ML20236W337

Recommends Commission Approval to Publish Encl Amends to 10CFR2 & 9 as Final Rule in Order to Conform NRC FOIA Regulations to 1986 FOIA Reform Act

ML20236W337
Person / Time
Issue date:	11/10/1987
From:	Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
TASK-RIA, TASK-SE SECY-87-280, NUDOCS 8712070406
Download: ML20236W337 (53)

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{{#Wiki_filter:/ ~ l' A-L- ,p"' - 5 RULEMAKING ISSUE i (Affirmation) l November 10, 1987 SECY-87-280 For: The Commi:::ioners From: Victor Stello, Jr. Executive Director for Operations

Subject:

Implementation of the Freedom of Information Reform Act of 1986; Final Rule Amending 10 CFR Part 9, Subpart A, and Minor Conforming Amendments to 10 CFR Part 2 and Part 9, Subparts B, C, and D.

Purpose:

To obtain approval to publish the enclosed amendments to 10 CFR Parts 2 and 9 as a final rule in order to conform NRC's Freedom of Information Act (FOIA) regulations to the' F0IA as amended by the Freedom of Information Reform Act of 1986, current NRC organizational structure, and current agency practice and delegation. Category: Ninor policy issue Discussion: The Freedom of Information Reform Act of 1986 (Pub. L. 99.-570), signed by President Reagan on October 27, 1986, amended the F0IA by modifying the terms of Exemption 7 and by establishing new provisions relating to assessment of charges and waiving of, fees for records requested under the FOIA. The amendments directed the Office of Management and Budget (0MB) to publish a fee schedule and establish guide-lines, to be followed by other Federal agencies, explaining how to implement the schedule. On March 27, 1987 (52 FR 10012), OMB issued its final fee guidelines which became effective on April 27, 1987. The major changes that were made to the NRC's regulations i as a result of the Freedom of Information Reform Act, OMB l guidelines, and several of the recommendations contained in SECY-83-313 were discussed in deta~il in SECY-87-144 dated June 11, 1987. CONTACT: D. H. Grimsley, ARM 49-27211 B DR l

p 2 The proposed rule was issued for public coment on August 6, 1987 (52 FR.29196) for a 20-day public comment period that expired on August 26, 1987. The NRC received six letters of coment from'two public interest groups, two NRC licensees, a reporter's group, and a private individual' All of the coments were minor in nature, and several of them were the result of the commenters' mis-understanding of the changes that had been made. As a - result of some comments, minor changes were.made to several sections, as noted in the analysis of coments described in Coordination: The Office of the General Counsel has participated in the preparation of this final rule. Recommendation: That the Comission-- 1. Approve the final rule for publication in the Federal Register, to become effective 30 days after publica-tion (Enclosure 1). 2. Certify that this finul rule does not have a signifi-cant economic impact on a substantial number of small entities in order to satisfy the-requirements of the Regulatory Flexibility Act, 5 U.S.C. 605(b). 3. Note that: a. This final rule does not contain a new or amended information collection requirement. Existing requirements were approved by the Office of Manage-ment and Budget approval number 3150-0043. b. The NRC has determined that this final rule is the type of action described in categorical exclusion 10CFR51.22(c)(1). Therefore, neither an environ-mental impact statement nor an environmental assessment has been prepared for this final rule. c. This final rule pertains to the implementation of the Freedom of Information Reform Act of 1986; therefore, no backfit analysis has been prepared. d. The Chief Counsel for Advocacy of the Smill Business Administration will be informed of the certification and the reasons for it as required by the Regulatory Flexibility Act. e. A public announcement will not be issued. 6 '-#We N-wret+r e qaw am =wo e ', %

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\\ le L. 3 q f. The appropriate Congressional Committees will be. informed. 'h a, tor Stello, Jr / Executive Director for Operations

Enclosures:

1. Draft Federal Register notice 2. Draft Congressional letter Commissioners' comments or consent should be provided directly ~ to the Office of the Secretary by c.o.b. Tuesday, December 1, 1987. Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Monday, November 23,.1987', with an information copy to the Office of the Secretary. If the paper is of such a nature that.it requires additional time for analytical review and comment, the' Commissioners and the: ' Set:retariat should be apprised of when comments may be expected. This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of November 30, 1987.. Please refer to .the appropriate Weekly Commission Schedule, when published, for a specific date and time. DISTRIBUTION: Commissioners OGC (H Street) OI OIA GPA REGIONAL OFFICES EDO OGC (MNBB) ACRS ASLBP ASLAP SECY T

~, . n JU ;. -~- NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2 and 9 Revision of Freedom of Information Act Regulations; Conforming Amendments AGENCY: Nuclear Regulatory Commission. ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its regulations pertaining to Public Records in order to conform its Freedom of Information Act (FOIA) regulations to the F0IA as amended by the Freedom of Information Reform Act of 1986 and to reflect current NRC organizational structure and current agency practice and delegation. These amendments also reduce the repetition of statutory requirements.

These amendments are necessary to inform the public about the procedural changes to the FOIA regulations. EFFECTIVE DATE: FOR FURTHER INFORMATION CONTACT: Donnie H. Grimsley, Director, Division of Rules and Records, Office of Administration and Resources Management, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Tel.ephone: 301-492-7211. l l SUPPLEMENTARY INFORMATION: I The Freedom of Information Reform Act of 1986 (Pub. L. 99-570) was signed by the President on October 27, 1986. The Act provides for broader exemption protection for law enforcement information (Exemption 7 of the F0IA) and new law enforcement record exclusions. The new exemption provisions became 1 I u14.'*TI.?_'-.TMM*".MT"*'"":**'"-**?"***W"*r*

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a l effective imediately. The amendments changed the threshold of records i encompassed under Exemption 7 from " investigatory records" to all records or information compiled for law enforcement purposes. The Act also establishes new provisions related to the assessment of charges and waiving of fees for I records requested under the F0IA. The Act requires affected agencies to use the March 27,1987 (52. FR 10012) OMB guidelines in structuring their imple-l menting regulations. The new fee structure provisions of the Act became effective on April 25, 1987. Important features.of the new fee structure involve substantial changes l that relate to agency charges for search, review, and duplication of records. In addition, the new guidelines set forth procedures for conducting searches l without charge, duplicating records without charge, waiving or reducing a fee, and the provisions for assessing interest on unpaid bills that are more than 30 days delinquent. Moreover, the Freedom of Information Reform Act of 1986 requires the agency to provide the first 100 pages of requested records free of charge for requests other than for comercial use. Confoming amendments have been made to Part 2 and Part 9, Subparts B, C, and D, to conform cross-references to the renumbered sections of Part 9, 1 'Subpart A, and to reflect the changes to Exemption 7 of the FOIA. The proposed rule was published in the Federal Retister on August 6, 1987 s (52 FR 29196). The coment period expired on August 26, 1987. ANALYSIS OF COMMENTS RECEIVED BY NRC The NRC received six comment letters from the following sources: Public Citizen Litigation Group Reporters Comittee for. Freedom of the Press Ohio Citizens for Responsible Energy (0CRE) l 2

