ML20217H833

Informs That Rules & Directives Branch Has Reviewed Final Rule That Will Revise Commission Regulations to Implement Electronic Freedom of Info Act Amends of 1996.Marked Copy of Final Rule That Presents Comments Encl

ML20217H833
Person / Time
Issue date:	12/04/1997
From:	Meyer D NRC OFFICE OF ADMINISTRATION (ADM)
To:	Racquel Powell NRC OFFICE OF ADMINISTRATION (ADM)
Shared Package
ML17300B453	List: ML20217H495 ML20217H514 ML20217H549 ML20217H734 ML20217H746 ML20217H785 ML20217H798 ML20217H811 ML20217H817 ML20217H830 ML20217H833
References
FRN-63FR2873, RULE-PR-9 AF78-2-013, NUDOCS 9910220203
Download: ML20217H833 (49)

Text

A F 7f-A 4 o g -"i UNITED STATES '

s* 'j NUCLEAR REGULATORY COMMISSION 4" WASHINGTON, D.C. 2055tH)001 49 ,d December 4. 1997 MEMORANDUM T0: Russell A. Powell Chief. Freedom of Informat: Jn/ Local Public Document Room Branch Office of Chief Information Officer FROMi David L. Meyer. Chief P - %"

Rules and Directives Branch Division of Administrative Services Office of Administration

SUBJECT:

REVIEW OF FINAL RULE ENTITLED "ELECTRONlt FREEDOM OF INFORMATION.ACT: IMPLEMENTATION The Rules and Directives Branch has reviewed .the final rule that will revise the Commission's regulations to implement the Electronic Freedom of Information Act Amendmenmts of 1996. We have attached a marked copy of the final rule that presents our comments.

Please note that E.fter the document is signed for pMlication by the Chief Information Officer (CIO) it must be submitted to h., Branch for transmittal to the Office of the Federal Register for publication. Please see Appendix A to the NRC Regulations Handbook for procedures applicable to a CIO signed document.

In order to assist you in preparing the list of documents centrally relevant to this direct final rule that is required by NRC's regulatory history procedures, you should place the designator "AF78-2" in the upper right-hand

. corner of each document concerning the direct final :'ule that you forward to the Nuclear Document System.

If you have any questions concerning this matter, please contact Michael T.

Lesar (415-71~63).

Attachments: As stated I

l 9910220203 991019 c PDR PR 3

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NUCLEAR REGULATORY COMMISSION I Ii7 u:L e Lem 10 CFR Part 9 - i

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Electronic Freedom of Information Act: Implwentation 5

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SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its j l

< regulations to implement the Electronic Freedom of Information Act Amendments- l I

1 of 1996-(EFOIA),

! which are designed to bring the Freedom of Information Act (FOIA) into the information and electronic age by clarifying that FOIA applies 4 l

to records maintained in hardcopy or electronic format. The rule implements  ;

I statutory provisions of the law that broaden public access to government information by placing more records on-line and expanding the role of the agency public document room. The rule implainents statutory amendments that j l

recognize the difficulty in responding to requests in the 10 working days

--formerly required and extend that time to 20 working days. It also provides j procedures for agencies to discuss ways of tailoring requests to improve i responsiveness. The rule amends NRC's FOIA regulations to comply with the

-requirements of the new statute. Certain other changes have been made to l correct administrative errors and to update or remove obsolete information.

30 ch a c 8 ee Ne EFFECTIVE DATE: ( e of oublication.).

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FOR FURTHER INFORMATION CONTACT: Russell A. Powell, Chief, Freedom of l

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% Information/ Local Public' Document Room Branch, Office of Chief Information T3-N officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, i

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telephone: (301) 415-7169, e-mail: RAP 19nrc. gov.

i l h . \.. N h4 SUPPLEMENTARY INFORMATION:

3 'ik lk 6 n-J M.? Background Information S- b

A- , On October 2,'1996, the President signed into law the Electronic Freedom

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%( .\ 1 Y of Information Act Amendments of 1996 (EFOIA),'Public Law 231, 110 Stat. 3048 l I

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(Y (1996). EFOIA includes provisions authorizing or requiring agencies to j promulgate regulations implementing certain of its requirements, including the

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', Q- tracking of Freedom of Information Act (FOIA) requests, the aggregation of 3 .s

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{ ql'- FOIA requests, and the expedited processing of FOIA requests. In addition,

\ EFOIA changes the time limit for responding to a FOIA request from ton to 3s x j

. twenty working days, the requirements for reporting FOIA activities to

'$ Congress, and the cases in which an agency may extend the time within which it k( g( 3 will respond to a FOIA request. .EFOIA also includes provisions regarding the availability of documents in electronic form,-the treatment of electronic records, and the establishment of " electronic reading rooms."

The Nuclear Regulatory Commission is amending its regulation (

o m t tuk . i implementing the FOIA, 10 CFR Part 9. Th[ o~ "- ~+ fr(evisthe NRC's FOIA f ['

I h0 a regulations to comply with EFOIA. Tc, i..+1-- a* +h=== ch = -';? ? e NRC ,t s published a proposed rule jon september 5,1997. k'/he NRC received two comments

( 62 FA Vfl &

from the public and certain. administrative corrections from the NRC staffg . ,

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l- The Reporters Committee for Fre,wdom of the Press ear ::r- ra hat the

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'NRCregulationsshouldallowj,aiverofthecertificationrequirementfor

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I w 7), e pr pe;trv' no u z a.ov/d quests for expedited processin avoid delays in processing tw exchange O $0/4 Xtt u r 2

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correspondence with a requester to obtain rtifiention. Although the NRC E folk regulationeadheredtothelanguageoftheramendments,theconcernexpressed r The Mc he evn-/

isunderstooganathewordingofthatpartoftheregulationh:2 '7 %y ; n a -

to allow waiver of We formali v bf certification as a matter of ./ J.

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(Lj Commonwealth Edison Company (Comed) stitmitted comment ooneerein the A establishment of a new title, Freedom of Information Act and Privacy Act

's b as that the NRC was creating an

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Officer (FOIA/PA Officer). Comed %'concer

- D additional st'4ff posit g The NRC is not establishing a new position, but

( only using the title for the person designated to fulfill Freedom of L

k Information Act and Privacy Act responsibilities, who may have a job title N 5 that is not reflective of these responsibilities. The FOIA/PA Officer will be ERR p

'if designated by the Chief Information Officeland the designated person will use the FOIA/PA Officer title in actions involving the FOIA and Privacy Act. The s

-Qte definition of this new title has been modified to more clearly reflect that a.

3i this is only a dasignated title for the responsible official to use in the

>c MD w performance of his/her responsibilities connected with the FOIA and Privacy k' Act.

sJ Dk Comed was also concerned that the establishment of an electronic reading room for certain records created after November 1, 1996, "may prove to be p e. n n oj prohibitively expensive." TheNRC=ba=Ayha[,a tabli ubo $8st r that one -

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ofthedocuments/nquiredtobepostedinanelectronicreadingroomwere already posted on the ebsite or available electronically through the NRC Public Document Room's on-line Bibliographic Retrieval System (BRS).

Therefoce, the additional cost to add the few remaining documents to the NRC website is' minimal and does not have any significant economic impact on the i

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NRC or the public.

The NRC staff submitted recommendations for non-substantive editorial corrections that have been made. Thef.

staff NK proposed a change to the d.finition of the term "Revjew time" at $9.13 to remove the phrase "to determine if they are in fact responsive" because that is search time, not review time. The gR a staff also proposed revising the definition of the term " Search time" in 59.13 by changing the word " reviewing" to "looking for" in the phrase "... period devoted to r',riewing, manually..." to avoid confusion since the term reviewing has its own definition. The definitions have been revised.

