ML20237K328
| ML20237K328 | |
| Person / Time | |
|---|---|
| Issue date: | 07/27/1987 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-52FR29196, RULE-PR-2, RULE-PR-9 PR-870727, NUDOCS 8708190203 | |
| Download: ML20237K328 (37) | |
Text
[7590-00 hQC 5
LE (5A FA A9/94)
NUCLEAR REGULATORY COMMISSION
'87 JUL 30 P3 :32 10 CFR Parts 2 and 9 Revision of Freedom of Information Act Regulations;; Conforming Amendments'
- ,a AGENCY:
Nuclear Regulatory Comission.
ACTION:
Proposed rule.
SUMMARY
- The huclear Regulatory Comission (NRC) is proposing to amend its i
regulations pertaining, to Public Records in order to conform its Freedom of Information Act (F0IA) regulations to the Freedom of Information Reform Act of 1986 and to reflect current NRC organizational structure and current agency practice and delegation. These amendments will also reduce the repetition of statutory requirements. These amendments are necessary to inform the public
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about the procedural changes to the F0IA regulations.
l DATES: The coment period expires on August 24, 1987 Coments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to coments received on or before this date.
ADDRESSES: Send written coments to the Secretary of the Comission, U.S.
Nuclear Regulatory Comission, Washington, DC 20555, Attention: Docketing and Service Branch. Coments may also be delivered to Room 1121, 1717 H Street, NW, Washington, DC between 7:30 a.m. and 4:15 p.m.
Copies of any coments received may be examined at the NRC Public Document Room, 1717 H Street, NW, Washington, I
b DC.
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8708190203 870727 1
PDR PR D
l S 52FR29196 PDR
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, Telephone: 301-492-7211.
SUPPLEMENTARY INFORMATION:
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 FOIA) and new law enforcement record exclusions. The new exemption provisions became effective ininediately. The amendments changed the threshold of records encompassed under Exemption 7 from " investigatory records" to all records or information compiled for law enforcement purposes.
The OMB guidelines containing a uniform schedule of fees for all agencies were published on March 27, 1987 (52 FR 10012) and became effective on April 25, 1987. Important features of the new fee structure involve substantial changes that relate to agency charges for search, review, and duplication of records.
In addition, the new guidelines set forth procedures for conducting searches without charg3, 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 new guidelines set forth the exclusions to the new rule which require the agency to provide the first 100 pages of requested records free of charge. The Act requires affected agencies to use the March 27, 1987 OMB guidelines in structuring their implementing regulations. The new fee structure provisions of the Act became effective on April 25, 1987.
Currently, the NRC is undergoing a major consolidation effort, affecting the entire organizational structure of the agency. While finalization of the 2
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I total reorganization has not yet been completed, Part 9 has been revised to l
I reflect certain organizational changes that have been completed.
In revising Subpart A, the NRC has renumbered most of the sections to conform to the Office of the Federal Register guidelines which will allow greater flexibility and ease in making future amendments.
The proposed rule also contains several changes to Part 9 Subpart A, that were proposed by the NRC's Office of the General Counsel. Among the i
recomended changes included in the proposed rule are four exclusions from the definition of " agency record," a provision that FOIA requests cover only agency records in existence on the date the request is received, and reflection of the delegations made in NRC Manual Chapter 0211.
Conforming amendments are also being made to Part 2 and Part 9, Subparts B, C, and D, to conform cross references to the renumbered sections of Part 9, Subpart A, and to reflect the changes to Exemption 7 of the Freedom of Information Act.
Environmental Impact: Categorical Exclusion The NRC has determined that this proposed rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed rule.
Paperwork Reduction Act Statement This proposed rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C.3501etseq.). Existing requirements were approved by the Office of 3
t Management and Budget approval numbers 3150-0136 (Part 2) ano 3150-0043 (Part 9).
Regulatery Analysis The proposed rule implements the provisions of the Freedom of Information Reform Act of 1986 and brings Part 9 into conformance with current agency practice and several of the mojor recommendations of the Office, of the General Counsel.
4 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 i
for the first two hours of search and the first 100 pages duplicated for all l
requesters, except commercial-use requesters. Any requester may also seek a waiver or reduction of fees for recurds in excess of 100 pages. The hRC will l
not charge fees if the cost of collecting the fee is equal to or areater 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 l
to be "small entities," and the NRC believes that assessment of the fees will not cause a significant economic burden on them.
