[Federal Register Volume 66, Number 201 (Wednesday, October 17, 2001)]
[Proposed Rules]
[Pages 52721-52730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26114]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 2

RIN 3150-AC07


Availability of Official Records

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend 
its regulations on availability of official records in three areas. The 
proposed rule would require those who submit documents claimed to 
contain proprietary or other confidential information to mark the 
information as specified to decrease the chances of inadvertent public 
release of the information by the NRC, codify NRC's current practices 
delineating the circumstances under which the agency will not return 
confidential documents that have been submitted to the NRC, and clarify 
that the NRC will make as many copies of copyrighted material submitted 
to the agency as it needs to perform its mission. The proposed rule is 
necessary to conform the NRC's regulations regarding the availability 
of official records to existing case law and agency practice.

DATES: The comment period expires December 31, 2001. 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: Mail written comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and 
Adjudications Staff. Deliver comments to: 11555 Rockville Pike, 
Rockville, Maryland, between 7:30 am and 4:15 pm on Federal workdays.
    Comments also may be submitted via the NRC's interactive rulemaking 
Website (http://ruleforum.llnl.gov). This site provides the ability to 
upload comments as files (any format) if your Web browser supports that 
function. For information about the interactive rulemaking Website, 
contact Ms. Carol Gallagher, 301-415-5905 (e-mail [email protected]). 
Comments received also may be viewed and downloaded electronically via 
this interactive rulemaking Website.
    Except for restricted information, documents created or received at 
the NRC after November 1, 1999, also are available electronically at 
the NRC's Public Electronic Reading Room on the Internet at http://www.nrc.gov/NRC/ADAMS/index.html. From this site, the public can gain 
entry into the NRC's Agencywide Document Access and Management System 
(ADAMS), which provides text and image files of NRC's public documents. 
For more information, contact the NRC Public Document Room (PDR) 
Reference staff at 1-800-397-4209, 301-415-4737 or by email to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Catherine M. Holzle, Senior Attorney, 
Office of the General Counsel, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, telephone (301) 415-1560, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Background
II. Public Comments
III. Discussion
IV. Plain Language
V. Voluntary Consensus Standards
VI. Environmental Impact: Categorical Exclusion
VII. Paperwork Reduction Act Statement
VIII. Regulatory Analysis
IX. Regulatory Flexibility Certification
X. Backfit Analysis

I. Background

    The NRC first published 10 CFR 2.790 on March 22, 1976 (41 FR 
11810). This regulation established procedures governing the submission 
of proprietary information to the NRC. The regulation provided that 
material determined to be proprietary generally would be protected by 
the NRC and would not be released to the public. The agency then

[[Page 52722]]

set forth the procedures that submitters could use to challenge an NRC 
determination that material was not proprietary, or a decision by the 
agency to release proprietary information to the public. As part of 
this procedure, the regulation addressed the circumstances under which 
the agency would (or would not) return a document containing 
proprietary information to the submitter. The regulation did not 
address the right of the NRC to make copies of copyrighted material 
submitted to it.
    On December 23, 1992 (57 FR 61013), the Commission published 
proposed amendments to Sec. 2.790 which would have: standardized the 
markings on proprietary documents submitted to the NRC; expanded the 
circumstances under which the NRC would not return proprietary 
information to the submitter; and made clear that the agency will make 
copies of copyrighted material submitted to it, as necessary to carry 
out its mission. These changes were proposed in an effort to update the 
regulations to reflect judicial decisions on public availability of 
information, as well as agency practice, to facilitate document 
handling, and to reflect the status of international copyright law. The 
proposed changes were not directed toward modification of agency policy 
or practice regarding the public disclosure of proprietary or other 
confidential information submitted to the NRC.
    The NRC received six comments in response to the request for 
comments. It became apparent that the commenters' central concern was 
the potential for increased public disclosure of proprietary 
submittals, because of the linking in the regulation of the withdrawal 
procedures with the proprietary determination procedures. The proposed 
rule has been revised to clarify the separation between these 
procedures and make the regulation easier to understand. In view of the 
passage of time since the rule change was proposed in 1992, as well as 
the need for additional changes and clarifications, we are again 
seeking public comment before promulgating a final rule. We also are 
taking this opportunity to propose additional changes to 10 CFR 2.790, 
which we describe below.

II. Public Comments

    The comments received on the 1992 proposed rule were from a public 
interest organization, a law firm (on behalf of its nuclear power plant 
clients), a nuclear industry association, and three NRC licensees. One 
commenter supported the proposed amendments in toto. Another commenter 
did not address the proposed amendments, but raised a general concern 
regarding the potential for disclosure of proprietary information under 
Sec. 2.790. The other four commenters were supportive in part, but also 
raised various concerns regarding the need for, and the appropriateness 
of, the changes in the proposed regulations, and in some cases 
suggested alternatives. Most commenters suggested that no change was 
necessary to the ``long-standing and effectively operating Commission 
regime governing the submission, review and protection of proprietary 
information.''
    The Commission grouped the comments into 13 general issue areas. 
For each area, a summary of the comments received and their proposed 
resolution has been included. Most of the commenters regarded the 
document marking procedures as cumbersome and unnecessary but 
considered the copyright procedures reasonable. Some commenters 
recommended certain fundamental changes to the existing regulation, 
most notably, the adoption of presubmission procedures for 
determination of whether documents could be considered to contain 
proprietary or other confidential information. Some commenters urged 
determination review deadlines and introduction of an absolute right of 
document return. Some of the commenters challenged old (preexisting) 
portions of the regulation, e.g., suggesting elimination of the 
requirement that proprietary material that forms the basis of a 
rulemaking cannot be withheld from the public.
    The common concern throughout the comments appeared to be, not with 
document return per se, but with the document disclosure aspect of the 
rule and the perceived likelihood that the proposed changes would 
whittle away the protection for proprietary information currently 
available under Sec. 2.790. This is understandable, in that both the 
current version of Sec. 2.790(c), and the one proposed in 1992, connect 
the procedure for requesting document return to an agency denial of a 
request to withhold a document from public disclosure. Neither version 
addressed a situation involving a document return request outside these 
circumstances, wherein the agency might retain a document to satisfy 
some aspect of its official responsibilities but not necessarily 
release it to the public.
    Therefore, the Commission is reframing the proposed rule to 
differentiate between the two discrete determinations of document 
withholding and document return. The proposed rule would add a new and 
separate paragraph (d) for the document return request procedure that 
detaches it from the procedure on document withholding. This new 
paragraph incorporates the additional ``exceptions'' to the document 
return rule. No changes are proposed to document withholding criteria. 
The Commission is providing responses to the comments received on the 
1992 proposed rule, even though the NRC is issuing a new proposed rule 
for comment, since some of the revisions to the proposed rule resulted 
from consideration of the comments. The Commission's responses to these 
comments should provide additional insight into the bases for the 
revised proposed rule. A discussion of the comments received follows.

