RAPl@nrc. gov.

SUPPLEMENTARY INFORMATION:

Background Information On October 2, 1996, the President signed into law the Electronic Freedom of Information Act Amendments of'1996 (EF01A), Public-Law 231, 110 Stat. 3048  :

(1996). EF01A includes provisions authorizing or requiring agencies to 2

b

promulgate regulations implementing certain of its requirements including the tracking of Freedom of Infc- mtion Act (F0IA) requests. the aggregation of FOIA requests, and the expedited processirg of FOIA requests. In addition, EF01A changes the time limit for responding to a FOIA request from ten to twenty working days, the requirements for reporting FOIA acLivities to  !

Congress, and the cases in which an agency may extend the time within which it will respond to a F0IA request. EF01A also includes provisions regarding the availability of documents in electronic form, the treatment of electronic records, and the establishment of " electronic reading rooms."

The Nuclear Regulatory Commission proposes to amend its regulation implementing the FOIA, 10 CFR Part 9. The proposed amendments would revise the NRC's FOIA regulations to comply with EF0IA.

New Provisions A. New and revised definitions.

The proposed rule would establish a new title, Freedom of Information Act and Privacy Act Officer, for the designated official responsible for administration of the FOIA and Privacy Act in lieu of using the organizational title of the responsible individual which may not be as indicative of these specific responsibilities. A new definition is proposed to be added to 10 CFR 9.13 to reflect this new title.

The definition of record would be amended to add "any information that would be an agency record subject to the requirements of (5 USC 552) when maintained by an agency in any format, including an electronic format" and to read " Record also includes a book, .. drawing, diagram, . ."

3

Th'e definition of review time would be revised to remove from the .

definition the period spent!" excising- from the. records those: portions which are to be withheld."

. B.; Electronic Records.

Section-3 of EF0IA amends 5 USC 552(f)(2) to define " agency record" for- _

l purposes of F01A as including "any information that would be an agency record subject to the requirements of (5 USC 552) when maintained by an agency in any

_ format. including an electronic format " Section 552(f) thus clarifies that -

- the term " agency record" includes information stored in any computer readable ,

format as well as trad P nal paper documents. The proposed regulations would

- amend 10 CFR 9.13 to specifically include information in an electronic format within the definition of the-term " agency record." 10 CFR 9.13 specifically-includes in the definition of " search" time spent _ reviewing records by

' automated means as well as manually.

C. Electronic Reading Room. .

Section 4 of EF0IA amends 5 USC 552(a)(2). which previously required age'ncies to make available*for public inspection and copying certain

.information, such as agency opinions and: policy statements. 3dministrative  ;

L staff manuals and staff instructions that affect a member of the public. The 4

new law expands these categories-to include agency records that have been made publicly available'and are likely to be the subject of repetitive public requests.~as well w a general index of these frequently-sought documents.

-zThe. amendments-further provide that section 552(a)(2)~ records created on or after November 1.1996. nust be made available by computer telecommunications-wiW11 Q 'yhr after such date, or _if computer telecommunications have not

'4 ,

k r + - - ,. . , -- -, ,;- .-- , ,, - , , ~ . . - , - . . -

been established, by other electronic means. The general index of these records is to be available by computer telecommunications by December 31, 1999. -These new requirements, as well as the on line address for NRC's homepage on the Internet, would be incorporated in 10 CFR 9.21(c)(6) and (f).

Finally, where material has been withheld in electronic records made available to the public, the extent of the deletions must now be indicated on the portion of the record made available or published and, where technically possible, must be indicated at the place in the record where the deletion occurred._ This new requirement would be included at 10 CFR 9.19(d).

D. Honoring farm or Format of Requests.

EF01A, 5 U.S.C. 552(a)(3) contains three significant new provisions.

First, 5 U.S.C.552(a)(3)(B) requires agencies, when making records available to the public, to do so "in any form or format requested by the person-if the record is readily reproducible by the agency" in the requested manner. This new requirement would be included in 10 CFR 9.15. Second. 5 U.S.C. 552 (a)(3)(C) makes it clear that when an F01A request is received, an agency should not only search for hard copies, but should also search for the records in their electronic form. This new requirement would be included in 10 CFR 9.15. Finally, b " search" under the amendments means to review, manually "or by automated means " agency records for the purpose of locating those records which are responsive to a request. This new requirement would be incorporated in 10 CFR 9.13 in the definition of " search time,"

- E. Time Limits for Responding to Requests.

In recognition of.the fact that 10 working days is not a realistic timeframe, the EFOIA amendments 5 U.S.C. 552(a)(6)(A)(1), extend the time to respond to a_ request from 10 to 20 working days. 10 CFR 9.25 would be amended 5

i

- to' reflect the change _ in the time limits for initial disclosure determination

~

from 10 to:20 working days effective 0ctober 2, 1997, 1 F, Maltitrack Processing of R'equests.

-However, Congress recognized that even with the increase in ti n to process requests, many agencies may not be prepared to meet a 20 working-day deadline for some requests, Therefore, to help ensure timely agency responses to requests, the new law 5 U.S.C. 552(a)(6)(D)(1), authorizes agencies to establish separate systems within the agency for handling simple and complex requests. Under these types of systems, called "multitrack processing,"

requests would be categorized based on the amount of m ncy effort involved in processing the request. This would replace the current first-in, first out approach generally employed at the NRC. Agencies must still exercise due diligence within each track. The new law, 5 U.S.C. 552(a)(6)(D)(11), also requires agencies to give requesters the opportunity.to limit the scope of their requests to qualify for processing under a faster track. This provision is intended to permit more requests to be completed more quickly by providing an incentive for requesters to frame narrower requests for fewer documents.

These new provisions would be incorporated in NRC's proposed three-track system described in 10 CFR 9.25(c). "

The first track is.for simple requests or requests of moderate complexity that are expected to be completed within 20 working days (e.g., a request that_does not involve a large volume of documents, retrieval of

- documents from regional offices, or extensive coordination between NRC

-- offi ces ) .

The second' track is for requests involving unusual circumstances that are expected to take between 21-30 working days to complete.

6

The third track is for requests that, because of their unusual volume or complexity,_are expected to take more than 30 wo+1ng days to complete.

Upon receipt of a request, NRC would notify the requester of the track in which the request has been placed for processing and the estimated time for completion.- Should subsequent information substantially change the estimated time to process the request, the requester would be_ notified telephonically or in writing. A requester may modify the request to allow it to be processed under a different track for a faster response.

G. Unusual Circumstances.

Even with use of multitrack processing, Congress recognized that in s'ome circumstances the statutory response time will not be met. The EF01A retains the provisions for agencies to extend the initial.20 working day response time for an initial request, or the 20 working day response time for an appeal. an additional 10 working days in " unusual circumstances." Agencies must provide the requester with a written justification for the extension that contains the date of the expected agency response. The amendments would retain the definition of " unusual circumstances' as time needed to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request: the need to search for, collect and appropriately examine a voluminous amount of material demanded in a single request; and the need for consultation with another agency having a substantial interest in the determination-of the request or among two or more parts of the agency having substantial-interest in the request. These

- . consultations must be conducted "with all_ practicable speed." 5 U.S.C.

552(a)(6)(E)(iii).