Nth TheIstaff proposed a substantive change to combine the paragraphs at S9.41(d)(2),(3), and (4) to eliminate their redundancy. 59.41(d)(2),(3), and (4) have been combined to a vingle paragraph, 59.41(d)(2), and paragraphs p o ,,,,/ed

$9.41(d)(5) and (6) have been renumber as 59.41(d)(3) and (4), respectively.

New Provisions A. New and revised definitions.

The rule establishes a new title, Freedom of Information Act and Privacy Act Officer, to be designated by the Chief Information Officer as the epiny designated official responsible for administration the FOIA and Privacy Act3

- f);;; r., J# /e ;; p fin lieu of using the organizational title of the responsible individual whieh-6%

w :s, .o may not be % indicative of thes( specific responsibilitier. A new definition M/ c is added to 10 CFR 9.13 to reflect this new title. .

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'f The definition of record is amended to add "any information that would be an agency record subject to the requirements of (5 USC 552) when maintained by an agencyi 'n any format, including an electronic format" and to read

" Record also includes a book, ... drawing, diagram, ...".

The definition c,f review time is revised to remove from the definition j l

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the period spent " excising from the records those portions which are to be 5

i withheld."  !

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,l B. Electronic Records.

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

s purposes of FOIA as including "any information that would be an agency record subject to the requirements of (5 USC 552) when maintained by an agency in any format, including an electronic format." Section 552(f) thus clarifies that the term " agency record" includes information stored in any computer readable format as well as traditional paper documents. The rule amends 10 CFR 9.13 to i

specifically include information in an electronic format within the definition #

of the term " agency record." 10 CFR 9.13 specifically includes in the definition of " search" time spent reviewing records by automated means as well as manually.

C. Electronic Reading Room.

Section 4 of EFOIA amends 5 USC 552(a)(2), which previously required agencies to make available for public inspection and copying certain information, such as agency opinions and policy statements, administrative staff manuals ano utaff instructions that affect a member of the public. The l

new law expands these categories to include agency records that have been made publicly available and are likely to be the subject of re;etitive public requests, as well as a general index of these frequently sought documents.

The amendments further provide that section 552(a)(2) records createu on or after November 1, 1996, must be made available by computer telecommunications within one year after such date, or if computer telecommunications have not been established, by other electronic means. The general index of these i

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records is to be available by computer telecommunications by December 31, 1999. These new requiremento, as well as the on-line address for NRC's homepage on the Internet, are incorporated in 10 CFR 9.21(c)(6) and (f).

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

D. Honoring Form or Format of Requests.

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

First, 5 U.S.C.552(a)(3)(B) requires agencies, when making records available to the public, to do so "in any form or format requested by the person if the l I

record is readily reproducible by the agency" in the requested manner. This new requirement is included in 10 CFR 9.15. Second, 5 U.S.C. 552 (a)(3)(c) makes it clear that when an FOIA request is received, an agency should not only search for hard copies, but should also search for the records in their electronic form. This new requirement is included in 10 CFR 9.15. Finally, a

" search" under the amendments means to review, manually "or by automated I

means," agency records for the purpose of locating those records which are responsive to a request. This new requirement is incorporated in 10 CFR 9.13 in the definition of " search time."

E. Time Limits for Responding to Requests.

In recognition of the fact that 10 working days is not a realistic timeframe, the EFOIA amendments, 5 U.S.C. 552(a)(6)(A)(1), extend the time to l respond to a request from 10 to 20 working days. 10 CFR 9.25 is amended to reflect the change in the time limits for initial disclosure determination 6

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[: from 10 to 20 working' days effective october 2, 1997.

T. .Multitrack Processing of Requests.

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

requests are categorized based on the amount of agency effort involved in processing the request. This replaces the current first-in, first out approach generally employed at the NRC. Agencies must still exercise due

' diligence within each track. The new law, S U.S.C. 552(a)(6)(D)(li), also

. requires agencies to give requesters the opportunity to limit the scope of their requests to qualify for processing under a faster track. This provision is intended to permit more requests to be completed more quickly by providing an incentive for requesters to frame narrower requests for fewer documents.

These new provisions are incorporated in NRC's three-track system described in 10 CFR 9.25(c). l The first track is for simple requests or requests of moderate complexity that are expected to be completed within 20 working days (e.g., a l request that does not involve a large volume of documents, retrieval of documents from regional offices, or extensive coordination between NRC I

offices).

The second track is for requests involving unusual circumstances that are expected to take between 21-30 working days to complete. j The third track is for requests that, because of their unusual volume or j l

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-w complexity,.are expected to take more than 30 working days to complete.

Upon receipt of'a request, NRc will notify the requester of the track in l- -which the request has been'placed for processing ~and the estimated time for l p o{ ac//rs at ffe /* p n f (\

completiont;should subsequent information sub'stantially change the estimated

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time to process the request, the requester will be nctified telephonically or

in writing. A' requester may modify the request to allow it to be processed under a different' track for_a faster response.

G. Unusual Circumstances.

'Even with use of multitrack processing, congress-recognized that in some circumstances the statutory response time will not be met. The EFOIA retains the provisions for agencies to extend the initial 20 working day response time by j for an initial request, or the 20 working day response time for an appeal, an 1 additional 10 working days in " unusual circumstances." Agencies must provide

'the requester with a written justification for the extension that contains the j date of the expected agency. response. The amendments retain the definition of J

" unusual circumstances" as time needed to search for and collect the requested 1

records from field facilities or other establishments that are separate from

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the office processing the request; the need to search for, collect and g

appropriately. examine a voluminous amount of material demanded in a single request; and the need for consultation with another agency having a -

-substantial' interest in the determination of the request or among two or more

. parts et the agency having'aubstantial interest in the request. These consultations must be conducted "with all practicable speed." 5 U.S.c.

552(a)'6)(B)(iii). I H. I. Exceptional Circumstances.

In addition to extensions under unusual circumstances, the EFOIA 8

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L immendments, 5 U.S.C. 552(a)(6)(B)(ii), authorize the agency to negotiate a

, response time with a requester that may exceed the statutory maximum (20 working' days plus a.lO working-day extension) for those-FOIA requests that the agency determines cannot be. proc'essed within the statutory time limits. The

[ agency must offer'the requester an opportunity to limit the scope of the l

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

i. Congress asserted that this process for negotiated time limits reflects the policy that FOIA works best when requesters.and agencies work together to define and' fulfill reasonable' requests. This new provision is incorporated in.

L 10 CFR 9.25(c)'.

1.. Aggregation of Requests

.The EFOIA amendments, 5 U.S.C.-552(a)(6)(B)(iv), authorize agencies to promulgate regulai t*., that allow for the aggregation of FOIA requests by the same requester or by a group of requesters acting together. Aggregation may.

occur if the agency "rossonably believes" that these multiple requests do

.indeed constitutelu single request. This new provision is implemented in 10 CFR 9.39(e).

3. Requests for Expedited Processing.

1 The EFOIA amendments, .5 U.S.C. 552(a)(6)(E)(1), require agencies to promulgate regulations to provide for " expedited processing" in cases where i

the person. requesting the records demonstrates'a " compelling need" and in j i

other casas where the agency determines expedited processing is warranted.  ;

The mnendments define " compelling need" in two ways. One is where "a failure to obtain requested records on an expedited basis. . .,could reasonably be expected to' pose an imminent threat to the life or physical safety.of an l.

l- individual." The other is where a " person primarily engaged in disseminating I-9 l

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information" to the public has "an urgency to inform the public concerning

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actual or alleged Federal Government activity." The House Committee report i "

explaining the legislation states that a person "primarily engaged" in the business of dissemination of information "should not include individuals who are engaged only incidentally in the dissemination of information," but requires that "information dissemination be the main activity of the requester, although it osed not be their sole occupation." A requester who is "only incidentally" involved in information dissemination, in addition to other activities, would not satisfy this requirement.