III. Discussion

    Currently, 10 CFR 2.790 grants a limited right of withdrawal for 
proprietary documents submitted to the NRC, provided the information 
was not submitted in a rulemaking proceeding and did not subsequently 
form the basis for a final rule. One of the proposed changes to this 
regulation would modify the regulation to provide specific guidance for 
marking information the submitter seeks to have withheld from public 
disclosure on the basis of proprietary content or other confidential 
information, e.g., to protect personal privacy. This would reduce the 
Commission's burden in identifying portions of document submittals 
asserted to be confidential. Also, the use of standardized document 
marking procedures is expected to decrease the potential for 
inadvertent release of confidential information that could be caused by 
oversight, mistake, or confusion about alternative markings.
    The Commission's regulations need to be updated to reflect more 
accurately legal restrictions on the NRC's ability to permit document 
withdrawal for documents that it must retain to properly conduct its 
official responsibilities. Part of this responsibility is to maintain 
the necessary records to document the NRC's actions. For example, 
during the course of an investigation, the NRC Office of Investigations 
may obtain documentary evidence, submitted voluntarily or through 
compelled process, for consideration by NRC and Department of Justice 
decision makers, which information cannot be returned. Thus, the second 
proposed change would revise the regulations to clarify the fact that 
document withdrawal will not be available when the information 
contained in it forms part of the basis of

[[Page 52723]]

any official agency decision, including but not limited to, a 
rulemaking proceeding or licensing activity, and to reflect the 
addition of four more exceptions to the submitter's right to withdraw 
such information, reflecting existing case law and agency practice. 
These exceptions are when information:
    (1) Is contained in documents made available to or prepared for an 
NRC advisory committee;
    (2) Has been revealed or relied upon at an open Commission meeting 
held in accordance with 10 CFR part 9, subpart C;
    (3) Is subject to a request under the Freedom of Information Act 
(FOIA); or
    (4) Has been obtained during the course of an investigation by 
NRC's Office of Investigations.
    The refusal to return documents under Sec. 2.790 does not 
necessarily mean the information will be disclosed to the public; 
application of these exceptions would be separate from a disclosure 
determination on the underlying information. However, it remains that 
the Commission may balance the public interest in access to the 
information against the demonstrated concern for protecting legitimate 
private interests. In some cases, disclosure may be appropriate. 
Nonetheless, release is not made under this section without affording 
the submitter notice and an opportunity to object. While the proposed 
changes do not affect agency standards for withholding information from 
public disclosure, the proposed rule has been revised to reduce 
confusion between withdrawal and withholding procedures. The withdrawal 
procedure has been separated from the other material and placed into a 
new paragraph (d).
    Finally, the third proposed change addresses the NRC reproducing 
copyrighted material contained in submittals to the Commission. The 
Commission has received increasing numbers of copyrighted submittals in 
recent years. Most of the agency's concerns in this area have been 
handled through ad hoc copyright license agreements, or under fair use 
exceptions to Federal copyright law. However, handling copyrighted 
material on a case-by-case basis is inefficient because the NRC 
routinely needs to reproduce copyrighted material to conduct its 
business. Thus, this proposed change would explicitly state the 
authority of the NRC to reproduce copyright material, rather than 
address this authority on a case-by-case basis.

Document Marking

    1. Comment. On the proposed document marking changes, two 
commenters stated that the wording proposed for marking submitted 
material is unnecessarily prescriptive. The main complaint was that 
this requirement would result in wasted time and effort. These 
commenters considered it unnecessary to prescribe explicit document 
marking language because submitters will have an affirmative interest 
in making sure proprietary information is clearly marked. One commenter 
observed that the Commission's goal could be accomplished by using more 
general language, and noted that other agencies offer alternatives in 
their regulations regarding document marking. It was suggested that the 
NRC adopt marking requirements similar to those used by other agencies 
and allow for variation in the marking language.
    Response. The Commission does not believe that requiring 
standardized language will result in any particular hardship on 
submitters, especially since it intends to use standardized marking 
language as a processing tool and not as a means of limiting access to 
the withholding request procedure. The NRC's intent in prescribing 
document marking language was to remove the guesswork for employees 
handling document intake, processing and distribution, primarily at the 
NRC Document Control Desk. This is expected to reduce the risk of 
processing errors by administrative personnel who may not recognize 
unfamiliar markings and consequently, might fail to accord materials 
the proprietary treatment desired.
    This requirement would be established for the protection of the 
submitter and also to ease the administrative burden on the agency that 
would result from the necessity of individually interpreting an 
assortment of legends that might otherwise be received. Moreover, 
without the prescriptive language, there may be ambiguity about whether 
a submitter intended to request proprietary treatment. Unnecessary 
delays can result from the need to refer documents for examination or 
inquiry to determine the precise intent of the submitter and 
appropriate handling. Potential burdens associated with applying 
standardized language are considered to be worth the mutual effort to 
reduce the risk of inadvertent disclosure.
    2. Comment. For the proposed document marking changes, two 
commenters noted that the proposed rule did not specify the 
consequences of failing to use the exact wording in the regulation when 
marking documents containing proprietary information. These commenters 
claimed that forfeiture of proprietary status for not using the exact 
words prescribed in the regulation would be overly harsh.
    Response. The NRC would not impose a penalty for failure to use the 
precise wording prescribed. In the preamble of the earlier proposed 
rule, the Commission did state that it ``would not be accountable for 
the public release of a document that is not marked in accordance with 
the Commission's regulations.'' This does not imply forfeiture of 
proprietary status, nor impose any other penalty for failure to follow 
the precise format. It is meant only to convey notice that the 
Commission does not assume responsibility for any unintended 
consequences resulting from a submitter's failure to comply with the 
regulatory standards. Naturally, the NRC would not intentionally 
release such documents, but there is a heightened possibility of 
potential inadvertent disclosure for proprietary information that is 
not adequately identified. Language substantially similar to that 
prescribed would be equally acceptable. The point is not to enforce a 
standard rigidly for its own sake, but to afford appropriate protection 
to submitters' confidential information, as economically and 
efficiently as possible. The NRC would work with submitters, as it 
always has, to resolve any discrepancies of which it was aware within a 
particular request.

