[Federal Register Volume 62, Number 172 (Friday, September 5, 1997)]
[Proposed Rules]
[Pages 46922-46933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23612]


      
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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / 
Proposed Rules  

[[Page 46922]]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 9

RIN 3150-AF78


Electronic Freedom of Information Act: Implementation

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend 
its regulations to implement the Electronic Freedom of Information Act 
Amendments 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 to records maintained in hardcopy or 
electronic format. The proposed rule would implement 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 proposed rule would implement 
statutory amendments that 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 procedures for agencies to discuss 
ways of tailoring requests to improve responsiveness. The proposed rule 
would amend NRC's FOIA regulations to comply with the requirements of 
the new statute. Certain other changes have been made to correct 
administrative errors and to update or remove obsolete information.

DATES: Submit comments by October 6, 1997. Comments received after this 
date will be considered if it is practical to do so, but the NRC is 
able to assure consideration only for comments received on or before 
this date.

ADDRESSES: Send comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemakings and 
Adjudications Staff.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland, between 7:30 am and 4:15 pm Federal workdays.
    For information on submitting comments electronically, see the 
discussion under Electronic Access in the Supplementary Information 
section.
    Examine comments received at: The NRC Public Document Room, 2l20 L 
Street, NW. (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Russell A. Powell, Chief, Freedom of 
Information/Local Public Document Room Branch, Office of Chief 
Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone: (301) 415-7169, e-mail: RAP[email protected].

SUPPLEMENTARY INFORMATION:

Background Information

    On October 2, 1996, the President signed into law the Electronic 
Freedom of Information Act Amendments of 1996 (EFOIA), Public Law 231, 
110 Stat. 3048 (1996). EFOIA includes provisions authorizing or 
requiring agencies to promulgate regulations implementing certain of 
its requirements, including the tracking of Freedom of Information Act 
(FOIA) requests, the aggregation of FOIA requests, and the expedited 
processing of FOIA requests. In addition, EFOIA changes the time limit 
for responding to a FOIA request from ten to 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 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 proposes to amend its regulation 
implementing the FOIA, 10 CFR Part 9. The proposed amendments would 
revise the NRC's FOIA regulations to comply with EFOIA.

New Provisions

A. New and Revised Definitions

    The proposed rule would establish a new title, Freedom of 
Information Act and Privacy Act Officer, for the designated official 
responsible for administration of the FOIA and Privacy Act in lieu of 
using the organizational title of the responsible individual which may 
not be as indicative of these specific responsibilities. A new 
definition is proposed to be added to 10 CFR 9.13 to reflect this new 
title.
    The definition of record would be amended to add ``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'' and to read ``Record also includes a book, * * * 
drawing, diagram, * * *''.
    The definition of review time would be revised to remove from the 
definition the period spent ``excising from the records those portions 
which are to be withheld.''

B. Electronic Records

    Section 3 of EFOIA amends 5 U.S.C. 552(f)(2) to define ``agency 
record'' for purposes of FOIA as including ``any information that would 
be an agency record subject to the requirements of (5 U.S.C. 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 proposed regulations would amend 10 
CFR 9.13 to 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 U.S.C. 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 and staff instructions that affect a 
member of the public. The new law expands these categories to include 
agency records that have been made publicly available and are likely to 
be the subject of repetitive public requests, as well as a general 
index of these frequently sought documents. The amendments further 
provide that section 552(a)(2) records created on or after November 1, 
1996, must be made

[[Page 46923]]

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 records is to be 
available by computer telecommunications by December 31, 1999. These 
new requirements, as well as the on-line address for NRC's homepage on 
the Internet, would be 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 would be 
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 record is readily reproducible by the 
agency'' in the requested manner. This new requirement would be 
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 would be included in 10 CFR 9.15. 
Finally, a ``search'' under the amendments means to review, manually 
``or by automated means,'' agency records for the purpose of locating 
those records which are responsive to a request. This new requirement 
would be 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)(i), extend the 
time to respond to a request from 10 to 20 working days. 10 CFR 9.25 
would be amended to reflect the change in the time limits for initial 
disclosure determination from 10 to 20 working days effective October 
2, 1997.

