[Federal Register Volume 69, Number 81 (Tuesday, April 27, 2004)]
[Proposed Rules]
[Pages 22737-22743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9488]


 ========================================================================
 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. 69, No. 81 / Tuesday, April 27, 2004 / 
Proposed Rules  

[[Page 22737]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 9

RIN 3150-AH12


Public Records

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend 
its regulations to reflect changes regarding officials who initially 
deny access to records or deny access to records whose initial denial 
has been appealed, and to reflect a change of an appellate official due 
to a reorganization. This amendment would have the Executive Assistant 
to the Secretary of the Commission, rather than the Assistant 
Secretary, make the initial determination to deny NRC records in whole 
or in part under the Commission's regulations. An appeal of a denial of 
request for waiver or reduction of fees, or denial of a request for 
expedited processing would be appealed to the Executive Director for 
Operations, rather than the Secretary of the Commission. The proposed 
rule would establish NRC procedures to give predisclosure notification 
to submitters of confidential business or commercial information, and 
would make a number of additional clarifying and conforming amendments.

DATES: Submit comments by July 12, 2004. Comments received after this 
date will be considered if it is practical to do so, but the Commission 
is only able to ensure consideration of comments received on or before 
this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include the following number (RIN 3150-AH12) in the subject line 
of your comments. Comments on rulemakings submitted in writing or in 
electronic form will be made available to the public in their entirety 
on the NRC rulemaking Web site. Personal information will not be 
removed from your comments.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
    E-mail comments to: [email protected]. If you do not receive a reply e-
mail confirming that we have received your comments, contact us 
directly at (301) 415-1966. You may also submit comments via the NRC's 
rulemaking Web site at http://ruleforum.llnl.gov. Address questions 
about our rulemaking Web site to Carol Gallagher (301) 415-5905; e-mail 
at [email protected]. Comments may also be submitted via the Federal 
Rulemaking Portal at http://www.regulations.gov.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland, between 7:30 a.m. and 4:15 p.m. on Federal workdays.
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
(301) 415-1101.
    Publicly available documents related to this rulemaking may be 
examined and copied for a fee at the NRC's Public Document Room (PDR), 
Public File Area O1F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland 20852. The proposed rule and supporting documents, 
including comments, can be viewed and downloaded electronically via the 
NRC's rulemaking Web site at http://ruleforum.llnl.gov.
    Also, publicly available documents created or received at the NRC 
are available electronically at the NRC's Electronic Reading Room at 
http://www.nrc.gov/NRC/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 e-mail to [email protected].

FOR FURTHER INFORMATION, CONTACT: Carol Ann Reed, Freedom of 
Information Act and Privacy Act Officer, Information and Records 
Services Division, Office of the Chief Information Officer, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001; Telephone: 
(301) 415-7169; Internet: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Freedom of Information Act (FOIA) grants individuals the right 
to seek access to agency records and the right to appeal an initial 
agency denial of access to the requested records. The Privacy Act (PA) 
allows an individual to request records filed under his or her name or 
personal identifier. In January 2001, the Commission announced a 
reorganization that directed the Chief Information Officer (CIO) to 
report to the Executive Director for Operations (EDO). To conform with 
this reporting relationship, the appellate authority previously 
delegated to the Secretary of the Commission to serve as the appellate 
official for denials of Freedom of Information Act (FOIA) requests for 
fee waivers and requests for expedited processing of FOIA requests has 
been reassigned to the EDO or a Deputy EDO. Also, the initial denying 
official for records located in the Office of the Commissioners, Office 
of the Secretary, and with Advisory Committees has been designated as 
the Executive Assistant to the Secretary of the Commission because the 
Assistant Secretary position was abolished. Prior to the abolishment of 
the Assistant Secretary position, the incumbent of that position was 
also the Advisory Committee Management Officer. To avoid having two 
denying officials in the Office of the Secretary, even though the 
Executive Assistant to the Secretary of the Commission does not 
currently serve as the Advisory Committee Management Officer, that 
position has been designated as the denying official for Advisory 
Committee records in order to have a single denying official in the 
Office of the Secretary. This proposed rule would also establish agency 
procedures for predisclosure notification to submitters of confidential 
financial and commercial information.
    The proposed amendments would update provisions relating to the 
location of publicly available NRC records, and make several 
clarifications: Where requests and appeals are to be sent; when a 
request or an appeal is deemed received; how to establish an account 
with the PDR reproduction contractor; how to obtain access to 
copyrighted information; applicability

[[Page 22738]]

of the independent determination made by the FOIA/PA Officer; and that 
failure of a requester to pay FOIA fees billed by another Federal 
agency may be a basis for not processing a request. The proposed 
amendment would make several changes in the PA regulations. Reference 
to a specific Executive Order number that establishes criteria for 
classifying information has been deleted. A uniform approach for 
referral of PA records under the control of another Federal agency has 
been established. This proposed rule would also remove the fee waiver 
provision since it is not needed. Readers are referred to the NRC Web 
site to find the particular exemptions applicable to a specific PA 
System of Records.