H. Exceptional Circumstances.

7

. l 1

~

l In addition to extensions under unusual circumstances, the EF01A I l i

amendments.._5 U.S.C. 552(a)(6)(B)(11), authorize the agency to negotiate a )

response time with a requester that may exceed the statutory maximum (20-working days plus a=10 working day extension) for those F01A requests that the agency determines cannot be processed within the statutory time limits. The agency must offer the requester an opportunity to limit the scope of the .

request .so that it may be processed within the prescribed 20 working days.

Congress ' asserted that this process for negotiated time limits reflects the policy that F0IA works best when requesters and agencies work together to define and. fulfill r~easonable requests, inis new provision would be '

incorporated in 10 CFR 9.25(c),

I. Aggregation of Requests The EF01A amendments. 5 U.S.C. 552(a)(6)(B)(iv), autho:ize agencies.to promulgate regulations that allow for the aggregation of F01A requests by the same requester or by a group of requesters acting togett.er. Aggregation may--

- occur if the agency " reasonably believes" that these multiple requests do indeed constitute a single request. This new provision would be implemented in 10 CFR 9.39(e).

3. Requests for Expedited Processing.

The EF01A amendments. 5 U.S.C. 552(a)(6)'(E)(1).. require agencies to promulgate regulations to provide for " expedited processing" in cases where the person requesting the records demonstrates a " compelling need" and in Lothercaseswheretheagencydeterminesexpeditedprocessingiswarrantedi The amendments define " compelling need" in two ways _0ne is where "a failure to obtain' requested records on an expedited basis. . . could reasonably be 4

expected to pose an iminent threat to the life or physical safety of an 8

4 4 - -

, e r w -,r. y e - - -- , - - - , -,,.m -,n ,,,.--n , , -,~w-- , . , -, a

4 individual," The'other is where a " person primarily engaged in disseminating information" to the public has "an urgency to inform the public concerning actual or alleged Federal Government activity " The House Committee report explaining the legislation states that a person "primarily engaged" in the business of dissemination of information "should not include individuals who are engaged only incidentally in the dissemination of information." but requires that "information dissemination be the main activity of the  !

L requester, although it need not be their sole occupation." A requester who is "only incidentally" involved in information dissemination, in addition to i other activities, would not satisfy this requirement.

The report further explains that the term " urgency to inform." one of 'l the qualifying elements for expedited processing, must involve a matter of

" current exigency to the American public" such that any reasonable person could conclude that delaying a response to a F0IA request would compromise a sigr.ificant recognized interest," The public's right to know, while "significant and important." would not stand alone as sufficient to satisfy this standard. Agencies will have to make both " factual and subjective

-judgments" about situations cited by requesters as reasons for expedited processing and must demonstrate " fairness and diligence" in exercising their discretion. Requesters must provide detailed explanations to support their expedited requests.

The EF0IA amendments._5 U.S.C. 552(a)(6)(E)(ii). require that agency regulations provide that requesters be given notice within 10 calendar days after the date of the request as to the determination whether it qualifies for expedited processing. Once expedited processing is granted, agencies must

. process it "cs soon as practicable" (5 USC 552 (a)(6)(E)(iii)). Any 9

1 administrative appeal ~to a denial 1of expedited processing must be handled with 't

" expeditious consideration' (5 USC 552 (a)(6)(E)(ii)(II)). If an agency-denies the request for expedited processing or fails to act upon the request within the prescribed 10 calendar days, petitioner may seek-judicial review.

The NRC would. implement the EF01A requirements for expedited processing at 10 CFR 9.25(e) and 9.29.

K. Estimates of the volwne of materials denied EF01A, 5 U.S.C. 552(a)(6)(F), requires agencies to make a reasonable  ;

i effort to estimate the volume of any requested record material that is denied in whole or in part, and to provide the estimate to the requester unless -

providing such estimate would harm an-interest protected by a FOIA exemption.

This new requirement would be implemented at 10 CFR 9.19(c).

L. -Annual Report to Congress The EFOIA, 5 U.S.C. 552(e), amended the annual requirements for c . reporting agency F0IA activities to Congress.- On or before February 1 of each .

year beginning in 1999, agencies must submit to the Attorney General an annual report that covers the preceding fiscal-year and includes the-number of determinations made by the agency not to comply with the requests for records made to the agency and the reasons-for those determinations: the number of.

appeals made by persons, the results of those appeals, and the reason for the action upon each appeal that results in a denial of information: a complete list of all statutes that the agency used to authorize the withholding of information under Section 552 (b)(3), which exemptsLinformation that is specifically exempted from disclosure by other statutes: a description of whether-a court has- upheld the decision of the agency to withhold information

under each of those statutes cited, and a concise description of the scope of 10 l

l

...~ , - . . ~ , _ . - . . . . . . . . . . - . . . --,,m _. .m_ .- . .-_ . - , . . , , . - -

~

any information upheld; the number of requests for records pending before the agency as of September 30 of the preceding year, and the median number of days the that these requests had been pending before the agency as of that date:

number of requests for records received by the agency and the number of requests the agency processed; the median number of days taken by the agency to process different types of requests; the total amount of fees collected by theagencyforprocessingrequests:theaverageamountoftimethattheagency estimates as necessary, based on the past experience of the agency, to comply with different types _of requests; the number of full-time staff of the agency devoted to the processing of requests for records under this section: and the The NRC l

total amount expended by the agency for processing these requests.

would implement this amended EF01A reporting requirement in 10 CFR 9.45.

The amendments require each agency to make these annual reports available to the public through a computer network, or by other electronic The NRC has means if computer networking is not a possibility for the agency.

posted its annual report on its website on the Internet that is accessible through the NRC homepage at: http\\www.nrc, gov. The report is also available in the NRC Public Document Room.

Electronic Access Comments may be submitted electronically, in either ASCII text or Wordperfect format (version 5.1 or later), by calling the NRC Electronic Bulletin Board (BBS) on FedWorld or connecting to the NRC interactive rulemaking web site, 'Rulemaking Forum." The bulletin board may be accessed using a personal computer, a modem, and one of the commonly available

Background

communications software packages, or directly via Internet.

11

documents on the rulemaking are also available for downloading and viewing on .

the bulletin board.

If using a personal computer and modem, the NRC subsystem on FedWorld can be accessed directly by dialing the toll free number: 1-800 303-9672.

-Communication software parameters should be set as followsi parity to none, data bits to 8, and stop bits to 1 (N,8,1). Using ANSI or VT-100 terminal emulation, the NRC rulemaking subsystem can then be accessed by selecting the

" Rules Menu" option from-the "NRC Main Menu." For further information about options available for NRC at FedWorld, consult the " Help /Information Center" from the "NRC Main Menu." Users will- find the "FedWorld Online aer's Guides" particularly helpful. Many NRC subsystems and databases also have a

" Help /Information Center" option that-is tailored to the particular subsystem.

The NRC subsystem on FedWorld can also be accessed by a direct-dial phone number for the main FedWorld BBS: 703-321-3339: Telnet via Internet:

fedworld. gov (192.239.93.3): File Transfer Protocol (FTP) via Internet:ftp:fedworld. gov (192.239.92.205); and World Wide Web using:

http://www.fedworld. gov (this is the Uniform Resource Locator (URL)).

If using a method other than the toll-free number to contact FedWorld.

. access the NRC subsystem from the main FedWorld menu by selecting "F -

Regulatory, Government Administration and State Systems," then selecting "A -

Regulatory Information Hall." At that point, a menu will be displayed that has an option "A - U.S. Nuclear Regulatory Commission" that will take you to the NRC Online Main Menu. You can also go directly to the NRC Online area by typing "/go nrc" at a- FedWorld command line. If you access NRC from FedWorld's Main Menu. then you may return to FedWorld by selecting the " Return to FedWorld" option from the NRC Online__ Main Menu. However, if you access NRC 12

.at:Feddorld by using NRC's toll-free number, then you will have full access to all NRC systems, but you will not have access to the main FedWorld system.

