[Federal Register Volume 68, Number 208 (Tuesday, October 28, 2003)]
[Proposed Rules]
[Pages 61374-61379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27131]


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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. 68, No. 208 / Tuesday, October 28, 2003 / 
Proposed Rules  

[[Page 61374]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 9

[Docket No. PRM-9-2]


Ohio Citizens for Responsible Energy, Inc.; Denial of a Petition 
for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of a petition for rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking submitted by the Ohio Citizens for Responsible Energy, 
Inc. (OCRE). The petition has been docketed by the Commission and 
assigned Docket No. PRM-9-2. The Petitioner requested that NRC amend 10 
CFR part 9, ``Public Records,'' by adding a subpart E entitled ``Public 
Right of Access to Licensee-Held Information.'' This subpart would 
provide for public access to licensee-held documents, subject to 
limited exceptions, and include appeal procedures. The NRC is denying 
the petition because the additional recordkeeping and reporting 
proposed by the Petitioner is not necessary to protect the public 
health and safety or to ensure effective public participation in NRC 
adjudicatory hearings on licensing actions, and is contrary to 
internally and externally-driven initiatives to reduce unnecessary 
recordkeeping and reporting requirements.

ADDRESSES: Copies of the petition for rulemaking, the public comments 
received, the Petitioner's response to these comments, the NRC's letter 
of denial to the Petitioner, and the congressional letters may be 
viewed electronically on the public computers located at the NRC's 
Public Document Room (PDR), O1 F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland. The PDR reproduction contractor 
will copy documents for a fee.
    Publicly available documents created or received at the NRC after 
November 1, 1999, are available electronically at the NRC's Electronic 
Reading Room at http://www.nrc.gov/reading-rm/adams.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. If you do not have access to ADAMS or 
if there are problems in accessing the documents located in ADAMS, 
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: Maria E. Schwartz, Office of the 
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001. Telephone: (301) 415-1888; or [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On February 10, 1994, OCRE, the petitioner, filed a petition for 
rulemaking under 10 CFR 2.802 with the NRC. The Petitioner subsequently 
filed an amendment to the petition on April 11, 1994. The Petitioner is 
a private, not-for-profit organization incorporated under the laws of 
the State of Ohio that specializes in research and advocacy on nuclear 
safety issues. The Petitioner also supports the right of meaningful 
public participation in the regulation of nuclear facilities.
    The Petitioner requests that the NRC amend 10 CFR part 9, ``Public 
Records,'' which addresses the public's right of access to information 
held by NRC. The Petitioner proposes an additional subpart E to part 9 
entitled ``Public Right of Access to Licensee-Held Information,'' which 
would provide for public access to licensee-held documents including 
draft documents, subject to exceptions necessary to protect certain 
sensitive information such as personal information, proprietary 
information, safeguard information, identity of confidential sources, 
and classified information. The proposed rule would include appeal 
procedures if a requester was not satisfied with a licensee's response 
to a request for information. Under the Petitioner's proposed appeal 
process, the requester could appeal the matter to an Administrative 
Judge (AJ) on the Atomic Safety and Licensing Board Panel. The AJ's 
decision would be final and not further appealable.
    The petition was docketed as PRM-9-2. NRC published a notice that 
announced the receipt of the petition and requested public comments on 
the suggested amendments in the Federal Register on June 13, 1994 (59 
FR 30308). NRC received 27 comment letters and an additional letter 
responding to those comments from OCRE. Of the 27 responses, three 
endorsed the petition. These commenters included a public interest 
group and members of the public. Twenty-four commenters opposed the 
petition. These commenters were primarily utilities or representatives 
of utilities.
    A response to the petition was delayed a number of times to 
consider the petition in light of the Commission's ongoing public 
information initiatives and legislative and executive branch directives 
on reducing unnecessary reporting and recordkeeping. For example, there 
was a significant delay associated with developing and implementing 
ADAMS, the Commission's electronic document library system. During the 
review period the staff contacted the petitioner to provide updates on 
the status of the agency's review. Nevertheless, the Commission finds 
this delay to be unacceptable. The Commission is committed to a more 
rigorous review of action on pending rulemaking petitions in order to 
prevent a recurrence of an unnecessary delay of this length and to 
assure timely response.