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Estimated Annual Costs for Commercial-Use Requesters (Figure of 350 commercial-use requesters based on actual 1986 statistics) i 4
Search costs (1/3 Clerical + 2/3 Professional)
$14,000 17,000 Reviewcosts(Professional)
$31,000 Total estimated costs l
For the remaining three categories of requesters, the Freedom of Information Reform Act requires agencies to provide 100 pages and two hours of search time free o) charge.
In addition, these requesters may request a waiver or reduction of fees, which would normally be charged for duplication ahd 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.
As a result of the amendments, several principal economic impacts on the NRC are expected. Additional administrative effort will be required by the staff to record time spent in processing F0IA requests, time spent in record-ing staff processing reports, and time spent in detennining the amount requesters will be billed. Also, additional staff duplication effort will be I
required to provide requesters copies that must be provided without charge.
Estimated Annual Costs for NRC to Process F0IA Requests (Figures based on estimated 833 hours0.00964 days <br />0.231 hours <br />0.00138 weeks <br />3.169565e-4 months <br />)
Staff recording of time (1/3 Clerical + 2/3 Professional)
$17,000 l
l Division of Rules and Records Billing Costs 3,000 Duplication of first 100 free pages (23,000 sheets 5,000 t
x5.20perpage)
Total estimated costs
$25,000 I
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f Regulatory Flexibility Certification As required by the Regulatary Flexibility Act, 5 U.S.C. 605(b), the Consission certifies that this rule, if promulgated, will not have a This significant economic impact on a substantial number of small entities.
proposed rule implements the Freedom of Information Reform Act of 1986 (Pub. L.99-570) which includes the establishme'nt of three levels of fees and specific
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provisions regarding waiver or assessment of fees for search, review, and I
duplication of records. Because the Freedom of Information Reform Act of 1986 f
provides relief for all requesters, except for commercidl-use requetters, 1
through waiver or reductions of fees, the NRC does not believe that the l
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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 Business Administration at 13 CFR 121, i
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Backfit Analysis This proposed rule pertains to the implementation of the Freedom of Infor-motion Reform Act of 1986; therefore, no backfit analysis has been prepared.
l List of Subjects in 10 CFR Parts 2 and 9 Part 2: Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materidis, 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 recordkeeping requirements, Sunshine Act.
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I 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 proposing to adopt the following amendments to 10 CFR Parts 2 and 9.
Part 2 -- Rules of Practice for Domestic Licensing Proceedings 1.
The authority citation for Part 2 continues to read as follows:
l 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).
I 2.
In 92.790, paragraphs (a)(7), (b)(1)(ii), and (d) are revised to read j
l 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 disclose the identity of a confidential source, including a State, local, or foreign agency or authority, or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a
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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
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prosecutions, or would disclose guidelines for law enforcement investigations 7
i or prosecutions if such disclosure could reasonably be expected 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 claimea that the information should be withheld from public. disclosure. Such statement shall address with specificity the considerations listed in paragraph (b)(4) of this section.
In tne case of an affidavit submitteo by a company, the afficavit shall be executeo by an officer or upper-level management official 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 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 information submitted in the affidavit as a trade secret or confidential or privileged conmercial or financial information within the meaning of 59.17(a)(4) of this chapter and such information shall be subject to disclosure only in accordance with the provisions of 59.19 of this chapter.
(d) The following information shall be deemed to be commercial or financial information within the meaning of 59.17(a)(4) of this chapter and shall be subject to disclosure only in accordance with the provisions of 59.19 of this chapter.
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i 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 8 also issued under 5 U.S.C. 552a. Subpart C also issued under 5 l
l 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 Nuclear 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 i
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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 Commission meetings to public l
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 juoicial or quasi-judicial authorities in State and Federal proceedings.
99.la [ Removed]
5.
Section 9.la is removed.
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6.
Section 9.2 is redesignated 99.3 and revisco to read as follows:
99.3 Definitions.
As used in this part:
" Commission" means the Commission of five members or a quorum theraof sitting as a body, as provided by section 201 of the Energy Reorganization 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 (inclucing the Executive Office of the President), or any independent regulatory agency.
"NRC" means the Nuclear Regulatory Commission, established by the Energy Reorganization Act of 1974.
