[Federal Register Volume 70, Number 113 (Tuesday, June 14, 2005)]
[Rules and Regulations]
[Pages 34303-34310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11714]



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  Federal Register / Vol. 70, No. 113 / Tuesday, June 14, 2005 / Rules 
and Regulations  

[[Page 34303]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 9

RIN 3150-AH12


Public Records

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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

SUMMARY: The Nuclear Regulatory Commission (NRC) is amending 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 authorizes the Executive Assistant to 
the Secretary of the Commission, rather than the Assistant Secretary, 
to make the initial determination to deny NRC records, in whole or in 
part, under the NRC's regulations. An appeal of a denial of request for 
waiver or reduction of fees, or denial of a request for expedited 
processing is made to the Executive Director for Operations, rather 
than the Secretary of the Commission. The final rule establishes NRC 
procedures to give predisclosure notification to submitters of 
confidential business or commercial information, and makes a number of 
additional clarifying and conforming amendments.

EFFECTIVE DATE: July 14, 2005.

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

SUPPLEMENTARY INFORMATION: 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, and to appeal a denial of 
access to the records.
    On April 27, 2004 (69 FR 22737), a notice of proposed rulemaking to 
amend 10 CFR part 9, subpart A, Freedom of Information Act Regulations, 
and subpart B, Privacy Act Regulations was published with a request for 
public comment by July 12, 2004.
    The final rule amends several provisions. 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 requests 
for FOIA fee waivers and requests for expedited processing of FOIA 
CArequests, has been reassigned to the EDO or a Deputy EDO. Also, the 
Executive Assistant to the Secretary of the Commission has been 
designated the initial denying official for records located in the 
Office of the Commissioners, Office of the Secretary, and with Advisory 
Committees because the Assistant Secretary position was abolished.
    This final rule establishes agency procedures for predisclosure 
notification to submitters of confidential financial and commercial 
information.
    The final rule also updates provisions relating to the location of 
publicly available NRC records, deletes the reference to the Chief 
Information Officer designating the FOIA/PA Officer, and makes several 
clarifications: where to send requests and appeals; how to establish an 
account with the PDR reproduction contractor; how to obtain access to 
copyrighted information; applicability 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 final rule makes 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. The final rule also 
removes the PA fee waiver provision because 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.

Comments on the Proposed Rule

    The NRC received comments from one individual and three 
organizations. The individual's comment related to nuclear weapons and 
was not within the scope of this rule. The other comments relate to 
Sec.  9.28, a new provision that implements Executive Order 12600, 
issued June 23, 1987, and requires agencies to implement, by 
regulation, procedures for predisclosure notification to submitters of 
confidential business and financial information.
    One commenter suggested that the notice of opportunity to object to 
NRC's initial disclosure determination provided in Sec.  9.28(a) should 
specify the grounds on which the agency based its determination. Often, 
NRC's initial determination does provide the basis for its 
determination. However, in some cases, the reason NRC gives initial 
notice is that the agency does not have an adequate record to make a 
determination. In many of these cases documents marked or believed to 
contain trade secrets or confidential commercial or financial 
information have been in NRC files for many years, thus the basis for 
continued withholding from public disclosure may no longer be 
applicable. In these cases, NRC's initial notice often seeks additional 
information on which to base a determination. Language has been added 
to Sec.  9.28(a) to clarify that some initial notices are for the 
purpose of obtaining information to support an agency determination.
    Several commenters raised concerns regarding the time allowed for 
submitters to respond to NRC notices. Several requested that extensions 
be allowed. In response to these comments, Sec.  9.28(b) has been 
changed to allow 30 calendar days to respond to the NRC notice, rather 
than the 15 days allowed in the proposed rule. Also, Sec.  9.28(c)(3) 
has been changed to state that, should NRC deny the submitter's request 
for nondisclosure and decide to disclose the information, the 
disclosure date set by NRC would be 30 calendar days from

[[Page 34304]]

