[Federal Register Volume 59, Number 112 (Monday, June 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14256]
[[Page Unknown]]
[Federal Register: June 13, 1994]
VOL. 59, NO. 112
Monday, June 13, 1994
NUCLEAR REGULATORY COMMISSION
10 CFR Part 9
[Docket No. PRM-9-2]
Ohio Citizens for Responsible Energy, Inc.; Receipt of Petition
for Rulemaking
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for rulemaking; notice of receipt.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is publishing for
public comment a notice of receipt of a petition for rulemaking dated
February 10, 1994, which was filed with the Commission by Ohio Citizens
for Responsible Energy, Inc. (OCRE). The petition was docketed by the
NRC on February 15, 1994, and has been assigned Docket No. PRM-9-2.
OCRE filed an amendment to the petition which was docketed by the NRC
on April 11, 1994. The petitioner requests that the NRC amend its
regulations to establish public right-to-know provisions that would
ensure public access to licensee-held information.
DATES: Submit comments by August 29, 1994. Comments received after this
date will be considered if it is practical to do so but the Commission
is able to ensure consideration only for comments received on or before
this date.
ADDRESSES: Submit written comments to the Secretary of the Commission,
U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention:
Docketing and Service Branch.
Deliver comments to 11555 Rockville Pike, Rockville, Maryland,
between 7:45 am and 4:15 pm on Federal workdays.
For a copy of the petition, write the Rules Review and Directives
Branch, Division of Freedom of Information and Publications Services,
Office of Administration, U.S. Nuclear Regulatory Commission,
Washington, DC 20555.
The petition and copies of comments received may be inspected and
copied for a fee at the NRC Public Document Room, 2120 L Street, NW.
(Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Chief, Rules Review
Section, Rules Review and Directives Branch, Division of Freedom of
Information and Publications Services, Office of Administration, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, Telephone: 301-
415-7163 or Toll Free: 800-368-5642.
SUPPLEMENTARY INFORMATION:
Background
The regulations specified in 10 CFR Part 9 address the public's
right of access to information held by NRC. Subpart A prescribes
procedures for making NRC agency records available to the public for
inspection and copying under the Freedom of Information Act (FOIA) and
provides notice of procedures for obtaining NRC records otherwise
publicly available. Subpart B implements the provisions of the Privacy
Act of 1974 with respect to the procedures by which individuals may
determine the existence of, seek access to, and request correction of
NRC records concerning themselves. Subpart B also covers the
requirements applicable to NRC personnel with respect to the use and
dissemination of such records.
The Petitioner
On February 10, 1994, OCRE filed a petition for rulemaking under 10
CFR 2.802 with the NRC. OCRE filed an amendment to the petition on
April 11, 1994. The petitioner is a private, not-for-profit
organization incorporated under the laws of the State of Ohio. OCRE
specializes in research and advocacy on nuclear safety issues and
supports the highest standards of safety and environmental protection.
OCRE also supports the right of meaningful public participation in the
regulation of nuclear facilities. The petitioner was an intervenor in
the operating license proceeding for the Perry Nuclear Power Plant and
has intervened in three operating license amendment cases regarding
Perry.
Reasons for the Petition
According to the petitioner, the purpose of the petition is to
request a change to the rules regarding public access to information as
stated in 10 CFR part 9, particularly information that is held by
licensees but is not submitted to the NRC. OCRE contends that it has
observed a trend in the NRC's regulatory practice in the past several
years that decreases the amount of information to which the public has
access. The petitioner believes that this trend is apparent in NRC
bulletins and generic letters issued over the past six years. OCRE
states that these documents instruct licensees to send conclusory
statements that they have completed the requested actions to the NRC
instead of instructing licensees to send the NRC detailed documentation
and analyses of their actions. The detailed records are kept at the
plant site where they are accessible only to NRC inspectors. The
petitioner is particularly concerned because if these materials are
never sent to the NRC, they will not get into the Public Document Room
and the public will never have access to them. OCRE further states that
the materials will not even be obtainable under the FOIA unless an NRC
inspector happens to make a copy of the requested documents and the
documents are still in the agency's possession at the time the FOIA
request is filed.
OCRE refers to the Station Blackout rule in Sec. 50.63(a)(2), which
states that ``the capability for coping with a station blackout of
specified duration shall be determined by an appropriate coping
analysis. Utilities are expected to have the baseline assumptions,
analyses, and related information used in their coping evaluations
available for NRC review.'' It is not apparent to the petitioner that
this material is actually sent to the NRC and made publicly available.