"NRC personnel" means employees, consultants, and members of advisory 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 outy at the NRC.
" Working days" mean Monday through Friaay, except legal nolidays.
7.
Section 9.2a is redesignated 69.5.
%9.5 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 Comission other than a written interpretation by the General Counsel will be recognized as binding upon the Commission.
8.
Section 9.2b is redesignated 99.8 and revised to read as follows:
l 69.8 Information collection requirements: OMB approval.
l (a) The NRC has submitted the information collection requirements l
contained in this part to the Office of Management and Budget (OMB) for 10 l
l
approval as required by the Paperwork Reduction Act oi 1980 (44 U.S.C. 3501 et seq.). OMB has approved the infonnation 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 (current $99.3 - 9.16) is revised to read as follows (new 669.11 - 9.45):
Subpart A - Freedom of Information I
Act Regulations 59.11 Scope of subpart.
This subpart prescribes procedures for making NRC agency records available to the public for inspection ano copying pursuant to the provisions of the Freedcm 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 cuntractor-originated, information to the public under any other NRC public, technical, or other information program or policy.
59.13 Definitions.
l As used in this subpart:
" Agency record" is a record in the possession and control of the hkC j
i that is associated with Government business. Agency record does not include records such as--
(1) Publicly available books, periodicals, or other publications that are owneo or copyrighted by non-Federal sources; (2) Records solely in the possession and control of NRC contractors; 11
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(3) Personal records in possession of NRC personnel that have not been i
I circulated, were not required to be created or retained by the NRC, and can be retained or discarded at the author's sole discretion, or records of a personal nature that are not associated with any Government business; and l
(4) Non-substantive information in logs or schedule books of the Chairman or Commissioners, uncirculated except for typing or recording purposes.
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" Commercial-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.
" Direct costs" mean the expenditures that an agency incurs in searching for
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and duplicating agency records.
For a commercial-use request, direct costs f
include the expenditures involved in reviewing records to respond to the i
request. Direct costs include the salary of the employee category performing the work based on that basic rate of pay plus 16 percent of that rate to cover l
l f ringe benefits and the cost of operating duplicating machinery.
" Duplication" means the process of making a copy of a record I
necessary to respond to a request made under 59.23. Copies may take the form of paper copy, microform. audio-visual materials, disk, magnetic tape, or machine read 4 Die documentation, among others.
"Eoucatiorial 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 higher' education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education.
" News" means information that is about current events or that would be of current interest to the public.
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" Noncommercial scientific institution" means an institution that is not operated on a cosmercial basis, as the term " commercial" is referred to in the definition of "comercial-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 comittees 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, or 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.
" Review" means the process of examining records identified as responsive to a conr.ercial-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, identi-fying 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 including a page-by-page or line-by-line identification of responsive information within the records.
" Unusual circumstances" mean--
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i (1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or (3) The need for consultation, which will be conducted with all 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-matte _r interest therein.
l 59.15 Availability of records.
The NRC will make available for public inspection and copying any reasonably described agency record in the possession and control of the NRC under the provisior,s of this subpart, and upon request by any person. Records that the NRC routinely makes publicly available are described in 59.21. Proce-
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dures and conditions governing requests for records are set forth in 59.23.
f 59.17 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; 14
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(3) Records specifically exempted from disclosure by stotute (other than 5 U.S.C. 552b), provided that such statute (1) 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 i
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
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available by law to a party other than an agency in litigation with the agency; (6) Personnel and medical files and similar files, the disclosure of j
which would constitute a clearly unwarranted invasion of personal privacy; 1
(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 f
to disclose the identity of a confidential source, including a State, local, or foreign agency or authority, or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of
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a criminal investigation, or by an agency conducting a lawful national security i
intelligence investigation, inf onnation 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 reasondbly 15 l
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1 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 maps, con-cerning wells.
1 (b) Nothing in this subpart authorizes withholding of infonnation or limiting the availability of records to the public, except as specifically provided'in this part., nor is this subpart authority to withhold information f
from Congress.
(c) Whenever a request is made which involves access to agency records 1
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 (1) The investigation or proceeding involves a possible violation of
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criminal law; and (2) There is reason to believe that--
(i) The subject of the investigation or proceeding is not aware of its pendency; and (ii) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.
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59.19 Segregation of exempt information and deletion of identifying details.