If you contact FedWorld using Telnet, you will see the NRC area and menus, including the Rules Menu. Although you will be able-to download documents and leave messages, you will not be able to write comments or upload files (comments). If you contact FedWorld using FTP, all files can be accessed and downloaded but uploads are not allowed; all you will see is a I

list of files without descriptions (normal Gopher look). An index file listing all-files within a subdirectory, with descriptions, is included.  ;

There is a 15 minute time ' limit for FTP access.

Although FedWorld also can be accessed through the World Wide Web, like FTP, that mode only provides access for downloading files and does not display the NRC Rules Menu.

You may also access the NRC's interactive rulemaking web site through the NRC home pcge (http://www.nrc. gov). This site provides the same access as the FedWorld bulletin board, including the facility to upload comments as files (any format), if your web browser supports that function.

For more information on NRC bulletin boards call Mr. Arthur Davis.

Systems Integration and Development Branch, U.S.-Nuclear Regulatory Commission.. Telephone: 301-415-5780; e-mail: AXD3@nrc, gov, For information about the interactive rulemaking site, contact Ms, Carol Gallagher. Telephone:

301-415-6215: e-mail: CAG@nrc. gov.

Environmental. Impact - Categorical Exclusion The NRC has determined that this proposed rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an 13

i environmental Timpact statement nor an environmental assessment has been prepared for this proposed rule.

~

Paperwork Reduction Act Statement This proposed rule does not contain a new or amended information collection requirement; subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing requirements were approved by the Office- .

of Management and Budget, approval number 3150 0043.

~

Public Protection Notification .

The-NRC may not conduct or sponsor, and a-person is not required to respond to

. a' collection of information unless it displays a currently valii OMB control number.

Regulatory Analysis This proposed rule would implement the EFOIA by amending 10 CFR Part 9. ,

Subpart A - Freedom of Information Act Regulations. This is an administrative

-regulatory action that would make NRC's regulations reflect the new provisions of the EF01A. The proposed rule would not have any adverse economic impact on any class of licensee or the NRC; on the contrary, the proposed rule with its new provisions allowing expedited and multitrack processing may provide some

.new and-additional benefit to those who may opt to use these regulations to obtain access to NRC records and information.

This constitutes the regulatory analysis for this proposed rule.

Regulatory Flexibility Certification 14

As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Commission certifies that this rule does not have a significant economic impact on a substantial number of small entities. The amendments to 10 CFR Part 9 are procedural in nature and are required to implement the Electronic Freedom of Information Act Amendments of 1996 (EF01A), 5 U.S.C. 552.

Backfit Analysis The NRC has determined that the backfit rule 10 CFR 50.109 does not apply to this proposed rule: therefore, a backfit analysis is not required for this proposed rule because these amendments do not involve any p,svisions that would impose backfits as defined in 10 CFR Chapter 1.

List of Subjects in 10 CFR Part 9 Criminal penalties. Freedom of information. Privacy, Reporting and recordkeeping requirements. Eunshine Act.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended: and 5 U.S.C. 552, 552a, and 553; the NRC is proposing to adopt tif following amenCment of 10 CFR Part 9, Subpart A-- Freedom of Information Act Regulations.

15

_~

i PART 9--PUBLIC RECORDS

1. The authority citation for Part 9 continues to read as follows:

Authority: Sec. 161. 68 Stat. 948, as amended (42 U.S.C. 2201); sec. 201. 88 Stat. 1242, as amended (42 U.S.C. 5841).

Subpart A also issued under 5 U.S.C. 552, 31 U.S.C. 9701: Pub. L. 99 - 570.

Subpart B is also issued under 5 U.S.C. 552a.

Subpart C also issued under 5 U.S C. 552b.

2. In 59.8. paragraph (b) is revised to read as follows:

S9.8 Information collection requirement: OMB approval.

(b) The approved information collection requirements contained in this part appear in S59.23. 9.29. 9.40. 9.41. 9.53. 9.54. 9.55. 9.65. 9.66, and 9.67.

3. In Part 9. Subpart A is revised to read as follows:

Subpart A--Freedom of Information Act Regulations 9.11 Scope of subpart.

9,13 Definitions.

9.15 Availability of records.

9.17 Agency records exempt from public disclosure.

9.19 Segregation of exempt information and deletion of identifying details.

9.21 Publicly-available records.

9.23 Requests for records.

9.25 Initial disclosure determination, 9.27 Form and content of responses.

9.29 Appeal from initial determination.

16

9.31 Extension of time for response.

9.33 Search, review.-and special service fees.

9.34 Assessment of interest and debt collection.

9.35 Duplication fees.

9.37 fees for search and review of agency records by NRC personnel.

9.39 Search and duplication provided without charge.

I 9.40 Assessment of fees.

9.41 Requests for waiver or reduction of fees.

9.43 Processing requests for 5 waiver or reduction of fees.

9.45AnnualreporttdLorare.ss.

Subpart A Freedom of Information Act Regulations

$9.11 Scope of subpart.

This subpart prescribes procedures for making NRC records available to the public for inspection and copying pursuant to the provisions of the freedom of Information Act (5 U.S.C. 552) and provides notice of procedures for obtaining NRC records othemise publicly available. This subpart does not affect the dissemination or distribution of NRC-originated, or NRC contractor-originated, information to the public under any other NRC public, technical, or other information program or policy.

17 o ,

1 59.13 Definitions, i

Acency record means a record in the possession and control of the NRC that is associated with Government business. Agency record does not include ,

records such as - 1 (1) Publicly available books, periodicals, or other publications that are owned or copyrighted by non Federal sources:

(2) Records solely in the possession and control of NRC contractors:

(3) Personai iecords in possession of NRC personnel that have not been circulated, were not required to be created or retained by the NRC, and can be retained or discarded at the author's sole discretion, or records of a personal nature that are not associated with any Government business; or (4) Non substantive information in logs or schedule books of the Chairman or Commissioners, uncirculated except for typing or recording purposes.

Commercial-use reauest means a request made under $9.23(b) for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made.

Direct costs mean the expenditures that an agency incurs in searching for and duplicating agency records, For a commercial use request, direct costs include the expenditures involved in reviewing records to respond to the request. Direct (csts include the salary of the employee category performing the work based on that basic rate of pay plus 16 percent of that rate to cover fringe benefits and the cost of operating duplicating machinery.

Duolicatdga means the process of making a copy of a record necessary to respond to a request made under $9.23. Copies may take the form of paper 18

. copy, microform, audio visual materials, disk, magnetic tape. or machine readable documentation, among others.

- Educational institution means an institution that operates a program or programs of scholarly research, Educational institution refers to a preschool, a public or private elementary or secondary school, an institution 4

of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education.

Freedom of Information Act and Privacy Act Officer means the NRC official 1

l designated to fulfill the responsibilities for implementing and administering the Freedom of Information Act and Privacy Act as specifically designated under this regulation.

Noncommercial scientific institution means an institution that is not operated on a commercial basis, as the term " commercial" is referred to in the definition of " commercial use request." and is operated solely for tne purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.

Office, unless otherwise indicated, means all offices, boards, panels, and advisory committees of the NRC.