4 - f j gd. ( .Mr. Joseph M.: Felton. Commonwealth Edison Kerr-McGee Corporation The. comments'_are. addressed _below in sequential order according.to the specific part of the proposed rule to which they. apply. 1. Regulatory Analysis and Regulatory Flexibility Certification One commenter stated that the conclusions drawn in these two discussions were " unsubstantiated and contrary to the small business size standards publishedbyNRCinDecember198[5]." The commenter further' stated that the NRC should prepare an analysis that would show "the actual cost impact of the regulations on requesters." With regard to small ent'ies, the commenter - recommended the "NRC should consider reducing costs for search and reproduction." When the NRC published its notice of adoption of size standards in December 1985 (50 FR 50241), it acknowledged that approximately 25 to'35 percent of its licensees were considered to be small entities. These licensees were comprised of various discrete groups, chiefly private practice physicians, small radiography and well logging companies, and various other small independent entities scattered among the remaining NRC. materials i 4 licensees. It would be impossible to draw a correlation between small entities among NRC licensees and p.ersons or entities submitting Freedom of Information Act (F0IA) re, quests. As the Securities and Exchange Commission i

indicated in its Initial Regulatory Flexibility Analysis, "There is no

] 1 reasonable method for estimating the number of entities involved." Neither the Freedom of Information Reform Act nor the guidelines of OMB and the Department u of Justice suggest that agencies should tier or reduce the fees for any groups of requesters not specifically mentioned in the legislation. As a matter of U 1 1 3 .-ma.. ~.,~m-sm1.a.u x.-a

d practice, however, the NRC routinely places records responding to FOIA ~ requests, along with their appendices, in the NRC's Public Document Room, i This practice permits FOIA requesters, among whom may be comercial-use requesters and other small entities, to review requested records, and thus affords them an opportunity to reduce the financial burden by purchasing only records for which they are specifically interested. The financial burden of using the F0IA may also be reduced if a requester meets the legal require-ments for a waiver and/or reduction of fees. The NRC provides procedures for making such a request at 69.41. A survey of 15 agencies revealed that 12 of them either stated that the Regulatory Flexibility Act did not apply to this type of rulemaking or did not mention the Regulatory Fl'exibility Act in the rulemaking at all.I Among the agencies stating that the Regulatory Flexibility Act does not apply is the Department of Justice, the agency taking the leading role in the development i of the fee waiver guidelines. The NRC believes, absent any other coments regarding the subject, that its Regulatory Analysis and Regulatory Flexibility ' Certification represent a good faith effort at estimating the impact on requesters and the NRC. 2. Section 9.13 Definitions Se'veral comenters addressed one or more of'the definitions in this section. One comenter stated that paragraph (2) under the definition of " agency record" is incongruent with 59.200(b), which defines NRC personnel to 1Agencies surveyed included the ACUS; Departments of Agriculture. Commerce, Defense, Energy, Justice, State, and Treasury; CIA; FEMA; ICC; NASA; NRC; Postal Service; and SEC. 4

~ include contractors. Part 9 was amended in 1985 to remove the reference (in former 59.4 Availability of Records) to NRC contractor records because existing case law and long-standing agency practice held that records not actually in the possession and control of the NRC are not agency records. The definition in.59.200(b) is not incongrue'nt with 59.13 because 59.200(b) is in Subpart D, " Production or disclosure in response to subpoenas or demands of courts or other authorities," and pertains to the power of subpoenas and court orders, which is broader in scope than the term." agency record," which defines the reach of the FOIA. The same commenter questioned the content of paragraph (4) of the same definition and asked who would make the determination of what information is substantial and what is not. The commenter also questioned if the discretionary practice could shield potential wrongdoing. Another commenter recommended deleting paragraph (4) because it duplicates paragraph (3). As the commenter stated, " Records are either personal records or agency records, depending upon their content." NRC guidance issued in 1983 indicated that 1 Commissioners' appointment records and telephone logs were not agency records, i as long as the records did not contain any substantive information and they were not circulated for any agency decisionmaking. This view was upheld in a 1984 decision in Bureau of National Affairs Inc. v. United States, D.C. Cir. No. 83-1138.- In that case, the court " held they were not agency records because they were not distributed to other employees and because they were created for the personal convenience of individual officers in organizing both their personal and business appointments." In the event a FOIA request is made' for a specific Commissioner's appointment calendar, the Assistant Secretary of the Commission, in consultation with the Commission and the Office of the General Counsel, will make a disclosure determination. 5

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Another commenter stated that the definition of " news" would "be crucial in deciding whether.a requester is entitled to_the benefits enjoyed by a representative of the news media." The commenter misunderstands the purpose of i the definition of news. In the OMB guidelines, it was a part of the. definition of " representatives of the news media " and the NRC decided to separate the term into two separate definitions; however, this separation has led to some misunderstanding, and they are being put back together to conform to the OMB definitions. The definition of news does not require each FOIA requester to be involved in matters "of current events" or " current interest to the public" in order to obtain records, but representatives of the news media should be. In addition, in response to another comment, the proposed definition of representatives of the news media has been expanded to conform more completely to 0MB's final definition of the term to imply that newsletter publishers are included in this group. One commenter recommended deleting the last sentence from the definition of " record" that roads " Record does not include an object or article such as a 3 i structure, furniture, a tangible exhibit' or model, or a vehicle or piece of I equipment." In response to this recommendation, the NRC has decided to retain ~ this sentence becaus'e the commenter has provided no basis for its deletion, and the NRC believes this provides appropriate clarification. 1 3. Section 9.17 Agency records exempt from public disclosure l Several commenters noted that the explanatory information that formerly appeared in 99.5 Exemptions has been deleted in proposed 99.17, and one commenter suggested that this was due to a typographical error. When the NRC was revising the FOIA regulations, a decision was made to list the exemptions exactly as they appear in the law. For that reason, all of the explanatory information has been removed. 6

1 j One comenter concluded that the removal of the explanatory information 3 1 from the exemptions will " permit the public disclosure of a greater range of' NRC documents...." As previously explained, the exemptions now track the j law as written. The NRC lists the categories of agency records that are ] routinely made publicly available in 99.21. This commenter also concluded that i under the expanded scope of exemption (7) that it.will be appropriate for his i organization to protect (i) "ary information which [it] obtains from criminal history records forwarded to it pursuant to 10 CFR 73.57 and subsequently provided to the NRC," and (ii) "any information which the NRC has obtained from l investigative reports provided by [it] such that the release of that information could reasonably be expected to result in the identification of ) suspects, witnesses, complainants or employees or otherwise interfere with the effectiveness of an Employee Assistance Program." It should be noted that the " 'commenter's organization is not a Federal agency, so the Freedom of Information Act has no applicability to his records. However to the extent that his organization's r'ecords are used by a Federal agency in a law enforcement proceeding, the records could qualify for protection from public i disclosure by a Federal agency under exemption 7. l 4. Section 9.19 Segregation of exempt information and deletion of identifying details One commenter noted that this section permits the NRC to delete iismes and identifying details which would constitute a clearly unwarranted invasion of personal privacy, but. states that the agency proposal " eliminates the threshold test [a determination that the information withheld appears in personnel and l medical or similar files] for invoking that exemption." (New York Times Co. v. NASA, Civil No. 86-2860 (D.D.C. June 3. '1987)) (appeal pending). This section implements 5 U.S.C. 552(a)(2) of the F0IA, which does not 7 ___-_n

.J have the threshold' requirements mentioned by the commenter. 'The threshold j .q "requirementfoundin5U.S.C.552(b)(6)isimplementedat99.17(a)(6)..

5.. Section 9.21 Publicly available records A commenter noted that the proposed section (69.21(c)), which supersedes former 59.7, deleted " final vote.of each member of the Commission in every proceeding." Section 9.21(c) specifically implements 5 U.S.C. 552(a) which defines four categories of records which must be made public.