F. 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)(i), authorizes agencies to establish separate systems 
within the agency for handling simple and complex requests. Under these 
types of systems, called ``multitrack processing,'' requests would be 
categorized based on the amount of agency effort involved in processing 
the request. This would replace the current first-in, first out 
approach generally employed at the NRC. Agencies must still exercise 
due diligence within each track. The new law, 5 U.S.C. 
552(a)(6)(D)(ii), 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 would be incorporated in NRC's proposed three-track 
system described in 10 CFR 9.25(c).
    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 request that does not involve a large volume of documents, 
retrieval of documents from regional offices, or extensive coordination 
between NRC offices).
    The second track is for requests involving unusual circumstances 
that are expected to take between 21-30 working days to complete.
    The third track is for requests that, because of their unusual 
volume or complexity, are expected to take more than 30 working days to 
complete.
    Upon receipt of a request, NRC would notify the requester of the 
track in which the request has been placed for processing and the 
estimated time for completion. Should subsequent information 
substantially change the estimated time to process the request, the 
requester would be notified 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 for an initial request, or the 20 working day 
response time for an appeal, an additional 10 working days in ``unusual 
circumstances.'' Agencies must provide the requester with a written 
justification for the extension that contains the date of the expected 
agency response. The amendments would retain the definition of 
``unusual circumstances'' as time needed to search for and collect the 
requested records from field facilities or other establishments that 
are separate from the office processing the request; the need to search 
for, collect and 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 of the agency having substantial 
interest in the request. These consultations must be conducted ``with 
all practicable speed.'' 5 U.S.C. 552(a)(6)(B)(iii).

H. Exceptional Circumstances

    In addition to extensions under unusual circumstances, the EFOIA 
amendments, 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 10 working-day extension) for 
those FOIA requests that the agency determines cannot be processed 
within the statutory time limits. The agency must offer the requester 
an opportunity to limit the scope of the request so that it may be 
processed within the prescribed 20 working days. 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 would be incorporated 
in 10 CFR 9.25(c).

I. Aggregation of Requests

    The EFOIA amendments, 5 U.S.C. 552(a)(6)(B)(iv), authorize agencies 
to promulgate regulations 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 ``reasonably believes'' 
that these multiple requests do indeed constitute a single request. 
This new provision would be implemented in 10 CFR 9.39(e).

J. Requests for Expedited Processing

    The EFOIA amendments, 5 U.S.C. 552(a)(6)(E)(i), require agencies to 
promulgate regulations to provide for ``expedited processing'' in cases 
where the person requesting the records demonstrates a ``compelling 
need'' and in other cases where the agency determines expedited 
processing is warranted. The amendments define ``compelling need'' in 
two ways. One is where ``a failure to obtain requested

[[Page 46924]]

records on an expedited basis * * * could reasonably be expected to 
pose an imminent threat to the life or physical safety of an 
individual.'' The other is where a ``person primarily engaged in 
disseminating information'' to the public has ``an urgency to inform 
the public concerning actual or alleged Federal Government activity.'' 
The House Committee report 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 need 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 processing and must 
demonstrate ``fairness and diligence'' in exercising their 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 determination 
whether it qualifies for expedited processing. Once expedited 
processing is granted, agencies must process it ``as soon as 
practicable'' (5 U.S.C. 552 (a)(6)(E)(iii)). Any administrative appeal 
to a denial of expedited processing must be handled with ``expeditious 
consideration'' (5 U.S.C. 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 days, petitioner may seek judicial 
review. The NRC would implement the EFOIA requirements for expedited 
processing at 10 CFR 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 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. This new requirement would be 
implemented at 10 CFR 9.19(c).

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 year beginning in 1999, agencies must submit to the Attorney 
General an annual report that covers the preceding fiscal year and 
includes the number of 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 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 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 any information upheld; the number of 
requests for records pending before the agency as of September 30 of 
the preceding year, and the median number of days that these 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 processed; 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 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 expended by the agency 
for processing these requests. The NRC would implement this amended 
EFOIA reporting requirement in 10 CFR 9.45.
    The amendments require each agency to make these annual reports 
available 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.

Electronic Access

    Comments may be submitted electronically, in either ASCII text or 
WordPerfect format (version 5.1 or later), by calling the NRC 
Electronic Bulletin Board (BBS) on FedWorld or connecting to the NRC 
interactive rulemaking web site, ``Rulemaking Forum.'' The bulletin 
board may be accessed using a personal computer, a modem, and one of 
the commonly available communications software packages, or directly 
via Internet. Background documents on the rulemaking are also available 
for downloading and viewing on the bulletin board.
    If using a personal computer and modem, the NRC subsystem on 
FedWorld can be accessed directly by dialing the toll free number: 1-
800-303-9672. Communication software parameters should be set as 
follows: parity to none, data bits to 8, and stop bits to 1 (N,8,1). 
Using ANSI or VT-100 terminal emulation, the NRC rulemaking subsystem 
can then be accessed by selecting the ``Rules Menu'' option from the 
``NRC Main Menu.'' For further information about options available for 
NRC at FedWorld, consult the ``Help/Information Center'' from the ``NRC 
Main Menu.'' Users will find the ``FedWorld Online User's Guides'' 
particularly helpful. Many NRC subsystems and databases also have a 
``Help/Information Center'' option that is tailored to the particular 
subsystem.
    The NRC subsystem on FedWorld can also be accessed by a direct-dial 
phone number for the main FedWorld BBS: 703-321-3339; Telnet via 
Internet: fedworld.gov (192.239.93.3); File Transfer Protocol (FTP) via 
Internet:ftp:fedworld.gov (192.239.92.205); and World Wide Web using: 
http://www.fedworld.gov (this is the Uniform Resource Locator (URL)).
    If using a method other than the toll-free number to contact 
FedWorld, access the NRC subsystem from the main FedWorld menu by 
selecting ``F--Regulatory, Government Administration and State 
Systems,'' then selecting ``A--Regulatory Information Mall.'' At that 
point, a menu will be displayed that has an option ``A--U.S. Nuclear 
Regulatory Commission'' that will take you to the NRC Online Main Menu. 
You can also go directly to the NRC Online area by

