[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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Rules and Regulations
Federal Register
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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.
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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
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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.
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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.
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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.
* * * * *
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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.
* * * * *
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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.
* * * * *
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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.
* * * * *
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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.
* * * * *
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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.
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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