(a) For records required to be made available under 5 U.S.C. 552(a)(2),
the NRC shall delete the name with any identifying details, if the release of l
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l the name or other identifying details of, or relating to, a private party will l
l constitute a clearly unwarranted invasion of personal privacy. The NRC shall provide notification that names of parties and certain other identifying details have been removed in order to prevent a clearly unwarranted invasion of I
the personal privacy of the individuals involved.
(b)
In responding to a request for information submitted under 69.23, in which it has been determined to withhold exempt information, the NRC shall i
segregate--
l (1)
Information that is exempt from public disclosure under 59.17(a) l 1
from nonexempt information; and 2)
Factual information from advice, opinions, and recommendations in predecisional records unless the infonnation 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 99.21 Publicly available records.
(a) Publicly available records of NRC activities described in paragraphs (c) and (d) of this section are available through the National Tech-I nical Information Service.
Subscriptions to these records are available on j
48x microfiche and may be ordered from the National Technical Information l
l Service, 5285 Port Royal Road, Springfield, VA 22161. Single copies of l
NRC publications in the NUREG series, NRC Regulatory Guides, and Standard 1
I Review' Plans are also available from the National Technical Information Service.
(b) For the convenience of persons who may wish to inspect without charge or purchase copies of a record or a limited category of records for a fee, publicly available records of the NRC's activities described in paragraph (c) of this section are also made available at the NRC Public Document Room.
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I The NRC Public Document Room is located at 1717 H Street, hW, Washington, DC, and is open between 7:45 a.m. and 4:15 p.m. on Monday through Friday, except j
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legal holidays.
(c) The following records of NRC activities are publicly available at the NRC Public Document Room for public inspection and copying:
l (1) Final opinions including concurring and dissenting opinions as well ds orders of the NRC issued as a result of adjudication of cases.
(2) Statements of policy and interpretations which have been adopted by the NRC and have not been published in the Federal Register.
3 (3) Nuclear Regulatory Commission rules and regulations.
(4) Nuclear Regulatory Commission Manual and instructions 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 Naking 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 listed in NUREG-0550, " Title of List of Documents Made Publicly Available," which is published monthly.
l (d) Records made publicly available under paragraphs (c)(1), (2), and (5) i I
of this section are also available for purchase through the National Technical l
f Information Service.
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99.23 Requests for records.
(a)(1) A person may request access to records routinely made available by the NRC under 99.21 in person or in writing at the NRC Public Document Room, 1717 H Street, NW, Washington, DC 20555.
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(i) Each record requested must be described in sufficient detail to f
enable the Public Document Room to locate the record.
If the description of 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 s9.21(c)(6).
(ii)
In order to obtain copies of records expeditiously, a person may open an account at the Public Document Room with the private contracting firm that is responsible for duplicating NRC records.
(2) A person may also order records routinely made available by the NRC under 69.21 from the National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia, 22168.
(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, LC 20555. The request must be in writing and clearly state on the l
envelope and in the letter that it is a " Freedom of Information Act request."
t The NRC does not consider a request as received until it has been received i
and logged in by the Director, Division of Rules and Records, Office of Administration and Resources Management.
(1) A Freedom of Information request covers only agency records that are 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 records. Where possible, the requester should provide specific information regarding dates, titles, docket
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l numbers, file designations, and other information which may help identify the records. If a requested record is not described in sufficient detail to permit its identification, the Director, Division of Rules and Records, shall inform l
l the requester of the deficiency within 10 working days after receipt of the request and ask the requester to submit additionel information regdrding the l
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 inoividual and telephone number to contact to find out the status of the request, and other pertinent matters i
regarding the processing of the request.
(4)(1) The NRC shall advise a requester that fees will be assessed if--
(A) A request involves anticipated costs in excess of the minimum i
specified in 69.39; and (B) Search end duplication is not provided without charge under 69.39; or (C) The requester does not specifically state that the cost involved is l
acceptable or acceptable up to a specified limit.
l (ii) The NRC has discretion to discontinue processing for records responsive to a request made under paragraph (b) until--
(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 meets the requirements of 69.39.
(c) If a requested agency record that has been reasonably described is located at a place other than the NRC Public Document Room or NRC headquarters, l
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I the NRC may, at its discretion, make the record available for inspection and copying at the other location.
l (d) Except as provided in 99.39, if the record requested under paragraph (b) of this section is a record available through the National Technical Infomation Service, the NRC shall refer the requester to the National Technical Information Service.