Discussion of Amendments

    The NRC would amend 10 CFR part 9, subpart A, Freedom of 
Information Act Regulations and subpart B, Privacy Act Regulations.
    Section 9.8 would be amended to include a new Sec.  9.28 in the 
list of sections that contain an information collection requirement 
that appears in paragraph (b).
    Section 9.21(c)(5) would be changed to reflect that an index to 
records made public in response to a FOIA request that are likely to 
become the subject of subsequent FOIA requests, are publicly available 
at the NRC Web site. Section 552(a)(2)(E) of the FOIA requires that NRC 
make public an index to records made public in response to FOIA 
requests that are likely to become the subject of subsequent FOIA 
requests for substantially the same records.
    Section 9.21(c)(6) would be revised to address the requirement that 
the agency publish a statement in the Federal Register determining that 
publication of an index quarterly or more frequently is unnecessary. 
This section would state that it is unnecessary to continue publishing 
the monthly index because members of the public may create their own 
indexes to records, including those in the categories required to be 
made public by 5 U.S.C. 552(a)(2), by using the search features in 
ADAMS. Section 5 U.S.C. 552(a)(2)(E) requires that the agency maintain 
and make available for public inspection and copying current indexes 
for records that sections 552(a)(2)(A),(B),(C), and (D) require be made 
public and publish that index quarterly or more frequently, unless 
determined by order published in the Federal Register, that the 
publication would be unnecessary or impracticable. To meet this 
requirement, prior to making ADAMS publicly accessible, the NRC 
published ``Documents Made Publicly Available'' (NUREG-0540) on a 
monthly basis. With the public's ability to create their own indexes 
using ADAMS, the NRC determined that publication of the monthly index 
is no longer necessary.
    Section 9.23 would be revised to clarify how a person may open an 
account with the NRC PDR reproduction contractor and to state that 
payment is made directly to the PDR reproduction contractor. Also, 
Sec.  9.23 would clarify that a request is not considered received 
under the FOIA until the date it is actually received by the Freedom of 
Information Act and Privacy Act Officer (FOIA/PA Officer).
    Section 9.25(g) would be renumbered and reorganized so that the 
responsibility of each denying official is described in separate 
paragraphs. Section 9.25(g)(2) would be changed to reflect that the 
Executive Assistant to the Secretary of the Commission would make the 
initial determination to deny agency records in whole or in part under 
Sec.  9.17(a) instead of the Assistant Secretary of the Commission. In 
addition, the Executive Assistant to the Secretary of the Commission 
has been designated as the denying official for records for which an 
Advisory Committee has responsibility. Section 9.25(h) would be revised 
to clarify that the independent determination by the FOIA/PA Officer 
would apply to records other than those records for which the initial 
disclosure determination is made by the Executive Assistant to the 
Secretary of the Commission, the General Counsel, or the Assistant 
Inspector General for Investigations.
    Section 9.27(a) would be revised to indicate that non-sensitive 
records disclosed in response to FOIA requests are made publicly 
available through ADAMS.
    Section 9.28 would be added to establish procedures for 
predisclosure notification to submitters of confidential business and 
financial information. This would implement the requirement of 
Executive Order 12600, that directs agencies to establish these 
procedures by regulation.
    Section 9.29 has been renumbered and reorganized so that each type 
of appeal or appellate official's responsibility is described in 
separate paragraphs. As a result of a reorganization, Sec.  9.29(c) 
would be revised to reflect that an appeal of a denial of a request for 
a waiver or reduction of fees, or denial of a request for expedited 
processing, would be appealed to the EDO rather than to the Secretary 
of the Commission. Section 9.29(c) also would be revised to reflect 
that the Executive Assistant to the Secretary of the Commission would 
make the initial determination to deny agency records in whole or in 
part under Sec.  9.17(a) instead of the Assistant Secretary of the 
Commission. Also, an appeal would continue to be directed to the 
appropriate appellate official but would be sent to the FOIA/PA Officer 
rather than to the appellate official to ensure that appeals directed 
to the EDO, Secretary of the Commission, and Inspector General are 
uniformly tracked.
    Section 9.35(d) would be revised to state that if a copyrighted 
publication is responsive to a FOIA request, the requester will be 
informed of the citation to the copyrighted publication and advised to 
contact the NRC's PDR to arrange to view the publication. This change 
would emphasize the responsibility of the requester to make 
arrangements with the PDR staff to view a copyrighted publication.
    Section 9.40(f) would be revised to include failure to pay 
applicable fees billed by another agency for a previous FOIA request as 
a basis for not processing a new request received from the same 
requester. This would conform NRC regulations to past NRC and 
government-wide practice.
    As a result of a reorganization, Sec.  9.43(d) would be revised to 
reflect that an appeal of a denial of a request for a waiver or 
reduction of fees, or denial of a request for expedited processing, 
would be appealed to the EDO rather than to the Secretary of the 
Commission.
    Section 9.53(b) would clarify that a request is not considered 
received under the PA until the date it is actually received by the 
FOIA/PA Officer.
    In Sec.  9.54(a)(1) the term ``photocopy'' would be changed to 
``copy'' to ensure that copies made by any type of technology will be 
acceptable documentation.
    Section 9.61(c)(1) would be revised to eliminate the reference to a 
specific Executive Order number and to state that the exempted 
information is information classified under criteria established by an 
Executive Order to be kept secret in the interest of national defense 
or foreign policy. This is consistent with the statutory language that 
does not refer to a specific Executive Order number. Also, the 
reference to Sec.  9.95 would be deleted because proposed changes to 
that section would delete references to specific exemptions.
    Section 9.62 would be revised to establish a uniform approach for 
dealing with requests for PA records under control of another 
Government agency by indicating the requester will be provided the name 
of the controlling agency, if known.

