ML20217H541

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Discusses Requirements of Section 552(a)(2) of Electronic FOIA Amend of 1996.Forwards Listed Documents
ML20217H541
Person / Time
Issue date: 08/18/1997
From: Galante A
NRC
To:
NRC
Shared Package
ML20217H029 List:
References
FRN-62FR46922, RULE-PR-9 AF78-1-014, NUDOCS 9910220152
Download: ML20217H541 (6)
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p" UNITED STATES j 's j NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 2055H001 {

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.....! August 18, 1997 l MEMORANDUM TO: Office Directors and Regional Administrators FROM: A. J. Galante '

Chief Information O .cer

SUBJECT:

REQUIREMENTS OF SECTION 552(a)(2) OF THE ELECTRONIC FREEDOM OF INFORMATION ACT AMENDMENTS OF 1996 Under Section 552(a)(2) of the Freedom of Information Act (FOIA),5 U.S.C. 552, all agencies have been required to make available for public copying and inspection certain information,  ;

such as agency opinions, policy statements, and administrative staff manuals and staff instructions that affect members of the public. NRC has fulfilled this requirement by placing this type of information in the Public Document Room and the Local Public Document Rooms in accordance with Management Directive and Handbook 3.4, " Release of information to the Public."

On October 2,1996, President Clinton signed into law amendments to the FOIA. The new law, known as the Electronic Freedom of Information Act Amendments of 1996 (EFOlA), requires that within one year, all records required to be made publicly available under Section 552(a)(2) '

of the EFOIA that are created after November 1,1996, must also be made available to the public through electronic access. Therefore, by November 1,1997, and thereafter, NRC intends to post the required records on its public Internet Web site. The purpose of this memorandum is to establish new procedures for NRC offices to ensure compliance with this requirement.

The Office of the General Counsel has provided us with guidance on which types of agency records fall within the scope of EFOIA 552(a)(2) requirements (Attachment 1). The records that remain for the staff to make available electronically are proposed rules submitted to Congress for review under the Small Business Regulatory Enforcement Fairness Act (SBREFA) issued after November 1,1996, which are all included in Attachment 2, and all future proposed rules submitted under SBREFA that (1) have not been published in the Federal Reaister. (2) are not available for sale from the Government Printing Office or the National Technical Information Service, and (3) are not available through NRC's Web site.

To ensure NRC compliance with EFOIA, please submit the electronic version of proposed SBREFA rules that your office created, listed in Attachment 2, and all new SBREFA rules, to the Chief, Publications Branch, IRM, in accordance with the procedures in Attachment 3. A sample submission is shcwn in Attachment 4.

If you have any questions, please call Russell A. Powell, Chief, FOIA/LPDR Branch, on 415-6527, or e-mail RAP 1.

Attachments:

1. OGC Memorandum, " Electronic FOIA Amendments of 1996," dated May 16,1997
2. Small Business Regulatory F.nforcement Fairness Act of 1996 Submissions
3. Procedures for Submitting EFOIA Documents for Posting to the NRC Web site
4. NRC Form 426 " Release to Publish Unclassified NRC Staff Publications" 9910220152 991020 PDR PR 9 62FR46,922 PDR A O'

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MEMORANDUM TO: Office Directorsar.dRegional Adnnistators DATED: August 18, 1997

SUBJECT:

REQUIREMENTS OF SECTION 552 fax 2) OF THE ELECTRONIC I FREEDOM OF INFORMA7)ON ACi AMENDMENTS OF 1996 i

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Distribution:

RAPowell WEOliu JRutberg AELevin AJGalante l FOIA/LPDR r/f j, FOIA/LPDR s/f

  • See Previous Concurrence DOCUMENT NAME: P:%2-MEMO Ts recWye a cop' of this document, Indicate in the bot "C" a Copy wdhout attachment / enclosure T s C0p t With attachment / enclosure "N" a No copy ,.

OFFICE FOIA/LPDR PB/lRM OGC IRM ClO/ M NAME RAPowell* WEOliu' JRutberg* AElevin AJGalantU l' DATE 08/14/97 08/14/97 08/14/97 08/ /97 08/ii/91 OFFICIAL RECORD COPY

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Office Directors, et al. {

l To ensure NRC compliance with EF01A, please scitrAit the electronic j version of proposed SBREFA rules- that your ofdce created, listed

.in Attachment 2, and all new SBREFA rules, to the Chief, Publications Branch, IRM, in accordance with the procedures in

' Attachment-3.