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

" current exigency to the American public" such that any reasonable person could conclude that delaying a response to a FOIA request would compromise a

'significant recognized interest." The public's right to know, while "significant and important," would not stand alone as sufficient to satisfy this standard. Agencies will have to make both " factual and subjective judgments" about situations cited by requesters as reasons for expedited I processing and must demonstrate " fairness and diligence' in exercising their l

discretion. Requesters must provide detailed explanations to support their expedited requests.

The EFOIA amendments, 5 U.S.C. 552(a)(6)(E)(ii), require that agency regulations provide that requesters be given notice within 10 calendar days

' after the date of the request as to the datermination whether it qualifies for expedited processing, once expedited processing is granted, agencies must

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

l administrative appeal to a denial of expedited processing must be handled with l

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

The NRC has Loplamented the EFOIA requirements for expedited processing at 10 1

LCFR 9.25(e) and 9.29.

K. Estimates of the volume of materials denied EFOIA, 5 U.S.C. 552(a)(6)(F), requires agencies to make a reasonable effort to estimate the volume of any requested record material that is denied I

.in whole or in part, and to provide the estimate to the requester unless providing such estimate would harm an interest protected by a FOIA exemption.

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This new requirement has been implemented at 10 CFR 9.19(c).

i L. Annual Report to Congress The EFOIA, 5 U.S.C. 552(e), amended the annual requirements for ,

reporting agency FOIA activities to Congress. On or before February 1 of each

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-f-yearbeginninginQ99,agenciesmustsubmittotheAttorneyGeneralanannual I report that covers the preceding fiscal year and includes the number of l determinations made by the agency not to comply with the requests for records made to the agency and the reasons for those determinations; the number of 1 appeals made by persons, the results of those appeals, and the reason for the action upon each appeal that results in a denial of information; a complete list of all statutes that the agency used to authorize the withholding of information under Section 552 (b)(3), which exempts information that is specifically exempted from disclosure by other statutes; a description of I. whether a court has upheld the decision of the agency to withhold information under each of those statutes cited,'and a concise description of the scope of I any information upheld; the number of requests for records pending before the 11 i

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I' agency as of September 30 of the preceding year, and the median number of days that tnese requests.had been pending before the agency as of that date; the number of requests for records received by the agency and the number of requests the agency processeo; the median number of days taken by the agency to process different types of requests; the' total amount of fees collected by the agency for processing requests; the average amount of time that the agency j estimates as necessary, based on.the past experience of the agency, to comply with different types of requests; the number of full-time staff of the agency devoted to the processing of requests for records under this section; and the total amount expen'ded by the agency for processing these requests. The NRC ,

I has implemented this amended EFOIA reporting requirement in 10 CFR 9.45.

The amendments require each agency to make these annual reports v

arallable to the public through a computer network, or by other electronic means if computer networking is not a possibility for the agency. The NRC has posted its annual report on its website on the Internet that is accessible through the NRC homepage at http\\www.nrc. gov. The report is also available in the NRC Public Document Room.

Environmental Impact - Categorical Exclusion The NRC has determined that this 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 rule.

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

of. Management'and Budget,' approval' number 3150-0043.

1 Public Protection Notification

'The NRC may not~ conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB I

. control number. l Regulatory Analysis This' rule. implements the EFOIA by amending 10 CFR Part 9, Subpart A -

This is an administrative reyflatory Freedom of Information Act Regulations.

action that makes NRC's regulations reflect the new provisions of the EFOIA.

The rule will not have any adverse economic impact on any class of licensee on

the NRC; on the contrary, the rule with its new provisions allowing expedite'd and multitrack processing may provide some new and additional benefit to the's

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'who may opt to use these regulations to obtain access to NRC records and

'information.

This constitutes the regulatory analysis for this rule.

I Regulatory Flexibility Certification  !

605(b)), the As required by the Regulatory Flexibility Act (5 U.S.C.

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Commission certifies that this rule does not have a significant economic The amendments to 10 CFR impact on a substantial number of small entities. l 13

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t Part 9 are procedural in nature and are required to implement the Electronic

' Freedom of Information Act Amendments of 1996 (EFOIA), 5 U.S.C. 552.

Backfit Analysis The NRC has' determined that the backfit rule 10 CFR 50.109 does not apply to this rule; therefore, a backfit analysis is not required for this rule because these amendments do not involve any provisions that Lmpose backfits as defined in 10 CFR Chapter I.

List of Subjects in 10 CFR Part 9 Criminal penalties, Freedom of information, Privacy, Reporting and recordkeeping 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. 552, 552a, and 553; the NRC is adopting the following amendment of 10 CFR Part 9, Subpart A-- Freedom of Information Act Regulations.

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.d l- PART 9--PUBLIC RECORDS

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

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

///M(01,88 Stat.-1242,asamended(42U.S.C. 5841).

Subpart A is also issued under 5 U.S.C. 552; 31 U.S.C. 9701; Pub. L. 99 -

570.

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

Subpart c also ist.v.,1 under 5 U.S.C. 552b.

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

$9.8 Information collection requirements: OMB approval.

(b) The approved information collection requirements contained in this part appear in $59.23, 9.29, 9.40, 9.41, 9.53, 9.54, 9.55, 9.65, 9.66, and 9.67.

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

Subpart A--Freedom of Information Act Regulations l

9.11 Scope of subpart.

9.13 Definitions.

9.15 Availability of records.

9.17 Agency records exempt from public disclosure.

9.19 Segregation of exempt information and deletion of identifying details.

9.21 Publicly-available records.

9.23 Requests for records.

9.25 Initial disclosure determination.

l 9.27' Form and content of responses.

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.9.29 Appeal from initial determination.-

9.31-Extension of'tism for-response.

9.33' search,rroview, and special service' fees.

19.34'Asesamment of interest and debt collection.

'9.35. Duplication fees.

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

9.39. search'and duplication'provided'without charge.

9.40 Assessment'of-fees.

9.41 Requests for' waiver.or reduction of fees.

.9.43 Processing requests for a waiver or reduction of fees.

9.45 AnnualLreport to Congress.

Subpart A--Freedom of Information Act Regulations

$9.11 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 lof-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, stechnical, or other-information program or policy.

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I-7[59.13 Definitions.

haency record means a record in the-possession and control of the NRC that

.Q isiassociated-with Government business. -Agency record does not include ,

l records such'as--!

(1); Publicly-available. books, periodicals, or other publications that are l-owned or copyrighted.by non-Federal sources;

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'(2);. Records solely in the possession and control of NRC contractors; e

'~(3); Personal records in possession of NRC personnel that have not been circulated, were not required to be created or retained by the NRC, and can be

' retained or discarded at the author's sole discretion, or records of a personal' nature that are not associated with'any Government business; or ,

i (4).Non-substantive information in logs or schedule books of the Chairman or Commissioners,.unc'irculated except for typing or recording purposes. .

^- retmi-use reauest means a request made under 59.23(b) for a use or

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purpose that furthers the commercial,. trade, or profit' interests of the i requester'or the person on whose behalf;the~ request is made. l Direct costa mean the expenditures.that an agency incurs in searching for  !

'and duplicating agency ~ records. 'For.a commercial-use request, direct costs l . I

include the' expenditures involved-in reviewing records to respond to the

' 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 i .'

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. fringe benefitsLan'd the cost of operating duplicating machinery.

Duplication-means the process of making a copy of a record necessary to ,

-respond to a request made under 59.23. Copies may take the form of paper

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

Educational institution means an institution that operates a program or programs of scholarly research. Educational institution refers to a

' preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education.