Document Return

    3. Comment. The one comment that was virtually universal concerned 
the proposed additional exceptions limiting document withdrawal because 
the existing rule and the original proposed rule seemed to associate 
document retention directly with document disclosure. Commenters were 
overwhelmingly concerned with the potential negative impact of document 
disclosure on affected parties' competitive positions within the 
nuclear power industry, domestic and international. Specifically, the 
thrust of comments in this category was that the proposed revision 
would reduce the protections against the release of proprietary 
information, increasing the risk that proprietary information would be 
disclosed. Commenters objected that this would undermine important 
public policy interests expressed in some of the underlying statutory 
authority for 10 CFR 2.790.
    Some commenters asserted that the proposed changes would have the 
effect of limiting the availability of technical information to the NRC 
and thereby impair the Commission's review process. In addition, these 
commenters

[[Page 52724]]

contended that the proposed changes would discourage private research 
and development and hinder voluntary reporting to the Commission. Some 
of these commenters mentioned concern over a potential adverse effect 
on the national security interest underlying technology transfer 
constraints in 10 CFR part 810, issued by the Department of Energy.
    Response. The additional proposed exceptions to the right of 
withdrawal will not result in reduced protection for proprietary 
information. The proposed rule does not narrow the criteria for 
qualifying information as proprietary, which is the threshold for 
withholding information from public disclosure under applicable law. 
Information that currently qualifies as proprietary still would qualify 
as proprietary after the rule is revised and would face no greater risk 
of disclosure than it did before. If anything, the advent of broader 
criteria for proprietary information, under the ``voluntary'' submittal 
standard of Critical Mass, may mean that increasing amounts of 
information might be afforded protection from disclosure. Critical Mass 
Energy Project v. NRC, 975 F. 2d 871 (D.C. Cir. 1992), cert. denied, 
507 U.S. 984 (1993).
    The NRC recognizes the competing public policy tensions inherent in 
balancing the economic interests of private businesses against the 
public's right to be informed of the basis for official government 
actions. Qualifying information will continue to receive protection, 
except, as has always been the case, where the Commission makes a 
determination that the right of the public to be ``fully apprised as to 
the bases for and effects of a proposed action outweighs the 
demonstrated concern for protection of a competitive position'' (10 CFR 
2.790(b)(5)(i)). It is noted, however, that based on past history, the 
Commission has rarely disclosed information over the objection of a 
submitter. The NRC is confident that the additional proposed exceptions 
to the return of submitted documents will neither result in a reduction 
in the quantity and quality of technical information it receives from 
outside, nor impact private research and development, since the 
exceptions do not affect the proprietary determination process. 
Consequently, the Commission would not expect its review process to be 
impaired, nor does it believe implementation of the additional 
exceptions will hinder voluntary reporting. Indeed, the Commission's 
support of voluntary reporting in the Critical Mass case has ensured 
the continued vitality of that practice.
    Regarding the observation about a potential adverse effect on the 
national security interest underlying technology transfer constraints 
in 10 CFR 810.10, this provision relates to the production of special 
nuclear material by ``all persons subject to the jurisdiction of the 
United States who engage directly or indirectly in the production of 
special nuclear material outside the United States.'' By its own terms, 
the Department of Energy rule, 10 CFR 810.2(d), does not apply to 
exports licensed by the NRC. Although 10 CFR 810.10(b) provides for 
consultation with the NRC, among others, on the question of approving 
an application for specific authorization under Part 810, the 
determination is made by the Secretary of Energy. Thus, the issue of 
potential adverse affect on the national security interest underlying 
the technology transfer constraints of 10 CFR Part 810 is neither 
within the purview of 10 CFR 2.790, nor the jurisdiction of the NRC, 
and is not relevant to this rulemaking. We note, however, that the 
proposed changes will not affect our ability to engage in a free 
exchange of views with DOE or other agencies.
    4. Comment. Some of the commenters declared that the proposed 
exceptions exceed governing law, are not based on corresponding changes 
in statutory language, and are not reflected in other agencies' 
regulations. Two commenters stated that the ``FOIA capture'' exception 
expressed in the proposed rule should not be adopted because the 
proposed exception was not mandated by the FOIA statute. These 
commenters contended that the law in this area was ambiguous, and that 
the Commission's reliance upon General Electric Co. v. NRC, 750 F. 2d 
1394 (7th Cir. 1984), was therefore misplaced. Finally, these 
commenters asserted that the NRC itself argued opposite positions 
regarding a submitter's right to withdrawal of proprietary information 
in General Electric and in Westinghouse Electric Corp. v. NRC, 555 F. 
2d 82 (3d Cir. 1977).
    Response. This comment suggests that the Commission may not limit 
return of documents without an explicit statutory mandate. But it is 
appropriate to consider relevant case law when promulgating regulations 
bearing on the administrative functioning of the agency. We emphasize 
that the agency must retain possession of documents under certain 
circumstances, such as when they are subject to an FOIA request. The 
Supreme Court articulated the legal principle that a document 
constitutes an agency record subject to the FOIA when it meets a two-
part test: (1) the document is created or obtained by the agency; and 
(2) it is under agency control at the time of the FOIA request. U.S. 
Department of Justice v. Tax Analysts, 492 U.S. 136 (1989). 
Accordingly, the second part of this test (the timing of receipt of the 
request) is critical to determining the status of the document as an 
agency record that must be handled in accordance with statutory 
requirements. When read together with the Spannaus decision, which sets 
forth the statute of limitations for appealing the denial of 
information requested under FOIA, these decisions obligate the 
Commission to preserve and retain the records for the duration of that 
period in the event of legal action. Spannaus v. Department of Justice, 
643 F. Supp. 698 (D.D.C. 1986), aff'd, 824 F. 2d 52 (D.C. Cir. 1987). 
The effect of this proposed rule change is to give clearer notice to 
persons contemplating submittals to the NRC of the potential 
limitations on the agency's ability to honor certain requests for 
return of documents.
    The Commission disagrees with the commenters' characterization of 
the agency's position in General Electric and Westinghouse Electric 
Corp and with the suggestion that the two cases created ambiguity in 
the law. In fact, the cases decided different issues. The General 
Electric case concerned the issue of document return when the document 
had been captured by an FOIA request, whereas the Westinghouse case 
involved the issue of proprietary information disclosure. In General 
Electric, the NRC argued that the right of withdrawal by the submitter 
was inapplicable in the face of an FOIA request for the document. This 
position, that the right to document return is inapplicable once an 
FOIA request is received, was upheld by the court in General Electric 
Co., 750 F. 2d 1394, 1399 (7th Cir. 1984). Therefore, contrary to the 
commenter's assertion, the Commission's reliance on General Electric 
Co. v. NRC is well-placed, in that the General Electric opinion is 
squarely on point with the Commission's action in limiting the right of 
withdrawal when a document is subject to an FOIA request.
    The Westinghouse case dealt with the agency's authority to amend 
its rules of practice under 10 CFR 2.790 setting forth tests for 
discretionary disclosure of proprietary information. The court upheld 
the NRC's establishment of these disclosure criteria. That judicial 
decision did not address the ``FOIA capture'' issue and thus is not 
relevant to the resolution of these comments.
    Finally, the Commission is not persuaded that its regulations need 
to be based on the rules of other agencies, nor that it should act only 
after other