[[Page 22739]]

    Sections 9.65 and 9.67 would be revised to clarify that appeals of 
denials of access and Statements of Disagreement under the PA would 
continue to be directed to the appropriate appellate official but are 
to be sent to the FOIA/PA Officer rather than to the appellate official 
to ensure that appeals directed to the EDO and to the Inspector General 
are uniformly tracked. Also Sec. Sec.  9.65, 9.66, and 9.67 would be 
revised to state that a PA appeal is not deemed received until it is 
actually received by the FOIA/PA Officer. Sections 9.65, 9.66, and 9.67 
would be revised to state that calendar days are used to calculate the 
time within which an appeal of denial of access to a record in a PA 
System of Records must be made and within which a Statement of 
Disagreement must be submitted.
    The NRC would amend Sec.  9.85 to remove the fee waiver provision 
because it is not needed and the agency's practice is to provide a free 
copy of the information to the requester. It also would note that fees 
may be charged where the information is disclosed from PA Systems of 
Records under the FOIA. This normally occurs because an entire system 
of records containing criminal law enforcement records is exempt from 
being accessed under the PA exemption (j)(2). Thus, a request for 
records from such a system will be processed under the FOIA and the 
FOIA fee standards apply.
    Section 9.95 would be revised to indicate that specific exemptions 
applicable to each PA System of Record are found in the PA notice 
published biannually in the Federal Register and that a current version 
is available at the NRC Web site, http://www.nrc.gov.

Plain Language

    The Presidential memorandum dated June 1, 1998, entitled ``Plain 
Language in Government Writing'' directed that the Government's writing 
be in plain language. The NRC requests comments on this proposed rule 
specifically with respect to the clarity and effectiveness of the 
language used. Comments should be sent to the address listed under the 
heading, ADDRESSES, above.

National Technology Transfer and Advancement Act

    The National Technology and Transfer Act of 1995 (Act), Public Law 
104-113, requires that Federal agencies use technical standards that 
are developed or adopted by voluntary consensus standards bodies unless 
the use of such a standard is inconsistent with the applicable law or 
otherwise impractical. This rule would reflect changes in officials who 
initially deny access to records or deny access to records whose 
initial denial has been appealed, and to make a change in an appellate 
official due to a reorganization. The proposed rule would establish NRC 
procedures to give predisclosure notification to submitters of 
confidential business or commercial information, and would make a 
number of additional clarifying and conforming amendments. For these 
reasons, the Commission concludes that the Act does not apply to this 
rule.

Environmental Impact: Categorical Exclusion

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

Paperwork Reduction Act Statement

    This proposed rule contains information collection requirements 
that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.). This rule has been submitted to the Office of Management and 
Budget for review and approval of the information collection 
requirements.
    The burden to the public for these information collections is 
estimated to average 10 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
information collection. The U.S. Nuclear Regulatory Commission is 
seeking public comment on the potential impact of the information 
collections contained in the proposed rule and on the following issues:
    1. Is the proposed information collection necessary for the proper 
performance of the functions of the NRC, including whether the 
information will have practical utility?
    2. Is the estimate of burden accurate?
    3. Is there a way to enhance the quality, utility, and clarity of 
the information to be collected?
    4. How can the burden of the information collection be minimized, 
including the use of automated collection techniques?
    Send comments on any aspect of these proposed information 
collections, including suggestions for reducing the burden, to the 
Records and FOIA/Privacy Services Branch (T-5-F52), U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, or by Internet 
electronic mail to [email protected]; and to the Desk Officer, 
Office of Information and Regulatory Affairs, NEOB-10202, (3150-0043), 
Office of Management and Budget, Washington, DC 20503. Comments to OMB 
on the information collections or on the above issues should be 
submitted by May 27, 2004. Comments received after this date will be 
considered if it is practical to do so, but assurance of consideration 
cannot be given to comments received after this date.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.