Freedom of Informatioti Act and Privacy Act Officer means the NRC official designated by the Chief Information Officer to fulfill the responsibilities

( hh t for implementing and administering the Freedom of Information Act andlPrivacy Act as specifically designated under thL r gulationf~~ # '" # /

• Noncommercial scientific institution means an institution that is not operated on a commercial basis, as the term " commercial" is referred to in the definition of " commercial-use request," and is operated solely for 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 information that would be an agency record subject to the I

requirements of the Freedom of Information Act when maintained by the NRC in ]

any format, including an electronic format. Record also includes a book, paper, map, drawing, diagram, photograph, brochure, punch card, magnetic tape, paper tape, sound recording, pamphlet, slide, motion picture, or other documentary material regardless of form or characteristics. Record does not l

include an object or article such as a structure, furniture, a tangible l 18

exhibit or model, a vehicle, or piece of equipment.

Reeresentative 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 availabic for purchase or subscriptions by the general public.

Review time means the period devoted to examining records retrieved in response to a request. to determine whether they are exempt from disclosure in 7 g-~

whole or in part. /(1so heview includes the period devoted to examining records to determine which Freedom of Information Act exemptions are applicable and identifying records or portions thereof to be disclosed.

Search time means the period devoted to looking for agency records, either manually or by automated means, for the purpose of locating those records wNchareresponsivetoarequest. This includes a page-by-page or line-by-line identification of responsive information within the records.

Unusual circumstances mean--

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which ard~ emanded in a single request; or (3) The need for consultation, which will be conducted with all practicable 19

4 speed, with another agency having a substantial interest in the determination of the request or among two or more components of the NRC having substantial subject-matter interest therein.

59;15 Availability of records.

The.NRC will make'available for public inspection and copying any reasonably described agency record in the possession and control of'the NRC under the provisions of~this subpart, and upon request by any person. Records will be made available in any form or format requested by a person if the record is readily reproducible by NRC in that form or format. NRC will make reasonable efforts to maintain its records in forms or formats that are reproducible. NRC will make reasonable efforts to search for records in electronic-form or format when requested, except when these efforts would significantly interfere with the operation of any of the NRC's automated information' systems. Records that the NRC routinely makes publicly available are described in 59.21. Procedures and conditions governing requests for records are set forth in S9.23.

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--

l (i) That are specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or 20 l

]

t .

,s.

F. ,

I foreign policy, and

~ (ii)'That are in fact properly classified pursuant to such Executive order; l

(2); Records related solely to the internal' personnel rules and practices of f

ithe' agency;

'(3) Records specifically.wzempted from disclosure by statute (other than 5 U.S.C. 552b), provided that:the statute--

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

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leaves no discretion on the issue; or l-(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 1

person.that are privileged;or confidential; .

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

.available by law'to a party other than an agency in litigation with the agency;.

l I

(6) Personnel and' medicali f'les and similar files, the disclosure of which l

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 these 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;-

1

'(111) Could reasonably be expected to constitute-an unwarranted invasion of

. . l personal' privacy;' .

I ~(iv) Could reasonably be expected to disclose the identity of a i l 21.

I .

l l

h confidential sottree, . 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 l

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

(b) Nothing in this subpart authorizes withholding of information or

-limiting the availability of records to the public except as specifically provided in this part, nor is this subpart authority to withhold information .

from Congress.- l

.(c) Whenever a request is made that involves access to agency records 1

described in paragraph (a)(7) of this section, the NRC may, during only the time as that circumstance continues, treat the records as not subject to the requirements of.this subpart when--

l l (1) The investigation or proceeding involves a possible violation of 22

p 7

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 (11) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.

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 information that is exempt under one or more of the exemptions cited in 59.17. The amount of information deleted will be indicated on the released portion of the record, unless providing this indication would harm an interest protected by the exemption (s) under which the matter has been withheld.

(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 advice, 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 glient privilege, or is otherwise exempt from disclosure.

(c) In denying a request for records, in whole or in part, NRC will make a reasonable effort to estimate the volume of any information requested that is 23

,.m..

o

! denied and' provide the estimate to the person making the request, unless

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providing'the estimate would harm an interest protected by the exemption (s)

,under.which'the information has been denied.-

(d).When entire records or portions thereof are denied and deletions are made from parts'of the record by computer, the amount of information deleted will be indicated on the released portion of the record, unless providing this

~

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

'the matter.has been' denied.

$9.21 Publicly-available records.

(a) Publicly-available records of NRC activities described in paragraphs (c) and (d) of this section are available through the National Technical Information service. Subscriptions to these records are available on 48x

' microfiche and may be' ordered from the National Technical'Information Service, 5285 Port Royal Road,' Springfield, VA 22161.- Single copies of NRC.

publications in the NUREG series, NRC Regulatory Guides, and standard Review Plans are also available from the National Technical'Information Service.

(b) For the convenience of' persons who may wish to inspect without charge or purchase copies of a record or a limited category of records for a fee, publicly available records of the'NRC's activities described in paragraph (c)

-of this section are also made available at the NRC Public Document Room. The

.NRC Public Document Room is located at 2120 L street, NW., Washington, DC, and

=is open between 7:45 a.m. and 4:15 p.m. on Monday through Friday, except Federal holidays.

(c)'The following records of NRC activities are publicly available at the 24-

l l

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 cases; (2) Statements of policy and interpretations that have been adopted by the NRC and have not been published in the Federal Register; (3) Nuclear. Regulatory Commission rules and regulations; (4) Nuclear Regulatory Commission Manuals and instructions to NRC personnel that affect any member of the public; (5) Copies of records that have ' "en released o a person under the Freedom of Information Act that, because et .ne nature e ' their subject matter, the NRC determines have become vr are likely to become the subject of subsequent requests for substantially the same records.

(6) A general index of the records released under the FOIA.

(d) Current indexes to records that are made publicly available are listed in NUREG-0540, " Title of List of Documents Made Publicly Available," which is published monthly. The records required to be made available under 5 U.S.C.

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

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

(f) By November 1, 1997, NRC will begin making records identified in paragraph (c) of this section that were created after November 1, 1996, available by electroni: means, including computer. telecommunications to the extent NRC has implemented its telecommunications capability, unless the

- records have been promptly published and copies offered for sale.

Telecommunications access can be obtained via the Internet by accessing the 25 m

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$' .' [- ) {

4.-

5 99, B', -NRC ac'.ae'Page on the.:Internet;at:http//www.nrc. gov /.-

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l .89.23 Requests for records.

l A

l1 .

T (a)(1) hjperson may request access to records routinety made available by

.the.NRC under 59.21"in person or in writing at the NRC Public Document Room,

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32120'L! street,?NW., Washington, DC 20555..

L <

i(1) Leach' record requested must be described in sufficient detail to enable

- i- the Public' Document woom'to locate the-record ~. If the description of the record is not sufficient to allow the Public Document Room staff to identify l

.the record,.the Public Document Room will advise the requester to select.the

. record from the indexes: published under 59.21(d).

l- . .. . .

.--(11)'In order tolobtain copies of records' expeditiously, a person may open

! an account at the Public Document Room with the private contracting firm that l, 'is' responsible for_ duplicating NRC records.

'(2) A person may also order records routinely.made available by the NRC under.59.21 from the National Technical Information service, 5285 Port Royal

l. ~

l ' Road,'Springf %1d, Virginia, 22161.

i-(b)'A pJrson may request agency records by submitting a request authorized by'.5 U.S.C. 552(a)(3);to the Froedom'of Information Act and Privacy Act 4tc officer, office of hief Information officer, U.S. Nuclear Regulatory The request must be in writing and clearly

.Commiasion~,= Washington, DC 20555 ,

4 state on.the envelope and in the letter that-it is a "Frriedom of Information Act request."' The NRC does not consider.a request as received until it has

'been received'and logced'in by.the office of the Freedom of Information Act j and Privacy.,Act. Officer; 26

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y. I l f.?

o_

I .- .

i- (1) A Freedom of Information Act request covers only agency records t. hat are in existence on the date the Freedom of Information Act and P,tivacy Act

! Officer receives the request. A' request does not cover agency records destroyed or discarded before receipt of a request or which are created after the date of.the request'..