The NRC dropped { the reference to final votes because it was not specifically stated in 5 U.S.C. 552(a) as a category of records. i 6. Section 9.23 Requests for records 'j l . One comenter recommended the deletion of paragraph (c) because Lit i pertained to when records were made available at a contractor's site. The NRC disagrecs, and.the paragraph will be retained because there is, for example, the l possibility that records could be made available at an NRC Regional Office. The q same comenter recommen'ded a slight modification of paragraph (d) to indicate 1 that "the introductory 'except' phrase applies to both sentences." The NRC has made this change. J 7. Section 9.25 Initial disclosure determination 1 Several commenters addressed this section. One commenter concluded that ) this section will require any NRC employee who intends to release an otherwise withholdable (proprietary) record provided by a licensee to first obtain the licensee's approval prior to releasing the record. The commenter has drawn an inaccurate conclusion. Currently, Part 9 has no procedures pertaining to the decision to disclose records containing proprietary information; however, i 10 CFR 2.790(b) does contain detailed procedures for assuring the proper handling and protection of records contain'ing this type of information. Another commenter stated that with regard to paragraph (d), the F0IA 8

'provides time for consultation between agencies but does not allow " wholesale referral of requests which are exclusive or primary responsibility of another agency." The comenter has drawn some erroneous conclusions regarding routine NRC procedures for processing FOIA requests. If the records that respond to a-F0IA request received by the NRC contain other agency records among the NRC records, the NRC segregates those records and ascertains whether or not the records in question have been made publicly available. If they have been, the NRC will release them. If they have not been made publicly available, the NRC will refer the records to the appropriate agency for a disclosure determination dl 'and, usually, a direct response to the requester. A third commenter recommended a slight modification to paragraph (b), which the NRC has made. The commenter also requested the deletion of paragraph (f) because "as a practical matter, this procedure has never been followed by NRC." The NRC disagrees and the provision is being retained. ~ 8. Section 9.29 Appeal from initial determination Onecommenterrecommendedthedeletionofparagraph,(d)"sinceit represents'an internal procedure which should be included in the NRC Manual rather than the regulations." The NRC disagrees and is retaining the paragraph because the section r tells the public how the agency processes appeals. 9. Section 9.33 Search, review, and special service fees Several commenters objected to paragraph (a)(4) which permits the NRC to assess fees for unsuccessful searches. Section 9.b. of the final OMB Guidelines published on March 27, 1987 (52 FR 10012) states that " Agencies should give notice in the regulations that they may assess charges for time spent searching, even if the agency fails to locate the records or if records located are determined to be exempt / 9

~- from' disclosure." ' Further,aif an. agency estimates. that the' search charges . will ' exceed $25,'the' agency must advise the requester, unless the requester agreed in' advance to pay-fees as high as what the agency anticipates. Under the Freedom of Information Reform Act. 5 U.S.C. 552(a)(4)(A)(ii) provide's for- ' fees to be charged'for search for all requesters except educational or - non-commercial scientific institutions or representatives of the news media when the records are not sought for commercial use. In addition, 5 U.S.C. 552(a)(4)(A)(iv) provides that " fee schedules shall provide.for the recovery-of.only the direct costs of search, duplication, or review.... (Emphasis added) Therefore, the NRC has not changed paragraph (a)(4) of this section. 4

10. Section 9.35 Duplication fees The commenter questions'why the charge in paragraph (b)(1) was not the same as the charge at the NRC's Public Document Room.

~ The cost -for duplicating records at the Public Document Room is one.that l was negotiated between the NRC and a private contractor who speciali.zes in - high volume duplication which affords high cost efficiency. In contrast, in 11987, the NRC performed an in-house study of' reproduction costs f.or typical F0IA requests The figure derived--20c per page--is based on the following:. ... the operator's salary, figured on an average grade of XP-6/1 ~ for a copy machine bindery worker in the quick copy center and GS-6/1 for the average clerical worker operating a copy machine in the satellite copy centers, the machine costs as well as copying supplies. These figures were based on NRC wide copying costs over the past year. A degree of difficulty 8.7 as added because of the l l highly customized style of work required to copy most F0IA documents that must be disassembled, hand-fed, reassembled in accordance with inventory instr.uctions. This factor of difficulty was the result of 1 10 I

time tests performed in the Quick Copy Center in the Phillips L Building.... The base per cost costs a're determined by a review of agency-wide figures ar.d thus are not subject to. fluctuations in l volume in a quantity as mall as 60,000 pages in a year. The NRC's figure of 20t per page is not out of line in comparison with other agencies. For example, of 15 agencies listing fees, the Department of-Energy is the only agency with a price as low as St per page. The average of the 15 agencies is almost 18t per page. For these reasons, the NRC will leave .l paragraph (b)(1) unchanged.

11. Section 9.37 Fees for search, review, and duplication of records by NRC personnel i

i One commenter made several recommendations regar.fing this section: (1)a separate staff charge for duplication should be dele':ed since costs are already included in the copy cost; (ii) charges should be based on the actual salary of the person performing the search, not an average grade of all employees; (iii) if (ii) is not acceptable, the rr.tes should be reduced to $10 forclericalstaffand$50forprofessionalstaff;(iv)theregulationsshould-j 1 make clear that review time will only be charged once and not for each level of ) 1 review; and (v) NRC should make clear in the regulations that it will charge costs based on quarter-hour time periods as the current regulations do. The NRC's response to these recommendations is as follows: ) 1 (1) The NRC agrees with this comment and the title and introductory text have been changed to delete the word "dupli:ation." (ii)and(iii) In developing this rule, the NRC followed the OMB guidelines which state that the elements of direct cost are the basic rate of hourly pay of the employee performing the task plus 16 percent for fringe benefits. The NRC also identified three types of homogeneous effort involved - 11 g n_o -" .__-ON 'g .p******=wme*,**==s -a

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7 ~.. 4, _. ~ y ; i,.- 7c.. infthe NRC searchl and review' process--clerical, professional / managerial', and-1 s' . executive / Commission--and for_'each level, the NRC' established an averageL salary figure. After establishing these figures,.the.NRC consulted with OMB' - and that agency _ expressed _no_ objection to.NRC's methodology or the figures 4 that the methodology produced. Moreover. seven'of'the 15 agencies surveyed; k gav'e no specific salary figures but indicated that the fees for search and review ~ were the actual salary of the employee perfonning the' task plus 16' . percent. The'remainingL8' agencies indicated specific amounts, althoughJthere ' is'very little uniformity among the figures. The'NRC has decided to leave its' fees'as proposed. !(iv) In response.to'this comment, the review for which the NRC may charge is defined in 99.13. This definition follows the language used to. define review'in.the'OMB guidelines. The NRC believ'es that the definition adequately definescthe type's of review effort for which the NRC may charge.. ,(v)' No chang'e'has been made. The requester is incorrect in. the assertion that'the NRC has made provision-for' quarter-hour time periods in its-L

regulations.

12. Section 9.39 Search and duplication provided without charge The commenter believes the. categories of requesters are too narrow and

' tend to exclude bona fide nonprofit public interest organizations. In responding to public comments regarding this point, OMB indicated that the legislative history does not define the term " educational institution" (52 FR 10013). In response to comments recommending the definition of education institution to be that used by the IRS for institutions qualifying .for tax exempt status, OMB commented that it did "not think it appropriate to

• - tie eligibility for inclusion in the ' education institution' fee category to an IRS interpretation of the institutions' eligibility for tax exempt status"-

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4 .(52 FR ' 0014).. The'NRC believes it is prudent 'and exhibits the goal 'of 1 unifonnity to' use the. sam ~e definitions that OMB has used.

13. - Section 9.41 Requests for waiver or reduction of. fees ~ '

Most commenters. generally believed that this section-is too. burdensome, 1 .that.the threshold is too steep to overcome, and that the Department of. L' L JJustice Guidelines go beyond the intent of the law. Some. suggested that the- -NRC should not use.the 6 questions contained in the Justice Guidelines but should use the text indicated in the Freedom of Information Reform Act which l t consists of only two tests- "if disclosure is in the public interest because it is likely"to contribute significantly to public understanding of the l-operations or activities of the government and is not primarily in the comercial interest of the requester." E The'NRC has independently reviewed the Department of Jus' ice Guidelines t and. believes that the factors adopted reflect the intent of the law; however, the NRC has decided to delete factors 7, 8, and 9 of 59.41(d) as a result of its-further reflection' of the coments. One comenter recomended, for paragraphs (a)(2) and (b), adding the words "in excess of those authorized by 59.39" after the word " fees." According-to the comenter, this would "make clear that the specific information should only.be submitted when a fee waiver is requested beyond the automatic waiver limits." .The NRC believes that the charges are clearly specified in the Freedom ofInformationReformActin5U.S.C.552(a)('4)(A)(11)andintheNRC's

regulations at 69.39. Therefore, no change has been made to these two para-graphs.