Regulatory Analysis

    A regulatory analysis has not been prepared for this proposed rule 
because this rule is administrative in that it amends the regulations 
to reflect the current NRC organization and current responsibilities of 
NRC officials for denying access to requests for information and other 
requests made under the FOIA or PA. They are considered minor, non-
substantive amendments and will not have an economic impact on NRC 
licensees or the public.

Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 
605(b)), the NRC certifies that this rule would not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule would affect those who make requests for access to 
information under the provisions of the FOIA and PA. These are 
considered minor, non-substantive amendments and will not have an 
economic impact on NRC licensees or the public.

Backfit Analysis

    The NRC has determined that the backfit rule does not apply to this 
proposed rule because this amendment does not involve any provisions 
that would impose backfits as defined. Therefore, a backfit analysis is 
not required.

List of Subjects in 10 CFR Part 9

    Criminal penalties, Freedom of Information, Privacy, Reporting and 
recordkeeping requirements, Sunshine Act.
    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended;

[[Page 22740]]

the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553; 
the Freedom of Information Act as amended; the Privacy Act as amended, 
the NRC is proposing to adopt the following amendments to 10 CFR part 
9.

PART 9--PUBLIC RECORDS

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

    Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); 
sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841).
    Subpart A is also issued under 5 U.S.C. 552; 31 U.S.C. 9701; 
Pub. L. 99-570. Subpart B is also issued under 5 U.S.C. 552a. 
Subpart C is also issued under 5 U.S.C. 552b.
    2. In Sec.  9.8, paragraph (b) is revised to read as follows: .


Sec.  9.8  Information collection requirements: OMB approval.

* * * * *
    (b) The approved information collection requirements contained in 
this part appear in Sec. Sec.  9.23, 9.28, 9.29, 9.40, 9.41, 9.53, 
9.54, 9.55, 9.65, 9.66, and 9.67.
    3. In Sec.  9.21, paragraphs (c)(5) and (6) are revised to read as 
follows:


Sec.  9.21  Publicly available records.

* * * * *
    (c)* * *
    (5) Copies of records that have been released to a person under the 
FOIA that, because of the nature of their subject matter, the NRC 
determines have become or are likely to become the subject of 
subsequent requests for substantially the same records and a general 
index to those records.
    (6) Individual indexes to publicly available records, including 
those records specified in paragraph (c) of this section, may be 
created by using the search features of the Agencywide Documents Access 
and Management System (ADAMS), located at the NRC Web site, http://www.nrc.gov. This capability made it unnecessary for the NRC to 
continue publishing its monthly publication, Documents Made Publicly 
Available (NUREG-0540) after March 1999.
* * * * *
    4. In Sec.  9.23, paragraph (a)(1)(ii) and the introductory text of 
paragraph (b) are revised to read as follows:


Sec.  9.23  Requests for records.

    (a) * * *
    (1) * * *
    (ii) To obtain copies of records expeditiously, a person may open 
an account with the NRC Public Document Room reproduction contractor. 
Payment for reproduction services will be made directly to the 
contractor.
* * * * *
    (b) A person may request agency records by submitting a request 
authorized by 5 U.S.C. 552(a)(3) to the Freedom of Information Act and 
Privacy Act Officer by an appropriate method listed in Sec.  9.6 of 
this chapter. The request must be in writing and clearly state on the 
envelope and in the letter that it is a ``Freedom of Information Act 
request.'' The NRC does not consider a request as received until the 
date it is actually received by the Freedom of Information Act and 
Privacy Act Officer.
* * * * *
    5. In Sec.  9.25, paragraphs (g) and (h) are revised to read as 
follows:


Sec.  9.25  Initial disclosure determination.