the NRC's notice to the submitter, subject to a determination by the 
Commission that a shorter period of time to respond is necessary in a 
particular instance. The proposed rule stated it would be a 
``reasonable period of time.''
    Several commenters raised issues relating to withdrawal of 
information when NRC disagreed with a submitter's claim that the 
information was a trade secret or confidential commercial or financial 
information or was voluntarily submitted, and to eliminate the 
balancing provision in 10 CFR 2.390. These suggestions have not been 
adopted. These same comments were received by the Commission in 
response to a proposed rule amending the predecessor to 10 CFR 2.390, 
10 CFR 2.790 issued November 23, 1992 (57 FR 61013). The agency 
thoroughly discussed its reasons for rejecting these suggestions in its 
response to comments to a revised proposed rule (66 FR 52721; October 
17, 2001) and its publication of the final rule (68 FR 18836; April 17, 
2003).
    A commenter suggested that Sec.  9.28(b) be changed to ensure that 
the NRC considers information furnished after the NRC-imposed deadline, 
but before NRC makes a final determination, if practicable. The agency 
does not believe this change is necessary. Section 9.28(b), the 
provision that allows the NRC FOIA/PA Officer to grant extensions, 
gives an adequate opportunity for the submitter to submit information 
after the initial response date and have it considered by the NRC.
    Another commenter suggested that the agency provide an appeal 
provision if the agency decides to release information a submitter 
claims to be trade secrets or confidential commercial or financial 
information. The NRC does not believe that an appeal provision is 
necessary because Sec.  9.28(c)(3) states that, should NRC deny the 
submitter's request for nondisclosure and decide to disclose the 
information, the disclosure date set by NRC would be 30 calendar days 
from the NRC's notice to the submitter, unless the Commission 
determines that a shorter period of time to respond is necessary. 
However, the Commission would give the submitter sufficient time to 
seek judicial review if the submitter objected to the NRC's final 
decision.
    Finally, a commenter suggested establishing a standard for 
determining when voluntarily submitted information is proprietary. This 
suggestion was not adopted because Sec.  9.28 deals only with 
procedural provisions by which submitters of trade secrets or 
confidential commercial or financial information are given notice of 
agency determinations regarding this information once it has become 
subject to a FOIA request, and the submitters' rights with respect to 
agency determinations.

Discussion of Amendments

    Section 9.8 includes a new Sec.  9.28 in the list of sections that 
contain an information collection requirement that appears in paragraph 
(b).
    Section 9.13 deletes the reference to the Chief Information Officer 
designating the FOIA/PA Officer.
    Section 9.21(c)(5) reflects that an index to records made public in 
response to a FOIA request that are likely to become the subject of 
subsequent FOIA requests is 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) addresses 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 states 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 5 U.S.C. 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, before 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 was no longer 
necessary.
    Section 9.23 clarifies how a person may open an account with the 
NRC PDR reproduction contractor and states that payment is made 
directly to the PDR reproduction contractor. Also, Sec.  9.23 clarifies 
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) is renumbered and reorganized so that the 
responsibility of each denying official is described in separate 
paragraphs. Section 9.25(g)(2) reflects that the Executive Assistant to 
the Secretary of the Commission makes 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 is designated as the 
denying official for records for which an Advisory Committee has 
responsibility. Section 9.25(h) clarifies that the independent 
determination by the FOIA/PA Officer applies 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) indicates that non-sensitive records disclosed in 
response to FOIA requests are made publicly available through the 
ADAMS.
    Section 9.28 is added to establish procedures for predisclosure 
notification to submitters of confidential business and financial 
information. This implements the requirement of Executive Order 12600, 
that directs agencies to establish these procedures by regulation.
    Section 9.29 is 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) reflects 
that an appeal of a denial of a request for a waiver or reduction of 
fees, or denial of a request for expedited processing, is appealed to 
the EDO rather than to the Secretary of the Commission. Section 9.29(c) 
also reflects that the Executive Assistant to the Secretary of the 
Commission makes 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 continues to be directed to the 
appropriate appellate official, but is 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) states 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 emphasizes the 
responsibility of the requester to

[[Page 34305]]

make arrangements with the PDR staff to view a copyrighted publication.
    Section 9.40(f) states that failure to pay applicable fees billed 
by another agency for a previous FOIA request is a basis for not 
processing a new request received from the same requester. This 
conforms NRC regulations to past NRC and government-wide practice.
    As a result of a reorganization, Sec.  9.43(d) reflects that an 
appeal of a denial of a request for a waiver or reduction of fees, or 
denial of a request for expedited processing, is appealed to the EDO 
rather than to the Secretary of the Commission.
    Section 9.53(b) clarifies 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'' was changed to ``copy'' 
to ensure that copies made by any type of technology will be acceptable 
documentation.
    Section 9.61(c)(1) eliminates the reference to a specific Executive 
Order number and states 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 was 
deleted because changes to that section would delete references to 
specific exemptions.
    Section 9.62 establishes a uniform approach for dealing with 
requests for PA records under control of another Government agency by 
indicating that the requester will be provided the name of the 
controlling agency, if known.
    Sections 9.65 and 9.67 clarify that appeals of denials of access 
and Statements of Disagreement under the PA will continue to be 
directed to the appropriate appellate official, but are 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 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 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.
    Section 9.85 removes the PA fee waiver provision because it is not 
needed. The agency's practice is to provide a free copy of the 
information to the requester. It also notes 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 is processed under the FOIA, and the FOIA fee 
standards apply.
    Section 9.95 indicates that specific exemptions applicable to each 
PA System of Record is found in the PA notice published biannually in 
the Federal Register and a current version is available at the NRC Web 
site, http://www.nrc.gov. This avoids the need to revise NRC 
regulations each time a change is made to an exemption section of a PA 
notice for a PA System of Record, and ensures that those who need this 
information will be able to obtain the most current information, with 
greater ease, from the NRC Web site.