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14. - Section 9.43 Processing of requests for a waiver or reduction of

~' e i.;4 -{ ~ ' fees j q One commenter suggest'ed th'at there11s an inconsistency.between paragraphs (a)(2)- and:(a)(5) and recomended revising the second sentence in-(a)(5) to: read "If the' fee'is between $26 and $250, the NRC may.not begin to process L the request until the requester agrees to bear the estimated costs." The NRC believes that the' factors relating to assessment of fees should be removed from this section into a newly created section, 59.40 " Assessment of fees" for - purposes of clarity. The;commenter also made.the following observation: In59.'43(d),becauseofthemandatory'shall' language,NRCistobe-congratulated for.taking the' position that it will not charge fees if it does not act upon a fee wa'iver request within 10 days. This provision clearly reflects the efficienc'y of the F0IA staff and the Division of Rules and Records." l The NRC believes this-interpretation is incorrect. In order to correct it, + the NRC.has deleted the phrase "within 10 working days" from the paragraph.

15. General Comment One commenter made the follow'ing genera 1 comment:

NRC should clarify the status of organizations such as nonprofit public interest groups and state agencies which do not readily fall within the definitions set forth in the rule. Are such groups entitled to an automatic waiver or do they pay full costs lika comercial use requesters? Similarly, what is the status of an individual requesting records for his own, non-commercial, use? Waiver or full costs? 1 The NRC is following the guidance with regard to the categories of 1 requesters as defined by OMB. The legislative history is silent with regard 14 - _. u.

4 to nonprofit groups. Within the NRC, fee waiver requests from these groups will be handled on a case-by-case basis. Environmental Impact: Categorical Exclusion The NRC has determined that this final rule is the type of action describedincategoricalexclusion10CFR51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule. Paperwork Reduction Act Statement This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980(44 U.S.C.3501etseq.). Existing requirements were approved by the Office of Management and Budget approval numbers 3150-0136 (Part 2) and 3150-0043 (Part9). Regulatory Analysis The final rule' implements the provisions of the F0IA as amended by the Freedom of Information Reform Act of 1986 and brings Part 9 into conformance with current agency practice and several of the major recommendations of the Office of the General Counsel. The Freedom of Information Reform Act of 1986 established (1) three levels of fees, (2) new standards for waiving or reducing fees, and (3) an exclusion from providing records without charge. Basically, the NRC will not charge fees for the first two hours of search and the first 100 pages duplicated for all requesters, except commercial-use requesters. Any requester may also seek a waiver or reduction of fees for records in excess of 100 pages. The NRC will l 15 1 l i

).. Jnot charge fees if.the cost of collecting the fee is equal to or greater than .the fee itself. There will be an economic' impact on all requesters. However, the most: ~ significant economic impact will fall on commercial-use requesters. In keeping with the intent of the Federal user fee concept, the NRC will charge commercial-use requesters full direct cost fees for all search for, review, and-duplication of requested records. Commercial-use requesters are not considered to be "small entities," and the NRC believes that assessment of the fees will not cause-a significant economic burden on them. Estimated Annual Costs for Commercial-Use Requesters (Figureof350 commercial-userequestersbasedonactual1986 statistics) i Search costs (1/3 Clerical + 2/3 Professional) $14,000 Review costs (Professional) 17,000 L Total estimated costs $31,000 For the remaining three categories of requesters, the Freedom of Information Refonn Act requires agencies to provide 100 pages and two hours of search time ~ free of charge. In addition, these requesters may request a waiver or l reduction of fees, which would normally be charged for duplication and search time in excess of the initially waived amounts, if they can show that their request for agency records is in the public interest and is not primarily in their commercial interest. l As a result of the amendments, several principal economic impacts on the NRC are expected. Additional administrative effort will be required by the s'taff to record time spent in processing F0IA requests, time spent in record- 'ing staff processing reports, and time spent in determining the amount 16

requesters will be billed. Also, additional staff duplication effort will be required to provide requesters copies that must be provided without charge. Estimated Annual Costs for NRC to Process FOIA Requests (Figures based on estimated 833 hours) Staff recording of time (1/3 Clerical + 2/3 Professional) $17,000 Billing Costs 3,000 Duplication of first 100 free pages (23,000 sheets L000 x$.20perpage) Total estimated costs $25,000 Regulatory Flexibility Certification 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. This final rule implements the Freedom of Information Reform Act of 1986 (Fub. L. 99-570) which includes the establishment of three levels of fees and specific provisions regarding waiver or assessment of fees for search, review, and duplication of records. Because the Freedom of Information Reform Act of 1986 provides relief for all requesters, except for commercial-us.e requesters, through waiver or reductions of fees, the NRC does not believe that the majority of potential requesters would fall under the definition of "small entities" set forth in the Regulatory Flexibility Act or the Small Business Size Standards issued by the Small l-Business Administration at 13 CFR 121. Backfit Analysis i This final rule pertains to the implementation of the Freedom of Infor-mation Reform Act of 1986; therefore, no backfit analysis has been prepared. l 17 L_ -_ _

s . c- .. j yx .i> .f h' List of Subjects in-10 CFR Parts 2 and 9 Part 2: Administrative practice and' procedure',' Antitrust, Byproduct . material,: Classified information, Environmental protection, Nuclear materials; Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear. material.- Waste treatment and disposal. 'Part 9: Freedom of information, Penalty,' Privacy, Reporting and frecordkeeping requirements, Sunshine 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. 553, the NRC is adopting the.following amendments {to-10 CFR Parts ? and 9. Part 2 -- Rules of Practice for Domestic Licensing Proceedings 1. The authority citation for Part 2 continues to read as follows: Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); Sec. 201, 88 Stat.1242,asamended(42U.S.C.5841). 2. In $2.790, paragraphs (a)(7), (b)(1)(ii), and (d) are revised to read as follows: 92.790 Public inspections, exemptions, requests for withholding. (a) -(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (i) could reasonably be expected to interfere with enforcement proceedings; (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 personal privacy; (iv) could reasonably be expected to 18 i.

' disclose the identity of a confidential source, including a State, local, or for'eign 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 investigations or prosecutions if such disclosure could reasonably be expec'ted.to risk circumvention of the' law; or (vi) could reasonably be expected to endanger the life or physical safety of any individual; (b)(1) (ii) Contains a full statement of the' reasons on the basis of which it is claimed that the information should be withheld from public disclosure. Such statement shall address with specificity the considerations listed in paragraph 1 (b)(4) of this section. In the case of an affidavit submitted by 'a company, - the affidavit shall be executed by an officer or upper-level management officia'l who has been specifically delegated the function of reviewing the information sought to be withheld and authorized to apply for its withholding on behalf of the Company. The affidavit shall be executed by the owner of the information, even though the information sought to be withheld is submitted to l; the Commission by another person. The application and affidavit shall be submitted at the time of filing the information sought to be withheld. The information sought to be withheld shall be incorporated, as far as possible, into a separate paper. The affiant may designate with appropriate markings +;nformation submitted in the affidavit as a trade secret or confidential or ~ 19 _.__m_ ]