II. Discussion

    The Petitioner's primary concern is that licensee-held documents 
are not accessible by members of the public and may contain information 
that the public would find useful in participating in NRC proceedings. 
The Petitioner asserts that rulemakings in the 1993-94 time frame as 
well as NRC bulletins and generic letters issued over the period 1988-
94, instruct licensees to send conclusory statements to NRC while 
retaining documentation and analyses at licensees' facilities. Such 
information retained onsite by licensees for NRC inspection purposes is 
not retained by NRC in docket files, nor is it placed in NRC's Public 
Document Room (PDR) unless it is included in an NRC inspection report. 
In these

[[Page 61375]]

circumstances, the information cannot be obtained under the Freedom of 
Information Act (FOIA) (Pub.L. 108-23) because it does not constitute 
``agency records'' as defined in the Paperwork Reduction Act of 1995 
(PRA) (Pub.L. 104-13). The Petitioner asserts that this trend in the 
NRC's regulatory practice reduces the amount of information to which 
the public has access. The Petitioner believes that when NRC proposes 
to reduce the number of licensee reports required to be submitted to 
NRC or retained by licensees, NRC should take into consideration that 
while NRC may have access to these reports or information based on its 
status as the regulator of the licensee, the public does not because 
these reports and information will not be placed in the PDR. As a 
result, the Petitioner contends the public will not be able to 
participate fully in the regulatory process since the public will not 
be able to evaluate potential health and safety problems contained in 
these documents. The Petitioner is concerned that this result will 
undermine the public's effective participation in NRC's regulatory 
process. The Petitioner is also concerned that this will restrict the 
public's effective participation in the NRC's hearing process as 
provided for under the Atomic Energy Act of 1954, as amended (AEA). In 
addition, the Petitioner argues that this result will promote an 
atmosphere where public distrust of nuclear energy will grow, eroding 
the public's confidence in NRC's regulatory program and fostering a 
perception of coziness with the regulated industry.
    The Petitioner acknowledged that the primary reason for this 
petition for rulemaking is not directly to protect or enhance the 
public health and safety; rather, it has been designed to ensure 
effective public participation by extending public access to 
information in the possession of licensees. To accomplish this, the 
Petitioner proposes to amend 10 CFR part 9 to require licensees to 
provide ``any record relevant to NRC-licensed or regulated activities'' 
subject to exemptions necessary to protect certain sensitive 
information such as personal information, proprietary information, 
safeguards information, identity of confidential sources, and 
classified information.
    Legislative and Executive Branch directives, e.g., the PRA 
(revising and strengthening earlier requirements) and the Clinton 
Administration's 1993 National Partnership for Reinventing Government 
(NPR), were initiated at approximately the same time that OCRE 
submitted its petition to NRC for consideration. These initiatives 
required federal agencies, including NRC, to move toward a less 
expensive and more efficient Federal Government. Phase 2 of NPR 
included a directive requiring agencies to focus on core mission 
competencies and service requirements and to review their current 
programs to identify areas that could be eliminated, including, among 
other things, areas that are particularly relevant to OCRE's petition, 
i.e., deleting obsolete regulations and improving government management 
of communications technology which included a review of the need for, 
and use of, various information collections. The objectives of the PRA 
include reducing Government-required recordkeeping and reporting 
requirements, a greater use of electronic technology for operational 
efficiency and information dissemination, and a concerted effort, using 
information technology, to improve government management of information 
collections.\1\
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    \1\ This initiative has more recently evolved into the 
development of E-GOV which uses improved internet-based technology 
to make it easy for citizens and business to interact with the 
government, saving the taxpayer dollars while streamlining citizen-
to-government communications. In 1998, the Government Paperwork 
Elimination Act (GPEA) (Pub. L. 105-277) was enacted to, among other 
things, help citizens gain one-stop access to existing Government 
information and services and increase Government accountability to 
citizens.
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    In addition to these external initiatives, there were ongoing 
internal agency initiatives such as the establishment of NRC's 
Regulatory Review Group which, in 1993, provided a report to the 
Commission focusing on key areas in which changes in the way the NRC 
conducted business could significantly reduce stakeholder and NRC costs 
without adversely affecting the level of safety at operating nuclear 
power plants. The report recommended moving toward more performance-
based requirements and proposed efficiencies in the area of reporting 
requirements. Based on those recommendations, NRC assessed reporting 
and recording requirements in order to identify those requirements 
which could be reduced in scope or eliminated without impacting NRC's 
ability to fulfill its mission regarding the protection of the public 
health and safety.
    In cases where NRC has made a determination to reduce or eliminate 
a requirement, NRC first considered the impact on public health and 
safety. If there would be no direct impact on public health and safety, 
NRC next considered the reduced administrative burden on licensees and 
the extent to which the proposed elimination will deprive the public of 
health and safety information. In all cases, an existing requirement 
cannot be reduced or eliminated arbitrarily. Before regulations 
containing reporting requirements which NRC determines to be obsolete, 
unnecessarily burdensome, too prescriptive or to overlap or duplicate 
other regulations, can be removed, NRC must follow the administrative 
process for rulemaking which provides an opportunity for comment by 
members of the public. In this way, NRC seeks to maintain a balance 
between elimination of recordkeeping and reporting requirements which 
are burdensome and do not substantially contribute to providing a basis 
for its licensing and regulatory actions, and making the basis for its 
decisions transparent to stakeholders.
    The PRA requires federal agencies to, among other things, ensure 
that information technology is acquired, used, and managed to improve 
performance of agency missions, including the reduction of information 
collection burdens on the public. This includes evaluating whether 
proposed collections of information are necessary for the proper 
performance of the functions of the agency, including whether the 
information has practical utility. Recently, in conformance with the 
objectives of this Act, NRC amended its ``Reporting Requirements for 
Nuclear Power Reactors and Independent Spent Fuel Storage Installations 
at Power Reactor Sites,'' (65 FR 63769 (October 25, 2000)), to better 
align the reporting requirements with NRC's needs for information to 
carry out its safety mission (e.g., extending the required initial 
reporting times for some events, consistent with the time at which the 
reports are needed for NRC action) and to reduce unnecessary reporting 
burden, consistent with NRC's needs (e.g., eliminating the reporting 
design and analysis defects and deviations with little or no risk or 
safety significance (65 FR 63778-9)).
    Subject to the need to protect safeguards and national security-
related information, commercial nuclear facility licensing and 
regulation should be transacted publicly. In that regard, the NRC had 
made available substantial amounts of information for public review on 
its website, which since 2000 and the development of its Agency-wide 
Document Access and Management System (ADAMS) has provided this 
information in a more searchable form at NRC's Public Electronic 
Reading Room, i.e., http://www.nrc.gov/reading-rm.html. These 
documents, which include substantial amounts of