A sample submission is shown in Attachment 4.

If you have any questions, please call Russell A. Powell, Chief, FOIA/LPDR Branch, on 415-6527, or e-mail RAP 1. I Attachments:

1. OGC Memorandum, " Electronic FOIA Amendments of 1996," dated May 16, 1997
2. Small Business Regulatory Enforcement Fairness Act of 1996 Submissions
3. Procedures for Submitting EFOIA Documents for Posting to the NRC Web site
4. NRC Form 426 " Release to Publish Unclassified NRC Staff 1

. Publications"

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DOCUMENT NAME: G:A2-MEMO To receive a copy.of this document, indicate in the box: "c" =

Copy without enclosures "E" = Copy with enclosures "N" = No OFFICE FOIA/LPDR l PB/lRM- l OGC Q, IRM Ljbg CIO ghl NAME RAPowellO' WEOliu \\)4b T.Q M ,

AELevin p' AJGalaritj' DATE 08//4/97 08/$/97 08//f97 085197 08/1//97 I

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OFFICIAL RECORD COf'Y i

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OFFICE of THE IGrNERALCouNSEL

' MEMORANDUM TO: Anthony J. Galan1e Chief Information Ofi :er FROM:

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William J. Olmstead Associate General Counsel

SUBJECT:

Ei.ECTRONIC FOIA AMENDMENTS OF 1996  ;

I This responds to the NRC staff request for an interpretation of which classes of NRC j documents are required to be placed online electronically for public access pursuant to j newly enacted provisions of tha Fieedom of Information Act.

In 1996, Congress enacted new amendments to the Freedom of Information Act, 5 U.S.C. 5 552, designed to bring Federal policy on openness into step with contemporary technology by requiring agencies to post certain types of records on lino electronically. J These Electronic Freedom of Information Act Amcndments of 1996 (" Electronic FOIA") seek to make the burden of FOIA lighter both for requesters ad agen:ies, by requiring that the types of records most likely to be in demand (will be available oniine electronically as a matter of routine, thereby mairing it unnecessary to file and process individual FOIA requests. This memorandum adoresses what types'of documents fall within the scope of the new amendments. Under the Act, those documents generated after November 1,1996, j that are subje :t to the online requirement are to be placed online by October 31,1997 if the a0ency has the established computer telecommunications means to do so. Otherwise, these documents must be made available by other electronic means.2 The first point to be emphasized is an' exception to the law: If the materials are promptly I published and copies are offered for sale, there is no requirement of electronic posting.

CONTACT: Peter Crane, OGC Pamela A. Urban, OGC I (301)415 1634 l'

'Nothing i'l the new Act, however, reg'uires the NRC to make public documents which would not normally be disclosed if requested under the FOIA.

2The' legislation does not address the issue of how long the documents must remain I- online, in its Winter 1997 FOIA Update, the Department of Justice suggested that an agency should continue to maintain the record online for as long a',it remains current.

It specifically asserted that policy statements and administrative staff manuals should remain available' until they are replaced by superseding documents or otherwise are no longer in effect.

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A. Gatante 2 Thus the NRC need not (unless it wishes to) post its final adjudicatory decisions (Category A below), since final decisions are promptly published and sold in the yellow "NRC lssuances". - Decisions are usually published in the NRC lssuances within 45-90 days after issuance, which satisfies the " prompt" publication requirement.8 Unless the exception applies, the law requires online electronic publication of five categories of documents. The categories are:

(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases:

(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; (C) administrative staff manuals and instructionr to staff that affect a member of the public; (D) copies of all records, regardless of form and format, which have been released to any person under paragraph (3) (e, under a FOIA request) and which, because of the nature of their subject matter, the agency deermines have become or are likely to become the subject of subsequent requests for substantially the same records; and (E) a general index of the records referred to under subparagraph (D). (This index is not required to be online until December 31,1999.)

Of these five categories, paragraphs (A), (D), and (E) need no explication here." The difficulty is in defining " interpretations" and " adopted by the agency," in paragraph (B), and

" instructions to staff" and " affect a member of the public"in paragraph (C). However, because these terms were part of the Act long before the recent amendments, there is preexisting guidance from the Attorney General on their meaning.