If the requested record has been placed in the NRC Public Document Room under 69.21, the NRC shall inform tne requester that the record is in the PDR, and that the record may be obtained in accordance 1
I with the procedures set forth in paragraph (a) of this section.
l (e) The Director., Division of Rules and Records, shall promptly forward a Freedom of Information Act request made under 59.23(b) for an agency record i
which is not publicly available in the NRC Public Document Room under 69.21 to 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 records responsive to the request and compile those records to be reviewed for initial disclosure determination unoer 559.25 and 9.27.
99.25 Initial disclosure determination.
(a) The head of the responsible office shall review agency records located in a search undct 59.23(b) to determine whether the agency records are exempt from disclosure under 99.17(a).
If the head of the office determines that, although exempt, the disclosure of the agency records will not be contrary to the public interest and will not affect the rights of any person, the head of the office may authorize disclosure of the agency records.
If the head of the office authorizes disclosure of the agency records, the head of the office shall furnish the agency records to the Director, Division of Rules and 21
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)
I 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 General Counsel, make an independent determination whether the agency records should be deniea in whole or in part.
If.the Director, Division of Rules and Records, determines that'the agency records sought are exempt from cisclosure and disclosure of the records is contrary to the public interest and will adversely affect the rights l
of any person, the Director, Division of Rules and Records, shall notify the requester of the determination in the manner provided in 69.27.
(c) For agency records located in the office of a Commissioner or in the Office of the Secretary of the Comission, the Assistant Secretary of the Comission shall make the initial oetennination to deny agency records in whole or in part under 69.17(a) instead of the Director, Division of Rules and Records. For agency records located in the Office of the General Counsel, the General Counsel shall make the initial determination to deny agency records in whole or in part instead of the Director,-Division of Rules and Records.
If the Assistant Secret &ry of the Commission or the General Counsel determines 1
that the agency records sought are exempt from disclosure and that their
)
disclo'sure is contrary to the public interest and will aaversely affect the rights of any person, the Assistant Secretary of the Comission or the General
)
Counsel shall furnich that determination to the Director, Division of Rules and l
Records, who shall notify the requester of the determination in the manner provided in 59.27.
i I
22
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',s (d) If a requested record that.is logated ;is one of another Government apenCy or deals With sub[tCt matter over whi,ch an agency other than the NRC has
.,1 v
.b.9 exclvsive or primary responsibility, the NFC shall promptly refer the record to q\\
that Government agency for disposition or for guidance regarding disposition.
(e) The 10-wprking day period for response to a request for records pro-
..+
s g
vided in paragraphs (a), (b), ano (~c) of.this section may be extended for
't unusual circumstances as provideo tn 59.31.
i,(f)
In exceptional' circumstances where it does not appear possible to y
complete action on a request within the maximum 20 working-day limit as pro-t vided in 59.31, the Director, Division of Rules and Records, may seek an agree-ment with the requester for a specified extension of time in Which to act upon the request. The NRC shall confirm the agreement for an extension of time in writing.
-(g) If the hRC does not respond to a request within the 10-working-day period,orwithintheextendedperiodsdescribedinparagraph(c)ofthis section, the requester may treat that delay as a denial of the request and l
immediately appeal to the Executive Director for Operations as provided in 59.29(a)ortoaoistrictcourtasprovidedin59.29(c).
59.27 Form and content of responses.
(a) When the RC has located a requested record and has determined to cisclose the record, the Director, Division of Rules and Records, shall promptly furnish the record or notify the requester where and when the. record l
will be available for inspection and copying. The NRC will normally place
]
copies of records disclosed in response to Freedom of Information Act requests in the NRC Public Document Room and, for records relating to a specific. nuclear power facility, in the Local Public Document Room established for that 23 L___________________.__.__________..._____._.._
_J
facility. The NRC shall also aavise the requester of any applicable fees under 69.35.
(b) When the NRC denies access to a requested agency record or denies a request for a waiver or reduction of fees, the Director, Division of Rules and Records, shall notify the requester in writing. The denial includes as l
appropriate--
(1) The reason for the denial; (2) A reference to the specific exemption under the Freedom of Information Act and the Comission's regulations authorizing the withholding of the 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 coes not meet the requirements of 69.41 1f 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 Commission, as appropriate.