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typing ``/go nrc'' at a FedWorld command line. If you access NRC from 
FedWorld's Main Menu, then you may return to FedWorld by selecting the 
``Return to FedWorld'' option from the NRC Online Main Menu. However, 
if you access NRC at FedWorld by using NRC's toll-free number, then you 
will have full access to all NRC systems, but you will not have access 
to the main FedWorld system.
    If you contact FedWorld using Telnet, you will see the NRC area and 
menus, including the Rules Menu. Although you will be able to download 
documents and leave messages, you will not be able to write comments or 
upload files (comments). If you contact FedWorld using FTP, all files 
can be accessed and downloaded but uploads are not allowed; all you 
will see is a list of files without descriptions (normal Gopher look). 
An index file listing all files within a subdirectory, with 
descriptions, is included. There is a 15-minute time limit for FTP 
access.
    Although FedWorld also can be accessed through the World Wide Web, 
like FTP, that mode only provides access for downloading files and does 
not display the NRC Rules Menu.
    You may also access the NRC's interactive rulemaking web site 
through the NRC home page (http://www.nrc.gov). This site provides the 
same access as the FedWorld bulletin board, including the facility to 
upload comments as files (any format), if your web browser supports 
that function.
    For more information on NRC bulletin boards call Mr. Arthur Davis, 
Systems Integration and Development Branch, U.S. Nuclear Regulatory 
Commission, Telephone: 301-415-5780; e-mail: AXD[email protected]. For 
information about the interactive rulemaking site, contact Ms. Carol 
Gallagher, Telephone: 301-415-6215; e-mail: [email protected].

Environmental Impact--Categorical Exclusion

    The NRC has determined that this proposed rule is the type of 
action described in categorical exclusion 10 CFR 51.22(c)(1). 
Therefore, neither an environmental impact statement nor an 
environmental assessment has been prepared for this proposed rule.

Paperwork Reduction Act Statement

    This proposed rule does not contain a new or amended information 
collection requirement subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the 
Office of Management and Budget, approval number 3150-0043.

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 control number.

Regulatory Analysis

    This proposed rule would implement the EFOIA by amending 10 CFR 
Part 9, Subpart A--Freedom of Information Act Regulations. This is an 
administrative regulatory action that would make NRC's regulations 
reflect the new provisions of the EFOIA. The proposed rule would not 
have any adverse economic impact on any class of licensee or the NRC; 
on the contrary, the proposed rule with its new provisions allowing 
expedited and multitrack processing may provide some new and additional 
benefit to those who may opt to use these regulations to obtain access 
to NRC records and information.
    This constitutes the regulatory analysis for this proposed rule.

Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)), 
the Commission certifies that this rule does not have a significant 
economic impact on a substantial number of small entities. The 
amendments to 10 CFR 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 proposed rule; therefore, a backfit analysis is not 
required for this proposed rule because these amendments do not involve 
any provisions that would impose 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 
proposing to adopt the following amendment of 10 CFR Part 9, Subpart 
A--Freedom of Information Act Regulations.

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. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841).
    Subpart A also issued under 5 U.S.C. 552; 31 U.S.C. 9701; Pub. 
L. 99-570.
    Subpart B is also issued under 5 U.S.C. 552a.
    Subpart C also issued under 5 U.S.C. 552b.

    2. In Sec. 9.8, paragraph (b) is revised to read as follows:


Sec. 9.8  Information collection requirements: OMB approval.

* * * * *
    (b) The approved information collection requirements contained in 
this part appear in Secs. 9.23, 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

Sec.
9.11  Scope of subpart.
9.13  Definitions.
9.15  Availability of records.
9.17  Agency records exempt from public disclosure.
9.19  Segregation of exempt information and deletion of identifying 
details.
9.21  Publicly-available records.
9.23  Requests for records.
9.25  Initial disclosure determination.
9.27  Form and content of responses.
9.29  Appeal from initial determination.
9.31  Extension of time for response.
9.33  Search, review, and special service fees.
9.34  Assessment of interest and debt collection.
9.35  Duplication fees.
9.37  Fees for search 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  Annual report to Congress.