0(2).All Freedom of Information Act requests for copies of agency records must reasonably describe the agency records sought in sufficient detail to permit the NRC to identify the requested agency records. Where possible, the 1

requester should provide specific information regarding dates, titles, docket

, numbers, file designations, and other information which may help identify the l

y agency records. If a requested agency record is not described in sufficient l

l detail to permit its identification, the Freedom of Information Act and Privacy Act Officer will contact the requester within 10 working days after i'

receipt of the request and inform the requester of the additional information or clarification needed to process the request.

l! .

l (3).Upon receipt of a request made under paragraph (b) of this section, the NRC will provide written notification to the requester that indicates the

( request has been received, the name and telephone number of the NRC point of l

contact to find out the status of the request, and other pertinent matters regarding the processing of the request.

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

(A) A request involves snticipated costs in excess of the minimum specified in 59.39; 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.

l 27 l

pa s:

I.

\; a; ,  ; ,

L - (ii) The .NRC has discretion to disc ontinue' processing a' request made under I- -this paragraph ) .i unt il-- -

(A) A required advance payment has-been received; (B) The requester has agreed to bar.r.the estimated costs; (C) ALdetermination~has be6n made on a request for. waiver or reduntion of

fees; or; 1(D) The requester ineets 'the requirements of's9.39..

.(c) If a requested agency. record chat has'been reasonably described is located at. a place other than the NRC Public Document Room or NRC l headquarters, the NRC may,"at its discretion, make.the record available for

--inspection and copying at the other location.

(d).Except as provided in 59.39--

l (1) If the record requested under paragraph (b) of this section is a record available..through thi National. Technical Information Service, the NRC shall l _ refer the! requester to the National Technica1'Information Service; and

-(2)(If.the requested record has been placed in the NRC Public Document Room l

under 59.21, the NRC may inform the requester that the record is in the Public f/

• Document Room and that the record may be obtained in accordance with the i fje procedures set forth in paragraph (a) of this section or, if applicable, L:

l available on line electronically.

l (e) The Freedom of Informatien Act and Privacy Act Officer will promptly

> forward a Freeddm of Information Act request made under $9.23(b) for an agency record to the head of the office (s) primarily concerned with the records requested, ss. appropriate. The responsible offica will conduct a search for the agency records responsive to the request and compile those agency recorde .

to be' reviewed for initial disclosure determination and/or identify those that 28 l

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' 8l :y ,

, 'have already'been'made. publicly available 'in the Public Document Room and

' Local Public Docusw Rooms."

1 59.25 Initial disclosure determination.

l

--(a)L Time for; initial disclosure determi::ation. The NRC'will notity a irequester within 20'workir.g days of its determination.- If the NRC cannot act

upon the request within'this period, the NRC will provide the: requester with-4

'tha reasons for the-delay and provide'a projected response date.

-(b) Extension of time lia t-in unusual' circumstances. In unusual

'.'circumstr.nces,'the NRC may_. extend the time' limit prescribed in paragraph (a) of this section by not more than 10 working days. The' extension may be made by written lor telephonic notice to the person making the request'to explain--

the reasonsifor the extension and indicate the date on which a determination l 1 is expected to be made. " Unusual circumstances" is limited to one or more of I i l the-folloving reasone for delays: 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; j

'(2).The need to search for, collect, and appropriately examine a voluminous

.ame. tnt of separate and distinct records which are demanded in a single I

request; or

-(3);The needIf or consultation', which will'be conducted with all practicable speed,.with'another. agency.having a'suustantial interest in the determination l

? ofIthe request or_among two or more= components of the NRC having substantial subject-matter interest'therein.-

29 i I

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l. (c) Exceptional elreumstances. A requester may be notified in certain

[ exceptional circumstances, when it appears that a request'cannot be completed within the allowable time, and will be provided an opportunity to limit the scope of the request so that it may be processed in the time limit, or to agree to a reasonable alternative time frame for processing. For purposes of this paragraph, the term " exceptional circumstances" does not include delars

' that result.from the normal predicte.ble workload at FCIA requests or a failure by the NRC to exercise due diligence in processing the request. A requester's unwillingness to agree to reasonable modification of the request or an alternative time for processing the request may be considered as f actors in determining whether exceptional circumstances exist and whether the agency exercised due diligence in responding to the request.

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

(1) NRC uses a three-trach system.

L (1) The first track is for requests of simple to moderate complexity that

. are expected to be completed within 20 working days.

(ii) The second track is for requests involving unusual circumstances that i

! are expected to take between 21-30 working days to complete (e.g. requests l

involving possible-records from two or three offices and/or various types of files of moderate volume, of which, some are expected to be exempt)

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

complete (e.g. requests involving several offices, regional offices, other jgge ,

30 I

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, I agency's records, clarsified records requiring declassification reviewe records from businesses that are required to be referred to the submitter for their proprietary review prior to disclosure, records in large volumes which require detailed review because of the sensitive nature of the records such as I investigative records or legal opinions and recordings of internal l

deliberations of agency staff).

(2) Upon receipt of requests, NRC will notify requesters of the track in which the request has been placed for orocessing and the estimated time for completion. Should subsequent information substantially change the estimated time to proessa a request, the requester wil2 be notified telephonicelly or in writing. A requester may modify the request to allow it to be processed faster or to reduce the cost of processing. Partial responses may be sent to requesters as documents are obtained by the FOIA office from the supplying o f fi.ces .

(e) Expedited processing.

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

! (i) That a failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (ii) With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.

33

o (2) A person requesting expedited processing must include a statement certifying the compelling need q ren to be true and correct to the best of his or her knowledge and belief. The formality of such certification may be waived as a matter of administrative discretion.

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

(f) Disclosure Review. The head of the responsible office shall review agency records located in a search under $9.23(b) to determine whether the agency records are exempt from disclosure under $9.17(a). If the head of the office detern.ines that, although exempt, the disclosure of the agency records will not be contr&ry to the public interest and will not affect the rights of any person, the head of the office may authorize disclosure of the agency records. If the head of the office authorizes disclosure of the agency records, the head of the office will furnish the agency records to the Freedom of Information Act and Privacy Act Officer, who will notify the requester of the detcrmination in the manner provided in $9.27.

(g) Initial disclosure determinations on requests for records located in offices under the Executive Director for Operations, the office of the Chief Financial Officer, and the office of the Chief Information Officer. Except as provided in paragraph (h) of this section, if, as a result of the review I specified in paragraph (f) of this section, the head of the responsible office finds that agency records should be denied in whole or in part, the head of the office will submit that finding to the Freedom of Information Act and Privacy Act Officer, who will, in consultation with the office of the General 32

l l

I counsel, make an independent ' determination whether the agency records should

'be denied in whole or in part.- If the Freedom of Information Act and Privacy  ;

)

.Act Officer determines that the agency records sought are exempt from disclosure and disclosure of.the records is contrary to the public interest

~

and will adversely affect the rights of'any person, the Freedom of Information 1

Act and. Privacy Act Officer will notify.the requester of the determination in j i

the manner provided in 59.27.  !