* * * * *
    (g)(1) Initial disclosure determination on requests for records 
originated by, or located in the files of the Office of the Inspector 
General. If, as a result of the review specified in paragraph (f) of 
this section, the Assistant Inspector General for Investigations finds 
that agency records that are originated by or located in the Office of 
the Inspector General are exempt from disclosure and should be denied 
in whole or in part, and disclosure of the records is contrary to the 
public interest and will adversely affect the rights of any person, the 
Assistant Inspector General for Investigations will submit that finding 
to the Freedom of Information Act and Privacy Act Officer who will 
notify the requester of the determination in the manner provided in 
Sec.  9.27.
    (2) Initial disclosure determinations on requests for records 
originated by or transmitted to the Commission, or a Commissioner, or 
records originated by, or for which the Office of the Secretary or an 
Advisory Committee has primary responsibility. If, as a result of the 
review specified in paragraph (f) of this section, the Executive 
Assistant to the Secretary of the Commission finds that agency records 
originated by or transmitted to the Commission or a Commissioner, or 
records originated by, or for which the Office of the Secretary or an 
Advisory Committee has primary responsibility, are exempt from 
disclosure and should be denied in whole or in part, and disclosure of 
the records is contrary to the public interest and will adversely 
affect the rights of any person, the Executive Assistant to the 
Secretary of the Commission will submit that finding to the Freedom of 
Information Act and Privacy Act Officer who will notify the requester 
of the determination in the manner provided in Sec.  9.27.
    (3) Initial disclosure determination for records originated by, or 
for which the Office of the General Counsel has principal 
responsibility. If, as a result of the review specified in paragraph 
(f) of this section, the General Counsel finds that agency records that 
are originated by, or for which the Office of the General Counsel has 
primary responsibility, are exempt from disclosure and should be denied 
in whole or in part, and disclosure of the records is contrary to the 
public interest and will adversely affect the rights of any person, the 
General Counsel will submit that finding to the Freedom of Information 
Act and Privacy Act Officer who will notify the requester of the 
determination in the manner provided in Sec.  9.27.
    (h) Initial disclosure determinations on requests for records other 
than those for which the initial disclosure determination is made by 
the Assistant Inspector General for Investigations, the Executive 
Assistant to the Secretary of the Commission, or the General Counsel. 
If, as a result of the review specified in paragraph (f) of this 
section, the head of the responsible office finds that agency records 
other than those described in paragraph (g) of this section, that are 
originated by, or for which the office has primary responsibility, 
should be denied in whole or in part, the head of the office will 
submit that finding to the Freedom of Information Act and Privacy Act 
Officer, who will, in consultation with the Office of the General 
Counsel, make an independent determination whether the agency records 
should be denied in whole or in part. If the Freedom of Information Act 
and Privacy Act Officer determines that the agency records sought are 
exempt from disclosure and disclosure of the records is contrary to the 
public interest and will adversely affect the rights of any person, the 
Freedom of Information Act and Privacy Act Officer will notify the 
requester of the determination in the manner provided in Sec.  9.27.
* * * * *
    6. In Sec.  9.27, paragraph (a) is revised to read as follows:


Sec.  9.27  Form and content of responses.

    (a) When the NRC has located a requested agency record and has 
determined to disclose the agency record, the Freedom of Information 
Act and Privacy Act Officer will promptly furnish the agency record or 
notify the requester where and when the agency record will be available 
for inspection and copying. The NRC will also advise

[[Page 22741]]

the requester of any applicable fees under Sec. Sec.  9.35 and 9.37. 
The NRC will routinely make copies of non-sensitive records disclosed 
in response to Freedom of Information Act requests publicly available 
through the Agencywide Documents Access and Management System (ADAMS) 
located in the NRC's Electronic Reading Room that can be accessed via 
the NRC Web site at http://www.nrc.gov/NRC/reading-rm/adams.html. 
Records that contain information personal to the requester, involve 
matters that are not likely to be of public interest to anyone other 
than the requester, or contain privileged or confidential information 
that should only be disclosed to the requester will not be made 
publicly available on the NRC Web site.
* * * * *
    7. A new Sec.  9.28 is added to read as follows:


Sec.  9.28  Predisclosure notification procedures for information 
containing trade secrets or confidential commercial or financial 
information.

    (a) Notice of opportunity to object to NRC's initial disclosure 
determination. Whenever NRC makes an initial determination that 
information should be disclosed in response to a Freedom of Information 
Act request or a Freedom of Information Act appeal which has been 
designated by the submitter as trade secrets or confidential commercial 
or financial information, or the NRC believes the information contains 
such trade secrets or confidential commercial or financial information, 
the NRC will give the submitter of the information written notice of 
NRC's initial determination and an opportunity to object. The notice 
must describe the business information requested or include copies of 
the requested records or record portions containing the information.
    (b) Submitter objection to disclosure. The submitter will be 
allowed 15 days from date of the notice described in paragraph (a) of 
this section to object to disclosure. If a submitter has any objection 
to disclosure, the submitter must provide a detailed written statement. 
The statement must specify all grounds that support why the information 
is a trade secret or commercial or financial information that is 
privileged or confidential. If a submitter fails to respond to the 
notice within the time specified in the notice, the submitter will be 
considered to have no objection to disclosure of the information. 
Information provided by the submitter that is not received until after 
the date specified for response will not be considered unless that date 
is extended by the Freedom of Information Act and Privacy Act Officer 
upon request by the submitter.
    (c) Notice of final decision to disclose. The NRC shall consider a 
submitter's written statement and specific grounds for nondisclosure. 
If the NRC agrees to withhold the information from public disclosure, 
the NRC will inform the requester in the manner described in Sec.  9.27 
of the agency decision to deny access to the requested information. 
Whenever the NRC denies the submitter's request for nondisclosure and 
decides to disclose the information, the NRC shall give the submitter 
written notice, which must include:
    (1) A statement of the reason(s) for the determination;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which must be a reasonable time 
subsequent to the notice, after which the information will be made 
available to the public.
    (d) Corresponding notice to requesters. When the NRC provides a 
submitter with notice and opportunity to object to disclosure under 
paragraph (b) of this section, the NRC shall also notify the 
requester(s). Whenever the NRC notifies a submitter of its final 
decision to disclose the requested information under paragraph (c) of 
this section, the NRC shall also notify the requester(s). When a 
submitter files a lawsuit seeking to prevent the disclosure of trade 
secrets or confidential commercial or financial information, the NRC 
shall notify the requester(s).
    (e) Notice to submitter of Freedom of Information Act lawsuit. 
Whenever a requester files a lawsuit seeking to compel disclosure of 
trade secrets or confidential commercial or financial information, the 
NRC shall promptly notify the submitter.
    8. Section 9.29 is revised to read as follows:


Sec.  9.29  Appeal from initial determination.

    (a) A requester may appeal a notice of denial of a Freedom of 
Information Act request for access to agency records, denial of a 
request for waiver or reduction of fees, or denial of a request for 
expedited processing under this subpart within 30 calendar days of the 
date of the NRC's denial.
    (b) For agency records to which access is denied by the Assistant 
Inspector General for Investigations, the appeal must be in writing 
directed to the Inspector General and sent to the Freedom of 
Information Act and Privacy Act Officer, Office of the Chief 
Information Officer, by an appropriate method listed in Sec.  9.6. The 
appeal should clearly state on the envelope and in the letter that it 
is an ``Appeal from Initial Freedom of Information Act Decision.'' The 
NRC does not consider an appeal received until the date it is actually 
received by the Freedom of Information Act and Privacy Act Officer. The 
Inspector General will make the NRC determination on the appeal within 
20 working days after the receipt of the appeal. If the Inspector 
General denies an appeal of access to records, in whole or in part, the 
Inspector General will notify the requester of the denial, explaining 
the exemptions relied upon and how the exemptions apply to the agency 
records withheld. The notice will inform the requester that the denial 
is a final agency action and that judicial review is available in a 
district court of the United States in the district in which the 
requester resides or has a principal place of business, in which the 
agency records are situated, or in the District of Columbia.
    (c) For agency records to which access is denied by the Executive 
Assistant to the Secretary of the Commission, the General Counsel, or 
an office director reporting to the Commission, the appeal must be in 
writing directed to the Secretary of the Commission and sent to the 
Freedom of Information Act and Privacy Act Officer by an appropriate 
method listed in Sec.  9.6. The appeal should clearly state on the 
envelope and in the letter that it is an ``Appeal from Initial Freedom 
of Information Act Decision.'' The NRC does not consider an appeal 
received until the date it is actually received by the Freedom of 
Information Act and Privacy Act Officer. The Secretary of the 
Commission will make the NRC determination on the appeal within 20 
working days after the receipt of the appeal. If the Secretary of the 
Commission denies an appeal of access to records, in whole or in part, 
the Secretary of the Commission will notify the requester of the 
denial, explaining the exemptions relied upon and how the exemptions 
apply to the agency records withheld. The notice will inform the 
requester that the denial is a final agency action and that judicial 
review is available in a district court of the United States in the 
district in which the requester resides or has a principal place of 
business, in which the agency records are situated, or in the District 
of Columbia.
    (d) For agency records to which access is denied by agency 
officials other than the Assistant Inspector General for 
Investigations, the Executive Assistant to the Secretary of the 
Commission, the General Counsel, or other office director reporting to 
the Commission, the appeal must be in

[[Page 22742]]

