[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]
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Proposed Rules
Federal Register
________________________________________________________________________
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.
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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