[[Page 52725]]

agencies have promulgated similar rules. The Commission, as part of its 
commitment to be a transparent regulator, will continue to provide 
notice of its practices by modifying its regulations when appropriate.
    5. Comment. One commenter charged that the proposed changes make no 
distinction between documents that the Commission requires applicants, 
licensees, or others to submit, which are subject to the disclosure 
criteria set forth in National Parks. A suggestion was made that the 
rule be revised to distinguish between voluntary and ``mandatory'' 
submittals to reflect the dichotomy in standards applied to the 
proprietary determination for these documents.
    Response. FOIA exemption 4 authorizes agencies to withhold from 
public disclosure ``trade secrets and commercial or financial 
information obtained from a person and privileged or confidential'' (5 
U.S.C. 552(b)(4)). Until the Critical Mass case, the test for whether 
information could be withheld as confidential under exemption 4 was 
two-pronged: disclosure had to be likely either to impair the 
Government's ability to obtain information in the future or to cause 
substantial harm to the competitive position of the submitter. National 
Parks & Conservation Association v. Morton, 498 F. 2d 765 (D.C. Cir. 
1974). In Critical Mass, the court established a new and broader 
standard of categorical protection for information voluntarily 
submitted to an agency. For such information, the court found that 
there is a governmental interest to be protected, namely that of 
maintaining the continued and full availability of the information to 
the agency. In addition, the court held that the exemption also 
recognizes the submitter's interest in protecting information that 
``for whatever reason, `would customarily not be released to the public 
by the person from whom it was obtained'.'' Id. at 878 (citing Sterling 
Drug, Inc. v. FTC, 450 F. 2d 698, 709 (D.C. Cir. 1971)). Thus, the 
court found that there was broad protection for voluntarily submitted 
information, provided it is not customarily disclosed to the public by 
the submitter.
    The Commission does not consider it necessary to incorporate a 
specific standard for voluntarily submitted information because the 
proposed changes do not purport to alter the standards for withholding 
proprietary information. Moreover, the regulatory basis for withholding 
is whether information is determined to be proprietary, by whatever 
legal criteria that may be applicable. Section 2.790 is written in such 
a way as to accommodate the applicable legal criteria. The fundamental 
premise that proprietary information may be withheld from public 
disclosure would remain valid under the proposed rule. The information 
required of submitters requesting confidentiality, under affidavit, 
addresses all matters the Commission must consider in making the 
determination of whether information is entitled to proprietary status, 
under the applicable legal standard, whether the submittal is voluntary 
or mandatory. Any information provided by the submitter that adequately 
supports a withholding request under the existing rule will easily 
satisfy the ``voluntary'' standard, which is less demanding. All the 
information required to be addressed in the affidavit is relevant to 
the Commission's consideration of the withholding request. 
Consequently, the Commission believes it is reasonable to have a rule 
that does not connect itself excessively to particular criteria, as any 
changes in the criteria would then necessitate further revisions to the 
rule.
    6. Comment. One commenter noted that the regulations should 
incorporate the predisclosure notification procedures required by 
Executive Order (E.O.) 12600.
    Response. E.O. 12600 on Predisclosure Notification Procedures for 
Confidential Commercial Information provides submitters certain 
procedural rights in potential ``reverse'' FOIA situations, i.e., where 
an individual seeks to prevent an agency from publicly disclosing 
submitted information. E.O. 12600 requires Federal agencies to 
establish certain predisclosure notification procedures, including 
affording submitters an opportunity to object to disclosure of the 
affected material. Again, the proposed changes do not purport to alter 
the standards for withholding or disclosing information. Thus, this 
issue is not pertinent to the proposed rule change. We note, however, 
that the Commission has had such procedures in place for some time. 
While the E.O. does not mandate incorporation of these procedures into 
agencies' regulations, paragraph (c) of both the currently codified 
requirements in 10 CFR 2.790 and this proposed rule incorporate notice 
provisions and contemplate opportunity to object, as well as provide 
for explanation of reasons for a Commission decision to deny a 
withholding request.
    In addition, the NRC includes ``special procedures for processing 
records containing proprietary information'' in its FOIA Handbook under 
NRC Management Directive 3.1, ``Freedom of Information Act.'' These 
procedures require the NRC staff to notify submitters of proposed 
disclosures and afford an opportunity to object, as well as provide a 
written explanation of the Commission's decision, in the event of a 
disagreement between submitters and the NRC. Thus, the Commission 
implemented the notification provisions of E.O. 12600 by incorporating 
such procedures into regulations and its internal guidance.
    7. Comment. Some commenters objected to the potential for 
disclosure of proprietary information based on an NRC balancing test. 
The commenters claimed that balancing is not within the Commission's 
authority once a determination is made that the submitted information 
is proprietary and falls within exemption 4 of FOIA. Rather, the 
commenters asserted, the balance has already been struck by Congress in 
favor of the protection of proprietary information.
    Response. The prerogative of balancing a proprietary interest 
against the public's interest in understanding the Commission's actions 
is a right already reserved to the Commission in Sec. 2.790(b)(5) of 
the regulation. The Commission is not proposing any changes to this 
section. Current regulations provide for this authority and it has not 
been enhanced or expanded by the proposed changes. Thus, this is not at 
issue in the proposed rule change. However, there is nothing in the 
FOIA statute, FOIA case law, or the Trade Secrets Act, 18 U.S.C. 
section 1905, that prohibits a balancing of this type.
    Moreover, the proprietary determination decisionmaking process 
provides several opportunities for the submitter to make a case for 
withholding information from public disclosure. As a practical matter, 
the final determination may be the outcome of a series of exchanges 
between the agency and the submitter, usually resulting in protecting 
the truly sensitive and confidential portions of the material, while 
making available enough of the rest to inform the public adequately of 
the vital details that the public needs to understand and inquire into 
the Commission's actions. Ultimately, if submitters desire official 
agency consideration of their voluntarily submitted material, they must 
operate under rules that are applied consistently to all, including 
information availability. Again, the Commission rarely has released 
proprietary information over the objection of a submitter.