The petitioner believes that other regulatory trends are also
decreasing public access to information. OCRE states that the Technical
Specification Improvement Program encourages the removal of material
from the plant technical specifications and the relocation of it to
internal plant documents. The petitioner included a list of recent
generic letters that enable licensees to relocate material from the
plant technical specifications, a public document, into other plant
documents that may not be available to the public. According to the
petitioner, about 36 percent of current technical specification
material will be relocated to internal plant documents under this
program.
The petitioner states that NRC's revised rules of practice place an
even greater burden on public petitioners to provide as much
documentation and factual basis for contentions as early as possible
while the access of petitioners to detailed information is diminishing.
The petitioner further states that if detailed information is never
submitted to the NRC, and thus never becomes accessible to the public,
participants in proceedings will never be able to supply a basis
sufficient to support admission of contentions under the new rules of
practice.
OCRE believes that lack of public access to information on nuclear
regulation undermines public confidence in the NRC's regulatory program
and is contrary to the public's statutory right to participate in the
NRC regulatory process. The petitioner also states that members of the
public cannot fulfill the role of participating in the NRC regulatory
process, which Congress has bestowed upon them, without access to the
detailed information that current NRC policies are placing beyond the
public's reach.
In the amendment to the petition, OCRE cited two additional
examples of the lack of public access to licensee-held information. The
first example is NRC's proposed rule entitled ``Codes and Standards for
Nuclear Power Plants; Subsection IWE and Subsection IWL'' (59 FR 979,
January 7, 1994), which states that ``In order to further reduce the
burden on licensees and NRC staff, the Subsection IWE and IWL portions
of the ISI plan will not have to be submitted to the NRC for approval.
Licensees may simply retain their initial Subsection IWE and Subsection
IWL plans at the site for audit.'' The second example is NRC's final
rule entitled ``Storage of Spent Fuel in NRC-Approved Storage Casks at
Power Reactor Sites'' (55 FR 29161, July 18, 1990) which does not
appear to require nuclear power plant users of the approved storage
casks to submit their site-specific evaluations, as required by
Sec. 72.212(b)(2), to the NRC. This section states that ``A copy of
this record must be retained until spent fuel is no longer stored under
the general license issued under Sec. 72.210.'' The petitioner further
states that Sec. 72.212(b)(10) only requires that general licensees
make records available to the NRC for inspection.
In the amendment to the petition, the petitioner amended the
language in its suggested Sec. 9.301(b) to include persons required by
the proposed rule entitled ``Certification of Gaseous Diffusion
Plants,'' published on February 11, 1994 (59 FR 6792), to obtain NRC
certification of gaseous diffusion plants under proposed Part 76 in the
definition of ``possessor.'' OCRE requests that the NRC clarify that
this proposed definition would include entities authorized to dispose
of radioactive materials.
The petitioner recommends a change to Part 9 to establish the
public's right-to-know and to provide the public access to copies of
internal plant documents, subject to the exceptions necessary to
protect sensitive information. The suggested amendment would not
require that licensees generate information that does not already exist
in response to a request. The petitioner believes that its suggested
amendment would strike a proper balance between the public's right to
know and the rights of the licensees.
The petitioner's suggested amendment would include appeal
procedures. If a requester is not satisfied with a licensee's response
to a request for information, the requester could appeal the matter to
an Administrative Law Judge on the Atomic Safety and Licensing Board
Panel. According to the petitioner, this option is the most appropriate
and efficient one for appeals.
OCRE believes that its suggested amendment to Part 9 would impose a
minimal burden on licensees and that this minor burden would be
justified by the substantial increase in meaningful public
participation. According to the petitioner, the proposed amendment to
Part 9 would also enhance the public's confidence in the NRC's
regulatory program.
The Suggested Amendments
The petitioner requests that the NRC amend 10 CFR Part 9 by adding
subpart E to read as follows:
Subpart E--Public Right of Access to Licensee-Held Information
Section 9.300 Scope of Subpart
This subpart establishes the public's right of access to licensee-
held information, subject to certain exceptions. This subpart sets
forth the procedures to be followed by persons requesting documents
held by NRC licensees or applicants and by the licensees or applicants
in responding to requests for documents. This subpart also establishes
procedures for appealing adverse licensee responses to public requests
for records.
Section 9.301 Definitions
As used in this subpart,
(a) ``Person'' has the meaning given in 10 CFR 2.4.
(b) ``Possessor'' means any holder of or applicant for any license
to possess, use, dispose of, and/or transfer source material, byproduct
material, special nuclear material, and/or spent fuel, or to construct,
manufacture, possess, own, operate, and/or transfer any production or
utilization facility or independent spent fuel storage installation, or
any holder of or applicant for any construction permit, or any holder
of or applicant for an early site permit under subpart A of 10 CFR part
52, or any holder of or applicant for a standard design certification
under subpart B of part 52, or any holder of or applicant for a
certificate of compliance or approved compliance plan under part 76.