1.. privileged commercial'or financia1'information within the meaning of 69.17(a)(4) of.this chapter and such information shall. be subject to disclosure. only11n accordance with.the provisions of 59.19 of'this' chapter. (d) The following information shall.be deemed to;be commercial or-financial.informationwithinthemeaningof59.17(a)(4)'.ofthis-chapter.and. shall be subject to' disclosure only in accordance with the provisions of'99.1'9

of'this chapter.-

~ Part 9 -- Public Records 3. The authority citation for Part 9'is revised 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 also issued und,er 5 U.S.C. 552a. Subpart C also issued under 5 U.S.C. 552b. 4. Section 9.1 is revised to read as follows: 99.1 Scope and purpose. (a) Subpart A implements the provisions of the Freedom of Information Act, 5 U.S.C. 552, concerning the availability to the public.of Nuclea'r Regulatory Commission records for inspection and copying. (b) Subpart B implements the provisions of the Privacy Act of 1974, 5 U.S.C. 552a, concerning disclosure and availability of certain Nuclear Regulatory Commission records maintained on individuals. (c) Subpart C implements the provisions of the Government in the Sunshine Act, 5 U.S.C. 552b, 'concerning the opening of Comission meetings to public 20 1__________--. I

observation. (d) Subpart D describes procedures governing the production of agency records, information, or testimony in response to subpoenas or demands of courts or other judicial or quasi-judicial authorities in State and Federal proceedings. 999.la, 9.3, 9.5, and 9.8 [ Removed] 5. Sections 9.la, 9.3, 9.5, and 9.8 are removed. 6. Section 9.2 is redesignated 69.3 and revised to read as follows: 99.3 Definit. ions. As used in this part: " Commission" means the Commission of five members or a quorum thereof sitting as a body, as provided by section 201 of the. Energy Reor'ganization Act of 1974. " Government agency" means any executive department, military department., Government corporation, Government-controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency. "NRC" means the Nucl ar Regulatory Commission, established by the Energy Reorganization Act of 1974. "NRCpersonnel"meansemployees, consultants,andmembersofadvisory boards, committees, and panels of the NRC; members of boards designated by the Commission to preside at adjudicatory proceedings; and officers or employees of Government agencies, including military personnel, assigned to duty at the NRC. " Working days" mean Monday through Friday, except legal holidays. 7. Section 9.2a is' redesignated 69.5 and is republished to read as follows: 1 21

69.5 Interpretations. Except as specifically authorized by the Commission in writing, no inter-pretation of the meaning of the regulations in this part by an officer or employee of the Commission other than a written interpretation by the General Counsel will be recognized as binding upon the Commission. 8. Section 9.2b is redesignated 59.8 and revised to read as follows: 99.8 Information collection requirements: OMB approval. (a) The NRC has submitted the information collection requirements contained'in this part to the Office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act of 1980(44U.S.C.3501et seq.). OMB has approved the information collection requirements contained in this part under control number 3150-0043. (b) The approved information collection requirements contained in this part appear.in 959.29, 9.41, 9.54, 9.55, and 9.202. 9. Subpart A currently consists of 559.3-9.16. New 569.3, 9.5,'and 9.8 are redesignated to precede Subpart A and the remaining sections in Subpart A are renumbered and revised to read as follows (new 959.11 through 9.45): Table of Contents Sec. 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. j 9.21 Publicly available records. I 9.23 Requests for records. l 22 L: _________-_._.-._._.____.1_.......-

k 9.25 Initial disclosure determination. -l 9.27 Form and content of responses. 9.29 Appeal from initial determination.

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, review, and duplication of records by NRC. personnel. 9.39 Search and duplication provided without charge. 9.40 Assessment of fees. 9.41 Requests for waiver or reduction of fees. -9.43 Processing of requests for a waiver or reduction of fees. 9.45. Annual Report to Congress. Subpart A - Freedom of Information Act Regulations 99.11 Scope of subpart. This subpart prescribes procedures for making NRC agency 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 otherwise 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. 69.13 Definitions. As used in this subpart: ~ " Agency record" is a record in the possession and control of the NRC 23

2

that is associated with Government business. Agency record does not include; records'such as--

l (1)-Publiclyavailablebooks, periodicals,orotherpublicationsthatare owned or copyrighted by'non-Federal sources; (2) Records solely in the possession and control.of NRC contractors; (3) Personal records in possession of NRC personnel that have 'not been circulated, were not' required to b'e 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-N bstantive information in logs or schedule books of the' Chairman or Commissioners, uncirculated except for typing or recording purposes. "C.ommercial-use request" means a request made under 59.23(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. "D* rect costs" mean the expenditures that'an agency incurs in searching fqr and duplicating agency records. For a commercial-use request, direct' costs irclude 'f.he expenditures involved in reviewing records to respond to the rquest.kDirectcostsincludethesalaryoftheemployeecategoryperforming tiie work hased on that basic rate of pay plus 16 percent of that rate to cover fringe betefits and the cost of operating duplicating machinery. "DupOcation',' means the process of making a copy of a record necessary lo respond to a request made under 99.23. Copies may take the form of pal.er copy, microform, audio-visual materials, disk, magnetic tape, or machine ' readable documentation, among others. " Educational institution" means an institution which operates a program or programs of scholarly research. Educational institution refers to a preschool, a public or private elementary or secondary school, an institution of graduate 24

i< higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education. " Noncommercial scientific institution" means an institution that is - not operated on a commercial basis, as the term "comercial" is referred to in the definition of " commercial-use request," and is operated solely for the 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. " Record" means any book, paper, map, 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 exhibit or model, a vehicle, or piece of equipment. " Representative 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 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" means the process of examining records identified as responsive { 1 to a comercial-use request to determine whether they are exempted from dis-closure in whole or in part. Also, review includes examining records to determine which Freedom of Information Act exemptions are applicable. l 25

~ identifying records or portions thereof to be disclosed, and excising from the records those portions which are to be withheld. " Search" means all time spent looking for records, either by manual search or search using existing computer programs, that respond to a request 1. including 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 for, collect, and appropriately examine a voluminous amount of separate and distinct records whirP are demanded in a single request; or (3) The need for consultation, which will be conducted.with all prac-ticable 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. 99.15 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 provisions of this subpart, and upon request by any person. Records that the NRC routinely makes publicly available are described in 69.21. Procedures and conditions governing requests for records are set forth in 59.23. i 26 9 tir i--a vesanoo,M_q. _,e,;__ =-.-r- _---=..=-44,-N ee-en =,p w more --m - .v-w - .-e+e,.es 's -i--*w, 44-a

99.17 Agency records exempt from public disclosure. (a) The following types of agency records are exempt from public disclosure under 59.15: (1) Records (1) which are specifically authorized under criteria established by.an Executive order to be kept secret in.the interest of national defense or foreign policy, and (ii) which are in fact properly classified pursuant to such Executive order; (2) Records related solely to the internal personnel rules and practices of the agency; (3) Records specifically exempted from disclosure by statute (other than 5 U.S.C. 552b), provided that such statute (i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; (4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) Interagency or intraagency memorandums or letters which would not be available by law to a party. other than an agency in litigation with the agency; (6) Personnel and medical files and similar files, ' he disclosure of t which would' constitute a clearly unwarranted invasion of personal privacy; (7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (1) could reasonably be expected to interfere with enforcement proceedings; (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 personal privacy; (iv) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or 27

foreign agency or authority, or any private' institution which furnished information on a.' confidential basis, and, in the case of a record or informa-tion compiled by a criminal law enforcement authority in the course lof 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 investiga-tions or' prosecutions, or would disclose guidelines for law' enforcement investigations.or prosecutions if such disclosure could reasor. ably be expected. -to risk circumvention of the law; or (vi) could reasonably be' expected to endanger the life or physical safety of any individual; ^ (8). Matters contained in or related to examination, operating, or condi- . tion'_ 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 maris, con-cer.nin'g wells. (b) Nothing in this subpart authorizes withholding of information or limiting the avai>bility 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 which involves access to agency records described in paragraph (a)(7) of this section, the NRC may, during' only such time as that circumstance continues, treat the records as not subject to the requirements of this subpart when-- (1) The investigation or proceeding involves a possible violation of criminal law; and (2) There is reason to believe that-- (1) The subject of the investigation or proceeding is not aware of its 28 i I ,.-m..

pendency; and. (ii) -Disclosure of the existence of the records could reasonably be expected to. interfere with: enforcement proceedings. L 59.19 Segregation of exempt.information'and deletion of identifying detaiis. '(a) For records required to be made available under 5 U.S.C. 552(a)(2), 'the NRC shallidelete the name with any identifying details, if the release of the name:or other,i.dentifying details of, or relating to,'a private party will. constitute a clearly unwarranted invasion of personal privacy.. The NRC shall. 1 provide notification that names'of parties and certain other identifying . details have been removed in ' order to' prevent a clearly unwarranted-invasion of the' personal pr_ivacy of the' individuals involved. (b) In responding to a request for information submitted under 59.23, in which it has been determined to withhold exempt information, the NRC shall segregate-- (1) Information that is exempt from public disclosure under 59.17(a) from nonexempt information; and (2) Factual information from a'dvice, opinions, and recommendations in .predecisional records unless the information is inextricably intertwined, or is contained in drafts, legal work products, and records covered by the lawyer-client privilege, or is'otherwise exempt from disclosure. I 59.21 Publicly available records. (a) Publicly available records of NRC activities described in L paragraphs (c) and (d) of this section are available through the National Tech-nical Information Service. Subscriptions to these records are available on ~ 29