[[Page 52726]]

    8. Comment. Two commenters urged that, to protect proprietary 
information adequately, the NRC should implement presubmission review 
procedures during which a document would not be considered an ``agency 
record'' under the FOIA, the Federal Advisory Committee Act (FACA), or 
the Sunshine Act. The purpose of the procedure would be to allow 
submitters an absolute right to withdraw documents for which 
proprietary protection is denied during the ``presubmission'' period. 
These commenters noted that other agencies, namely the Environmental 
Protection Agency (EPA) and the Food and Drug Administration (FDA), 
allow for presubmission review of requests for confidential treatment 
of proprietary information in their regulations and thus, provide 
precedent for such a regime.
    One commenter stated that the proposed changes accentuate a problem 
on the timing of proprietary determinations by the Commission. 
Specifically, the concern was that neither the existing regulation nor 
the 1992 proposed version of the regulation contains a provision 
requiring that proprietary determinations be made before the 
information is circulated within the Commission. According to the 
commenter, this lack of an explicit timing requirement is more 
significant in the proposed changes, since the amendments will further 
reduce the right of submitters to withdraw documents. This commenter 
considers the lack of a timing requirement to expose the industry to 
long periods of uncertainty regarding submitted proprietary 
information, which could lead some parties to be more reluctant to 
submit information voluntarily to the NRC. Therefore, this commenter 
suggested that the NRC include definite time limits in its regulations 
for proprietary determinations with the option for the submitter to 
retrieve documents denied protection before they are circulated within 
the Commission.
    Response. These comments seek a period of delay before a submitted 
document would have legal status as an agency record. The proposed 
changes do not purport to alter the definition of ``agency record,'' so 
this comment is outside the scope of the proposed changes. In the 
Commission's view, however, the scheme suggested by the comments would 
imply that documents may be tendered to the Commission on an informal 
basis, and a decision deferred about whether to submit them for 
official action pending the outcome of the proprietary review process, 
including a Commission determination on whether to grant the 
withholding request.
    The Commission does not believe that implementing presubmission 
review procedures would produce the commenters' desired legal effect of 
forestalling a document becoming an agency record. The EPA and FDA 
regulations referenced in these comments do not provide absolute 
protection during the presubmission period. The EPA regulations 
specifically provide for ``capture'' by an FOIA request. See 40 CFR 
2.206(d). The FDA regulations suggest that, for qualifying voluntary 
submittals, disclosure only will be made pursuant to court order, but 
this rule implies that the document will remain in the hands of the 
agency, in order to allow compliance with any applicable court order. 
See 21 CFR 20.44. This corresponds to the requirement established by 
FOIA case law that records within the physical custody and control of 
the agency constitute ``agency records.'' Tax Analysts v. DOJ, 492 U.S. 
136, 146 (1989); Wolfe v. HHS, 711 F. 2d, 1077, 1079-1082 (D.C. Cir. 
1983). (This presumes that the document has not been withdrawn before 
it is otherwise subject to the jurisdiction of the court, as when 
official demand is made for the document, in which event it becomes the 
subject of an FOIA request while in the agency's custody.) Even for 
these agencies, the presubmission review procedures are limited to 
voluntary submittals.
    The proposition that the ``capture'' of documents as ``agency 
records'' would be alleviated by adoption of presubmission procedures 
also misses a point already tested in court: at least one court has 
held that an agency may not exclude documents from the legal ambit of 
the FOIA through presubmission procedures. Teich v. Food and Drug 
Administration, 751 F. Supp. 243 (D.D.C. 1990). If presubmission 
procedures were seen as an attempt to evade or circumvent FOIA, the 
Commission would not expect them to survive judicial scrutiny. In fact, 
the court discredited procedures similar to those proposed by the 
commenter, stating that ``presubmission review is nothing more than an 
attempt to get around the FOIA.'' Id. at 248. This alone would be 
enough to reject this comment. Further, implementation of deliberate 
obstacles to public information access would erode confidence in the 
NRC.
    Agency timeliness in reviewing submittals and the imposition of 
time limits on the agency's proprietary determination process are not 
within the scope of this rulemaking. Nonetheless, it is the 
Commission's expectation that the staff will promptly address requests 
for either withholding or return of proprietary documents. Moreover, if 
proprietary protection is to be denied, the submitter will be so 
informed before the document is made available to the public. Such 
documents may be withdrawn in some circumstances, as provided in the 
regulations. However, this does not extend to submitters any right to 
withdraw documents whose return is restricted.
    9. Comment. For the Commission meeting exception restricting return 
of documents, two commenters stated that there is no need for the 
exception because provisions of the Sunshine Act allow for meetings to 
be closed, should proprietary information be discussed in the meeting.
    Response. The Commission does not take issue with the fact that the 
Sunshine Act permits closed meetings for discussion of proprietary 
information and for appropriate protection of material exempted from 
disclosure under the statute. Commission procedures acknowledge the 
need to provide a confidential forum for the discussion of proprietary 
information. (As noted in the Supplementary Information of the 1992 
proposed rule,10 CFR 9.104 provides for meetings to be closed where 
proprietary information is discussed.) The pertinent exception in the 
proposed changes, however, addresses materials used for open meetings. 
Presumably, if the meeting were open, the information in question (or 
at least the fact of its existence) already will have been disclosed 
there. This proposed change is merely to conform the regulations with 
existing Commission practice, because, as with the FOIA and FACA 
withdrawal exceptions, the agency is obligated to preserve the records 
of its official transactions. Thus, it is not an issue of document 
protection but of document retention. The Commission is not minimizing 
the concerns manifested by the comments about the need to protect 
proprietary information and Commission regulations do provide for 
protection of proprietary information.
    10. Comment. Some commenters stated that, for the proposed Advisory 
Committee exception, the ``absolute bar'' to the return of documents 
submitted to an Agency Advisory Committee is not required by the FACA, 
in that the FACA recognizes the FOIA exemptions and procedures. One 
commenter suggested that the regulations explicitly provide that 
proprietary documents used by

[[Page 52727]]