Sggntd means any information that would be an agency record subject to the requirements of the Freedom of Information Act when maintained by the NRC in any format, including an electronic format. Record also includes a book, paper, map, drawing, diagram, photograph, brochure, punch card, magnetic tape, paper tape, sound recording, pamphlet, slide, motion picture, or other documentary material regardless of form or characteristics. Record does not include an object or article such as a structure, furniture, a tangible 19

t exhibit or model, a vehicle, or piece of equipment, ReDresentative of the news media means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term news means information that is about current events or 1

that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at

, large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of " news") who make their products available for purchase or subscriptions by the general public.

Review time means the period devoted to examining records retrieved in response to a request to determine if they are in fact responsive, and to determine whether they are exempt from disclosure in whole or in part. Also, review time includes the period devoted to examining records to determine which Freedom of Information Act exemptions are applicable and identifying records or portions thereof to be disclosed.

Cearch time means the period devoted to reviewing, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request, This includes a page by page or line by line identification of responsive information within the records.

Unusual circumstances mean -

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request:

' (2) The need to search (or, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single l

l request; or l

20

(3) The need for consultation, which will be conducted eith all practicable speed. with another agency having a substantial interest in the determination of the request or among two or more components of the NRC having substantial subject matter interest therein.

59.15 Availability of records.

The NRC will make available for public inspection and copying any

reasonably described agency record in the possession and control of the NRC under the prov b.ons of this subpart, and upon request by any person. Records will be made available in any form or format requested by a person if the record is readily reproducible by NRC in that form or format. NRC will make reasonable efforts to maintain its records in forms or formats that are reproducible. NRC will make reasonable efforts to search for records in electronic form or format when requested, except when these efforts would significantly interfere with the operation of any of the NRC's automated information systems. Records that the NRC routinely makes publicly available are described in 59.21. Procedures and conditions governing requests for records are set forth in 59.23.

59.17 Agency records exempt from public disclosure.

(a) The following types of agency records are exempt from public disclosure under $9.15:

(1) Records--

(i) That are specifically authorized under criteria established by an 21 1

h .

I t '

1 txecutive order to be kept secret in the interest of national defense or -

. foreign policy, and

} (ii) 1 hat are in fact properly classified pursuant to such Executive order:  !

i I (2) Records related solely to the-internal personnel rules and practices of  :

l the agency: .

1 i

(3) Records specifically exempted from disclosure by statute (other than 5 U.S.C. 552b). provided that the statute - l

i

(1) Requires that the matters be withheld from the public in a manner that

leaves no discretion on the issue: or (ii) Establishes particular criteria for withholding or refers to f particular types of matters to be withheld:

(4) Trade secrets and commercial or financial information obtained from a person that are privileged or confidential: ,

i 3

.(5) Interagency or intra-agency memorandums or letters that would not be  ;

J l available by law to a party other than an agency in litigation with the ,

agency:

[

I (6) Personnel and medical files and similar files, the disclosure of which .,

h would constitute a clearly unwarranted invasion of personal _ privacy:

i l (7)'Reccrds or information compiled for law enforcement purposes, but only l to the extent that the production of these law enforcement records or

- information -

(1) Could reasonably be expected to interfere with enforcement proceedings:  ;

l (ii) Would deprive a person of a right to a fair trial or an impartial ,

adjudication:

! (iii) Could reasonably be expected to constitute an unwarranted invasion of j personal privacy:

J 22 .

d y y . w y -- , .r,,%.y e.,r., ..,y - , - ,y.----mm-mm,ew,, w q _mme,.m , -.,,,.-.m .-- ,-

r vn,

(iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority, or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source:

(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigativns or prosecutions if the disclosure could reasonably be expected to risk circumvention of the law: or (vi) (auld reasonably be expected to endanger the life or physical safety of any individual:

(8) Matters contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions; or (9) Geological and geophysical information and data, including maps, concerning wells.

(b) Nothing in this subpart authorizes withholding of information or limiting the availability of records to the public except as specifically provided in this part, nor is this subpart authority to withhold information from Congress, (c) Whenever a request is made that involves access to agency records described in paragraph (a)(7) of this section, the NRC may, during only the time as that circumstance continues, treat the records as not subject to the requirements of this subpart when - '

23

- l (1) The investigation or proceeding involves a possible violation of -

l criminal law; and (2) There is reason to believe that..

1 (1)Thesubjectoftheinvestigationorproceedingisnotawareofits  ;

-i pendency; and (ii) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, l t

$9.19 Segregation of exempt information and deletion of identifying details. [

(a) For records required to be made available under 5 U.S.C. 552(a)(2), the ,

NRC shall delete information that is exempt under one or more of the exemptions cited in 69.17. The amount of information deleted will be  ;

i indicated on the released portion of the record, unless providing this  ;

indication would harm an interest protected by the exemption (s) under which  ;

the matter has been withheld.  ;

(b) In responding to a request for information submitted under $9,23, in which it has been determined to withhold exempt information, the NRC shall i

segregate--

(1) .Information that is exempt from public disclosure under $9,17(a) from  ;

nonexempt information: and (2) Factual information from advice, opinions, and recommendations in  ;

predecisional records unless the information is inextricably intertwined, or r is contained in drafts, legal work products, and records covered by the lawyer client privilege, or is otherwise exempt from disclosure.

l l

L _( c) In denying a request for records, in whole or in part, NRC will make a

i. 24 f

,,wi ,,e . - - - - --p-,,- ,-v %y -.w., - . , <-,,,p 3.w.c...w.y.-.,-prv v- ww--,nc- - w % v- ~-.<--erw y-ww . c y-m m, w- erww wr-, w.wm,r+ r w w w-v '"e n w 'v w W ew ,4' -

'rvv=- '-~~--"vr

- reasonable effort to estimate the volume of any information requested that is denied and provide the estimate to the person making the request, unless providing the estimate would harm an interest protected by the exemption (s) under which the information has been denied, (d) When entire records or portions thereof are denied and deletions are made from parts of the record by computer, the amount of information deleted will be-indicated on the released portion of the record, unless providing this indication would harm an interest protected by the exemption (s) under which the matter has been denied, 59,21 Publicly available records.

(a) Publicly-available records of NRC activities described in paragraphs (c) and (d) of this section are available through the National Technical Information Service, Subscriptions to these records are available on 48x microfiche and may be ordered from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. Single copies of NRC publications in the NUREG series, NRC Regulatory Guides, and Standard Review Plans are also available from the National Technical Information Service, (b) For the convenience of persons who may wish to inspect without charge or purchase copies of a record or a limited category of records for a fee, publicly available records of the NRC's activities described in paragraph (c) of-this section are also made available at the NRC Public Document Room. The NRC Public Document Room is located at 2120 L Street, NW,, Washington, DC, and is open between 7:45 a,m, and 4:15 p.m. on Monday through Friday, except Federal holidays.

25

i (c) The following records of NRC activities are publicly available at the i NRC Public Document Room for public inspection and copying: l i (1) Final opinions including concurring and dissenting opinions as well as +

orders of the NRC issued as a result of adjudication of cases:

2 l

-(2) Statements of policy and interpretations that have been adopted by the NRC and have not been published in the federal Register:

(3) Nuclear Regulatory Comission rules and regulations:

(4) Nuclear Regulatory Commission Manuals and instructions to NRC personnel l that affect any member of the public:

^

(5) Copies of records'that have been released to a person under the freedom of-Information Act that, because of the nature of their subject matter, the  ;

NRC determines have become or are likely to become the sub,1ect of subsequent requests for substantially the same records, r (6) A general index of the records released under the F0!A, (d) Current indexes to records that are made publicly available are listed i

in NUREG 0540, " Title of List of Documents Made Publicly Available." which is t

published monthly. The records required to be made available under 5 U.S.C. [

552(a)(2) are included in this listing..  !