[[Page 61376]]

information relevant to licensing decisions, e.g., the license 
application, as well as changes thereto, correspondence between the 
licensee and NRC,\2\ and inspection reports, are available in ADAMS and 
continue also to be available in the PDR. NRC also has a comprehensive 
set of reporting requirements which have had the benefit of public 
comment and have been promulgated in accordance with the Administrative 
Procedure Act after careful consideration as to whether NRC needs to 
obtain licensees' records and information to carry out NRC's public 
health and safety responsibilities. The Petitioner has apparently 
discounted the process by which NRC determined that many of the 
documents which are the subject of the petition for rulemaking are 
unnecessary for NRC to possess in order to make regulatory decisions 
that protect the public health and safety, or has determined may be 
kept onsite at licensees' facilities for NRC inspection purposes but 
are not required to be submitted to NRC. In addition, much of the 
information which is of interest to the Petitioner and being retained 
onsite by licensees may also be available to members of the public 
because it is contained in, or has been relocated to, other documents 
that have been submitted (as part of applications or in response to 
requests for additional information) and are placed in NRC's Public 
Electronic Reading Room and/or the PDR.
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    \2\ Although the terrorist attacks of September 11, 2001, led to 
the NRC's decision to remove material from its website, the agency, 
after conducting a deliberate and systematic review of that 
material, has now restored most of the material to the Web site.
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III. Summary of the Public Comments