Commission Advisory Committees will not be disclosed to the public.
    Response. The FACA provides for meetings to be open to the public 
and for the opportunity to appear before or file statements with the 
committee, as well as for filing detailed records of each meeting, 
including minutes, complete and accurate discussion of matters 
discussed and conclusions reached, and copies of all reports received, 
issued or approved. (5 U.S.C. App. 2, section 10.) By its own terms, 
FACA sets up a requirement for public access to committee 
deliberations, including the records of those meetings and documents 
submitted for use in those meetings. Thus, the FACA clearly imposes an 
obligation on the Commission for retention of committee records and for 
public access to those documents not exempt from disclosure. Indeed, 
the language supports the Commission's position that it may refuse to 
return documents it considers itself bound to retain.
    In addition, the FACA provides that all papers or materials ``made 
available to or prepared for or by each advisory committee shall be 
made available for public inspection and copying,'' subject to the FOIA 
and the exemptions therein. (5 U.S.C. app. 2, section 10(b).) Hence, 
the comment that FACA recognizes the FOIA certainly is correct; 
however, it does not follow that application of FOIA exemptions to 
withhold documents from public disclosure equates to the freedom to 
return the documents at will. While the FOIA does not contain an 
express prohibition against return of documents, fundamental FOIA 
principles developed through case law do limit the agency's ability to 
return documents subject to an FOIA request. This was explained in 
response to an earlier comment, i.e., the situation when the Commission 
is precluded from returning documents captured by an FOIA request. 
Under the FOIA, the Commission is required to preserve records through 
the potential period for administrative appeals, and court litigation, 
should they arise. Spannaus v. Department of Justice, 643 F. Supp. 698 
(D.D.C. 1986), aff'd, 824 F. 2d 52 (D.C. Cir. 1987). Ultimately, the 
Commission must work within the legal framework of the statutes and 
pertinent case law for the handling and treatment of agency records.
    It should be stressed that this exception has no bearing on the 
nature or quality of documents subject to ultimate protection from 
public disclosure, only on the question of which documents are subject 
to withdrawal. Even then, the demonstration (and acceptance by the 
Commission) of the proprietary character of information carries heavy 
weight in the Commission's decision whether to make information 
publicly available. The Commission does not override proprietary 
determinations lightly or without due deference to the private 
interests at stake.
    11. Comment. For the Commission meeting exception, two commenters 
stated that the wording in the proposed changes was narrower than the 
discussion of this exception in the Supplementary Information. The 
commenters suggested that the description in the Supplementary 
Information is too vague and confusing, in that it refers to documents 
considered ``in connection with'' an open meeting versus the 
information actually discussed at an open Commission meeting. Thus, 
they sought clarification of the Commission's intent regarding this 
exception.
    Response. This comment highlights a discrepancy between the intent 
expressed in the Supplementary Information and the actual text of the 
earlier proposed changes. The text for the earlier version of this 
exception adopted language directly from the Sunshine Act in an effort 
to employ the standards set for information availability under that 
statute, which provides basic rights of public observation in open 
meetings and procedures for documentation of information withheld under 
its exemptions. The statutory phrase ``considered in connection with 
any [Commission] action,'' however, applies to the identification of 
information withheld under Sunshine Act exemptions for documenting 
closed Commission meetings. 5 U.S.C. section 552b (f)(1). Detailed 
procedures for such documentation are found in the agency's regulations 
at 10 CFR, Subpart C of Part 9 and are not within the scope of this 
proposed revision.
    The NRC's intent was to apply this withdrawal exception to 
documents being actively addressed or made available in open Commission 
meetings, subject to the same openness requirements as the meetings 
themselves. Thus, borrowing the statutory phrase ``considered in 
connection with'' for the Supplementary Information may have been 
misleading, was, at the least, ambiguous, and did not capture the 
Commission's true objective. The Commission's goal was to place 
workable parameters on the retention requirement by establishing the 
exception for documents whose contents were revealed in an open meeting 
or upon which the Commission relied during an open meeting. Thus, the 
new proposed exception eliminates the inconsistency of the earlier 
version and reflects the actual intent of the Commission by adoption of 
a standard that is not excessively broad but captures the requirement 
for open meetings, since the availability of those documents must be 
consistent with the statutory requirements of the Sunshine Act.

Material Subject to Copyright Protection

    12. Comment. Those commenters who addressed the proposed addition 
of a copyright provision supported its intent as explained in the 
preamble of the proposed rule. However, two of the commenters observed 
that the intent explained in the preamble was not reflected in the 
actual wording of the proposed rule, particularly with respect to 
subsequent reproduction of copyrighted documents outside the agency, 
copyright permission notice on the face of documents, or limitation on 
the number of copies distributed in response to a request. These 
commenters stated that, unless modified to comport with the preamble 
statements, the language of the proposed rule appeared to violate the 
Federal Copyright Act. Finally, one of the commenters asserted that the 
proposed rule was ambiguous and difficult to understand.
    Response. The Commission acknowledges that copyright matters can be 
complex. It has attempted to address the issue in a straightforward 
manner and establish a comprehensible rule. Additionally, the 
Commission acknowledges that the regulation is not directed toward each 
and every matter mentioned in the preamble, but it does not find it 
necessary to include this level of detail in the regulation. In 
particular, the preamble portion of the proposed rule stated that:

    [t]he proposed regulation authorizes only the NRC to copy and 
distribute the document and does not extend these rights to other 
persons receiving copies from NRC. The proposed rule provides that 
if the document bears a copyright notice or is accompanied by an 
explicit statement that the document is protected under the 
copyright law, a notice would be placed on the document indicating 
that the NRC has the authority to copy the document; however, all 
copyright markings contained on the submitted document would be 
retained. * * *
    * * * [W]ith respect to the distribution of documents to the 
public, only one copy per request will be made of documents bearing 
a copyright notice or documents accompanied by an explicit statement 
indicating that the document is protected under the copyright law.


[[Page 52728]]


    The Commission deemed it important that the preamble set forth 
certain matters of document processing handled under internal 
administrative procedures, to explain its rationale for the underlying 
regulation and to reassure submitters that it would not run roughshod 
over the rights of copyright holders. However, while the preamble may 
reflect additional details about the subject that are relevant to the 
process, it does not amount to a legal requirement imposed by the 
regulation. Moreover, the internal procedures have no effect on the 
legal rights or responsibilities of any party outside the NRC. They 
neither purport to expand or restrict the rights of non-NRC parties 
vis-a-vis copyright holders.
    These comments may reflect the mistaken impression that 
incorporation in the regulation would somehow enhance copyright 
enforceability or assist in the prosecution of infringement actions. 
But, under copyright law, reproduction permission comes from the 
copyright holder; the Commission cannot extend authority for subsequent 
reproduction of copies without the express permission of the copyright 
holder. The legal basis for this limitation is independent of the 
Commission's statement in the preamble. Including this provision in the 
regulation will make it no more nor less legally binding than it 
already is by operation of law. (Under the Berne Convention 
Implementation Act of 1988, P.L. 100-568, materials created after March 
1, 1989, no longer require a copyright notice to be protected by 
copyright law.) Thus, rather than contravening the Federal Copyright 
Act, the language of the regulation is fully consistent with applicable 
legal requirements.
    13. Comment. One commenter who supported the proposed changes on 
copyright observed that objections to these changes might signal a 
desire to ``discourage public scrutiny and * * * public participation 
in the design certification process.'' This commenter also thought the 
NRC should consider declaring copyrighted materials used as exhibits in 
NRC proceedings to be a ``fair use'' for copyright purposes.
    Response. This comment demonstrates the basic tension between the 
public's expectation of access to information in the hands of 
government and the submitter's desire to control access to information 
contained in the documents. The main purpose of this proposed change is 
to reconcile the Commission's regulatory responsibilities, including 
adequate public notice of the basis for its decisions, with the fact 
that submittals to the Commission increasingly have been accompanied by 
notice of copyright restrictions. However, there seems to be some 
confusion about restricting access to information through copyright 
authority. Copyright authority does not limit release or dissemination 
of the material in question; essentially, it only restricts reproducing 
the material. It is not an appropriate tool to attempt to shield 
information from disclosure. That is the separate and independent 
purpose of the withholding request procedure that occupies most of the 
coverage of 10 CFR 2.790.
    As to fair use: under copyright law, protection extends to various 
items, including ``literary works,'' a term defined to include ``works 
* * * expressed in words, numbers or other verbal or numerical symbols 
* * * regardless of the * * * material objects * * * in which they are 
embodied'' (17 U.S.C. section 101). Among other rights, the copyright 
holder has the exclusive right to copy the work and the exclusive right 
to display the work (17 U.S.C. section 106). However, the owner of a 
lawful copy has the right to display the work to persons present where 
the copy is located (17 U.S.C. section 109). There are a number of 
other protections afforded to copyright holders and a large number of 
other specific grants of authority to holders of copies of the 
material, including, most notably, the ``fair use'' exception (17 
U.S.C. section 107). The specific determination whether a particular 
use constitutes ``fair use'' is very subjective; however, it may 
include reproduction for purposes such as criticism, comment, news 
reporting, teaching, scholarship, or research. ``Fair use'' is 
determined by considering four statutory factors:
      The purpose and character of the use, such as commercial 
nature versus non-profit educational purposes;
      The nature of the copyrighted work;
      The amount and substantiality of the portion used 
compared to the copyrighted work as a whole; and
      The effect upon the potential market for, or value of, 
the copyrighted work.
    The Commission's exercise of its responsibility to reproduce 
sufficient copies of a document to carry out its regulatory mission and 
public information obligations is a reasonable application of the 
``fair use'' limitation on exclusive rights under Federal copyright 
law. However, the Commission has no authority to establish the sort of 
entitlement requested by the commenter to the detriment of copyright 
holders. The sort of blanket authorization advocated by the commenter 
would require a legislative amendment of Federal copyright law to 
expand the borders of ``fair use,'' because fair use is established by 
statute, as interpreted by case law. Only the Congress can make a 
categorical exemption for a particular application and it has not done 
this. That is not to say that the fair use doctrine would not be 
available to support the application described for exhibits in NRC 
proceedings, but this would need to be supported by its own facts on a 
case-by-case basis and justified under applicable legal standards, as 
in any other situation.