writing directed to the Executive Director for Operations and sent to 
the Freedom of Information Act and Privacy Act Officer by an 
appropriate method listed in Sec.  9.6. The appeal should clearly state 
on the envelope and in the letter that it is an ``Appeal from Initial 
FOIA Decision.'' The NRC does not consider an appeal received until the 
date it is actually received by the Freedom of Information Act and 
Privacy Act Officer. The Executive Director for Operations or a Deputy 
Executive Director will make the NRC determination on the appeal within 
20 working days after the receipt of the appeal. If the Executive 
Director for Operations or a Deputy Executive Director denies an appeal 
of access to records, in whole or in part, the Executive Director for 
Operations or a Deputy Executive Director, will notify the requester of 
the denial, explaining the exemptions relied upon and how the 
exemptions apply to the agency records withheld. The notice will inform 
the requester that the denial is a final agency action and that 
judicial review is available in a district court of the United States 
in the district in which the requester resides or has a principal place 
of business, in which the agency records are situated, or in the 
District of Columbia.
    (e) For the denial of a request for expedited processing the appeal 
must be in writing directed to the Executive Director for Operations 
and sent to the Freedom of Information Act and Privacy Act Officer by 
an appropriate method listed in Sec.  9.6. The appeal should clearly 
state on the envelope and in the letter that it is an ``Appeal from 
Initial FOIA Decision.'' The NRC does not consider an appeal received 
until the date it is actually received by the Freedom of Information 
Act and Privacy Act Officer. The NRC will make a determination on the 
appeal within 10 working days after the receipt of the appeal. If the 
Executive Director for Operations or a Deputy Executive Director denies 
an appeal for expedited processing, the Executive Director for 
Operations or a Deputy Executive Director, will notify the person 
making the request of the decision to sustain the denial, including a 
statement explaining why the request does not meet the requirements of 
Sec.  9.25(e)(1) and (2). The notice will inform the requester that the 
denial is a final agency action and that judicial review is available 
in a district court of the United States in the district in which the 
requester resides or has a principal place of business, in which the 
agency records are situated, or in the District of Columbia.
    (f) For denial of a waiver or reduction of fees for locating and 
reproducing agency records, the appeal must be in writing directed to 
the Executive Director for Operations and sent to the Freedom of 
Information Act and Privacy Act Officer by an appropriate method listed 
in Sec.  9.6. The appeal should clearly state on the envelope and in 
the letter that it is an ``Appeal from Initial FOIA Decision.'' The NRC 
does not consider an appeal received until the date it is actually 
received by the Freedom of Information Act and Privacy Act Officer. The 
NRC will make a determination on the appeal within 20 working days 
after the receipt of the appeal. If the Executive Director for 
Operations or a Deputy Executive Director denies an appeal of a waiver 
or reduction of fees for locating and reproducing agency records, the 
Executive Director for Operations or a Deputy Executive Director, will 
notify the person making the request of the decision to sustain the 
denial, including a statement explaining why the request does not meet 
the requirements of Sec.  9.41. The notice will inform the requester 
that the denial is a final agency action and that judicial review is 
available in a district court of the United States in the district in 
which the requester resides or has a principal place of business, in 
which the agency records are situated, or in the District of Columbia.
    (g) The Executive Director for Operations, a Deputy Executive 
Director, the Secretary of the Commission, or the Inspector General 
will furnish copies of all appeals and written determinations on 
appeals to the Freedom of Information Act and Privacy Act Officer.
    9. In Sec.  9.35, paragraph (d) is revised to read as follows:


Sec.  9.35  Duplication fees.

* * * * *
    (d) Copyrighted material may not be reproduced in violation of the 
copyright laws. As such, requesters will be given the citation to any 
copyrighted publication and advised to contact the NRC Public Document 
Room to arrange to view the publication.
    10. In Sec.  9.40, paragraph (f) is revised to read as follows:


Sec.  9.40  Assessment of fees.

* * * * *
    (f) If the NRC receives a new request and determines that the 
requester has previously failed to pay a properly charged fee under the 
Freedom of Information Act to the NRC or other Federal agency within 30 
calendar days of receipt of the bill on a previous request, the NRC may 
refuse to accept the new request for processing until payment is made 
of the full amount owed on the prior request, plus any applicable 
interest assessed as provided in Sec.  9.34.
* * * * *
    11. In Sec.  9.43, paragraph (d) is revised to read as follows:


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

* * * * *
    (d) As provided in Sec.  9.29, a requester may appeal a denial of a 
request to waive or reduce fees to the Executive Director for 
Operations. The appeal must be submitted within 30 calendar days from 
the date of the notice.
    12. In Sec.  9.53, paragraph (b) is revised to read as follows:


Sec.  9.53  Requests; how and where presented.

* * * * *
    (b) All written requests shall be made to the Freedom of 
Information Act and Privacy Act Officer, U.S. Nuclear Regulatory 
Commission, and sent by an appropriate method listed in Sec.  9.6, and 
should clearly state on the envelope and in the letter, as appropriate: 
``Privacy Act Request,'' ``Privacy Act Disclosure Accounting Request,'' 
``Privacy Act Correction Request.'' The NRC does not consider a request 
received until the date it is actually received by the Freedom of 
Information Act and Privacy Act Officer.
* * * * *
    13. In Sec.  9.54 paragraph (a)(1) is revised as follows:


Sec.  9.54  Verification of identity of individuals making requests.

    (a) * * *
    (1) Written requests. An individual making a written request 
respecting a record about himself may establish his identity by a 
signature, address, date of birth, employee identification number, if 
any, and one other item of identification such as a copy of a driver's 
license or other document.
* * * * *
    14. In Sec.  9.61 the introductory text of paragraph (c), the 
introductory text of paragraph (c)(1), and paragraph (c)(1)(i) are 
revised to read as follows:


Sec.  9.61  Procedures for processing requests for records exempt in 
whole or in part.

* * * * *
    (c) Specific exemptions pursuant to 5 U.S.C. 552a(k). Individual 
requests for access to records which have been exempted from access 
pursuant to the provisions of 5 U.S.C. 552a(k) shall be processed as 
follows:
    (1) Information classified pursuant to criteria established by an 
Executive Order to be kept secret in the interest of

[[Page 22743]]

national defense or foreign policy, and exempted pursuant to 5 U.S.C. 
552a(k)(1).
    (i) Requested information classified by NRC will be reviewed by the 
responsible official of the NRC to determine whether it continues to 
warrant classification under criteria established by an Executive Order 
to be kept secret in the interest of national defense or foreign 
policy.
* * * * *
    15. Section 9.62 is revised to read as follows:


Sec.  9.62  Records under control of another Government agency.