    The notice of receipt of the petition for rulemaking invited 
interested parties to submit written comments concerning the petition. 
The NRC received 27 comment letters and an additional letter responding 
to those comments from OCRE. Of these, three letters from private 
citizens and the Clean Water Fund of North Carolina, an environmental 
group, favored granting the petition. Twenty-four letters opposing the 
petition were sent primarily by utilities or representatives of 
utilities such as Nuclear Energy Institute (NEI) and Nuclear Utility 
Backfitting and Reform Group (NUBARG). Many of the letters contained 
comments that were similar in nature. The following section summarizes, 
by issue, the public comments received and provides responses to those 
comments.

Comment 1. Licensee-Held Information Should Not Be Withheld From the 
Public

    Of those responding in favor of granting the petition, one private 
citizen contended that the petition is justified because it is illegal 
and unfair that the public does not have access to licensee-held 
information. Another private citizen agreed with that position but 
pointed out that the petition, as written, is too general with respect 
to the scope of records covered by the proposal and suggested that the 
scope be limited to the records used by the licensee to support a 
docketed submittal (i.e., those records which could have been included 
with the submittal). That commenter also noted that any proposed change 
to 10 CFR part 9 must not interfere with the handling of licensee-
prepared records as proprietary information. The Clean Water Fund of 
North Carolina supported the Petitioner's view that limiting public 
access to information increases public cynicism regarding the 
regulation of nuclear energy.
NRC Response
    Applicants for an NRC license and licensees provide information to 
NRC under the agency's requirements, See, e.g., 10 CFR 30.6, 30.32 and 
10 CFR 50.4, 50.33, 50.34, 50.90, which set out certain NRC license 
application requirements; 10 CFR 50.72 and 50.73, which require nuclear 
power reactor licensees immediately to notify NRC when certain 
conditions arise, followed by written event reports; and, licensee 
reports sent in response to NRC requests for additional information as 
part of a specific licensing or regulatory action. This information is 
submitted on the docket for the particular licensee and, except when it 
contains safeguards, personal information or other information that may 
be protected from public disclosure under 10 CFR 2.790, is placed in 
the PDR where it is available for public inspection and copying \3\ 
and, in most instances, is available in electronic form through NRC's 
Public Electronic Reading Room, discussed above. In this way, the 
public has access to very large amounts of relevant licensee 
information. In addition, NRC allows licensees to retain specified 
records onsite for inspection purposes. Although NRC has the right to 
access these records or obtain them permanently, NRC has determined 
that it is not necessary, under most circumstances, for licensees to 
submit this information to NRC. To require the submission of 
information and documents beyond those that NRC determines it needs to 
have submitted for its regulatory function would be contrary to the 
objectives of the PRA. Finally, general information held by a licensee 
but not required to be retained or submitted for NRC's regulatory 
purposes is the property of the licensee. Absent an NRC determination 
that such information must be submitted to NRC in order for NRC to 
carry out its statutory and regulatory obligations, the AEA does not 
provide NRC with the authority to require that licensees provide such 
information to a third party.
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    \3\ NRC has restored access to a large volume of licensing and 
regulatory materials that were removed from its website and PDR for 
review and screening following the September 11, 2001 terrorist 
attacks on the World Trade Center and the Pentagon.
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Comment 2. The Petition Would, in Effect, Modify the FOIA Without 
Congressional Action

    Several of the commenters endorsed NEI's comment that the proposed 
petition for rulemaking would expand the NRC's current requirements for 
granting public access to licensee documents. They believe that the 
proposed rulemaking, without Congressional action, would modify the 
FOIA by making the statute applicable to entities other than government 
agencies and to records other than those within a government agency's 
control. In addition, most commenters believe that the petition 
challenges the Congressional delegation of authority to the NRC by 
giving access to almost all of a licensee's internal documents, 
including those which the NRC has determined can be retained onsite, as 
well as those which NRC believes are unnecessary for it to possess or 
obtain access to in order to protect the public health and safety.
NRC Response
    NRC believes the requested amendment is overly broad and, if 
granted, would allow access to almost all of a licensee's internal 
documents including drafts and other documents without a showing of 
need. The petition requests access to ``any record relevant to NRC 
licensed or regulated activities held by a possessor.'' In the context 
of NRC regulation, a very broad range of licensees' records may 
arguably be ``relevant'' to NRC activities. OCRE's petition relies 
heavily on NRC's authority under the AEA to access and, if it chooses, 
obtain permanent custody of such records. Section 161o. of the AEA, for 
example, provides NRC with the authority to require reports and 
recordkeeping, and to require licensees