, In a February 1975 memorandum on amendments to FO!A enacted in 1974, the Attorney

! General explained that " interpretations" are " explanations or clarifying applications of laws, l regulations, or statements of policy." Only " statements and expressions issued by tha head l of the agency, or by a responsible official empowered by the agency to make authoritative l

'The Atomic Safety and Licensing Board Panel already posts its decisions on the World Wide Web.

"We would note that with the category pertaining to documents frequently sought under the FOIA, the Department of Justice in its Winter 1997 FOiA Upoate has advised

. agencies that this encompasses only documents that were generated by the agency.

Therefore, the NRC is not required to place online those documents possessed by the NRC that are subject to frequent FO!A requests but which were generated by licensees or members of the public.

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3 j A. Galante issuance," are considered to be " adopted by ths Tsewy."

The memorandum also explained that the 4ectrm *a:imiristrar# h paragraph (C) modifies both " manuals" and " instructions." 1ho word "adesnistur6va" was added in 1966 amendments to the FOIA, as the relevant Senate report wplairrad, to ensure that the public has access only to those manuals and instructions that pertain to aininistrative matters and not to those that would hinder law enforcement efforts. Congress did not want agencies to be forced to reveal manuals, instructions, or investigative techniques which could be helpful to wrongdoors.' This provision has been interpreted by the courts to require disclosure of those portions of investigatory manuals that contain information on investigatory practices that is routinely available to the public. Information that if known to the public would significantly impede the enforcement process can be withheld. See, for example, Hawkes v.

IRS,467 F.2d 787 (6th Cir. 1972), aff'd on other grounds,507 F.2d 481 (6th Cir.1974).

The question then becomes one of determining which types of NRC documents fit within these various categories, bearing in mind that current NRC practice has long been to release a large volume of information.s To date, the Department of Justice has yet to issue specific guidance to the agencies in implementing these prcvisions in the context of the new Act.

'S. Rep. No. 813, 89th Cong,1st Sess.2 (1965). j i

'The following types of documents that are not published in the FederalRegister are i already routinely released to the public in one or another form (including publication for ]

sale):

a. Documents originated by SECY

-- staff requirements memoranda (SRM's) issued as the result of open i Commission meetings;

-- orders, opinions, and decisions of the Commission and the Boards relating to adjudicatory matters; l l

- all SECY papers, other than those withheld on specified grounds (adjudicatory, enforcement, investigatory, classified, proprietary, personal privacy, especially sensitive), as well as SRM's and the Commission Voting Record on those papers;

b. Documents originated by the Office of Enf.orcement

-- NRC Enforcement Manual

- List of Civil Penalties

c. Documents originated by NRR and/or NMSS:

-- Inspection Manual

-- Bulletins, generic letters

d. Other Documents j -- Branch technical positions j -- Regulatory and Technical Reports l - NRC lssuances

-- NRC Regulatory Guides (issued jointly with RES)

-- NUREGS (including draft and final reports and public comments) 4 L

A. Galante 4 We believe that the simplest and most efficient means of 'rmpkrnentmg the new amendments is to look to the recently enacted Small Business hgulatory Enforcement Fairness Act of 1996 (SBREFA). It requires Federal agencies to provide Congress with an opportunity to review all agency " rules", with " rule" defined so broadly as to incorporate all final agency statements of general applicability (except for "any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties," S U.S.C. 6 804 (3)(C)), and all policy statements, as well as agency documents interpreting agency requirements, In our view, there is no legally significant distinction between the standards of the two statutes: that is, between " affect a member of the public" in the Electronic FOIA amendments, and "substantially affect the rights or obligations of non-agency parties," in the SBREFA. Presumably, the Electronic FOIA amendments are not intended to require posting of documents which have only an insubstantial effect on members of the public.

That being so, application of the Electronic FOIA can piggyback on the SBREFA, with electronic posting of all " rules" sent to the Congress, except for those that are published in the federal Register.7 This should make it unnecessary to decide on a case-by-case basis whether particular documents fall within the scope of the Electronic FOIA amendments.