    Requests received by NRC pertaining to records under the control of 
another Government agency will be returned to the requester with the 
name of the controlling Government agency, if known, within ten working 
days after receipt by the NRC.
    16. In Sec.  9.65, paragraph (b) is revised to read as follows:


Sec.  9.65  Access determinations; appeals.

* * * * *
    (b) Appeals from denials of access. If an individual has been 
denied access to a record the individual may request a final review and 
determination of that individual's request by the Inspector General or 
the Executive Director for Operations, as appropriate. A request for 
final review of an initial determination must be filed within 60 
calendar days of the receipt of the initial determination. For agency 
records denied by the Assistant Inspector General for Investigations, 
the appeal must be in writing directed to the Inspector General and 
sent to the Freedom of Information Act and Privacy Act Officer by an 
appropriate method listed in Sec.  9.6. For agency records denied by 
the Freedom of Information Act and Privacy Act Officer, the appeal must 
be in writing directed to the Executive Director for Operations and 
sent to the Freedom of Information Act and Privacy Act Officer by an 
appropriate method listed in Sec.  9.6. The appeal should clearly state 
on the envelope and in the letter ``Privacy Act Appeal-Denial of 
Access.'' The NRC does not consider an appeal received until the date 
it is actually received by the Freedom of Information Act and Privacy 
Act Officer.
* * * * *
    17. In Sec.  9.66, paragraph (b) is revised to read as follows:


Sec.  9.66  Determinations authorizing or denying correction of 
records; appeals.

* * * * *
    (b) Appeals from initial adverse determinations. If an individual's 
request to amend or correct a record has been denied, in whole or in 
part, the individual may appeal that action and request a final review 
and determination of that individual's request by the Inspector General 
or the Executive Director for Operations, as appropriate. An appeal of 
an initial determination must be filed within 60 calendar days of the 
receipt of the initial determination. For agency records denied by the 
Assistant Inspector General for Investigations, the appeal must be in 
writing directed to the Inspector General and sent to the Freedom of 
Information Act and Privacy Act Officer by an appropriate method listed 
in Sec.  9.6. For agency records denied by the Freedom of Information 
Act and Privacy Act Officer the appeal must be in writing directed to 
the Executive Director for Operations and sent to the Freedom of 
Information Act and Privacy Act Officer by an appropriate method listed 
in Sec.  9.6. The appeal should clearly state on the envelope and in 
the letter ``Privacy Act Correction Appeal.'' The NRC does not consider 
an appeal received until the date it is actually received by the 
Freedom of Information Act and Privacy Act Officer. Requests for final 
review must set forth the specific item of information sought to be 
corrected or amended and should include, where appropriate, records 
supporting the correction or amendment.
* * * * *
    18. In Sec.  9.67, paragraph (a) is revised to read as follows:


Sec.  9.67  Statements of disagreement.

    (a) Written ``Statements of Disagreement'' may be furnished by the 
individual within 30 calendar days of the date of receipt of the final 
adverse determination of the Inspector General or the Executive 
Director for Operations. ``Statements of Disagreement'' directed to the 
Executive Director for Operations must be sent to the Freedom of 
Information Act and Privacy Act Officer by an appropriate method listed 
in Sec.  9.6, and should be clearly marked on the statement and on the 
envelope, ``Privacy Act Statement of Disagreement.'' ``Statements of 
Disagreement'' directed to the Inspector General must be sent to the 
Freedom of Information Act and Privacy Officer by an appropriate method 
listed in Sec.  9.6, and should be clearly marked on the statement and 
on the envelope ``Privacy Act Statement of Disagreement.''
* * * * *
    19. Section 9.85 is revised to read as follows:


Sec.  9.85  Fees.

    Fees shall not be charged for search or review of records requested 
under this subpart or for making copies or extracts of records in order 
to make them available for review, although fees may be charged for 
additional copies. Fees established under 31 U.S.C. 483c and 5 U.S.C. 
552a(f)(5) shall be charged according to the schedule contained in 
Sec.  9.35 of this part for actual copies of records disclosed under 
the Freedom of Information Act from Privacy Act Systems of Records.
    20. Section 9.95 is revised to read as follows:


Sec.  9.95  Specific exemptions.

    Exemptions applicable to Privacy Act Systems of Records are stated 
in each Privacy Act System of Records Notice which is published in the 
Federal Register and is available at the NRC Web site, http://www.nrc.gov.

    Dated in Rockville, Maryland, this 21st day of April, 2004.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 04-9488 Filed 4-26-04; 8:45 am]
BILLING CODE 7590-01-P