[[Page 61377]]

to maintain these documents for inspection purposes, for specified 
activities and studies, and activities under licenses issued pursuant 
to the AEA, ``as may be necessary to effectuate the purposes of'' the 
AEA.
    When in the possession and control of NRC, documents become 
``agency records,'' and, in accordance with FOIA and the agency's 
regulations, such documents are available for public inspection and 
copying upon request by any person. The petition, if granted, would 
arguably amount to an unprecedented and legally questionable extension 
of the FOIA by granting access to private documents of regulated 
entities that are not ``agency records'' (as defined in the PRA) and 
are not required for NRC regulation and licensing. The FOIA applies to 
every record which an agency has, in fact, obtained; and not to 
documents which merely could have been obtained. The United States 
Supreme Court considered this issue in Forsham v. Harris, 445 U.S. 169 
(1980), and concluded that Congress could not have intended FOIA to 
embrace documents that the Federal Government has the right of access 
to, as this would include an extraordinarily large amount of private 
documents.

Comment 3. There Are Many Administrative Costs Associated With 
Information Requests

    Commenters stated that there are many administrative costs 
associated with information requests. Most commenters believe that 
since the subject of a request does not have to be well defined, nor is 
a stated purpose for the search required, it is likely that many 
licensees would have to create or recreate their filing systems at a 
substantial cost to accommodate broad requests. This cost would, in 
turn, be passed on to consumers. One commenter, the Mayo Clinic, stated 
that ``the petition would result in increased licensee efforts and 
costs with no benefit nor increase in safety for society. These 
additional costs would need to be passed on to customers who would gain 
nothing. In particular, medical licensees would be forced to pass these 
costs onto patients while at the same time reacting to federal health 
care initiatives to reduce costs.'' One licensee (Commonwealth Edison) 
estimated that any one request costs anywhere from $1,500 to $3,000, 
and would clearly require dedicated resources to this proposed effort.
NRC Response
    NRC agrees with the general comments and assertions that the 
requirements proposed by the Petitioner would result in some, possibly 
substantial, administrative costs for licensees to respond to requests 
for documents. A licensee's process would likely include provisions 
for: (1) Receipt, acknowledgment, and tracking of the request; (2) 
evaluation of the request to determine if it will require a document 
search effort, and, if so, the nature and scope of the search; (3) 
conducting a search including interactions with document custodians; 
(4) reviewing collected materials and screening for ``relevance'' or 
other bases for non-disclosure such as trade secrets or privileged 
information; and (5) reproduction and transmittal of responsive 
documents. Since the documents which can be requested are ``any 
record,'' there are likely to be significant administrative burdens and 
costs for locating and compiling the requested information for 
reproduction. The cost could include dedicating personnel to this task. 
In addition, unlike the FOIA, the petitioner's proposal does not 
provide for the recovery of the costs associated with searching and 
reviewing documents.
    Granting the petition could adversely impact the effectiveness of 
NRC by increasing the burden on the Commission's adjudicatory 
activities without a corresponding enhancement of safety. The appeal 
process provided by this petition would require AJs to be called upon 
to determine if a record can be the subject of a request, if 
reproduction fees are reasonable, and if the licensees' responses are 
timely. The proposal would strain the existing resources of the Atomic 
Safety and Licensing Board Panel. It might also necessitate seeking 
additional resources for NRC which might be difficult to obtain in the 
absence of a safety justification. The petition does not provide for 
effective Commission oversight of the AJs that is afforded for other 
adjudicatory matters; indeed, the Petitioner's proposal that the AJs' 
decisions would be final and would not be appealable or subject to 
review by the Commission, undermines the Commission's ability to 
effectively monitor and administer its adjudicatory processes. The 
Commission's regulations require licensees to provide full disclosure 
of information that NRC has determined is necessary for it to fulfill 
its mission to protect the public health and safety. OCRE's petition 
does not explain how its proposed document access and appeal process 
would enhance NRC's ability to accomplish that mission.