Document Release

    The Commission proposes to change, in the revised subsection 
2.790(c), the time period for release of documents whose request for 
withholding was denied from not less than thirty days from notification 
of denial of withholding to a ``reasonable time''. The Commission has 
found through past experience that more flexibility in this area is 
needed. In some instances, the public interest is best served by a more 
expeditious release of documents. The Commission expects that it will 
continue to provide a thirty-day waiting period for most documents, but 
altering the rule will allow the Commission the flexibility to release 
documents more expeditiously should, for example, the submitter consent 
to an earlier release date or the Commission determine that an earlier 
release date is needed to fulfill the Commission's public health and 
safety mandate. In all cases the time period will be long enough to 
allow a submitter to seek judicial relief.

IV. Plain Language

    The Presidential Memorandum dated June 1, 1998, entitled, ``Plain 
Language in Government Writing,'' directed that the Federal 
government's writing be in plain language (63 FR 31883; June 10, 1998). 
The NRC specifically requests comments on this proposed rule with 
respect to the clarity and effectiveness of the language used. Such 
comments may be sent to the NRC as indicated under the ADDRESSES 
heading.

V. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, Pub. 
L. 104-113, requires that Federal agencies use technical standards that 
are developed or adopted by voluntary consensus standards bodies unless 
using such a standard is inconsistent with applicable law or otherwise 
impractical. In the proposed rule the Commission is codifying its 
practices regarding the treatment of proprietary

[[Page 52729]]

information and copyrighted material. This action does not constitute 
the establishment of a standard that establishes generally applicable 
requirements, and the use of a voluntary consensus standard is not 
applicable.

VI. 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 impact assessment has been prepared for the proposed 
regulation. By its very nature, this regulatory action does not affect 
the environment, and therefore, no environmental justice issues are 
raised.

VII. Paperwork Reduction Act Statement

    This proposed rule contains no information collection requirements 
and, therefore, is not subject to the requirements of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

VIII. Regulatory Analysis

    This proposed rule seeks to bring NRC's regulations concerning the 
availability of official records into conformance with existing case 
law and current Commission practice. The current regulations provide 
submitters of proprietary information the limited right to have 
documents returned upon request. This proposed rule informs the public 
of document marking requirements for submitted information, of four 
additional exceptions to a submitter's limited right to withdraw 
submitted information, and of current Commission practice concerning 
the reproduction and distribution of submitted copyright material. The 
proposed rule reflects current Commission administrative and procedural 
practice and would have only minor impact on the benefits or costs 
associated with the Commission's regulations. Some submitters currently 
mark documents consistent with the requirements in this proposed rule. 
For others, this proposed rule would shift some responsibility to the 
submitter for ensuring that its confidential material is identified and 
protected. It also codifies the Commission's practices regarding its 
dissemination of copyrighted material.

IX. Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 
605(b)), the Commission certifies that this proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. The proposed rule would advise of new document marking 
requirements for submitted information, clarify the right of the 
submitter of information to have certain information returned on 
request, and provide notice of Commission practice concerning the 
reproduction and distribution of copyrighted material. The proposed 
rule does not impose any obligation or have any financial impact on 
entities, including any regulated entities that may be ``small 
entities,'' as defined by the Regulatory Flexibility Act (5 U.S.C. 
601(3)), or under the Size Standards adopted by the NRC in 10 CFR 
2.810.

X. Backfit Analysis

    The NRC has determined that a backfit analysis is not required for 
this proposed rule because these amendments do not include any 
provisions that would impose backfits as defined in 10 CFR Chapter 1.

List of Subjects in 10 CFR Part 2

    Administrative practice and procedure, Antitrust, Byproduct 
material, Classified information, Environmental protection, Nuclear 
materials, Nuclear power plants and reactors, Penalties, Sex 
discrimination, Source material, Special nuclear material, Waste 
treatment and disposal.

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 553, the NRC is proposing to 
adopt the following amendments to 10 CFR Part 2.

PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND 
ISSUANCE OF ORDERS

    1. The authority citation for Part 2 continues to read as follows:

    Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 
5841); 5 U.S.C. 552.
    Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 
105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 
U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. 
L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)), sec. 102, 
Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 
88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 
2.721 also issued under secs. 102, 103, 104, 105, 183i, 189, 68 
Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 
2134, 2135, 2233, 2239). Section 2.105 also issued under Pub. L. 97-
415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also 
issued under secs. 161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 
83 Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o), 2236, 2282); 
sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Section 2.205(j) also 
issued under Pub. L. 101-410, 104 Stat. 90, as amended by section 
3100(s), Pub. L. 104-134, 110 Stat. 1321-1373 (28 U.S.C. 2461 note). 
Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-190, 83 
Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also 
issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also 
issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 
135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 
10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as 
amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 
also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 
U.S.C. 553 and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42 
U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 
U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 
10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42 
U.S.C. 2239). Subpart M also issued under sec. 184 (42 U.S.C. 2234) 
and sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued 
under sec. 6, Pub. L. 91-560, 84 Stat. 1473 (42 U.S.C. 2135).