(c) The Director, Division of Rules and Recoros, shall maintain a copy of each letter granting or denying requested records or denying a request for waiver or reduction of fees in accordance with the NRC Comprehensive Records Disposition Schedule.
69.29 Appeal from initial determination.
(a) A requester may appeal a notice of denial of a Freedom of Information Act request for agency records or a request for waiver or reduction of fees under this subpart within 30 days of the date of the NRC's cenial.
For records i
24 l
l
denied by an Office 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 Operations, U.S.
Nuclear Regulatory Connission, Washington, DC 20555.
For 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 ano addressed to the Secretary of the Comission. The appeal should clearly state on the envelope and in the letter that it is an " Appeal from l
Initial F0IA Decision." The NRC does not consider an appeal that is not marked as indicated in this paragraph as received until it is actually received by the Executive Director for Operations or Secretary of the Commission.
(b) The NRC shall mdke determination on any appeal made under this section within 20 working oays after the receipt of the appeal.
(c)(1) If the appeal of the denial of the request for records is upheld in i
whole or in part, the Executive Director for Operations or the Secretary of the Comission shall notify the requester of the denial, specifying--
(1) The exemptions relied upon; (ii) An explanation of how the exemption applies to the records withheld; ano (iii) The reasons for asserting the exemption.
i (2)
If, on appeal, the cenial of a request for waiver or reduction of fees for locating and reproducing records is upheld in whole or in part, the l
Executive Director for Operations shall notify the person making the request of his decisitn to sustain the denial, including a statement explaining why the request does not meet the requirements of 69.41.
(3) The Executive Director for Operations or Secretary of the Commission shall inform the requester that the denial is final agency action and that 25 L--- -- --------
I judicial review is available in a district court of the United States in the 1
district in which the requester resides, has a principal place of business, or in which the agency records are situated, or in the District of Columbia.
(d) The Executive Director for Operations or Secretary of the. Commission shall furnish copies of all appeals and written determinations on appeals to the Director, Division of Rules and Records.
I l
59.31 Extension of time for response.
(a) In unusual circumstances defined in 59.13, the NRC may extend the time limits prescribed.in 59.25 or 59.29 by not more than 10 working days. The extension may be made by written notice to the person making the request to explain the reasons for the extension and indicate the date on which a determination is expected to be dispatched.
(b) An extension of the time limits prescribed-in 559.25'and 9.29 may not exceed a combined total of 10 working days per request.
59.33 Search, review, and special service fees.
(a) The NRC charges fees for--
(1) Search, duplication, ano review, when records are requested for J
commercial use; (2) Duplication of records provided in excess of 100 pages when records are not sought for commercial use and the request is made by an educational, noncommercial scientific institution, or a representative of the news media; (3) Search and duplication of records in excess of 100 pages for any request not described in paragraphs (1) and (2);
26 T
(4) The direct costs of searching for records. The NRC will assess fees even when no records are located as a result of the search or when 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 operating time that is directly attributable to searching for records plus the operator / programmer salary apportionable to the search, (b) 1e NRC may charge requesters who request the following services for the direct costs of the service:
I (1) Certifying that records are true copies; or (2) Sending records by special methods, such as express mail, package delivery service, etc.
99.34 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 $15.37 of this chapter.
Interest is at the rate prescribed in 21 U.S.C. 3717.
(b) The NRC will use its debt collection procedures under Part 15 of this chapter for any overdue fees.
69.35 Duplication fees.
('a)(1) Charges for the duplication ot records made available under 99.21 i
at the NRC Public Document Room, 1717 H Street, NW, Washington, DC 20555 by the duplicating service contractor are as follows:
4 27 o
4 (i) Six cents per page for paper copy to paper copy, except for engi-neering drawings and any other records larger than 17 x 11 inches for which the l
charges vary as follows depending on the reproduction process that is useo:
(A) 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 size of 42 inches in length) full size only.
(ii) Six cents per page for microform to paper copy, except for engineering drawings and any other records larger than 17 x 11 inches for which the charge is $1.25 per square foot or $3.00 for a reduced size print (18 x 24 inches).
(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 poper is $0.10 per page on the reader printers.