Comment 4. OCRE Has Not Provided a Specific Purpose for the Information 
Other Than Wanting Access to It

    Several commenters stated that OCRE has not provided any specific 
reason for needing to review the onsite information it is requesting 
other than its belief that the public should have access to this 
information. The Petitioner has pointed out that the requested access 
is not directly for protection of the public health and safety. The 
commenters' criticisms further questioned whether OCRE is not casting 
public citizen groups into the role of providing oversight of NRC's 
regulatory program.
NRC Response
    NRC recognizes the important contribution the public makes to NRC's 
regulatory process. To facilitate public involvement, NRC has developed 
more effective and efficient methods of providing information to the 
public in order that the public can be more fully informed on the 
licensing and regulatory process and issues associated with these 
activities. With the improvement of communication technology since the 
submittal of OCRE's petition, NRC has developed ADAMS, as discussed 
above, that provides access to documents relevant to its licensing 
decisions, as well as the Web site with additional links containing 
information regarding the regulation and management of nuclear 
facilities and materials to facilitate public participation in the 
regulatory process. A newly created ``Homepage'' and improved ``search 
engines'' were added in 2000 and have been updated recently, making 
``navigation'' of this information easier. NRC is satisfied that the 
access to licensee-held documents envisioned by OCRE's petition is not 
necessary to participate in the hearing process, given the voluminous 
amounts of information available to the public regarding NRC's 
licensing review and regulatory decisions. For example, subpart L of 10 
CFR part 2, ``Informal Procedures for Adjudications in Materials and 
Operator Licensing Proceedings,'' contains provisions that allow any 
person whose interest may be affected by a proceeding for the grant, 
renewal, or licensee-initiated amendment of a license subject to 
subpart L, to file a request for a hearing. Subpart L also requires the 
Secretary of the NRC to maintain a docket for each adjudication under 
this subpart, commencing with the filing of a request for a hearing, 
which includes the request for a hearing and other related documents, 
as well as a hearing file

[[Page 61378]]

consisting of the application for a license or amendment, any NRC 
environmental impact statement or assessment relating to the 
application, and any NRC report and any correspondence between the 
applicant and the NRC that is relevant to the application. The NRC 
staff has a continuing duty to keep the hearing file up to date with 
respect to these materials and to make them publicly available for 
inspection and copying, as well as providing them to the appropriate 
parties to the adjudication. To that end, the database for the Web-
based version of ADAMS is updated once daily, usually after midnight 
East coast time. In the more formal NRC adjudications, additional 
discovery tools are available and these can provide access to much of 
the information and many of the documents in the licensee's sole 
possession that the Petitioner seeks through its petition for 
rulemaking. In view of the extensive provisions for access to relevant 
information and documents in NRC's hearing procedures in 10 CFR part 
2,\4\ NRC strongly disagrees with the Petitioner's assertion that 
without the proposed rule, the public's effective participation in 
NRC's hearing process will be restricted.
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    \4\ The NRC has proposed changes to the adjudicatory process 66 
FR 19610 (april 16, 2001). The proposed changes would not affect the 
access to documents and information currently provided to the 
public.
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Comment 5. The Petition Could Have a Negative Impact on the Public 
Health and Safety

    Several commenters pointed out that the petition for rulemaking 
could actually have a negative effect on public health and safety by 
producing a chilling effect on the development of utilities' self-
assessments (which have been promoted by NRC) because the utilities 
fear that such documents could be used for purposes other than that for 
which they were intended.
NRC Response
    NRC agrees it is possible that granting the petition could 
discourage licensee self-assessment. NRC agrees that providing access 
to draft and other preliminary documents may have a chilling effect and 
discourage employees of licensees from documenting information that may 
be perceived as adverse to their employers, resulting in less candid 
and frank self-assessments and ``lessons learned'' analysis. It should 
be noted that NRC encourages self-assessments and licensee-initiated 
corrective actions and NRC would not want to impose unnecessary 
requirements that discourage these activities.