The NRC already has in place mechanisms for determining which agency documents are

" rules" for purposes of SBREFA.e Each office has a SBREFA coordinator and the online publication requirement could be effectively implemented by directing that for each " rule" that is to be submitted to the Congress, but that will not be published in the Federal Register, the originating office is to provide a diskette with a electronic version of the document to a specified individualin the NRC. For planning purposes, during the first year SBREFA was in effect (March 29,1996-March 28,1997), the NRC issued 110 " rules" that were not published in the FederalRegister and that would qualify for online publication.

However, only those rules issued after November 1,1996 need to be placed online.

An additional class of documents, not constituting " rules" under SBREFA, must also be placed online under the Electronic FOIA, because they fall within either category (B) or (C).

These are staff requirements memoranda issued by the Secretary of the Commission which provide guidance to the staff. Only those memoranda which are made publicly available and provide policy or legal guidance to the staff need be placed online. We do not read the new l

law as narrowing in any way agencies' authority to withhold documents under FOIA.

Rather, the law deals with the manner in which documents are made available. j l

l 7 The Electronic FOIA Act does not require the agency to place on line final rules and policy statements that are published in the Federal Register as these are already available on line through other means.

8 A list of which classes of agency documents are rules for purposes of SBREFA is set J forth in Attachment 1 to the June 25,1996, memorandum from James M. Taylor, Executive Director for Operations, to Office Directors entitled, "Small Business Regulatory 1 Enforcement Fairness Act". i l

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A. Galante .' 5 CONCLUSIONS

1. : Because the NRC's adjudicatory orders :are gunpiy ge#Jittat arnd offered for sale, the NRC is not legally required to place these documeots maiw, but nar wish to do so as a matter of policy.

2.; The agency is required td place online those "ruies" that are not published in the Federal Rep / ster but must nonetheless be transmitted to the Congress pursuant to the provisions of the Small Business Regulatory Enforcement Fairness Act. The NRC is also required to place online those publicly available staff requirements memoranda that establish agency policy or provide policy or legal guidance to the NRC staff. )

3. The NRC is required to place online documents generated by the NRC which have been .

or are expected to be, requested frequently pursuant to the Freedom of Information Act.

The NRC is also required to place online an index of these frequently requested documents.

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ATIACHMENT 2 Small. Business Regulatory Enforcement Fairrvess Act of 1996 (SBREFA) Submissions OFFICE AGENCY ID ACTION TITLE Date to OMB NMSS IP 87120 Inspection procedure 87120, 19970507 Industrial radiography programs NMSS DRAFT BTP BTP on performance assessment for 19970101 low-level waste disposal facilities under Part 61 NMSS STAFF TECH POS Revision'of " Staff technical 19970210 position on alternate concentration limits for Title II uranium mills NMSS POL & GUID DIR Policy and gu'idance directive for 19970210 licensure of mobile high-dose-rate afterloading NMSS GENERIC LTR ' Generic letter for uranium recovery 19970210 licensees on annual financial surety update NRR TACS M94840 Changes in the operator licensing 19970101 program NRR TACS M95773 SER for B&W owners group topical 19961201 report B&W-1067, Supplement 3, Justification for Increasing Reactor Trip Systems On-line Test Interrupt OE EGM Enforcement guidance memorandum on 19961201 SBREFA procedures OSP STATE Statement of principles and policy 19961101 AGREEMENT for the agreement state program OSP POLICY Policy statement on adequacy and 19961101 STATEMENT compatibility of agreement sate programs i

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ATTACHMENT 3 Procedures for Submitting EFDIA Documents .for Posting to the NRC Web Site When submitting a final action for SBREFA review, also sutr;iit the electronic version to the Chief, Publications Branch, IRM, for posting on the NRC Web site. Submit the information on disk in Wordperfect 5.1 or 6.1, whichever is the original version of the final document. Also include a signed Form 426 authorizing that it be posted that identifies it as an EFOIA Section

' 552(a) (2) submission (Attachment 4).

If the information has been published, is already posted on the NRC Web site, or is in NUDOCS in full text, so state on the Form 425 and provide the publication date, the Web address, or the NUDOCS accession number for the item. Please also suggest possible locations where the information should be posted on the Web and the length of time that it should be posted. If the electronic version is not available, submit the hardcopy and it will be converted to an electronic version.