Subpart A--Freedom of Information Act Regulations


Sec. 9.11  Scope of subpart.

    This subpart prescribes procedures for making NRC records available 
to the public for inspection and copying pursuant to the provisions of 
the Freedom of Information Act (5 U.S.C. 552) and provides notice of 
procedures for obtaining NRC records otherwise publicly available. This 
subpart does not affect the dissemination or distribution of NRC-
originated, or NRC contractor-originated, information to the

[[Page 46926]]

public under any other NRC public, technical, or other information 
program or policy.


Sec. 9.13  Definitions.

    Agency record means a record in the possession and control of the 
NRC that is associated with Government business. Agency record does not 
include records such as--
    (1) Publicly-available books, periodicals, or other publications 
that are owned or copyrighted by non-Federal sources
    (2) Records solely in the possession and control of NRC 
contractors;
    (3) Personal records in possession of NRC personnel that have not 
been circulated, were not required to 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
    (4) Non-substantive information in logs or schedule books of the 
Chairman or Commissioners, uncirculated except for typing or recording 
purposes.
    Commercial-use request means a request made under Sec. 9.23(b) for 
a use or purpose that furthers the commercial, trade, or profit 
interests of the requester or the person on whose behalf the request is 
made.
    Direct costs mean the expenditures that an agency incurs in 
searching for and duplicating agency records. For a commercial-use 
request, direct costs 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 fringe benefits and 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 Sec. 9.23. Copies may take 
the form of paper 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 Information Act and Privacy Act Officer means the NRC 
official designated to fulfill the responsibilities for implementing 
and administering the Freedom of Information Act and Privacy Act as 
specifically designated under this regulation.
    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 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 include an object or article such 
as a structure, furniture, a tangible exhibit or model, a vehicle, or 
piece of equipment.
    Representative of the news media means any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term news means information that 
is about current events or that would be of current interest to the 
public. Examples of news media entities include television or radio 
stations broadcasting to the public at large, and publishers of 
periodicals (but only in those instances when they can qualify as 
disseminators of ``news'') who make their products available for 
purchase or subscriptions by the general public.
    Review time means the period devoted to examining records retrieved 
in response to a request to determine if they are in fact responsive, 
and to determine whether they are exempt from disclosure in whole or in 
part. Also, review time 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 reviewing, manually or by 
automated means, agency records for the purpose of locating those 
records which are responsive to a request. 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 are demanded 
in a single request; or
    (3) The need for consultation, which will be conducted with all 
practicable 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.


Sec. 9.15  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 Sec. 9.21. Procedures and conditions governing requests for records 
are set forth in Sec. 9.23.


Sec. 9.17  Agency records exempt from public disclosure.

    (a) The following types of agency records are exempt from public 
disclosure under Sec. 9.15:
    (1) Records--
    (i) That are specifically authorized under criteria established by 
an Executive order to be kept secret in the interest of national 
defense or foreign policy, and
    (ii) That are in fact properly classified pursuant to such 
Executive order
    (2) Records related solely to the internal personnel rules and 
practices of the agency
    (3) Records specifically exempted from disclosure by statute (other 
than 5 U.S.C. 552b), provided that the statute--
    (i) Requires that the matters be withheld from the public in a 
manner that leaves no discretion on the issue; or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld

[[Page 46927]]

    (4) Trade secrets and commercial or financial information obtained 
from a person that are privileged or confidential
    (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
    (6) Personnel and medical files and similar files, the disclosure 
of which would constitute a clearly unwarranted invasion of personal 
privacy
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of 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
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority, or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information 
compiled by a criminal law enforcement authority in the course of a 
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 
agency 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.
    (c) Whenever a request is made that involves access to agency 
records 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--
    (1) The investigation or proceeding involves a possible violation 
of criminal law; and
    (2) There is reason to believe that--
    (i) The subject of the investigation or proceeding is not aware of 
its pendency; and
    (ii) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings.


Sec. 9.19  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 Sec. 9.17. 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 
Sec. 9.23, in which it has been determined to withhold exempt 
information, the NRC shall segregate--
    (1) Information that is exempt from public disclosure under 
Sec. 9.17(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-client 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 denied and provide the estimate to the person making 
the request, unless 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.


Sec. 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 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 been released to a person under the 
Freedom of Information Act that, because of the nature of their subject 
matter, the NRC determines have become or 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 the 
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 electronic means, including computer 
telecommunications to the extent NRC has implemented its

[[Page 46928]]

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 NRC Home Page on the 
Internet at:http//www.nrc.gov/.