(e) Records made publicly available under paragraphs (c)(1), and (2) of this section are also available for purchase through the National Technical Information Service.

(f) By November 1,1997. NRC will begin making records identified in ,

paragraph (c) of this section that were created after November 1,1996, available by electronic means, including computer teleconsnunications to the  ;

extent NRC has implemented its telecommunications capability unless the  ;

e records have been promptly published and copies offered for sale. l l

26 l

l

_ _ . , . . . _ . . . -, ,-.._-._.,,_.._.,_____~._,m,_,_J___...._._. . . , _ , _ - ,,,,_,,,........_......_,,.....,m.- __ . , . _ . _ . . .

- Telecomunications access can be obtained via the Internet by accessing the NRC Home Page on the Internet at:http//www.nrc. gov /.

59.23 Requests for records.

(a)(1) A person may request access to records routinely made available by the NRC under 59.21 in person or in writing at the NRC Public Document Room.

-2120 L Street, NW., Washington, DC 20555, (1) Each record requested must be described in sufficient detail to enable thePublicDocumentEtoomtolocatetherecord. If the description of'uie record is not sufficient to allow the Public Document Room staff to identify the record, the Public Document Room will advise the requester to select the record from the indexes published under $9.21(c)(6),

(ii) In order to obtain copies of records expeditiously, a person may open an account at the Public Document Room with the private contracting firm that is responsible'for duplicating NRC records.

(2) A person may also order records routinely made available by the NRC under 59.21 from the National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia, 22161.

(b) A person may request agency records by submitting a request authorized by 5 U.S.C. 552(a)(3) to the Freedom of Information Act and Privacy Act

-Officer, Office of Chief Information Officer. U.S. Nuclear Regulatory

. Comission, Washington. . DC 20555. The request must be in writing and clearly state on the envelope and in the letter that it is.a

• Freedom of-Information Act request." The NRC does not consider a request-as received until it has been received and logged in by the office of the Freedom of Information Act 27 1 7

and Privacy Act Officer.

(1) A Freedom of Information Act request covers only agency records that are in existence on the date the Freedom of Information Act and Privacy Act Officer receives the request. A request does not cover agency records destroyed or discarded before receipt of a request or which are created after l the date of the request.

(2) All Freedom of Information Act requests for copies of agency records must reasonably describe the agency records sought in sufficient detail to permit the NRC to identify the requested agency records. Where possible, the requester should provide specific information regarding dates, uues, docket numbers, file designations, and other information which may help identify the agency records. If a requested agency record is not described in sufficient detail to permit its identification, the Freedom of Information Act and Privacy Act Officer will contact the requester within 10 working days after receipt of the request and inform the requester of the additional information or clarification needed to process the request.

(3) Upon receipt of a request made under paragraph (b) of this section, the NRC will provide written notification to the requester that indicates the request has been received, the name and telephone number of the NRC point of contact to find out the status of the request, and other pertinent matters regarding the processing of the request.

(4) (1) The NRC shall advise a requester that fees will be assessed if--

(A) A request involves anticipated costs in excess of the minimum specified in 59.39: and (B) Search and duplication is not provided without charge under 69.39: or (C) The requester does not specifically state that the cost involved is 28 l

1

- acceptable or acceptable up to a specified limit.

(ii) The NRC has discretion to discontinue processing a request made under this paragraph (b) until -

(A) A required advance payment has been received:

(B) The requester has agreed to bear the estimated costs; l (C) A determination has been made on a request for waiver or reduction of fees: or (D) The requester meets the requirements of 59.39.

(c) If a requested agency record that has been reasonably described is located at a place other than the NRC Public Document Room or NRC headquarters, the NRC may, at its discretion, make the record available for inspection and copying at the other location.

(d) Except as provided in 59.39 -

(1) If the record requested under paragraph (b) of this section is a record available through the National Technical Information Service, the NRC shall refer the requester to the National Technical Information Service: and (2) If the requested record has been placed in the NRC Public Document Room under $9.21, the NRC will inform the requester that the record is in the Public Document Room and that the record may be obtained in accordance with the procedures set forth in paragraph (a) of this section or, if applicable, is available on line electronically.

(e) The Freedom of Information Act and Privacy Act Officer will promptly forward a Freedom of Information Act request made under $9.23(b) for an agency record to the head of the office (s) primarily concerned with the records requested, as appropriate The responsible office will conduct a search for the agency records responsive to the request and compile those agency records 29

4 to be reviewed for initial disclosure determination and/or identify those that  ;

have already been made publicly available in the Public Document Rocat and  ;

Local Public Document Rooms,

+

$9,25 Initial disclosure determination.

I The NRC will notify a  :

(a) Time for initial disclosure detennination requester within 20 working days of its determination. If the NRC cannot act upon the request within this period, the NRC will provide the requester with the reasons for the o'elay and provide a ptojected response date.

(b) Extension of time limit in unusual circunstances. In unusual ,

circumstances, the NRC may extend the time limit prescribed in paragraph (a) of this section by not more than 10 working days. The extension may be made by written or telephonic notice to the person making the request to explain the reasons for the extension and indicate the date on which a determination I

is expected to be made. " Unusual circumstances" is limited to one or more of the following reasons for delay:

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the' office processing the request; (2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single ,

request: or (3) The need for consultation, which will be conducted with all practicable speed, with another agency having a substantial interest in the determination-of the request or among two or more components of the NRC having substantial 30

. . . . _ , _ - _ - _ - - m.~. 1,-. -. . _ . . . _ , . . . . , _ , , _ . - _ . - . _ . - _ . . _ - . . . _ , _ , . ._-,_.__..._.~..-w.. -

. subject matter interest therein.

(c) & ceptional circumstances. A requester may be notified in certain exceptional circumstances, when it appears that a request cannot be completed within the allowable time, and will be provided an opportunity to limit the scope of the request so that it may be processed in the time limit, or to agree to a reasonable alternative time frame for processing. For purposes of this paragraph. the term " exceptional circumstances" does not include delays that result from the normal predictable workload of F0IA requests or a failure by the NRC exercise due diligence in processing the request. A requester's unwillingness to agree to reasonable modification of the requeh wr an alternative time for processing the request may be considered as factors in determining whether exceptional circumstances exist and whether the agency exercised due diligence in responding to the request.

(d) Nuitfple-Track processing. To ensure the most equitable treatment possible of all requesters, the NRC will process requests on a first in, first-out basis, using multiple tracking systems based upon the estimated time it will take to process the request.

(1) NRC uses a three track system.

(1) The first track is for requests of simple to moderate complexity that are expected to be completed within 20 working days.

