ML20247F762
| ML20247F762 | |
| Person / Time | |
|---|---|
| Issue date: | 09/13/1989 |
| From: | Thompson H NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Glasgow J DOUB, MUNTZING & GLASGOW (FORMERLY DOUB & MUNTZING) |
| References | |
| FOIA-89-80, FOIA-89-A-15 NUDOCS 8909180266 | |
| Download: ML20247F762 (3) | |
Text
'o UNITED STATES 8
g NUCLEAR REGULATORY COMMISSION n
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E WASHINGTON, D. C. 20565 i
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o SEP 131989 James A. Glasgow, Esquire Doub, Muntzing and Glasgow IN RESPONSE REFER 1
808 - 17th Street, NW TO FOIA-89-A-15 Suite 400 (FOIA-89-80)
Washington, DC 20006
Dear Mr. Glasgow:
i Your letter dated March 30, 1989 appealed Mr. Donnie H. Grimsley's response to l
your Freedom of Information Act (F0IA) request dated February 28, 1989.
J Mr. Grimsley's response informed you that DOE /NRC Forms 741 are not agency records subject to the provisions of the FOIA.
I have carefully reviewed the record in this matter and have determined that Mr. Grimsley's determination 4
should be sustained. Therefore your appeal is hereby denied. The reasons for this denial are based on facts set forth below which Mr. Grimsley described in his letter to you of May 26, 1989.
NRC regulations at 10 CFR 40.64, 70.54, 75.31, 75.34, and 150.16-17 specify, j
that for certain types and quantities of nuclear material, licensees of the NRC and NRC Agreement States complete and distribute DOE /NRC Form 741,
" Nuclear Material Transaction Report." The Form 741 is a form jointly agreed upon by the NRC and DOE to minimize the reporting burden upon industry organizations who may have requirements to report nuclear material transaction data under NRC licenses and under DOE contracts. Detailed guidance for Material Transaction Reports" (NUREG/BR-0006, Revision 2)pleting Nuclear completing the form is contained in " Instructions For Com The instructions state that once a licensee has completed the Form 741, one copy is to be sent to the other party in the transaction, one copy is maintained in the originator's file and one copy is to be sent to Martin Marietta Energy Systems, Inc., a DOE contractor operating the DOE National 1.aboratory in Oak Ridge, Tennessee. Neither the NRC regulations nor the instructions in NUREG/BR-0006 call for a copy of the completed Form 741 to be sent to any NRC office or to any NRC official.
Once Martin Marietta Energy Systems, Inc., receives the completed Form 741, its staff reviews the fors to assure it contains all the required information.
Where information is insufficient, Martin Marietta's staff will contact the submitter to obtain the needed information. Once a completed form has been validated as having the required information, the transaction data is keyed into a computer data base, referred to as the Nuclear Material Management and SafeguardsSystem(N!HSS). The Form 741 is then placed in storage onsite at the Martin Marietta facility in Oak Ridge, Tennessee. The computer data base 8909180266 890913 PDR FOIA i
GLASGOB9-A-15 PDR
i James A. Glasgow, Esquire.
1 is located in computers located and operated in Martin Marietta-operated facilities. NRC obtains access to the information in the data base submitted by NRC licensees through printouts it orders to be generated by the Martin Marietta staff. No online computer access is available from any NRC office.
Martin Marietta performs this contracted service under an Interagency Agreement between the NRC and DOE, which stipulates NRC will provide a specified level of funding to support the contractor services. The NRC staff person who serves as the Technical Monitor for the Interagency Agreement will normally make an annual visit to review the contractor's performance under the agreement. Other NRC staff who are principally involved in NRC nuclear material safety and safeguards activities will on occasion tour the contractor's facilities. NRC has three representatives who sit on the Board which sets policy for the contractor's operation of the NMMSS system.
In 1988 NRC, based on a review of the status of completed 741 forms submitted by licensees to Martin Marietta, determined that the forms did not qualify as
" agency records" under the F0IA. NRC based this determination on the definition of agency record set forth by the Department of Justice policy which states that to be an agency record, a record must be in " possession and control of an agency" (Attorney General Memorandum on the Public Information of the Administrative Procedures Act, U.S. Department of Justice, 1967, p.3).
The Supreme Court reached a similar finding when it defined an agency record as one which has been created or obtained by the agency, Forsham v. Harris, 445 U.S. 169 (1980). As I described above, the completed 741 forms are not created or obtained by the NRC and thus are not in the agency's possession prior to or after transmittal to the contractor.
In Forsham, the Supreme Court clearly stated that right to access records is not sufficient, the agency must have actually obtained the record, i.e. possess the record, for a record to qualify as an agency record.
Even if the completed Form 741s were agency records, they would not be available to you under the F0IA. Each of the companies whose completed Form 741s you seek has provided an affidavit that the information on the completed Forn 741s constitute company confidential (proprietary) information. Each of these affidavits has been submitted within the last two-year period. For purposes of making determinations in responses to FOIA requests, it is the NRC's practice to accept any affidavit as current if it was submitted within two years of the date of the request. To disclose information on the completed Form 741s would
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reveal companies' customers, and the dates, amounts and types of material involved in these transactions. To disclose the transactions you seek would reveal the nature and volume of business that each company does with certain customers and could reveal the nature and capability of its production facilities. This type..of information is customarily considered company confidential (proprietary) information under Exemption 4 of the F01A.
The NRC believes that the companies' affidavits are sufficient to justify a determination that the transaction information submitted on the Form 741s for i
these companies is proprietary inferr.ation.
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l I
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James A. Glasgow, Esquire.
This is a final agency action. As set forth in the F0IA (5 U.S.C.
552(a)(4)(B)), judicial review of this decision is available in a district court of the United States in the district in which you reside or have your principal place of business or in the District of Columbia.
Sincerely, t191 r
uh. Thompson, r., D y Executive Director o Nuclear Ma crial S ety, Safeguards d Operations Suppo
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