(h). Initial disclocure determinations on requests for records located in i

offices other than offices undst the Kxecutive Director for Operations. For j 4

agency. records located'in ti.s office of a commissioner or in the Office of the 1

Secretary of the commission, the Assistant Secretary of the commission will

, 1 l mats the initial determination to deny agency records in whole or in part j.

under $9.17(s).instead of the Freedom'of Information Act and Privacy Act Officar. For agency records located in the Office of the General counsel, the General' counsel will make the initial determination to deny agency records in L ,

L whole or in part instead of the Freedom of Information Act and Privacy Act l

Officer. For agency records located in the Office of the Inspector General, I the Assistant Inspector' General for Investigations will make the initial  ;

I

-determination to deny, agency records in whole or in part instead of the Freedom of Information Act and Privary Act Officer. If the Assistant' Secretary l

of the commission, the General counsel, or the Assistant Inspector General for  :

I Investigations determines that.the agency records sought are uxempt.from .

disclosure and that their disclosure is contrary to the public interest and ]

1 wil1~ adversely affect the rights of any person, the Assistant Secretary of the commission, the General counsel, or the Assistant Inspector General for Investigations will furnish that determination to the Freedom of Information 33  !

o

[' Act ano Orivacy Act Officer, who will notify the. requester of the-determination in the manner provided in 59.27 (1). Records and information originated by another Federal agency. If a requested record is located that was originated or contains information originated by another Federal Government agency, or deals with subject matter over which an. agency other than the NRC has exclusive or. primary responsibility, the NRC will promptly refer the record to that Federal Government agency for disposition or for guidance regarding' disposition.

(j) If the NRC does not respond to t. request within the 20 sorking-day period, or within the extended periode described in paragraph (b) of this i

section,J the requester may treat that delay as a denial of the request and

- immediately appeal as provided in 59.29(a) or sue in a district court as noted in 59.29(c).

.59.27 Form and content of responses.

(a) When the NRC has located a requested agency record and.has determined j 'to disclose the: agency record, the Freedom of Information Act and Privacy Act l

Officer will promptly furnish the agency record or notify the .equester where L

l' and when the agency record will be available for' inspection and copying. The l NRC w!.ll also advise the requester of any applicable fees under $9.35 and

$9.37. The NRC will-routinely place copies of non-sensitive agency records i

disclosed in ' response to Freedom of Information Act requests in the NRC Public I Document Room.and on microfiche in Local Public Document Rooms. Records will l not be routinely placed in the NRC Public Document Room and Local Public Document Rooms that contain information personal to the requester, matters t

34 s_. Jov'fb

.. h b

T4 y <that' ara not likely to'ba,of public interest to anyone other than the j s _

, ~

< 1

< requester contain privileged or proprietary information that should

-onlylbe disclosed'to the requester.

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I (b)fWhen'the NRC. den'ies access to a requested agency record or denies a l1

, request for expedited ~ processing or for a waiver or reduction of fees, the Freedom of Information Act and Privacy Act Officer will notify the requester in writing. . :The denial will include as appropriate--  !

?(1) The reason for the denial;

'(2) A reference to the specific exemption under the Freedom of Information-Act, or other appropriate reason,-and the Commission's regulations authorizing the ' denial'; . j l

(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

the record; (4) A statement stating.why the request does not meet the requirements of

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$9.41 if the request is forla waiver,or reduction of. fees; and (5)~A statement that'the. denial may be appealed within 30 calendar days from the'date of-the denial to the Executive' Director for Operations, to the I

b secretary'of the Commission, or to the Inspector General, as appropriate.

!' .(c) The Freedom'of Information Act and Privacy Act Officer will maintain a

.. copy offeach letter granting or denying requested agency records, denying a request:for expedited ptocessing, or denying a request for a waiver or reduction of. fees in accordance with the NRC Comprehensive Records Disposition

. schedule.

.59.29 Appeal from1 initial determination.

_i..

< 1 N 'O id

'(a) A requester may appeal a notice of. denial'of's Freedom of Information Act request'for access to agency records, denial of a request'for waiver or redgetion of fees, or denial of's request for' expedited processing under this

' ~

subpart within>30 calendar days.of.the date of the NRC's denial. For agency records denied by an office Director reporting to the Executive Director for loperations, the appeal must:be in writing and addrersed to the Executive Director for_ Operations, U.S. Nuclear Regulatory Commission, Washington, DC 20555. For agency records denied by an Office Director reporting to the

' Commission, the Assistant' Secretary of the Commission, or the Advisory Committee Management" Officer and for a denial of a request for a waiver or reduction of fees,' or denial of a reque'st tar expedited processing, the appeal

.must be:in writing and addressed to the Secretary of the Commission. For agency records denied by the Assistant Inspector General for Investigations, the-appeal must-be in writing end addressed to the Inspector General. The appeal should clearly state on tha eavelope and in the letter that it is an l' " Appeal from Initial FOIA Decision." The NRC does not consider an appeal that l

l is not marked as indicated in this paragraph as received until it is actually l

l l recalved by the Executive Director for Operations. Tsaretary of the i

l Commission, or the Inspector General.

(b) The NRC will make a detet ination on any appeal made under this section

~ within 20' working days after the receipt of the appeal, except an appeal of the denial'of a request for expedited processing will be determined within 10 working dayc after receipt of the appeal.

(c)(1) If the appeal is denied in whole or in part, the Executive Director for Operations or a Deputy Director, the Secretary of the Commission, or the Inspector General, as appropriate, will notity the requester of the denial, 36

r explaining the exemptions relied upon and how the exemptions apply to the ,

l agency records withheld. ,

1 (2) If, on appeal, the denial of a request for expedited processsing or for i

a' waiver or reduction of fees for locating and reproducing agency records is l

upheld in whole or in part, the Secretary of the commission will notify the person making the request of the decision to sustain the denial, including a l i

statement explaining why the request does not meet the requirements of 59.25(e)(1) and (2) or 59.41.

l (3) The Executive Director for Operations, or a Deputy Executive Director, j or the Secretary of the Commission, or the Inspector General will inform the I

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 situated, or in the District of Columbia.

(d) The Executive Director for Operations, or a Deputy Executive Director,  !

or the Secretary of the Commission, or the Inspector General will furnish copies of all appeals and written determinations on appeals to the Freedom of Information Act and Privacy Act Officer.

$9.31 Extension of time for response.

1 (a) In unusual circumstances defined in 59.13, the NRC may extend the time i

limits prescribed in 59.25 or $9.29 by not more than 10 working days. The I

l extension cay be mado 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, j

37 i

V,i 4

h (b)'An extension.of the time limits prescribed in $59.25.and 9.29 may not

' exceed a combined' total of;10 working' days.per request, unless a requester has.

agreed ~to an alternative time frtsme as described in 59.25 (c).

59.33 search, review,.and special service fees.

(a) The NRC charges fees for--

(1) search, duplication,.and. review, when agency records are-requested for commercial use; (2)' Duplication of agency records provided in excess of 100 pages when agency' records.are not sought for commrercial use and the request is made by an educational or noncommercial scientific' institution, or a representative of

.the news media;  :

/ eff' (3)hereh -ef two hours and duplication of agency records W M er

~==c=== af 130 pages for any request not described in paragraphs (a) (1) and

%/

'(a)'f(2) of this section; i

(4)' The direct costs of searching for agency records. The NRC will assess

'.ees even when no agency records are located as a result'of the search or when l'

agency records that are' located as n' result of the search are not disclosed; and (5) Computer searches which includes the cost of operating the Central Processing Unit for the portion of operating time that is 'directly b attributable'to cearching for agency records plus the operator / programmer i

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. I salary apportionable to the search. 1 (b) The NRC may charge requesters who request the following services for i

I the direct costs of.the service:

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.(1) Certifying that records are true' copies; or v I

(2) sending records by special methods,-such as express mail, package-delivery service,, courier, and other means other than ordinary mail e / det i(3) Producing or. converting records to formats specified by a requester other than ordinary copying processes that are readily available in NRC.

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.$9.34 Assessment of interest and debt collection.

(a) The NRC will assess interest on the fee amount billed starting on the 31st day'following the day on which the billing was sent in accordance with NRC's regulations set out in $15.37 of this chapter. The rate of interest is prescribed in 31 U.S.C. 3717.