(ii) The second track is for requests involving unusual circumstances that are expected to take between 21-30 working days to complete (e.g. requests involving possible records from two or three offices and/or various types of files of moderate volume, of which, some are expected to be exempt)

(iii) The third track is for requests that, because of their unusual volume or other complexity, are expected to take more than 30 working days to 31

complete (e.g. requests involving several offices, regional offices, Another agency's records, classified records requiring declassification review, records from businesses that are required to be referred to the submitter for their proprietary review prior to disclosure, records in large volumes which l

require detailed review because of the sensitive nature of the records such as investigative records or legal opinions and recordings of internal j deliberations of agency' staff),

l-(2) Upon receipt of requests, NRC will notify requesters of the track in which the request has been placed for processing and the estimated time for completion. Should subsequent information substantially change the estimated time-to process a. request, the requester will be notified telephonically or in writing. A requester may modify the request to allow it to be processed faster or to reduce the cost of processing, Partial responses may be sent to requesters as documents are obtained by the F01A office from the supplying offices.

(e) hpedited processing.

(1) NRC may place a person's request at the front of the queue for the appropriate track for that request upon receipt of a written request that clearly demonstrates a compelling need for expedited processing. For purposes

-of determining whether to grant expedited processing. the term compelling need means--

(i) That a failure to obtain requested records on an expedited basis could reasonably be expected to pose an iminent threat to the life or physical safety of an individual: or

-(ii) With respect-to-a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or 32

, alleged federal Government activity.

(2) A person requesting expedited processing must include a statement certifying the compelling need given to be true and correct to the best of his or her knowledge and belief.

(3) The freedom of Information Act and Privacy Act Officer will make the initial determination whether to grant or deny a request for expedited processing and will notify a requester within 10 calendar days after the request has been received whether expedited processing will be granted.

(t) Disclosure Review. The head of the responsible office shall review agency records locatta .n a search under $3.23(b) to determine whether tne agency records are exempt from disclosure under $9.17(a), if the head of the office determines that, although exempt, the disclosure of the agency records will not be contrary to the public interest and will not affect the rights of any person, the head of the office may authorize disclosure of the agency records. If the head of the office authorizes disclosure of the agency records, the head of the office will furnish the agency records to the freedom of Information Act and Privacy Act Officer, who will notify the requester of the determination in the manner provided in 69.27.

(g) Initial disclosure determinations on requests for records located in offices under the hecutIve Director for Operattons, the office of the Chief Financial Officer, and the office of the Chief Information Officer. Except as provided in paragraph (h) of this section, if, as a result of the review specified in paragraph (f) of this section, the head of the responsible office finds that agency records should be denied in whole or in part, the head of the office will submit that finding to the Freedom of Information Act 6nd Privacy Act Officer, who will, in consultation with the Office of the General 33

Counsel, make an independent determination whether the agency records should be denied in whole or in part. If the Freedom of Information Act and Privacy Act Officer determines that the agency records sought are exempt from disclosure and disclosure of the records is contrary to the public interest and will-adversely affect the rights of any person, the Freedom of Information Act and Privacy Act Officer will notify the requester of the determination in the manner provided in 59.27.

(h) Inittal disclosure detenninations on requests for records located in offices other than offices under the hecutive Director for Operations. For agency records located in the office of a Commissioner or in the Ofbce of the Secretary of the Commission, the Assistant Secretary of the Commission will make the initial determination to deny agency records in whole or in part under 59.17(a) instead of the Freedom of Information Act and Privacy Act Officer. For agency records located in the Office of the General Counsel, the General Counsel will make the initial determination to deny agency records in whole or in part instead of the Freedom of Information Act and Privacy Act Officer. For agency records located in the Office of the Inspector General, the Assistant Inspector General for Investigations will make the initial determination to deny agency records in whole or in part instead of the Freedom of Information Act and Privacy Act Officer. If the Assistant Secretary-of the Comission. the General Counsel, or the Assistant inspector General for Investigations determines that the agency records sought are exempt from disclosure and that their disclosure is contrary to the public interest and

will-adversely affect the rights of any person, the As:istant Secretary of-the-

- Comission, the General Counsel, or the Assistant Inspector General for Investigations will furnish that determination to the Freedom of Information 34

- Act and Privacy Act Officer, whe will notify the requester of the determination in the manner provided in 59.27 l (1) Records and infonnation originated by another Federal agency. 1i a requested record is located that was originated or contains information originated by another Federal Government agency. or deals with subject matter over which an agency other than the NRC has exclusive or primary responsibility, the NRC will promptly refer the record to that Federal Government agency for disposition or for guidance regarding disposition, (j) If the NRC does not respond to a request within the 20 working day period, or within the extended periods described in paragraph (e) of this section, the requester may treat that delay as a denial of the request and imediately appeal to the Executive Director for Operations as provided in 59.29(a) or sue in a district court as noted in 59.29(c).

59.27 Form and content of responses.

i (a) When the NRC has located a requested agency record and has determined to disclose the agency record, the Freedom of Information Act and Privacy Act Officer will promptly furnish the agency record or notify the requester where and when the agency record will be available for inspection and copying. The NRC will also advise the requester of any applicable fees under 59.35. The NRC will routinely place copies of non-sensitive agency records disclosed in response to Freedom of Information Act requests in the NRC Public Document Room and on microfiche in Local Public Document Rooms. Records will not be routinely placed in the NRC Public Document Room and Local Public Docum?nt Rooms that contain information personal to the requester, matters that are not 35

likely to be of public interest to anyone other than the requester; or, that contain privileged or proprietary information that should only be disclosed to the requester.

(b) Ben the NRC denies access to a requested agency record or denies a req. Jest Mr expedited procesh ng or for a waiver or reduction of fees, the Freedom of Inforstion Act and Drivacy Act Officer will notify the requester in writing. The denial #1 *.nclude as appropriate -

(1) The reason for the denial:

(2) A reference to the specific exemption under the Freedom of Information Act, or other appropriate reason, and the Comission's regulations authorizing l

the dental:

(3) The name and title or position of each person responsible for the denial of the request, including the head of the office recomending denial of the record:

(4) A statement stating why the request does not meet the requirements of 59.41 if the request is for a waiver or reduction of fees; and (5) A statement that the denial may be appealed within 30 calendar days from the date of the denial to the Executive Director for Operations. to the Secretary of the Commission, or to the Inspector General, as appropriate.

(c) The Freedom of Information Act and Privacy Act Officer will maintain a copy of each letter granting or denying requested agency records, denying a request for expedited processing. or denying a request for a waiver or i

reduction of fees in accordance with the NRC Comprehensive Records Disposition Schedule.

69.29 Appeal from initial determination.

36 i

(a) A requester may appeal a notice of denial of a Freedom of Information Act request for access to agency records, denial of a request for waiver or reduction of fees, or denial of a request for expedited processing under this subpart within 30 calendar days of the date of the NRC's denial. For agency records denied by an Office Director reporting to the Executive Director for Operations, the appeal must be in writing and addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Comission, Washington, DC 20555, for agency records denied by an Office Director reporting to the Comission, the Assistant Secretary of the Comission, or the Advisory Comittee Manas ..ot Officer and for a denial of a request for a waiver or reduction of fees, or denial of a request for expedited processing, the appeal must be in writing and addressed to the Secretary of the Comission. For agency records denied by the Assistant inspector General for Investigations.

the appeal must be in writing and addressed to the Inspector General. The l

appeal should clearly state on the envelope and in the letter that it is an

" Appeal from Initial F0!A Decision." 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 Executive Director for Operations, Secretary of the Comission, or the Inspector General.

(b) The NRC will make a determination on any appeal made under this section within 20 working days after the receipt of the appeal, except an appeal of the denial of-a request for expedited processing will be determined within 10 working days after receipt of the appeal.