Sec. 9.23  Requests for records.

    (a)(1) A person may request access to records routinely made 
available by the NRC under Sec. 9.21 in person or in writing at the NRC 
Public Document Room, 2120 L Street, NW., Washington, DC 20555.
    (i) Each record requested must be described in sufficient detail to 
enable the Public Document Room to locate the record. If the 
description of the record is not sufficient to allow the Public 
Document Room staff to identify the record, the Public Document Room 
will advise the requester to select the record from the indexes 
published under Sec. 9.21(c)(6).
    (ii) In order to obtain copies of records expeditiously, a person 
may open an account at the Public Document Room with the private 
contracting firm that is responsible for duplicating NRC records.
    (2) A person may also order records routinely made available by the 
NRC under Sec. 9.21 from the National Technical Information Service, 
5285 Port Royal Road, Springfield, Virginia, 22161.
    (b) A person may request agency records by submitting a request 
authorized by 5 U.S.C. 552(a)(3) to the Freedom of Information Act and 
Privacy Act Officer, Office of Chief Information Officer, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555. The request must be in 
writing and clearly state on the envelope and in the letter that it is 
a ``Freedom of Information Act request.'' The NRC does not consider a 
request as received until it has been received and logged in by the 
office of the Freedom of Information Act and Privacy Act Officer.
    (1) A Freedom of Information Act request covers only agency records 
that are in existence on the date the Freedom of Information Act and 
Privacy 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.
    (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 requester should provide specific 
information regarding dates, titles, docket numbers, file designations, 
and other information which may help identify the agency records. If a 
requested agency record is not described in sufficient detail to permit 
its identification, the Freedom of Information Act and Privacy Act 
Officer will contact the requester within 10 working days after receipt 
of the request and inform the requester of the additional information 
or clarification needed to process the request.
    (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 contact to find out the status of the 
request, and other pertinent matters regarding the processing of the 
request.
    (4)(i) The NRC shall advise a requester that fees will be assessed 
if--
    (A) A request involves anticipated costs in excess of the minimum 
specified in Sec. 9.39; and
    (B) Search and duplication is not provided without charge under 
Sec. 9.39; or
    (C) The requester does not specifically state that the cost 
involved is acceptable or acceptable up to a specified limit.
    (ii) The NRC has discretion to discontinue processing a request 
made under this paragraph (b) until--
    (A) A required advance payment has been received;
    (B) The requester has agreed to bear the estimated costs;
    (C) A determination has been made on a request for waiver or 
reduction of fees; or
    (D) The requester meets the requirements of Sec. 9.39.
    (c) If a requested agency record that has been reasonably described 
is located at a place other than the NRC Public Document Room or NRC 
headquarters, the NRC may, at its discretion, make the record available 
for inspection and copying at the other location.
    (d) Except as provided in Sec. 9.39--
    (1) If the record requested under paragraph (b) of this section is 
a record available through the National Technical Information Service, 
the NRC shall refer the requester to the National Technical Information 
Service; and
    (2) If the requested record has been placed in the NRC Public 
Document Room under Sec. 9.21, the NRC will inform the requester that 
the record is in the Public Document Room and that the record may be 
obtained in accordance with the procedures set forth in paragraph (a) 
of this section or, if applicable, is available on line electronically.
    (e) The Freedom of Information Act and Privacy Act Officer will 
promptly forward a Freedom of Information Act request made under 
Sec. 9.23(b) for an agency record to the head of the office(s) 
primarily concerned with the records requested, as appropriate. The 
responsible office will conduct a search for the agency records 
responsive to the request and compile those agency records to be 
reviewed for initial disclosure determination and/or identify those 
that have already been made publicly available in the Public Document 
Room and Local Public Document Rooms.


Sec. 9.25  Initial disclosure determination.

    (a) Time for initial disclosure determination. The NRC will notify 
a requester within 20 working days of its determination. If the NRC 
cannot act upon the request within this period, the NRC will provide 
the requester with the reasons for the delay and provide a projected 
response date.
    (b) Extension of time limit in unusual circumstances. In unusual 
circumstances, 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 or telephonic 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 made. 
``Unusual circumstances'' is limited to one or more of the following 
reasons for delay:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (3) The need for consultation, which will be conducted with all 
practicable 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.
    (c) Exceptional circumstances. 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