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. 1 (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 1717 H Street, NW, Washington, DC, and is open between 7:45 a.m. and 4:15 p.m. on Monday through Friday, except legal holidays. 1 (c) The following. records of NRC activities are publicly available at the NRC Public Document Room for public inspection and copying: (1) Final opinions including concurring and dissenting opinions as well as orders of the NRC issued as a result of adjudication of cascs. (2) Statements of policy and interpretations which have been adopted by the NRC and have not been published in the Federal Register. (3) Nuclear Regulatory Commission rules and regulations. (4) Nuclear Regulatory Commission Manual and in'structions to NRC personnel that affect any member of the public. (5) Records made available for public inspection and copying under this chapter and the NRC Manual. (NRC Bulletin 3203-15 describes the "NRC Policy for Routinely Making NRC Records Publicly Available.") (6) Current indexes to records made available under 5 U.S.C. 552(a)(2) and that are made publicly available are 1,isted in NUREG-0550, " Title of List of Documents Made Publicly Available," which is published monthly. (d) Records made publicly available under paragraphs (c)(1), (s), and (5) 30

p

e of this section'are.also available for purchase through the National Technical Information Service.

'99.23-Requests for records. (a)(1) A person may request access to records routinely made av'ailable by the NR.C under 69.21 in person or in writing at the NRC Public Document Room, .1717.H Street, NW, Washington, DC 20555. (1) Each record requested must be described in sufficient detail to ~ . enable'the Public Document Room to locate the record. If the description of f the records is.not sufficient to allow the Public Document Room staff to ' identify the record, the Public Document Room shall advise the requester to select the record from the indexes published under 59.21(c)(6). l (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 f6r 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 Director, Division of Rules and Records, Office of Administration and Resources Management, U. S. Nuclear Regulatory Commission, { 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 Director, Division of Rules and Records, Office of i.. i Administration and Resor ces Management. (1) A Freedom of Information request covers only agency records that are 31 1

in existence on.the date the Director, Division of Rules and Records, receives the request. A request does not cover agency records destroyed or discarded before receipt of a ' request.or which are created.after 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 agemeu records. Where possible, the requester should provide specific information regarding dates, titles, 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 Director, Division.of Rules and Records, shall inform the requester of the deficiency within 10 working days after receipt of the request and.ask the. requester to submit additional information regarding the request or meet with appropriate NRC personnel in order to clarify the request. (3) Upon receipt of a request made under paragraph (b) of this section, the NRC shall. provide written notification-to-the requester that indicates the request has been received, the name of the individual and telephone number to I 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-- i (A) A request involves anticipated costs in excess of the minimum specified in 99.39; and (B) Search and duplication is not provided without charge under 59.39; or (C) The requester does not specifically state that the cost involved is acceptable or acceptable up to a specified limit. (ii) The NRC has discretion to discontinue processing for records responsive to a request made under paragraph (b.) until-- ~ 32 mwtM-+ ne* =r-:e

• 97--++w-m w*7+++m MNece*mrww = v w ee*m ewe + ww = vem ~ < i

--*-+*ge==-***hrfrvv*~ ~ ++w99**<--

• w+:

= * - * * - - - -

• ee-w-'

i (A) A required advance payment has been received; (B) The requester has agreed to bear the estimated costs; (C) A determination has been made on a request for waiver or reduction of fees; or (D) The requester nieets the requirements of 69.39. (c) If a requested agency record that has.been reasonably described is l located at a place other than the NRC Public Locument 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 69.39-- (1) If.the record requested under paragraph (b) of this section is a q record available through the National Technical Information Service, the NRC snall 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 99.21, the NRC may inform the requester that the record is in the PDR, and that the record may be obtained in accordance with the procedures set forth in paragraph (a) of this section. (e) The Director, Division of Rules and Records, shall promptly forward a t Freedom of Information Act request made under 59.23(b) for an agency record which is not publicly available in the NRC Public Document Room under 69.21 to x the head of the office primarily concerned with the records requested and to the General Counsel, as appropriate. The responsible office will conduct a search for the agency records responsive to the request and compile those agency records to be reviewed for initial disclosure determination under 5s9.25 and 9.27. 99.25 Initial disclosure determination. (a) The head of the responsible office shall review aancy records 33 - _ _ _ ~..~._-.~ - 1

't located'in aisearch under 99.23(b) to determine whether the' agency records are-exempt from disclosure under.99.17(a). If'the head of the office determines .that,Lalthough 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 s head of the office authorizes disclosure of the.' agency records, the head of the-office shall furnish the agency records to the Director, Division of: Rules'and. Records, who.shall notify the requester of the determination in.the manner. provided in 69.27. (b) Except as.provided in paragraph (c) of this. section if, as a result of the review specified in~ paragraph (a) 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 Director, Division of Rules and Records, who will, in consultation.with the Office of the~ General Counsel, make,an independent determination whether the agency records should be' denied.in whole or in part. If the Director, Division of Rules and Records, 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 Director, Division of Rules and Records, shall notify the requester of the determination in the manner provided in 59.27. (c) For agency records located in the office of a Commissioner or in the Office of the Secretary of the Commission, the Assistant Secretary of the i Commission shall make the initial determination to deny agency records in whole or in part under 59.17(a) instead of the Director, Division of Rules and ' Records. For agency records located in the Office of the General Counsel, the e General Counsel shall make, the initial determination to deny agency records in 34

I. whole or'in part instead of. the Director, Division of Rules and Records. If the Assistant Secretary of the Comission or the General Counsel 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 Assistant Secretary ~of the Commission or the' General Counsel shall furnish.that determination to the Director, Division of. Rules and Records, who shall notify the requester of the determination in the manner ] provided in 99.27. i (d) If a requested record that is located is one of'another Government agency or deals with subject matter over which an agency other than the NRC has exclusive or primary responsibility, the NRC shall promptly refer the record to i that Government agency for disposition or for guidance regarding disposition. .(e) The 10-working day period for response to a request for agency records provided in paragraphs (a), (b), and (c) of this section may be extended (l for unusual circumstances as provided in 59.31. (f).In exceptional circumstances where it does not appear possible to ] complete action on a request within the maximum 20 working-day limit as provided in 99.31, the Director, Division of Rules and Records, may seek an agreement with the requester for a specified extension of time in which to act l upon the request. The NRC shall confirm the agreement for an extension of time in writing. (g) If the NRC does not respond to a request within the 10-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 immediately appeal to the Executive Director for Operations as provided in 69.29(a)orsueinadistrictcourtasnotedin59.29(c). 4 35 a.