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

l-l 59.35 Duplication. fees.

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(a)(1) Charges for the duplication of records made available under $9.21 at the:NRC Public Document Room (PDR), 2120 L Street, NW. (Lower Level),

Washington, DC. by tho' duplicating service contractor are as follows:

.(i): Paper to paper reproduction is $0.08.per page standard size (up to and incl

• ding'll x 17 inches reduced). Pages 11 x 17 inches are $0.15 each. Pages larger than 11 x'17 inches, including drawings, are $1.50 each. Pages greater

'than legal.-size, 8 1/2 x 14. inches, and smaller than or equal to-11 x 17 inches will be.. reduced to legal size and' reproduced for $0.08 per page, unless the order specifically. requests full size reproduction.

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(li) Microfiche to-paper reproduction is $0.08 per page. Aperture card' blowbecks are $3.00 each-(reduced size) (.,r $5.00 (full size).

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(iii) Microfiche or aperture card duplications are $0.75 each.

(iv) Rush processing,is offered for standard size paper to paper-reproduction,and blowbacks, excluding standing order documents and pages i

reproduced

from bound volumes. The charge is $0.15 per page.

(v) Facsimile charges are: $0.30 per page--local calls; $0.50 per

-page--U.S. long distance; and $1.50 per page--foreign long distance.

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

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

(3) A requester may ':ubmit mail-order requests for contractor duplication of NRC' records made by. writing'.to the NRC Public Document Room. The chargas L for mail-order duplication of records are the same as those set out in Paragraph (a)(1) of this s,ection, plus mailing or shipping charges.

'(4) A' requester may open an account with the duplicating service contractor. A requester may obtain the name and address and billing policy of

~the contractor from the NRC Public Document Room.

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'(5) Any change in the costs specified in this section will become effective immediately pending completion of the final rulemaking that amends this section to reflect the new charges. The commission will post the charges that

-will'be'in.effect for the interim period in the Public Document Room. The Commission will' publish a. final rule in the Federal Register that includes the new-charges within 15' working days from the beginning of the interim period.

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I (b) The NRC will assess the following. charges for copies of records to be i

duplicated by the NRC at locations other than the NRC Public Document Room q located in Washington, DC or at local Public Document Rooms

;

(1) Sizes up to 8 1/2'x 14 inches made on office copying machines-- $0.20

'per page of copy; and

-(2) The charge for duplicating records other than those specified in paragraphs (a)-and (b) of'this section is computed on the basis of rRC's j

. direct costs.

(c) In compliance with.the Federal Advisory Committee Act, a requester may purchase copies cf transcripts of testimony'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 l

for in the contract with the reporting firm.: A requester may also purchase transcripts from.the NRC at the cost of reproduction as set out in paragraphs (a) and (b) of this'section. ,

_(d) copyrighted material may not be reproduced in violation of the copyright laws. -As such, requesters will be given the citation to any

. copyrighted documents and.a copy of the material will be placed in the Public Document Room whore it may'be viewed by requestars.

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

.559.37' Fees for-search and review of agency records by,NRC personnel.

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The NRC will charge the following hourly rates for search and review of ,

agency records by NRC personnels i i

(a) Clerical search and review at a salary rate that is equivalent to a GG-7/ step 7, plus 16 percent fringe benefits; (b)' Professional / managerial search and review at a salary rate that is i 1

equivalent to a GG-13/ step 6, plus 16 percent fringe benefits; and (c) Senior executive or Commissioner search and review at a salary' rate I

that is equivalent to an ES-4, plus 16 percent fringe benefits.

59.39 Search and duplication provided without charge.

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

without charges when anency records are not sought for commercial use and the ree'ords are requested by an educational or noncommercisi scientific ir.stitution, or a representative of the news media.

(b) The NRC will search for agency records requested under 59.23(b) without

-charges for the first two hours of search for any request not sought for commerciel use and not covered in paragraph (a) of this section.

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

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

42

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

$9.40 Assessment of fees.

(a) If the request is expected to require the NRC to assess fees in excess of $25 for search and/or duplication, the NRC will r.otify 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 will include the estimated cost of search

' fees and the nature of the search required and estimated cost of duplicating fees.

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

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

an advance' payment.

(e) Unless a requester has agreed to pay the estimated fees or, as provided for'in paragraph (d) of this section, the requester has paid an euttmated fee j in excess of S250, the NRC may not begin to process the request.

(f) If the NRC receives a new request and determines that the requester has

~

failed to pay a fee charged within 30 calendar days of receipt of the bill on l l

a previous request, the NRC may refuse to accept the new request for l I

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'plus.any applicable interest assessed as provided in 59.34.

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

59.41 Requests for waiver or reduction of fees.

(a)(1) The NRC will collect fees for searching for, reviewing, and dupl'Aating agency records, except as provided in 59.39, unless a requester submits c raquest in writing for a waiver or reduction of fees. To ensure that there will be no delay in the processing of Freedom of Information Act requests, the requent 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 addressed to the Freedom of Information Act and Privacy Act Officer, Office of Chief j i

Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555. j l

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

'(1) Describe the purpose for which the requester intends to use the 1 requested information; i

! (2) Explain the extent to which th; requester will extract and analyze the l

substantive content of the agency record; ,l l

l- '(3) Describe the natura of the specific activity or research in which the l i

agency records will'be used and the specific qualifications the requester 44

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possesses to utilize information for the intended use in such a way that it will contribute to public understanding;' l l

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

as compared to the level of public understanding of the subject before disclosure; i

(5) Describe the size and nature of the public to whose understanding a contribution will be made; (6) Describe the intended means of dissemination to the general public; I (7)' Indicate if public access to information will be provided free of charge or provided for an access fee or publication fee; and (8) Describe any commercial-or private interest the requester or any other party has in the agency records sought.

l (c) The NRC will waive or reduce fees, without further specific information i

i from the requester if, from information provided with the request for agency records made under 59.23(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 Federal Government and is not primarily in the commercial l

interest of.the requester.

(d) In making a determination regarding a request for a waiver or reduction of fees, the NRC will consider the following factors (1) Hew the subject of.the requested agency. records concerns the operations or activities of the Federal' Government; I

'(2) How the disclosure of the information is likely to contribute significantly to public understanding of Federal Government nperations or activities; 45

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'(3) If, and tho' extent to which,-the requester has--a commercial interest

[that,would be' furthered by the disclosure of the requested agency records; and-

-(4) If the. magnitude of the identified commercial interest of the requester

is ssfficiently;1arge,..in comparison.with the public interest in disclosure,

'that disclosure is primarily in the commercial interestLof the requester.

.(e)-.The Freedom of Information Act'and Privacy Act Officer will make an-initial' determination'whether a request for a waiver or reduction of fees meets the requirements'of this section. The Freedom of Information Act and hPrivacy Act' Officer will. inform requesters whenever their request for a waiver or reduction of fees-is' denied and will-inform them of-their appeal rights under $9.29.

j. 59.43 Processing requestaffor a waiver or. reduction of fees.

(a).within 20 working days after receipt of a request.for access to agency l

Erecords for which the NRC agrees to' waive: fees under 59.39(a) through (d) or

$9541(c),,the NRC will' respond to the request as provided in 59.25.

'(b).In making a request for a' waiver or reduction of fees, a requester shall provide the information required by 59.41(b).

"(c)'After receipt'of a request for the waiver or reduction of fees made in accordance with 59.41',-the NRC will either waive or reduce the fees and notify z u the requester of.the NRC's intent'to provide the agency records promptly og

~ deny the request and provide a statement to-the requester explaining why the request' does not meet the requirements of 59.41(b) .

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(d):As provided in 59.29, a requester may appeal a denial of a request to

-waive or J reduce fees'to the secretary to the commission. The appeal must be tsubmitted'within 30 calendar days from the date of'the notice.