[[Page 46929]]

circumstances'' does not include delays that result from the normal 
predictable workload of FOIA 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 
factors in determining whether exceptional circumstances exist and 
whether the agency exercised due diligence in responding to the 
request.
    (d) Multiple-Track processing. To ensure the most equitable 
treatment possible of all requesters, the NRC will process requests on 
a first-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-track system.
    (i) 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 are expected to take between 21-30 working days to 
complete (e.g. requests 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 other complexity, are expected to take more than 30 
working days to complete (e.g. requests involving several offices, 
regional offices, another agency's records, classified records 
requiring declassification review, 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 
investigative records or legal opinions and recordings of internal 
deliberations of agency staff).
    (2) Upon receipt of requests, NRC will notify requesters of the 
track in which the request has been placed for processing and the 
estimated time for completion. Should subsequent information 
substantially change the estimated time to process a request, the 
requester will be notified telephonically 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 offices.
    (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.
    (2) A person requesting expedited processing must include a 
statement certifying the compelling need given to be true and correct 
to the best of his or her knowledge and belief.
    (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 Sec. 9.23(b) to 
determine whether the agency records are exempt from disclosure under 
Sec. 9.17(a). If the head of the office determines that, although 
exempt, the disclosure of the agency records will not be contrary to 
the public interest and will not affect the rights of any person, the 
head of the office may authorize disclosure of the agency records. If 
the head of the office authorizes disclosure of the agency records, the 
head of the office will furnish the agency records to the Freedom of 
Information Act and Privacy Act Officer, who will notify the requester 
of the determination in the manner provided in Sec. 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 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 
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 Act and Privacy Act Officer will notify the 
requester of the determination in the manner provided in Sec. 9.27.
    (h) Initial disclosure determinations on requests for records 
located in offices other than offices under the Executive Director for 
Operations. For agency records located in the office of a Commissioner 
or in the Office of the Secretary of the Commission, the Assistant 
Secretary of the Commission will make the initial determination to deny 
agency records in whole or in part under Sec. 9.17(a) instead of the 
Freedom of Information Act and Privacy Act Officer. For agency records 
located in the Office of the General Counsel, the General Counsel will 
make the initial determination to deny agency records in whole or in 
part instead of the Freedom of Information Act and Privacy Act Officer. 
For agency records located in the Office of the Inspector General, the 
Assistant Inspector General for Investigations will make the initial 
determination to deny agency records in whole or in part instead of the 
Freedom of Information Act and Privacy Act Officer. If the Assistant 
Secretary of the Commission, the General Counsel, or the Assistant 
Inspector General for Investigations determines that the agency records 
sought are exempt from disclosure and that their disclosure is contrary 
to the public interest and will adversely affect the rights of any 
person, the Assistant Secretary of the Commission, the General Counsel, 
or the Assistant Inspector General for Investigations will furnish that 
determination to the Freedom of Information Act and Privacy Act 
Officer, who will notify the requester of the determination in the 
manner provided in Sec. 9.27
    (i) 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 a request within the 20 working-
day period, or within the extended periods described in paragraph (e) 
of this section, the requester may treat that delay as a denial of the 
request and immediately appeal to the Executive

[[Page 46930]]

Director for Operations as provided in Sec. 9.29(a) or sue in a 
district court as noted in Sec. 9.29(c).


Sec. 9.27  Form and content of responses.

    (a) When the NRC has located a requested agency record and has 
determined to disclose the agency record, the Freedom of Information 
Act and Privacy Act Officer will promptly furnish the agency record or 
notify the requester where and when the agency record will be available 
for inspection and copying. The NRC will also advise the requester of 
any applicable fees under Sec. 9.35. The NRC will routinely place 
copies of non-sensitive agency records disclosed in response to Freedom 
of Information Act requests in the NRC Public Document Room and on 
microfiche in Local Public Document Rooms. Records will not be 
routinely placed in the NRC Public Document Room and Local Public 
Document Rooms that contain information personal to the requester, 
matters that are not likely to be of public interest to anyone other 
than the requester; or, that contain privileged or proprietary 
information that should only be disclosed to the requester.
    (b) When the NRC denies access to a requested agency record or 
denies a 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;
    (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 Sec. 9.41 if the request is for a 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 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 of each letter granting or denying requested agency 
records, denying a request for expedited processing, or denying a 
request for a waiver or reduction of fees in accordance with the NRC 
Comprehensive Records Disposition Schedule.


Sec. 9.29  Appeal from initial determination.