(c) ``Record'' means any document, writing, book, data, paper,
brochure, photograph, punch card, magnetic tape or disk, paper tape,
sound recording, pamphlet, slide, motion picture, map, drawing, graph,
correspondence, contract, report, microfilm, microfiche, optical
storage medium, or other documentary material, regardless of form or
characteristics, made by, in the possession of, or under the control of
a possessor.
Section 9.302 Designation of Responsible Official
Each possessor shall designate, by name or title, a responsible
official to whom requests for records are to be sent. Each possessor
shall report to the NRC the name and/or title of the responsible
official so designated. Possessors shall promptly notify the NRC, in
writing, of any changes to the name or title of the designated
responsible official. The NRC will periodically publish a list of
possessors and their designated responsible officials.
Section 9.303 Procedure for Requesting Records
Any person may request any record relevant to NRC-licensed or
regulated activities held by a possessor. The request shall be made in
writing and sent to the responsible official designated by the
possessor. The requester should describe the records sought with
reasonable specificity.
Section 9.304 Response by Possessor
(a) A possessor receiving a request for records shall respond to
the request within thirty (30) days from the receipt of the request by
the designated responsible official.
(b) The possessor's response shall consist of one or more of the
following options:
(1) If the records requested do not exist or are not within the
possession or control of the possessor, inform the requester of this
fact.
(2) If the records requested are publicly available, inform the
requester of this fact and where the records may be obtained.
(3) Place the records requested in the NRC's Public Document Room
in Washington, DC, or in a Local Public Document Room near the
possessor's facility or convenient to the requester, and inform the
requester where the records may be obtained.
(4) Provide the records directly to the requester. The possessor
may require the requester to pay reasonable reproduction fees.
(5) The possessor may refuse to disclose the requested records only
if one or more of the following criteria are met:
(i) The requested records have absolutely no relevance to any
activity, facility, or material licensed or regulated by the NRC.
(ii) The requested records contain personnel or medical files or
similar personal information, the disclosure of which would constitute
a clearly unwarranted invasion of personal privacy. However, records
pertaining to the requester shall be disclosed directly to the
requester or his or her designated legal representative.
(iii) The requested records contain trade secrets or proprietary
information or privileged or confidential commercial or financial
information.
(iv) The requested records contain safeguards information, as
defined in 10 CFR part 73.
(v) The requested records contain material that has been properly
classified in the interests of national defense or foreign policy.
(vi) The requested records contain information that would disclose
the identity of a confidential source or reveal information furnished
only by a confidential source, the disclosure of which would tend to
reveal the source's identity.
(c) Any reasonably segregable portion of a record shall be provided
to the requester or placed in the Public Document Room after deletion
of the portions that are exempt under paragraph (b)(5).
(d) Unless disclosure of the record is prohibited by law, a
possessor may disclose a record containing material exempt under
paragraph (b)(5) directly to the requester upon the execution of an
appropriate protective agreement.
Section 9.305 Appeals
(a) A requester may appeal a possessor's response for denial of
access to the requested records, for charging excessive reproduction
fees, or for lack of response by the possessor within the designated
time limits.
(b) Appeals shall be made by filing a notice of appeal with the
Chairman of the Atomic Safety and Licensing Board Panel. The notice of
appeal shall be filed within sixty (60) days of the possessor's final
response and shall include:
(i) A copy of the requester's original letter of request;
(ii) a copy of the possessor's response(s), or a statement that the
possessor has not responded to the request;
(iii) an explanation of why the possessor's response is inadequate,
erroneous, or otherwise unacceptable, or why the reproduction fees
charged by the possessor are excessive.
(c) Upon the receipt of a notice of appeal under this section, the
Chairman of the Atomic Safety and Licensing Board Panel shall appoint
an Administrative Law Judge to consider the appeal. The Administrative
Law Judge shall utilize whatever informal procedures are deemed
necessary to resolve the matter and may examine in camera the requested
records to determine whether such records or any part thereof may be
withheld under the exemptions specified in Sec. 9.304(b)(5). The burden
of proof is upon the possessor to sustain its actions.
(d) The decision of the Administrative Law Judge shall be binding
on the possessor. Decisions of the Administrative Law Judge shall be
final and are not subject to further administrative appeals or judicial
review.
Section 9.306 Penalties
Refusal of a possessor to comply with an order of the
Administrative Law Judge may be subject to enforcement action by the
NRC.
Dated at Rockville, Maryland, this 7th day of June, 1994.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Acting Secretary of the Commission.
[FR Doc. 94-14256 Filed 6-10-94; 8:45 am]
BILLING CODE 7590-01-P