(c)(1) If the appeal is denied in whole or in part, the Executive Director for Operations or a Deputy Director, the Secretary of the Comission, or the Inspector General, as appropriate, will notify the requester of the denial, 37

explaining the exemptions relied upon and how the exemptions apply to the agency records withheld.

(2) If, on appeal, the denial of a request for expedited processsing or for a waiver or reduction of fees for locating and reproducing agency records is upheld in whole or in part, the Secretary of the Comission will notify the person making the request of the decision to sustain the denial, including a statement explaining why the request does not meet the requirements of

$9,25(e)(1) and (2) or 59.41.

(3) The Executive Director for Operations, or a Deputy Executive Director, or the Secretary of the Commission, or the Inspector General will inform the requester that the denial is a final agency action and that judicial review is available in a district court of the United States in the district in which the requester resides o'r has a principal place of business, in which the agency records are situated, or in the District of Columbia.

(d) The Executive Director for Operations, or a Deputy Executive Director, or the Secretary of the Commission, or the Inspector General will furnish copies of all appeals and writien determinations on appeals to the Freedom of Information Act and Privacy Act Officer, 59.31 Extension of time for response.

(a) In unusual circumstances dsfined in 59.13, the NRC may extend the time limits prescribed in 59.25 or 69.29 by not more than 10 working days. The extension may be made by written notice to the person making the request to explain the reasons for_the extension and indicate the date on which a determination is expected to be dispatched.

38

. (b) An extension of the time limits prescribed in $$9.25 and 9.29 may not exceed a combined total of 10 working days per request, unless a requester has agreed to an alternative time frame as described in 59.25 (c).

$9.33 Search, review, and special service fees.

(a) The NRC charges fees for -

(1) Search. duplication, and review, when agency records are requested for comercial use:

(2) Duplication of gency records provided in excess of 100 pages when l agency records are not sought for commercial use and the request is made by an educational or noncomercial scientific institution, or a representative of ,

the news media:

(3) Search and duplication of agency records in excess of 100 pages for any request not described in paragraphs (a) (1) and (2) of this section:

(4) The direct costs of searching for agency records. The NRC will assess fees even when no agency records are located as a result of the search or when agency records that are located as a result of the search are not disclosed:

and (5) Computer searches which includes the cost of operating the Central Processing Unit for the portion of operating time that is directly attributable to searching for agency records plus the operator / programer salary apportionable to the search.

(b) The NRC may charge requesters who request the following services for the direct costs of the service:

(1) Certifying that records are true copies: or 39

I (2) Sending records by special methods, such as express mail, package

- delivery service, courier, and other means other than ordinary mail.

(3) Producing or converting records to formats specified by a requester {

t other than ordinary copying processes that are readily available in NRC. i i

f

$9.34 Assessment of interest and debt collection. ,

1 (a) The NRC will assess interest on the fee amount billed starting on the 31st day following the day on which the billing was sent in accordance with  ;

NRC's regulations sei out in S15.37 of this chapter. The rate of inte,est is prescribed in 31 U.S.C. 3717.

(b) The NRC will use its debt collection procedures under Part 15 of this chapter for any overdue fees.  ;

L

$9.35' Duplication fees.

4 (a)(1) Charges for the duplication of records made available under 59.21 at the NRC Public Document Room (PDR), 2120 L Street, NW. (Lower Level), l Washington,.DC. by the duplicating service contractor are as follows.

(i) Paper to paper reproduction is $0.08 per page standard size (up to and including 11 x 17 inches reduced). Pages .11 x 17 inches are 50.15 each. Pages 1arger than 11 x 17 inches, including drawings, are $1.50 each, Pages greater than legal size, 8 1/2 x 14 inches, and smaller than or equal to 11 x 17 inches will be reduced to legal size and reproduced for $0.08 per page, unless the order specifically requests full size reproduction.

4 40

---.---.,.,#r, y._,w,7..,-vp .3 n.-,y,_ ,y,,ym y. y-m,,w.,- -__,.,,.m.,,,,.,._%,,m,,mn.n m e ,_ % --_er.,,. , , . . . ~ ,..,w,-y,.7-w,y,,,,-w,-,,-,.- --p,. .-, - , , ,.,-v,-,-- y,,..,--,.

4

• (ii) Microfiche to paper reproduction is $0.08 per page. Aperture card blowbacks are $3.00 each (reduced size) or $5,00 (full size).

(iii) Microfiche or aperture card duplications are 10.75 each.

(iv) Rush processing is offered for standard size paper to paper reproduction and blowbacks, excluding standing order documents and pages reproduced from bound volumes. The charge is $0.15 per page.

(v) Facsimile charges are: $0.30 per page local calls: $0.50 per page U.S. long distance: and $1.50 per page foreign long distance.

(2) Self service duplicating machines are available at the Public Document Room for the use of the public. Paper to paper copy is $0.08 per page.

Microfiche to paper is $0.10 per page on the reader printers.

(3) A requester may submit mail order requests for contractor duplication of NRC records made by writing to the NRC Public Document Room. The charges for mail-order duplication of records are the same as those set out in paragraph (a)(1) of this section plus mailing or shipping charges.

(4) A requester may open an account with the duplicating service contractor. A requester may obtain the name and address and billing policy of the contractor from the NRC Public Document Room.

(5) Any change in the costs specified in this section will become effective immediately pending completion of the final rulemaking that amends this section to reflect the new charges. The Comission will post the charges that will be in effect for the interim period in the Public Document Room. The Commission will publish a final rule in the Federal Register that includes the new charges within 15 working days from the beginning of the interim period.

41 I

m

i (b) The NRC will assess the following charges for copies of records to be duplicated by the NRC at locations other than the NRC Public Document Room located in Washington. DC or at local Public Document Rooms:

(1) Sizes up to 81/2 x 14 inches made on office copying faachines-- $0.20 per page of copy: and (2) The charge for duplicating records other than those specified in paragraphs (a) and (b) of this section is computed on the basis of NRC's direct costs.

(c) In compliance with the Federal Advisory Comittee Act, a requester may purchase copies of transcripts of testimony in NRC Advisory Comittee proceedings, which are transcribed by a reporting firm under contract with the i NRC directly from the reporting firm at the cost of reproduction as provided for in the contract with the reporting firm. A requester may also purchase transcripts from the NRC at the cost of reproduction as set out in paragraphs (a) and (b) of this section.

(d) Copyrighted material may not be reproduced in violation of the copyright laws. As such, requesters will be given the citation to any copyrighted documents and a copy of the material will be placed in the Public Document Room where it may be viewed by requesters.

(e) The cost for duplicating NRC records located in NRC Local Public Document Rooms are established by the institutions maintaining the NRC Local Public Document Room collections.

559,37 Fees for search and review of agency records by NRC personnel.

42

• The NRC dill charge the following hourly rates for search and review of agency records by NRC personnel:

(a) Clerical search, review, and duplication at a salary rate that is equivalent to a GG 7/ step 5, plus 16 percent fringe benefits: 1 (b) Professional / managerial search, review, and duplication at a salary rate that is equivalent to a GG 13/ step 5, plus 16 percent fringe benefits; and (c) Senior executive or Comissioner search, review, and duplication at a salary rate that is equivalent to an ES 3, plus 16 percent fringe benefits.

l I

99.39 Search and duplication provided without charge.

(a) The NRC will search for agency records requested under 59.23(b),

without charges when agency records are not sought for comercial use and the records are requested by an educational or noncomercial scientific institution, or a representative of the news media. -

(b) The NRC will search for agency records requested under 59.23(b) without charges for the first two hours of search for any request not sought for comercial use and not covered in paragraph (a) of this section.