    (a) A requester may appeal a notice of denial of a Freedom of 
Information Act request for access to agency records, denial of a 
request for waiver or reduction of fees, or denial of a 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 Operations, the appeal 
must be in writing and addressed 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 request for 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 and addressed 
to the Inspector General. The appeal should clearly state on the 
envelope and in the letter that it is an ``Appeal from Initial FOIA 
Decision.'' The NRC does not consider an appeal that is not marked as 
indicated in this paragraph as received until it is actually received 
by the Executive Director for Operations, Secretary of the Commission, 
or the Inspector General.
    (b) The NRC will make a determination 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 days 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 notify the 
requester of the denial, explaining the exemptions relied upon and how 
the exemptions apply to the agency records withheld.
    (2) If, on appeal, the denial of a request for expedited processing 
or for a waiver or reduction of fees for locating and reproducing 
agency records is 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 statement explaining why the request 
does not meet the requirements of Sec. 9.25(e) (1) and (2) or 
Sec. 9.41.
    (3) The Executive Director for Operations, or a Deputy Executive 
Director, or the Secretary of the Commission, or the Inspector General 
will inform the requester that the denial is a final agency action and 
that judicial review is available in a district court of the United 
States in the district in which the requester resides or has a 
principal place of business, in which the agency records are 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.


Sec. 9.31  Extension of time for response.

    (a) In unusual circumstances defined in Sec. 9.13, the NRC may 
extend the time limits prescribed in Sec. 9.25 or Sec. 9.29 by not more 
than 10 working days. The extension may be made by written notice to 
the person making the request to explain the reasons for the extension 
and indicate the date on which a determination is expected to be 
dispatched.
    (b) An extension of the time limits prescribed in Secs. 9.25 and 
9.29 may not exceed a combined total of 10 working days per request, 
unless a requester has agreed to an alternative time frame as described 
in Sec. 9.25(c).


Sec. 9.33  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 commercial use and the request 
is made by an educational or noncommercial scientific institution, or a 
representative of the news media;
    (3) Search and duplication of agency records in excess of 100 pages 
for any request not described in paragraphs (a) (1) and (2) of this 
section;
    (4) The direct costs of searching for agency records. The NRC will 
assess fees even when no agency records are located as a result of the 
search or when agency records that are located as a result of the 
search are not disclosed; and
    (5) Computer searches which includes the cost of operating the 
Central Processing Unit for the portion of operating time that is 
directly attributable to searching for agency records plus the 
operator/programmer salary apportionable to the search.
    (b) The NRC may charge requesters who request the following 
services for the direct costs of the service:

[[Page 46931]]

    (1) Certifying that records are true copies; or
    (2) Sending records by special methods, such as express mail, 
package delivery service, courier, and other means other than ordinary 
mail.
    (3) Producing or converting records to formats specified by a 
requester other than ordinary copying processes that are readily 
available in NRC.


Sec. 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 Sec. 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.


Sec. 9.35  Duplication fees.

    (a)(1) Charges for the duplication of records made available under 
Sec. 9.21 at the NRC Public Document Room (PDR), 2120 L Street, NW. 
(Lower Level), Washington, DC., by the duplicating service contractor 
are as follows:
    (i) Paper to paper reproduction is $0.08 per page standard size (up 
to and including 11 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.
    (ii) Microfiche to paper reproduction is $0.08 per page. Aperture 
card blowbacks are $3.00 each (reduced size) or $5.00 (full size).
    (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 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 submit mail-order requests for contractor 
duplication of NRC records made by writing to the NRC Public Document 
Room. The charges for mail-order duplication of records are the same as 
those set out in paragraph (a)(1) of this section, 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.
    (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.
    (b) The NRC will assess the following charges for copies of records 
to be duplicated by the NRC at locations other than the NRC Public 
Document Room located in Washington, DC or at local Public Document 
Rooms:
    (1) 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 
NRC's direct costs.
    (c) In compliance with the Federal Advisory Committee Act, a 
requester may purchase copies of 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 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 where it may be viewed by requesters.
    (e) The cost for duplicating NRC records located in NRC Local 
Public Document Rooms are established by the institutions maintaining 
the NRC Local Public Document Room collections.


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

    The NRC will charge the following hourly rates for search and 
review of agency records by NRC personnel:
    (a) Clerical search, review, and duplication at a salary rate that 
is equivalent to a GG-7/step 5, plus 16 percent fringe benefits;
    (b) Professional/managerial search, review, and duplication at a 
salary rate that is equivalent to a GG-13/step 5, plus 16 percent 
fringe benefits; and
    (c) Senior executive or Commissioner search, review, and 
duplication at a salary rate that is equivalent to an ES-3, plus 16 
percent fringe benefits.


Sec. 9.39  Search and duplication provided without charge.

    (a) The NRC will search for agency records requested under 
Sec. 9.23(b), without charges when agency records are not sought for 
commercial use and the records are requested by an educational or 
noncommercial scientific institution, or a representative of the news 
media.
    (b) The NRC will search for agency records requested under 
Sec. 9.23(b) without charges for the first two hours of search for any 
request not sought for commercial use and not covered in paragraph (a) 
of this section.
    (c) The NRC will duplicate agency records requested under 
Sec. 9.23(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 computer 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.
    (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 requests involve 
clearly-related matters.