Comment 6. Some Information Now Being Retained by Licensees Is Still 
Available to Members of the Public Through Reports to the NRC Which Are 
Placed in the NRC's Public Document Room

    One commenter, Westinghouse Electric Corporation, pointed out that 
in each case provided by OCRE, ``there is voluminous information in the 
possession of the NRC and hence publicly available * * *'' Westinghouse 
took the examples provided by OCRE where documents are now being 
retained onsite, and pointed out where the information that is being 
retained onsite is still being provided in other records that are sent 
to NRC and, thereafter, placed in the PDR.
    Another commenter, BG&E, responded to OCRE's appraisal of the 
current situation, by pointing out that approximately 90% of the 
information that it will take out of its technical specifications will 
be transferred to publicly available documents, such as the Updated 
Final Safety Analysis Report and the Quality Assurance Plan, and the 
remaining 10% will be transferred to more appropriate, publicly 
available documents which are controlled by existing regulations.
NRC Response
    NRC agrees with the commenters that information retained on site 
often is provided in other records that are sent to NRC. Although some 
of this material may have been removed from its Web site and PDR after 
the terrorist attack of September 11, 2001, NRC has restored access to 
a large volume of licensing and regulatory materials that were removed.

Comment 7. OCRE is Mischaracterizing the 1989 Rules of Practice and 
Overstating the Effects of Not Having Access to the Records Sought

    OCRE stated that ``without sufficient factual information to 
support admission of contentions, petitioners will never become 
interveners and will never have the right to discovery.'' However, 
while the Rules of Practice will preclude a contention from being 
admitted where an intervener has no facts to support its position and 
NRC hearing practice does not permit discovery to frame contentions, 
allowing access to ``any record relevant to NRC-licensed or regulated 
activities held by a possessor,'' would allow, as several commenters 
pointed out, ``litigation-type discovery against a licensee without 
filing a lawsuit and thus, without the legal safeguards designed to 
prevent ``fishing expeditions.'''
NRC Response
    The NRC disagrees with the Petitioner's position that if this 
petition is not granted, the public will not be able to fully 
participate in the NRC hearing process which is provided for under the 
AEA. The AEA, as implemented by the Commission's regulations, provides 
the opportunity for a hearing to any person whose interests may be 
affected by the granting, renewal, or licensee-initiated amendment of 
an NRC license. The NRC staff makes available for public inspection and 
copying, documents relevant to its licensing decisions electronically 
at the NRC's Public Electronic Reading Room, discussed above, and/or in 
the PDR. These documents include the application, and any amendment 
thereto, any NRC environmental impact statement or assessment relating 
to the application, and any NRC report and any correspondence between 
the applicant and the NRC that is relevant to the application. These 
documents provide the basis for the NRC's decision to grant, renew, or 
amend, a license, and are sufficient to permit a member of the public 
to make an informed decision as to whether the person desires to 
participate in the hearing process and to formulate appropriate 
contentions. See Rules of Practice for Domestic Licensing Proceedings--
Procedural Changes in the Hearing Process (54 FR 33168 (August 11, 
1989)).

IV. Reasons for Denial

    NRC recognizes the contribution the public makes to the regulatory 
process and the importance of public confidence in that process. 
However, based on the review of the amendment requested by OCRE and the 
comments received on this petition, NRC concludes that there are 
several legal and policy considerations associated with the petition 
for rulemaking which warrant denial of the petition. The specific 
reasons for denial are:
    1. OCRE's request for access to licensee-held records is overly 
broad and would allow access to documents that the NRC requires 
licensees to maintain onsite for inspection purposes but generally does 
not require licensees to submit, as well as almost all of a licensee's 
internal documents including drafts and other documents which the NRC 
does not require licensees to maintain and on which NRC does not rely 
for NRC regulatory or licensing actions, even if they are, in some 
respect, relevant to NRC activities.