lpy N' ] ~' ~ p t., s }j hy 59327E Form'and content offresponses. s [ '(a)'.When the NRC has located:a requested agency record.and has determined. N lto disclose the agency record ~,'.the Director Division'of Rules-and Recordsi.. shall promptly) furnish the agency record or.-_ notify the; requester where' and when 'thefagency record will-be available_for inspection and" copying. The NRC will

normally. place' copies:of" agency records disclosed in response to Freedom of_

v. .Information Act_ requests in1the NRCiPublic Document Room and,-for'~ agency [ ' records relating to a specific;nuclea'r power facility,. in the Local PublicL Document Room establishedffor that1 facility. The'NRC shall'also advise'the crequester of;anyl applicable fee's; under 59.35. 1 L(b).WhenltheNRCdeniesaccess~toarequestedagencyrecordordeniesa. request for a' waiver or_ reduction ofLfees,'the Director; Division of Rules'and-Records, shall. notify the requester in writing. The denial includes-as L appropriate-- L L (1) --The reason for the denial;- (2) A reference to the. specific exemption under the. Freedom of Information Act and.the Commission's regulations' authorizing th'e withholding of the' agency record or portions.'of it;- (3) The name and title or_ position of each person responsible for the-denial of the request, including the head of the office recommending denial of a record; (4) A statement stating why the request does not meet the requirements of 99.41"if the request is for a waiver or reduction of fees; and (5) A statement that the denial may be appealed within 30_ days from the-receipt of the denial to the Executive Director for Operations or to the Secretary of the Commission, as appropriate. 4(c)' The Director, Division of Rules and Records, shall maintain a copy of 36 _____m__ _m_____m____

f.. each letter granting or denying requested aghncy records or denying a' request for waiver or reduction of fees in accordance with the NRC Comprehensive Records Disposition Schedule. 59.29 Appeal'from initial determination. (a) A requester may appeal a notice of denial.of a Freedom of Information - Act request for age'ncy records or a request for waiver or reduction of fees under this subpart within 30 days of the date of the NRC's denial. For agency.' records denied by an Offf :e Director reporting to the Executive Director.for Operations or for a denial'of a request for a waiver or reduction of fees, the . appeal must be in writing and addressed to the Executive Director for Opera-tions, U.S. Nuclear Regulatory Commission, Washington, DC 20555. For agency records denied by an Office Director reporting to the Comission, the Assistant Secretary of the Comission, or by the Advisory Comittee Management Officer, the appeal must be in writing and addressed to th'e Secretary of the Comission. The' appeal ~should clearly state on the envelope and in the letter that it is an " Appeal from Initial F0IA Decision." The NRC does not consider an appeal that is~not marked as indicated..in this paragraph as' received until it is actual'ly received by the Executive Director for Operations or Secretary of the Comission. (b)' The NRC shall make determination on any appeal made under this section within 20 working days after the receipt of the appeal. (c)(1) If the appeal of the denial of the request for agency records is upheld in whole or in part, the Executive Director for Operations or the Secretary of the Comission.shall notify the requester of the denial, specifying-- (i) The exemptions relied upon; 37

1 (ii)' An explanation of how the exemption applies to the agency records ! withheld; and (iii) The reasons for asserting the exemption.' (2) If, on appeal, the denial of a request for waiver or reduction of . fees.for. locating and reproducing agency records is upheld in whole or in part,. s the Executive Director for Operations shall notify the person making the ' request' of his decision to sustain the denial.. including a statement explaining - .why the request does not meet the requirements of 59.41. (3) The Executive. Director for Operations or Secretary of the Commission shall 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 or has a principal place of business, in.which the agency records are sit'uated, or in the District of Columbia.- (d).The Executive Director for Operation's or Secretary of the Comission shall? furnish copies of all appeals and written determinations on. appeals to the Director, Division of Rules and Records. 59.31 Extension of time for response. (a) In unusual circumstances defined in 59.13, the NRC may extend the ' time. limits-prescribed ire s9.25 or 99.29 by not more than 10 working days. The 1 I . extension may be made byiwritten 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. (b) 'An extension of the time limits prescribed in 199.25 and 9.29 may not exceed a combined total of 10 working days per request. l -1 69.33 Search, review, and special service fees. (a) The NRC charges fees for-- 38 j. .___.._____.._E___ e

(1) Search, duplication, r.nd review, when agency records are requested for comercial use; (2) Duplication of agency records provided in excess of 100 pages 'when. agency records.are not sought for comercial use and the request is made by' an educational or noncommercial scientific institution, or a representative.of the news media; (3) Search and duplit:ation 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 ne 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 include the cost of operating the Central . Processing Unit for that portion of opera' ting time that is directly attributable to searching for agency records plus the operator / programer salary apportionab'e to the search. l (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 (2)Sendint; records by special methods, such as express mail, package delivery service, etc. 69.34 Assessment of interest and debt collection. (a) The NRC shall 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 set out in 915.37 of this chapter. Interest is at the rate prescribed in 21 U.S.C. 3717. 39 i

fei s*

16 J' ' er I + y (b)The'NRC will.use its debt'. collection procedures under Part'15'of;this-chapter for anyfoverdue fees.- b '99.35 ' Duplication fees. L '(a)(1)1: Charges for the duplication of records made available.under'99.21

at the NRC Public Document Room, 1717.H Street,-NW,. Washington, DC 20555 by the-duplicating l service _ contractor-are'as follows:

(1). Six cents per page for paper copy to paper copy, except'for engi.

neering. drawings and..any other records larger than 17 x'll;inchesLfor which.the-chargesLvary as follows depending.on the'reproductionlprocess'that is used':-

(A)l Xerographic process - $1-50 per. square: foot for'large documents.or engineering drawings(random size up to 24 inches' in width and with; variable length)' reduced or full size; (B) ; Photographic process' - $7.00 per square foot for large documents or Engineering drawings (random size exceeding 24 inches in width up to a maximum 1 sizeof42inchesin_ length)fullsizeonly.. (ii) Six cents pe'r page for microform to pape'r copy, except for engineering-drawings and any other recor'ds larger than 17 x 11 inches for which the' charge L d is '$1.25 per square foot or'$3.00 for a reduced size print (18 x 24 inches). j i (iii) One dollar per microfiche to microfiche. (iv) One dollar per aperture card to aperture card. (2) 'Self-service, coin-operated, duplicating machines are available at the PDR for the use.of the public. Paper to paper is $0.10 per page. Microform -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 40 7-i

' 80 f' paragraph [(a)(1)(of this section, plus' mailing. or. shipping' charges. ' (4): LA requester may open an account with the duplicating. service ~ . contractor. A' requester may'obtain the.name and address and. billing' policy of L, -the contractor from the NRC Public Document > Room. (5)' : Any change in the costs specified in this'section will become leffectiveiimmediately pending completion of the.Comission's rulemaking that: amends this section to reflect the new charges. The Commission shall postLthe" ~ . charges' that.will be:in effect for the. interim period in the Public Document " Room.' The Commission shall complate the rulema' ing..necessary to reflect 1the k new' charges within 15 working days from the beginning.of the interim period. (b) -The NRC-shall 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)' Sizesfup to 81 x 14 inches mcde on office copying machines.-.$0.20 .per page-of: copy; and .(2) Thechargeforduplicadingrecordsotherthanthosespecifiedin paragraphs (a)and(b)iscomputedonthebasisofNRC'sdirectcosts. (c) In compliance with the. Federal Advisory Committee'Act, a requester may purchase copies of transcripts of tes'timony in NRC Advisory Committee proceedings, which are. transcribed by a reporting firm under contract with the 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)ofthissection. (d) Copyrighted material;may not be reproduced in violation of the copy-right laws. l '(e) Charges for the duplication of NRC records located in NRC Local Public Document Rooms are those costs that the institutions maintaining the i 41 il n