Sec. 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 notify the 
requester that fees will be assessed unless the requester has indicated 
in advance his or her willingness to pay fees as high as estimated.
    (b) In the notification, the NRC will include the estimated cost of 
search fees and the nature of the search required and estimated cost of 
duplicating fees.
    (c) The NRC will encourage requesters to discuss with the NRC the 
possibility of narrowing the scope of the request with the goal of 
reducing the cost while

[[Page 46932]]

retaining the requester's original objective.
    (d) If the fee is determined to be in excess of $250, the NRC will 
require 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 estimated fee in excess of $250, the NRC may not begin to process 
the request.
    (f) If the NRC receives a new request and determines that the 
requester has failed to pay a fee charged within 30 calendar days of 
receipt of the bill on a previous request, the NRC may refuse to accept 
the new request for processing until payment is made of the full amount 
owed on the prior request, plus any applicable interest assessed as 
provided in Sec. 9.34.
    (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 NRC in writing that the requester agrees to bear 
the estimated costs, or submit a request for a waiver or reduction of 
fees pursuant to Sec. 9.41.


Sec. 9.41  Requests for waiver or reduction of fees.

    (a)(1) The NRC will collect fees for searching for, reviewing, and 
duplicating agency records, except as provided in Sec. 9.39, unless a 
requester submits a request 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 request for a waiver or 
reduction of fees should be included in the initial Freedom of 
Information Act request letter.
    (2) Each request for a waiver or reduction of fees must be 
addressed to the Freedom of Information Act and Privacy Act Officer, 
Office of Chief Information Officer, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555.
    (b) A person requesting the NRC to waive or reduce search, review, 
or duplication fees will--
    (1) Describe the purpose for which the requester intends to use the 
requested information;
    (2) Explain the extent to which the requester will extract and 
analyze the substantive content of the agency record;
    (3) Describe the nature of the specific activity or research in 
which the agency records will be used and the specific qualifications 
the requester possesses to utilize information for the intended use in 
such a way that it will contribute to public understanding;
    (4) Describe the likely impact on the public's understanding of the 
subject as compared to the level of public understanding of the subject 
before disclosure;
    (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;
    (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.
    (c) The NRC will waive or reduce fees, without further specific 
information from the requester if, from information provided with the 
request for agency records made under Sec. 9.23(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 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) How the subject of the requested agency records concerns the 
operations or activities of the Federal Government;
    (2) How the disclosure of the information is likely to contribute 
to an understanding of Federal Government operations or activities;
    (3) If disclosure of the requested information is likely to 
contribute to public understanding;
    (4) If disclosure is likely to contribute significantly to public 
understanding of Federal Government operations or activities;
    (5) If, and the extent to which, the requester has a commercial 
interest that would be furthered by the disclosure of the requested 
agency records; and
    (6) If the magnitude of the identified commercial interest of the 
requester is sufficiently large, in comparison with the public interest 
in disclosure, that disclosure is primarily in the commercial interest 
of 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 Privacy 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 Sec. 9.29.


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

    (a) Within 20 working days after receipt of a request for access to 
agency records for which the NRC agrees to waive fees under 
Sec. 9.39(a) through (d) or Sec. 9.41(c), the NRC will respond to the 
request as provided in Sec. 9.25.
    (b) In making a request for a waiver or reduction of fees, a 
requester shall provide the information required by Sec. 9.41(b).
    (c) After receipt of a request for the waiver or reduction of fees 
made in accordance with Sec. 9.41, the NRC will either waive or reduce 
the fees and notify the requester of the NRC's intent to provide the 
agency records promptly or deny the request and provide a statement to 
the requester explaining why the request does not meet the requirements 
of Sec. 9.41(b).
    (d) As provided in Sec. 9.29, a requester may appeal a denial of a 
request to waive or reduce fees to the Secretary to the Commission. The 
appeal must be submitted within 30 calendar days from the date of the 
notice.


Sec. 9.45  Annual report to Congress.

    (a) On or before February 1 of each year, the NRC will submit a 
report covering the preceding fiscal year to the Attorney General of 
the United 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 Sec. 9.29, the 
results of the appeals, and the reason for the action taken on each 
appeal that results in a denial of information;
    (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 requests had been pending before the agency as of that date;
    (5) The number of requests for records received by the NRC and the 
number of requests that the NRC processed;
    (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;

[[Page 46933]]

    (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 copy will also be available for public inspection 
and copying in the NRC Public Document Room.

    Dated at Rockville, Maryland, this 19th day of August, 1997.

    For the Nuclear Regulatory Commission.
Arnold E. Levin
Arnold E. Levin, Acting Chief Information Officer.
[FR Doc. 97-23612 Filed 9-4-97; 8:45 am]
BILLING CODE 7590-01-P