National Technology Transfer and Advancement Act

    The National Technology and Transfer Act of 1995 (Act), Pub. L. 
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 reflects changes in officials who 
initially deny access to records or deny access to records whose 
initial denial has been appealed, and makes a change in an appellate 
official due to a reorganization. The rule establishes NRC procedures 
to give predisclosure notification to submitters of confidential 
business or commercial information, and makes 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 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 final rule.

Paperwork Reduction Act Statement

    This final rule contains new or amended information collection 
requirements that are subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). These requirements were approved by the 
Office of Management and Budget, approval number 3150-0043.
    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. Send comments on any aspect of these 
information collections, including suggestions for reducing the burden, 
to the Records and FOIA/Privacy Services Branch (T-5 F53), 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.

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 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. These amendments 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 will not have a significant 
economic impact on a substantial number of small entities. This rule 
will 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 
rule because this amendment does not involve any provisions that would 
impose backfits as defined. Therefore, a backfit analysis is not 
required.

[[Page 34306]]

Small Business Regulatory Enforcement Fairness Act

    In accordance with the Small Business Regulatory Enforcement 
Fairness Act of 1996, the NRC has determined that this action is not a 
major rule and has verified this determination with the Office of 
Information and Regulatory Affairs of OMB.

List of Subjects in 10 CFR Part 9

    Criminal penalties, Freedom of Information, Privacy, Reporting and 
recordkeeping requirements, Sunshine Act.


0
For the reasons set out in the preamble and under the authority of the 
Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 
1974, as amended; and 5 U.S.C. 552 and 5 U.S.C. 553; the Freedom of 
Information Act as amended; the Privacy Act as amended, the NRC is 
adopting the following amendments to 10 CFR part 9.

PART 9--PUBLIC RECORDS

0
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); sec. 1704; 112 
stat. 2750 (44 U.S.C. 3504 note).
    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.


0
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, 9.25, 9.28, 9.29, 9.40, 9.41, 
9.53, 9.54, 9.55, 9.65, 9.66, and 9.67.

0
3. In Sec.  9.13, the definition of the Freedom of Information Act and 
Privacy Act Officer is revised to read as follows:


Sec.  9.13  Definitions.

* * * * *
    Freedom of Information Act and Privacy Act Officer means the NRC 
official designated to fulfill the responsibilities for implementing 
and administering the Freedom of Information Act and the Privacy Act as 
specifically designated under the regulations in this part.
* * * * *

0
4. 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; and
    (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.
* * * * *

0
5. 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.
* * * * *

0
6. 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

[[Page 34307]]

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.
* * * * *

0
7. 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 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 Document 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.
* * * * *

0
8. 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, or NRC's need for information on which to 
base a 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 30 calendar days from date of the notice described in paragraph 
(a) of this section to object to disclosure, unless the Commission 
determines that a shorter period of time to respond is necessary in a 
particular instance. 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 will be 30 calendar days 
subsequent to the date of the notice, or less, as provided under 
paragraph (b) of this section, 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.

0
9. 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 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

[[Page 34308]]

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 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.

0
10. 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. 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.

0
11. 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.
* * * * *

0
12. 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.

0
13. In Sec.  9.53, paragraph (b) is revised to read as follows:


Sec.  9.53  Requests; how and where presented.

* * * * *
    (b) All written requests must 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

[[Page 34309]]

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.
* * * * *

0
14. 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.
* * * * *

0
15. 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 under 5 U.S.C. 552a(k). Individual requests 
for access to records which have been exempted from access under the 
provisions of 5 U.S.C. 552a(k) shall be processed as follows:
    (1) Information classified under criteria established by an 
Executive Order to be kept secret in the interest of national defense 
or foreign policy, and exempted under 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.
* * * * *

0
16. 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.

0
17. 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.
* * * * *

0
18. 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.
* * * * *

0
19. 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''.
* * * * *

0
20. 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 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 for 
actual copies of records disclosed under the Freedom of Information Act 
from Privacy Act Systems of Records.

0
21. 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 at Rockville, Maryland, this 7th day of June, 2005.


[[Page 34310]]


    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 05-11714 Filed 6-13-05; 8:45 am]
BILLING CODE 7590-01-P