I l NRC 1.ocal Public Document Room collections establish. ) L F ' 99.37 Fees' for search an; review of agency records by.NRC personnel. j l The NRC-shall charge the following hourly rates for search and review of-1 agency records by NRC personnel: 1 L (a) Clerical search,. review, aad duplication at a salary rate that is equivalent to a GG-7, Step 5 plus 16 percent fringe benefits;. -(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 Commissioner search, review, and duplication at a l: salary rate that is equivalent to an ES-3 plus 16 percent fringe benefits. 59.39 Search and duplication provided without charge. 1 (a) The NRC,shall search for agency records requested under 99.23(b), without. charges when agency records are not sought for comercial use and the records are requested by an educational or noncommercial scientific institution, or a representative of the news media. (b) The NRC shal1~. search for agency records requested under 69.23(b) without charges for the first two hours of sea'rch for any request not sought for comercial use and not covered in paragraph (a) of this section. (c) The NRC shall duplicate agency records requested under 99.23(b) without charge for the first 100 pages of standard paper copies, or equivalent pages on microfiche, computer, disks, etc., if the requester is not a commercial-use requester. (d) The NRC may not bill any requester for fees if the cost of collecting l the fee would be equal to or greater than the fee itself. (e) The NRC may aggregate requests in detennining search and duplication 42 '\\ ._2_-_--_--_------

nto be provided'without charge 's provided in paragraphs (a) and (b) of this a section, if the NRC finds a requester has filed multiple requests for only por-tions' of an agency record or similar agency records for the purpose of avoiding charges. 59.40 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, the NRC shall notify the requester that fees'will be assessed unless the requester'has indicated in advance his or her willingness to pay fees as high as estimated. (b) In the notification, the NRC shall 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 possibilitpofnarrowingthescopeoftherequestwiththegoalo'freducingthe cost while retaining the requester's original objective. (d) If-the fee is determined to be in excess of $250, the NRC shall require an' advance payment. (e) U'nless 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 days of receipt of the bill on a previous request, the NRC may not accept the new request for processing until payment of the fu]1 amount owed on the prior request, plus any applicable interest assessed as provided in 69.34, is made. (g) Within'10 working days of the receipt of NRC's notice that fees will 43

be assessed, the. requester shall 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 shall collect 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 assure that there vill 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 the initial Freedom of Information Act request letter. (2) Each request for a waiver or re' eion of fees must be addressed to the Director, Division of Rules and Records, Office of Administration and Resources Management, U.S. Nuclear Regulatory Commission Washington, DC 20555. (b) A person requesting the NRC to waive or. reduce search, review, or ~ '. duplication fees'shall: (1) Describe the purpose for which the requester intends to use the requested information; (2) Explain the extent to which the requester will extract 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 possesses to utilize information for the intended 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 understanding of the subject existing prior to disclosure; 44

't (5), Describe the size and nature of the public to whose und rstanding 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 for an access fee or pv'olication fee; and (8) Describe any commercial 'or private interett 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 99.23(b), it.can determine that disclosure of the information in the agency records is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of.the Government and is not primarily in the commercial interest ~ of the requester. (d) In making a determination regardi.ng a request for a waiver or reduction of fees, the NRC shall consider the following factors: (1) How the subject of the requested agency records concerns the operations or activities of the Government; (2) How the disclosure.of the information is likely to contribute to an understand'ing of Government operations or activities; (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 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 1 45 i

_-_ _.-~ _ _ _ 4 requester is:sufficiently large, in comparison with the public interest in disclosure, that disclosure is primarily in.the commercial. interest of the requester;' (e)' If the written request for a' waiver or reduction of fees 'does ~notL meet the requirements of.this section, the NRC will inform the requester that the request for waiver or reduction of fees is being denied and set forth-the appeal rights ~ under 59.29 to the requester. %9.43 Processing'of requests for a waiver or reduction of fees.. (a) Within.10 working ^ days after receipt of a request for access to agency recordsforwhichtheNRCagreestowaive'feesunder99.39(a)-(d)or99.41(c), 1 .the NRC shall. 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 99.41(b)'. ~ (c) After receipt of a request 'ete tne waiver,or reduction of fees made l in accordance with 59.41, the NRC shall either waive or reduce the fees and-l l I notify the requester of the NRC's intent to promptly provide the agency records or deny'the request and provide a statement to the requester explaining why-q l the request does not meet the requirements of 59.41(b). (d) As provided in 59.29, a requester may appeal a denial of a request to waive or reduce fees within 30 days to the Executive Director for Operations. ] i 69.45 Annual Report to Congress. (a) On or before March 1 of each calendar year, the Chairman of the NRC will submit a report covering the preceding calendar year to the Speaker of the d House of Representatives and President of the Senate for referral to the l I 46 s .--._--_._-.--..--------.-----___.--.__t-_-_-_.______---

l. si L., appropriate coninittees of the Congress. The report includes-- (1) The number of determinations made by the NRC to deny requests for ' records made.to the NRC under this part and the reasons for each determination; (2) The number of appeals made by persons under 69.29, the results of the appeals, and the reason for the action taken on each appeal that results in a denial of information; (3) The names and titles or positions of each person responsible for the denial of records requested under this section, and the number of instances of participation for each; (4) The results of each proceeding concucted pursuant to 5 U.S.C. 552(a)(4)(F), including a report of the disciplinary action taken against the officer or employee who was.primarily responsible for improperly withholding records, or an explanation of why disciplinary action was not taken; (5). A copy of every rule the NRC published affecting this part; (6) A copy of th'e fee schedule and the total amount of fees collected by the NRC for making records available under this part; and (7) Any other information that indicates efforts to administer fully. the provisions of 5 U.S.C. 552. (b) The NRC shall make a copy of each report submitted to the Congress under paragraph (a) of this section available for public inspection and copying in the NRC Public Document Room. 10. Section 9.85 is revised to read as follows: 1 I 59.85 Fees. ) J Fees shall not be charged for search for or review of records requested I pursuant to this subpart or for making copies or extracts of records in order to make them available for review. Fees established pursuant to 31 U.S.C. 483c 1 and-5 U.S.C. 552a(f)(5) shall be charged according to the schedule contained in j 47 d

T d. l: 69.'35 of; this' part for actual copies of records requested by: individuals, pursuant.to the Privacy Act:of 1974, unless the Director,' Division'of Rules'and. j-Records, waives the fee'because.of the: inability of the individual to pay.or-because making the records available'without cost, or at a. reduction in cost,. L is'otherwise' in the public interest.

11..Section 9.100 is~ revised to read as follows:-

--99.100 Scope of subpart. ~ ' This.subpart prescribes procedures pursuant.to which'NRC meetings shall be open to public observation pursuant ~to the provisions of'5 U.S.C. Sec.'552b.- This subpart does not affect the procedures pursuant to which NRC records-are, made available to the public for. inspection and copying which reinain governed. l bySubpartA,except:thattheexemptionssetforthin99.104(a)shallgovernin l the case'of'any request made pursuant to 99.23 to copy or' inspect the transcripts,. recordings, or minutes described in 99.108. Access to records considered at NRC meetings sba11 continue.to be gov'erned by Subpart A of this .paht. 9 4 4 9 I t-0 48 -.A.-___.-__-.-.__.-_.-_._ a

12. In'99.200, paragraph (b) is revised to read as follows: 59.200 Scope of subpart.- (b) For purposes of this subpart,.the term " employee of the NRC" includes all NRC personnel as that term is defined in 59.3 of this part, including NRC contractors. 9 Dated at Washington, DC, this day of 1987. ) I For the Nuclear Regulatory Commission. 9 Samuel J. Chilk, Secretary of the Commission. O A T 49

m, i 4 o g 1 The Honorable Philip Sharp 1Chairmang . Subcommittee on: Energy and Power: Comittee on' Energy and' Commerce . United States House of Representatives - 1 Washington, DC-20515

Dear'Mr.; Chairman:

1 1 The Nuclear Regulatory Comission (NRC) has sent to the Office' of the Federal-Register for publication the enclosed amendments to the Comission_'s rules:in: 4 10 CFR Parts'2 and 9. These amendments implement the Freedom.of Information l -Reform _Act of 1986. They also reflect current.NRC organizational-structure, agency practice, and delegation, j The Freedom of Information Reform'Act of 1986, signed by the President on October 27,.1986, amended the Freedom of Information'Act (F0IA) by modifying. l '.thetermsofExemption7(the'lawenforcementexemp' ion)andestablishingnew c provisions related to the assessment of charges and. waiving of' fees for i records requested under the FOIA. Federal. agencies were required.to follow! . I ~ OfficeofManagementandBudget(0MB)guidelinesinpreparingtheir . implementing regulations. The OMB guidelines were published on March 27, .1987..and became effective. on April 27, 1987. The. proposed rule was published on August 6,'1987, for a 20-day public comment period. The NRC received six letters of coment which were considered in the revision"of the proposed rule for the final publication. Sincerely, William G. Mcdonald. Director' Office of Administration and~ Resources Management

Enclosure:

'As stated cc:. Rep. Carlos J. Moorhead e '

L 1 -,_}}