(3) A requester may submit mail-order requests for contractor duplication of NRC records made by writing to the NRC Public Document Room. The charges for mail-order duplication of records are the same as those set out in paragraph (a)(1)ofthissection,plusmailingorshippingcharges.
(4) A requester may open an account with the duplicating service l
1 contractor. A requester may obtain the name and address and billing policy of the contractor from the NRC Public Document Room.
j i
(5) Any change in the costs specified in this section will become immediately effective for the interim pericd pending completion of the i
l Commission's rulemaking to establish the new charges.
28
L 1
l (b) The NRC shall assess the following charges for copies of records to i
be duplicated by the NRC at locations other than the NRC Public Document Room f
i located in Washington, DC or at Local Public Document Rooms:
]
(1) Sizes up to 81 x 14 inches made on office copying machines - $0.20 per page of copy; and 1
1 (2) The charge for duplicating records other than those specified in i
paragraphs (a) ano (b) is computed on th.' basis of NRC's direct costs, l
(c) In compliance with the Federal Advisory Committee Act, a requester
{
I may purchase copies of transcripts of testimony in NRC Advisory Connittee 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) of this section.
1 (d) Copyrighted material may not be reproduced in violation of the copy-1 right laws.
I (e) Charges for the duplication of NRC documents located in NRC Local i
Public Document Rooms are those costs that the institutions maintaining the NRC Local Public Docuroent Room collections establish.
59.37 Fees for search, review, and duplication of records by NRC l
personnel.
The NRC shall charge the following hourly rates for search, review, and t
1 duplication of records by NRC personnel:
(a) Clerical search, review, and duplication at a salary rate that is equivalent to a GG-7, Step 5 plus 16 percent fringe benefit:;
)
l l
I i
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(b) Professional / managerial search, review, and duplication at a salary l
I rate that is equivalent to a GG-13, Step 5 plus 16 percent fringe benefits; and l
l (c) Senior executive or Commissioner search, review, and duplication at a
.)
i
- salary rate that is equivalent to an ES-3 plus 16 percent f rir-ge benefits.
1 69.39 Search and duplication provided without charge.
(a) The NRC shall search for records requested under 99.23(b),
without charges:
(i)
If the requester is a representative of the news media; (ii)
If the requester is an educational institution.
I (iii) If the requester is a noncommercial scientific institution; and (iv) For the first two hours of search if the requester is not a commercial-use requester; (b) The NRC shall cuplicate records requested under 59.23(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 1
requester.
(c) The NRC ma3 act bill any requester for fees if the cost of collecting the fee would be equal tu or greater than the fee itself.
The NRC may aggregate requests in determining search and (d) duplication to be provided without charge as provided in paragraphs (a) and (b) of this section, if the NRC finds a requester has filed multiple requests for only portions of a document or similar documents for the purpose of avoiding charges.
69.41 Requests for waiver or reduction of fees.
30
-_____________a
l d
(a)(1) The NRC shall collect fees for searching for, reviewing, and J
duplicating agency records, except as provided in 99.39, unless a requester submits a request in writing for a waiver or reduction of fees. To assure
. that there will be no delay in the processing of Freedom of Information Act 1
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 reduction of fees must be aodressed 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 reouce search, review, or i
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 record; (3) Describe the nature of the specific activity or research in which the records will be used and the specific qualifications the requester possesses to utilize information for the intendeo use in such a way that it will contribute to public understanding; l
(4) Describe the likely impact on the public's understanding of the 1
I subject as compared to the level of understanding of the subject existing prior to disclosure; (5) Describe the size and nature of the public to whose understanding a I
contribution will be made; 31
(6) Describe the intended means of obsemination to the general public; (7)
Indicate if public access to information will be provided free of I
charge or provided for an access fee or publication fee; and.
(8) Describe any comercial interest the requester has in the records I
sought.
l (c) The NRC will waive or reduce fees, without further specific information from the requester if, from information provided with the request for records made under 59.23(b), it can determine that disclosure of the information in 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 comercial interest of the requester.