    2. Section 2.790 is amended by revising the introductory text of 
paragraph (a); adding introductory text to paragraph (b); revising 
paragraphs (b)(1) and (c); redesignating paragraph (e) as paragraph 
(f); and adding new paragraph (e), to read as follows:


Sec. 2.790  Public inspections, exemptions, requests for withholding.

    (a) Subject to the provisions of paragraphs (b), (c), (d), (e), and 
(f) of this section, final NRC records and documents, including but not 
limited to correspondence to and from the NRC regarding the issuance, 
denial, amendment, transfer, renewal, modification, suspension, 
revocation, or violation of a license, permit, or order, or regarding a 
rulemaking proceeding subject to this part shall not, in the absence of 
a compelling reason for nondisclosure after a balancing of the 
interests of the person or agency urging nondisclosure and the public 
interest in disclosure, be exempt from disclosure and will be made 
available for inspection and copying at the NRC Web site, http://www.nrc.gov, and/or at the NRC Public Document Room, except for matters 
that are:
* * * * *
    (b) The procedures in this section must be followed by anyone 
submitting a document to the NRC who seeks to have the document, or a 
portion of it, withheld from public disclosure because it contains 
trade secrets, privileged or confidential commercial or financial 
information, or personal privacy information.
    (1) The submitter shall request withholding at the time the 
document is

[[Page 52730]]

submitted and shall comply with the document marking and affidavit 
requirements set forth in this paragraph. The NRC has no obligation to 
review documents not so marked to determine whether they contain 
information eligible for withholding under paragraph (a) of this 
section. Any documents not so marked may be made available to the 
public at the NRC Website, http://www.nrc.gov.
    (i) The submitter shall ensure that the document containing 
information sought to be withheld is marked as follows:
    (A) The top of the first page of the document and the top of each 
page containing such information must be marked ``Confidential 
Information Submitted Under 10 CFR 2.790,'' to indicate it contains 
information the submitter seeks to have withheld.
    (B) Each page containing information sought to be withheld from 
public disclosure must indicate, adjacent to the information, or at the 
top if the entire page is affected, the basis (i.e., trade secret, 
personal privacy, etc.) for proposing that the information be withheld 
from public disclosure under paragraph (a) of this section.
    (ii) The request for withholding must be accompanied by an 
affidavit that--
    (A) Identifies the document or part sought to be withheld;
    (B) Identifies the official position of the person making the 
affidavit;
    (C) Declares the basis for proposing the information be withheld, 
encompassing considerations set forth in Sec. 2.790(a);
    (D) Includes a specific statement of the harm that would result if 
the information sought to be withheld is disclosed to the public; and
    (E) Indicates the location(s) in the document of all information 
sought to be withheld.
    (iii) In addition, an affidavit accompanying a withholding request 
based on paragraph (a)(4) of this section must contain a full statement 
of the reason for claiming the information should be withheld from 
public disclosure. Such statement shall address with specificity the 
considerations listed in paragraph (b)(4) of this section. In the case 
of an affidavit submitted by a company, the affidavit shall be executed 
by an officer or upper-level management official who has been 
specifically delegated the function of reviewing the information sought 
to be withheld and authorized to apply for its withholding on behalf of 
the company. The affidavit shall be executed by the owner of the 
information, even though the information sought to be withheld is 
submitted to the Commission by another person. The application and 
affidavit shall be submitted at the time of filing the information 
sought to be withheld. The information sought to be withheld shall be 
incorporated, as far as possible, into a separate paper. The affiant 
must designate with appropriate markings information submitted in the 
affidavit as a trade secret, or confidential or privileged commercial 
or financial information within the meaning of Sec. 9.17(a)(4) of this 
chapter, or confidential information within the meaning of 
Sec. 9.17(a)(6) of this chapter, and such information shall be subject 
to disclosure only in accordance with the provisions of Sec. 9.19 of 
this chapter.
* * * * *
    (c) The Commission either may grant or deny a request for 
withholding under this section.
    (1) If the request is granted, the Commission will notify the 
submitter of its determination to withhold the information from public 
disclosure.
    (2) If the Commission denies a request for withholding under this 
section, it will provide the submitter with a statement of reasons for 
that determination. This decision will specify the date, which will be 
a reasonable time thereafter, when the document will be available at 
the NRC Website, http://www.nrc.gov. The document will not be returned 
to the submitter.
    (3) Whenever a submitter desires to withdraw a document from 
Commission consideration, it may request return of the document, and 
the document will be returned unless the information--
    (i) Forms part of the basis of an official agency decision, 
including but not limited to, a rulemaking proceeding or licensing 
activity;
    (ii) Is contained in a document that was made available to or 
prepared for an NRC advisory committee;
    (iii) Was revealed, or relied upon, in an open Commission meeting 
held in accordance with 10 CFR part 9, subpart C;
    (iv) Has been requested in a Freedom of Information Act request; or
    (v) Has been obtained during the course of an investigation 
conducted by the NRC Office of Investigations.
* * * * *
    (e) Submitting information to NRC for consideration in connection 
with NRC licensing or regulatory activities shall be deemed to 
constitute authority for the NRC to reproduce and to distribute 
sufficient copies to carry out the Commission's official 
responsibilities. The Commission may waive the requirements of this 
paragraph on request, or on its own initiative, in circumstances the 
Commission deems appropriate.
    (1) Any person submitting information shall--
    (i) Be deemed to represent to the NRC that he or she has legal 
authority to submit the document and to permit NRC to reproduce and 
distribute the document; and
    (ii) Hold the Commission harmless from damages that result from the 
Commission's reproduction or distribution of the documents.
    (2) Documents will be returned to the submitter and will not be 
considered by the Commission in the absence of a waiver of this 
regulation in the following types of situations:
    (i) A document bearing a copyright notice not accompanied by a 
statement authorizing the Commission to make copies of the material in 
accordance with this section;
    (ii) A document containing or accompanied by a statement 
restricting the copying of the material; or
    (iii) A document that bears or is accompanied by a statement 
representing that the submitter lacks authority to permit NRC to copy 
and distribute the document.
* * * * *

    Dated at Rockville, Maryland, this 11th day of October, 2001.

    For the Nuclear Regulatory Commission.
Andrew L. Bates,
Acting Secretary of the Commission.
[FR Doc. 01-26114 Filed 10-16-01; 8:45 am]
BILLING CODE 7590-01-P