(c) The NRC will duplicate agency records requested under 59.23(b) without charge for the first 100 pages of standard paper copies, or the equivalent cost of 100 pages of standard paper copies when providing the requester copies in microfiche or electronic form such as computer disks, if the requester is not a commercial use requester.

(d) The NRC may not bill any requester for fees if the cost of collecting the fee would be equal to or greater than the fee itself.

43

(e) The NRC may aggregate requests in determining search and duplication to be provided without charge as provided in paragraphs (a) and (b) of this section, if.the NRC finds a requester or group of requesters acting in concert, have filed multiple requests that actually constitute a single request, and that the requests involve clearly related matters.

$9.40 Assessment of fees.

(a) If the request is expected to require the NRC to assess fees in' excess of $25 for search and/or duplication, th.) NRC will notify the :equester that fees will be assessed unless the reque. ster has indicated in advance his or her willingness to pay fees as high as estimated.

(b) In the notification, the NRC will include the estimated cost of search fees and the nature of the search required and estimated cost of duplicating fees.

(c) The NRC will encourage requesters to discuss with the NRC the possibility of narrowing the scope of the request with the goal of reducing the cost while retaining the requester's' original objective.

(d) If the fee is determined to be in excess of $250, the NRC will require an advance payment. ,

(e) Unless a requester has agreed to pay the estimated fees or, as provided for in paragraph-(d) of this section, the requester has paid an estimated fee in excess of.$250, the NRC may not begin to process the request.

(f) If the NRC receives a new request and determines that the requester has failed to pay a fee charged within'30 calendar days of receipt of the bill-on-a previous request, the NRC may refuse to accept the new request for 44

processing until payment is made of the full amount owed on the prior request, L

plus any applicable interest assessed as provided in 59.34.

- -(g) Within 10 working days of-the receipt of NRC's notice that fees will be dssessed, the requester will- provide advance payment if required, notify the NRC in writing-that the requester agrees to bear the estimated costs, or submit a request for a waiver or reduction of fees pursuant to 59.41.

59.41 Requests for waiver or reduction of fees.

(a)(1) The NRC will coll'ect fees _for searching for, reviewing, and duplicating agency records, except as provided in 59.39, unless a requester submits a request in writing for a waiver or reduction of fees. To ensure that there will be no delay in the processing of Freedom of Information Act requests, the request for a waiver or reduction of fees should_be included in I

the initial Freedom.of Information Act request letter-.

(2) Each request for a waiver or reduction of fees must be addressed to the Freedom of Information Act and Privacy Act Officer, Office of Chief Information Officer. U.S. Nuclear Regulatory Commission, Washington, DC 20555.

(b) A person requesting the NRC-to waive or reduce search, review, or duplication fees will--

(1) Describe the purpose for which the requester intends to use the requested information:

(2) Explain the extent to which the requester willzextract and analyze the substantive content of the agency record:

(3) Describe the nature of the specific activity or research in which the agency records will be used and the specific qualifications the requester 45

possesses to utilize information for the intenJed use in such a way that it will contribute to public understanding:

(4) Describe the likely impact on the public's understanding of the subject

, as compared to the level of public understanding of the subject before disclosure:

(5) Describe the size and nature of the public to whose understanding a contribution will be made:

(6) Describe the intended means of dissemination to the general public:

(7) Indicate if public access to information will be provided free of charge or provided foi an access fee or puolication fee: and (8) Describe any commercial or private interest the requester or any other party has in the agency records sought.

(c) The NRC will waive or reduce fees, without further specific information from the requester if, from information provided with the request for agency records made under $9.23(b), it can determine that disclosure of the information in the agency records is in the public interest be ause it is likely to contribute significantly to public understanding of the operations or activities of the Federal Government and is not primarily in the commercial interest of the requester.

(d) In making a determination regarding a request for a waiver or reduction of fees, the NRC will consider the following factors:

(1) How the subject of the requested agency records concerns the operations or activities of the Federal Government:

(2) How the disclosure of the information is likely to contribute to an understanding of Federal Government operations or activities: i l

I 46 1

~_ _ _ _ ,

• (3) If disclosure of the requested information is likely to contribute to public understanding:

(4) If disclosure is likely to contribute significantly to public understanding of Federal Government operations or activities:

(5) If and the extent to which, the requester has a commercial interest that would be furthered by the disclosure of the requested agency records; and (6) If the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requester.

(e) The Freedom of Information Act and Privacy Act Officer wiii make an initial determination whether a request for a waiver or reduction of fees meets the requirements of this section. The Freedom of Information Act and Privacy Act Officer will inform requesters whenever their request for a waiver or reduct: ,n of fees is denied and will inform them of their appeal rights under 69.29.

59.43 Processing requests for a waiver or reduction of fees.

(a) Within 20 working days after receipt of a request for access to agency records for which the NRC agrees to waive fees under 59.39(a) through (d) or 59,41(c), the NRC will respond to the request as provided in 59.25.

(b) In making a request for a waiver or reduction of fees, a requester shall provide the information required by S9.41(b).

(c) After receipt of a request for the waiver or reduction of fees made-in accordance with 69.41, the NRC will either waive or reduce the fees and notify the requester of the NRC's intent to provide the agency records promptly or 47

j --

-deny the request and provide'a statement to the requester explaining why the ,

4

request'does not meet the requirements of $9,41(b). ,

J (d' As provided in 59.29. a requester may appeal a denial of a request to .

waive or reduce fees to the Secretary to the Commission. The appeal must be

! submitted within 30 calendar days from.the date of the notice, i

4 59.45 Annual report to Congress.

p j

l (a) On or before February 1 of each year, the NRC will submit a report covering the preceding fiscal year to the Attorney General of the United ,

!- States which shall include--

i

l. (1) The number of determinations made by the NRC to deny requests for h records made to the NRC under this part and the reasons for each t .: determination:

!' (2) The number of appeals made by persons under 59.29, the results of the

! appeals, and the reason for the action taken on each appeal that-results in a

denial of information

(3) A complete list of all statutes that the_NRC relied upon to withhold

-information under subsection (b)(3) of.5 U.S.C.-552. a description of whether

a' court has upheld the decision of the NRC to withhold information'under each such statute, and a concise description of the' scope of any information

withheld

-(4) The number of-requests for records pending before-the NRC as of LSeptember 30 of the preceding year, and the median number of days that such-I requests.had been pending before the agency as of that date:

! 48 t-1 i

3 re -c-, . - - - -

y y et_w 3 -

.m*.- :, .

& w _ _ _ +

+ _(5)ThenumberoflrequestsforrecordsreceivedbytheNRCandthenumber of requests that-the NRC processed; (6) The median number of days taken to process different types of requests:

(7) The total amount of fees collected by the NRC for processing requests; (8) The number of full-time staff of the NRC devoted to processing requests under the FOIA and the total amount expended for processing these requests.

(b) The NRC will make a copy of each report available to the public on the NRC homepage on the Internet that can be accessed at: http\\www.nrc. gov, A copy will also be available for public inspection and copying in the NRC Public Document Room.'

Dated at Rockville, Maryland, this 19th day of August, 1997.

For the Nuclear Regulatory Commission.

AJ $,bi (

Arnold E. Levin.

Acting Chief Information Officer, 49-l 1

_ . _ _ - . _ _ _ _ . _