(d)
In making a determination regarding a request for a waiver or l
reduction of tees, the NRC shall consider the following factors:
(1) How the subject of the requested records concerns the operations or activities of the Government; (2) How the disclosure of the information is likely to contribute to an understanding of Government operations or dctivities; (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 records; (6)
If the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in 32
1 1
l' disclosure, that disclosure is primarily in the commercial interest of the requester; (7) If the request involves search fees, to what extent the search is likely to 1dentify records which will be disclosed; 1
l (8)
If a concurrent request for the same or similar records has been made under Subpart 0 of this part or under $2.720 of this chapter; and (9) It the requested records are already publicly available or will not add appreciably to the substance of information already available to the public in the NRC Public Document Room, a Local Public Document Room, the National Technical Information Service, or from other public sources.
(d)
If the written request for a waiver or reduction of fees does not 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 99.29 to the requester.
59.43 Processing of requests for a waiver or reduction of fees.
(a)(1) Within 10 working days after receipt of a request for access to records for which the NRC agrees to waive. fees under 69.39(a)-(d) or 59.41(c),
the NRC shall respond to the request as provided in 59.25.
(2) If the request is expected to require the NRC to assess fees in l
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 J
or her willingness to pay fees as high as estimated.
(3)
In the notification, the NRC shall include the estimated cost of search fees and the nature of the search required and estimated cost of l
1 duplicating fees.
l
)
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(4) The NRC will encourage requesters to discuss with the NRC the possibility of narrowing the scope of the request with the goal of reducing the cost while retaining the requester's original objective.
(5)
If the fee is determined to be in excess of $250, the NRC shall-require an advance payment.
If the fee is determined to be $250 or less, the l
NRC may not begin to process the request until the requester agrees to bear the estimatec costs.
l (b)
If the hRC 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 full amount owed on the prior request, plus any applicable interest assessed as provided in 69.34, is made.
(c)(1) Within 10 working days of the receipt of NRC's notice that fees i
will be assessed, the requester shall provide advance payment if required, 1
I 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 09.41.
f I
(2)
In making a request for a waiver or reduction of fees, a requester l
shall provide the information required by 99.41(b).
(d) Within 10 working days after receipt of a request for the waiver or reduction of fees made in accordance with 69.41, the NRC shall either waive or reduce the fees and notify the requester of the NRC's intent to promptly provide the records or deny the request and provide a statement to the l
requester explaining why the request does not meet the requirements of 69.41(b).
I (e) As provided in 59.29, a requester may appeal a denial of a request to waive or reduce f ees within 30 days to the Executive Director for Operations.
l 34
i 59.45 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 preceoing calendar year to the Speaker of the House of Representatives and Prerident of the Senate for referral to the appropriate Committees of the Congress. The report includes--
f 1
(1) The number of determinations made by the NRC to deny requests for l
records maoe to the NRC unoer this part and the reasons for each determination;
)
?
(2) The number of appeals made by persons under 99.29, the results of the i
appeals, and the reason for the action taken on each appeal that results in a denial of information; j
i (3) The names and titles or positions of each person responsible for the l
denial of records requested under this section, and the number of instances of I
participation for each; j
i
)
(4) The results of each proceeding conducted pursuant to 5 U.S.C.
552(a)(4)(F), including a report of the disciplinary action taken against the i
officer or employee who was primarily responsible for improperly withholding i
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 the 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 hRC Public Document Room.
- 10. Section 9.85 is revised to read as follows:
I 35 I
69.85 fees.
Fees shall not be charged for search for or review of records requested pursuant to this subpart or for making ocpies or extracts of records in order to make them available for review.
Fees established pursuant to 31 U.S.C. 483c ana 5 U.S.C. 552a(f)(5) shall be charged according to the' schedule contained in 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 Records, waives the fee because of the inability of the individual to pay or beCduse making the records avallable without Cost, or at d 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 hRC records are made avdil4 Die to the public for inspection ano copying which remain governed by Subpart A, except that the exemptions set forth in 99.104(a) shall govern in the case of any request mace pursuant to 69.23 to copy or inspect the transcripts, recordings, or minutes described in 59.108. Access to documents considered at NRC meetings shall continue to be governed by Subpart A of this part.
12.
In 59.200, paragraph (b) is revised to read as follows:
59.200 Scope of subpart.
36
b c
( b') For purposes of this subpart, the term " employee of the NRC" includes j
all NRC personnel as that term is defined in 69.3 of this part, including NRC contractors.
i
!v 1987.
Dated at Washington, DC, this M 'I cay of j
For the Nuclear Regulatory Comission.
7 A) i b%
(
Samuel J.
k, Secretary of the Comission.
)
e l
37
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