[[Page 61379]]

Neither the AEA or the FOIA, which applies to records which an agency 
has, in fact, obtained, and not to records which merely could have been 
obtained, provide the NRC with the authority to require licensees to 
supply such documents to the public.
    2. OCRE has not made a showing that supplementing the safety 
information which underlies and supports Commission action and is 
available to the public, would result in enhanced safety. In fact, 
granting the petition may have an adverse impact on safety. Resources 
that licensees would use to defend and explain matters would not be 
available to address substantive safety issues. Granting the petition 
may also have a chilling effect and discourage employees of licensees 
from documenting information that may be perceived as adverse to their 
employers resulting in less candid and frank self-assessments and 
``lessons learned'' analysis. The access required by the petition could 
discourage licensee self-assessments and self-identification of the 
need for corrective action.
    3. Without a corresponding enhancement of safety, the petition 
would create a significant but unnecessary administrative and economic 
burden on licensees without justification. Because the records which 
could be requested are ``any record,'' such requests could 
significantly impact licensees which would be required to bear the cost 
of creating a system to assemble these documents as well as dedicating 
the administrative personnel necessary to locate and compile the 
requested information for reproduction. Unlike FOIA, which allows for 
the recovery of the costs associated with searching and reviewing 
documents, the only cost which the petition allows is the cost of 
document production.
    4. The petition is contrary to efficient regulatory oversight of 
NRC facilities, as well as the legislative move to reduce unnecessary 
recordkeeping and reporting requirements. NRC has been engaged in 
activities to eliminate unnecessary requirements and to move toward 
risk-informed requirements which focus on safety matters. These 
internal agency initiatives have gone hand-in-hand with the objectives 
and requirements of the PRA. The documents which are the subject of the 
petition for rulemaking include documents that NRC has determined are 
unnecessary for NRC to fulfill its mission regarding the protection of 
the public health and safety and the common defense and security.
    5. Granting the petition would adversely impact the effectiveness 
of the NRC by increasing the burden on the Commission's adjudicatory 
activities without a corresponding enhancement of safety. The appeal 
process provided by this petition would require AJs to be called upon 
to determine whether a record can be the subject of a request; whether 
reproduction fees are reasonable; and, whether a licensee's response is 
timely. This would increase the work load of NRC AJs which would affect 
the amount of time available for other cases. The petition does not 
provide for the Commission to review the decisions of its subordinate 
judges which undermines the Commission's ability to effectively monitor 
and administer its adjudicatory processes.
    6. OCRE has not made a showing that without this amendment to 10 
CFR part 9 the public will not be able to fully participate in the NRC 
hearing process provided for under the AEA. The AEA, as implemented by 
the Commission's regulations, provides the opportunity for a hearing to 
any person whose interests may be affected by the granting, suspending, 
revoking or amending of an NRC license or application to transfer 
control. The documents which provide the basis for an application to 
grant, renew, or amend, a license, are available in electronic form for 
viewing or downloading at the NRC's Public Electronic Reading Room, 
http://www.nrc.gov/reading-rm.html, or at the NRC's PDR for public 
inspection and copying. These documents are sufficient for a member of 
the public to make an informed decision as to whether the person 
desires to participate in the hearing process and to formulate 
appropriate contentions. The Commission is satisfied that, given the 
information that the NRC ensures is available to the public, the access 
to licensee-held documents that the petition requests is not necessary 
for meaningful participation in the hearing process.

V. Conclusion

    In sum, granting the petition could create a significant 
administrative and economic burden on licensees and increased 
administrative burden on the NRC without a corresponding enhancement of 
safety. The potential but speculative benefits that might occur from 
public access to licensee-held documents are outweighed by the burden 
granting the petition would impose. Moreover, the Commission does not 
have the authority to require a licensee to provide documents to 
members of the public that NRC has determined are not necessary to be 
kept as agency records to provide the basis for NRC's regulatory and 
licensing actions. The petition for rulemaking filed by OCRE, PRM-9-2, 
is denied.

    Dated at Rockville, Maryland, this 22nd of October, 2003.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 03-27131 Filed 10-27-03; 8:45 am]
BILLING CODE 7590-01-P