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. ATTACHMENT 4 NRC FORM 428 U. S. NUCLEAR REGULATOR Y COMMIS$10N t REPoR7 NuMsER (Jrany) Obtain number from the Techn6 cal CNbl#canone section.

NRCMD 3 7 M"* * *N ##

RELEASE TO PUBLISH '" '"""'"a m snm *-

l UNCLASSIFIED NRC STAFF PUBLICATIONS (Psease type orprint) IP 87120

2. TITLE ANo susTITLE (Sarre m Ad, usmg capaat derrers as may snoisir appear on she report)

Inspection Procedure 87120, Industrial Radiography Programs EF01A Section 552(a) (2) Submission

3. DisTmouTeoN A. List codes for distribution lists (see 'Distributson Usf Descriptions abr NRC Reports and Docuinants,* Location: Nuclear NUREG/BR-0f##), or call 301-4157166 to obtain a copy, Materia 1s Section B. Provide peel off mailmg labels for addresses not inch dad in NRC distribution lists; if NRC staff, provide name and mall stop only;if non-NRC addressees, provide complete malhng address.

C, include number of copies for the NRC Report Contact, giving name and mail stop.

D. If more than one copy is required for an addressee, indicate the number of copies in parentheses on the label.

4. OMB-REQUIRED DATA 8 9VEY n/a l A Hours spent writing, editing, and compiling the report by NRC staff only.

n/a l B. Number of graphic figures, excluding tables.

g n/a l C. Total pages typed, including all drafts. Include pages typed by the program office and processed by the Publications Bran ln/a l D. Computer time spent preparing data for the report-does not include word processing or graphics software.

E. Frequency of tasuar,:e or update ANNUALLY SEMIANNUALLY QUARTERLY MONTHLY y LESS OrTEN g, , 6. CERTIFICATION (ANSWER ALL QUESTIONS)

(Contact the End User Support Branch.ottk:e ofIntbrmetton Resources Management, Ibr Instructions U the report contains a computer cocw) la all matenal referenced in this report available to the pubhc e.ther through a pubhc hbrary, the Government Pnntmg A. REFERENCE AVAILABILITY - Office. the National Technical Information Service, or the NRC Pubhc Ducument Room?

If no hst below the specific availabihty of each referenced document.

SPEC 1FIC AVAILABILITY (include attachmentIf necessary) a rep d c nta n c pyrW rnWeM B. COPYRIGHTED MATERIAL .

ll yes, attach a letter of release from the source that holds the copyright.

C. PATENT CLEARANCE - Does this report require patent clearance?

If yes, the NRC Patent Counsel must signify clearance by signing below.

NRC PATENT COUNSEL (Type ar prrnt neme; SIGNATURE DATE Does thss report contam any questionnaires, surveys, or data collection requests?

D. INFORMATION REQUESTS . If yes, contact the Information and Records f.ianagement Branch, Office of Information Resources Management, at 301-4157233 for instructions.

Does this report contain measurement and weight values?

I Ix E. METRIC UNIT CONVERSION . ir yn all must be consted to the intemational System or unns. tonowed tg the Enghsh umts in brackets. pursuant to the NRC Pohey St.iem.nt imwem.nnno in. omnibu. Tr.a. .nd como.in=n Act or soss. E,.cui= oroer $2no. auty 2s.1895 F LICENSING REQUIREMENTS . NUREG-sones reports cannot impose licensing requirements on licensees per NRC MD 3.7., Part 1(E).

I Please check the "YES* box to certify that the report comphes with this statement.

l I S. PUBLICATION FORMATS (Check in addition to paper, publish in the following formats: A aSm a cm appropriate X cm box

1. RESPONSIBLE REPORT CONTACT 3. AUTNoR12ATloN To PRINT (Cannotbe the same person sistedin klock 7) l NRC OFFICIAL AUTHOR 2 LNG RELEASE (Type erpont name) l EME (Type or pnn0 l Jane L. Doe

' C7FICEJDIVISION TELEPHONE NUMBER MAIL STOP E MAIL I D Robert T. Roe INMSS 415-XXXX T-7 xx JLD SIGNATURE DATE DATE I SiONATURE xx/xx/XX xx/xx/xx NHC FORM 42e (3-o7) PRINTED ON RECYCLED PAPER

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