59.4's Annual' report to Congress.

.(a) On or beforel February 1 of each year, the NRC will submit a report covering the-preceding-fiscal year to the Attorney General of_the United 1 states which shall include--

(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 59.29, the results of the r

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

' denial of information; l(3) A complete list of all statutes that the NRC relied upon to withhold information under subsection (b)(3) of 5 U.S.C. 552, a description of whether a' court has upheld the decision of the NRC to withhold information under each such_ statute, and a concise description of the scope of any information )

withheld;.

(4)(The number of requests for records pending before the NRC as of september 30 of the preceding year, and the median number of days that such .

Erequests had been penfing before the agency as of that date; (5) The number _of requests for records received by the NRC and the number  ;

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,of requesto that the'NRC processed; ,

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I (6) The median number of days taken to process different types of requests; (7) The total amount of fees collected by the NRC for processing requests; (8) The number of full-time staff of the NRC devoted to processing requests under the FOIA and the total amount expended for processing these requests.

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

Dated at Rockville, Maryland, this day of , 1997.

For the Nuclear Regulatory Commission.

/

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/ A. J. Galante, )

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7 J',. '

l Chief Information Officer.

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USNRC FOIA/LPDR BRANCH TEL:301-415-5130 Oct 17'97 12:02 No.004 P.01/03

, s DOCKET NUMBERnn 'n A F7&2 m PU!.E rn r T5 00CXETED usunc G2. FV416911) asFoRE m NUCLEAR REGUEJLToRY CO30(ISSION YI OCT 17 All 59 In the matter of OFFir'i- y SFm a, j RUL L u A J : :e , ,a , >

Electronic Freedom of Information )

Act; Implementation ' ADJUDC/JL.n 9:AFF I

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RIN 3150-AF78 COMMENTS OF TER REDGELTERS COMMITTER FOR FREEDON OF TEE FRESS The Reporters committee for Freedom of the Press submits these brief comments in response to the Nuclear Regulatory Commission's invitation for comments on proposed revisions to its Freedom of Information Act regulations published September 6, 1997, at 62 Fedaral Racistar 46,922, proposals intended to incorporate the mandates of the Electronic Freedom of Information Act into the agency's Fo1 regulations and to provide guidance to commission personnel on how the FOI Act should now be implemented.

l The Reporters committee is a voluntary, unincorporated association established in 1970 by news editors and reporters to defend the First Amendment and freedom of information rights of the print and broadcast media. The Reporters committee publishes a quarterly magazine, The News tiedle & The Law, as well as a bi-weekly newsletter, News Nodia Update. We produce several Freedom of Information publications including guides te use of the federal Freedom of Information Act, to use of each of the open records laws in the 50 states and the District of columbia, and a guide to state laws on access to electronic records, g ,/ o r - 4 '

_.h./B T OM ftY

USNRC FOIA/LPDR BRANCH TEL:301-415-5130 Oct 17'97 12:02 No.004 P,02/03

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The Reporters Committee also aponsors, as a special project, the FOI service center, which advises reporters on issues of access to governmental records and proceedings.

Purpose of the Reporters committee's comments The Reporters Committee has reviewed the NRC's proposals to implement the E-FCIA with approval.

We appreciated the agency's efforts to incorporate comprehensively and by regulation the requirements of the new act.

We have only one suggestion. It is intended to minimize the time needed to process requests for expedited review, REC should allow waiver of the certificaties proesse.

We believe that the NRC should follow the example of the Department of Justice in specify'og in its proposed regulations that' certification requirements for the requester or expedited review may be waived.

The Justice Department's avowal to waive certification requirements in its discretion could minimize the paperwork between agency and requester and allow the Poi process

'to proceed.

The FCI Service Center of the Reporters Committee daily handles calls from reporters $nd editors around the country who are frustrated by delays in the FCI procese. the failure of federal agencies to provide requested information in a timely manner affects the ability of reporters to cover government activities in an accurate and prompt manner.

The E-FOIA does allow agencies to require requesters who want expedited review to provide a certified statement that the 2

F USNRC FOIR/LPDR BRANCH TEL:301-415-5130 Oct 17'97 12:03 No.0C4 P.03/.03 reasons they put forth for expedition are "true and correct."

But we believe that few requesters will be aware of the requirement to include that certification with their request. We envision a maddening hyse of time during which an egency refuses to accept an expedited review request until it has exchanged correspondence with the requester asking for verification that the initial request was "true and correct." We believs that the paperverk involved in achieving certification could easily become so excessive and burdensome that it could decelerate the very process that was to be expedited.

Therefore we ask NRc to, on this issue, follow the example of the Department of Justice and allow its FOI officers and specialists.to waive certification in processing requests for expedited review.

We greatly appreciate the commission's attention to these concerns.

i Respectfully submitted, w

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Jane E. Kirtley Executive Di or

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Cea Daughert FOI Service Center Director October 6, 1997 3

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commonweaith raiaan company 1400 opus Place DOCKETNUMBERg A 4_ F76 PROPOSED RULE -

Downers crove. IL 60515-5701

( 4 2. F:' R 4 4 9 M )

000KETED USNRC W DCT -8 P2 :0 OFFIC OF SQCRETARY ING AND D! ION STAFF October 6,1997 U. S. Nuclear Regulatory Commission ATTN: Rulemakings and Adjudications Staff Washington, DC 20555-0001

Subject:

Comments on Proposed Rulemakings Electronic Freedom of Information Act (FOIA)

References:

1) Federal Register (FR) 46922, Vol. 62, No.172, dated September 5,1997]

The purpose of this memo is to provide comments to the NRC Staff on the proposed rules regarding the implementation of the Electronic Freedom ofInformation Act. The comment period for this revision of the policy expires October 6,1997. Comed's comments are provided below:

The NRC proposes the establislunent of a new title, " Freedom of Information Act and Privacy Act Officer." In the Background Inforriation, the proposed rule l specifies that this title is to be used to designate the responsible individual for the administration of the FOIA. It is unclear if the proposed titular change is an i administrative re-designation of a current NRC staff member or an additional {

member to the NRC staff. If the latter is the case, Comed does not believe the

{

additional staffing is justified. The NRC staff has already recently designated a  !

ChiefInformation Officer. The proposed rule changes referenced above describe changes based upon new electronic technologies that may appear redundant to those l

responsibilities best served by the NRC's ChiefInformation Officer. As the creation l

of additional staffing positions within the NRC staff offices directly affect the cost of administration and may be redundant to previous NRC staff " Officers", Comed i recommends that this portion of the proposed change not be included within the i proposed rule.

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i October 6,1997 Page 2 U. S. Nuclear Regulatory Commission .

I The proposed rule change describes that an electronic reading room be  ;

established such that certain records created on or after November 1,1996, be '

made available by computer telecommunications within one year, . Comed supports the adoption of electronic technologies to streamline and improve communications. However, meeting the aforementioned schedule may prove to be prohibitively expensive. Therefore, Comed recommends reconsideration by the NRC of their schedule and further evaluation of the administrative costs associar.ed with meeting the schedule.

The NRC staff's regulatory analysis describes the proposed rule as an - i administrative regulatory action that would not have an adverse impact on any class oflicensee or the NRC and suggests expedited processing of FOIA requests. The full financial impact of the proposed change is unclear to Comed. Expedited processing ofinforma+ ion may increase administrative costs associated with the processes. In such cases, Comed urges the NRC staff to consider a full fee recovery process to further encourage the establishment of electronic documentation. However, electronic availability of information needs to be cautiously considered to ensure proper controls are in

- place to preclude any frivolous and wasteful exercise of the process.

\

Please direct any questions you may have concerning this submittal to this office. 1 Sincerely, David A, ger Generatii upport Vice President l

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