[Federal Register Volume 81, Number 251 (Friday, December 30, 2016)]
[Rules and Regulations]
[Pages 96344-96347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31595]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2 and 9
[NRC-2016-0171]
RIN 3150-AJ84
Update To Incorporate FOIA Improvement Act of 2016 Requirements
AGENCY: U.S. Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its
regulations to reflect changes to the Freedom of Information Act
(FOIA). The FOIA Improvement Act of 2016 requires the NRC to amend its
FOIA regulations to update procedures for requesting information from
the NRC and procedures that the NRC must follow in responding to FOIA
requests.
DATES: This final rule is effective on January 30, 2017.
ADDRESSES: Please refer to Docket ID NRC-2016-0171 when contacting the
NRC about the availability of information for this action. You may
obtain publicly-available information related to this action by any of
the following methods:
Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0171. Address
questions about NRC dockets to Carol Gallagher, telephone: 301-415-
3463, email: [email protected]. For technical questions, contact
the individual listed in the FOR FURTHER INFORMATION CONTACT section of
this document.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly-available documents online in the
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS,
please contact the NRC's Public Document Room (PDR) reference staff at
1-800-397-4209, 301-415-4737, or by email to [email protected]. The
ADAMS accession number for each document referenced (if it is available
in ADAMS) is provided the first time that it is mentioned in the
SUPPLEMENTARY INFORMATION section.
NRC's PDR: You may examine and purchase copies of public
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland 20852.
FOR FURTHER INFORMATION CONTACT: Stephanie Blaney, telephone: 301-415-
6975, email: [email protected]; or Nina Argent, telephone: 301-
415-5295, email: [email protected]. Both are staff of the Office of
the Chief Information Officer of the U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Discussion of Amendments by Section
III. Rulemaking Procedure
IV. Plain Writing
V. National Environmental Policy Act
VI. Paperwork Reduction Act
VII. Congressional Review Act
I. Background
The FOIA was enacted to give the public a right to access records
held by the executive branch that, although not classified, were not
otherwise available to them. Since its enactment in 1966, the FOIA has
been amended on a number of occasions to adapt to the times and
changing priorities.
On June 30, 2016, the FOIA Improvement Act of 2016, Public Law 114-
185, 130 Stat. 538 (the Act) was enacted. The Act specifically requires
all agencies to review and update their FOIA regulations in accordance
with its provisions. The Act addresses a range of procedural issues,
including requiring that agencies establish a minimum of 90 days for
requesters to file an administrative appeal and that they provide
dispute resolution services at various times throughout the FOIA
process. The Act also amends Exemption 5, codifies the foreseeable harm
standard, and adds two new elements to agency Annual FOIA Reports.
The NRC has identified the areas where the revisions are necessary
in order to comply with the Act and is amending parts 2 and 9 of title
10 of the Code of Federal Regulations (10 CFR) accordingly.
II. Discussion of Amendments by Section
The following paragraphs describe the specific changes adopted by
this rulemaking.
Section 2.390 Public Inspections, Exemptions, Requests for Withholding
This final rule revises paragraph (a)(5) to be identical to 10 CFR
9.17(a)(5), which this final rule is also revising to include new
criteria for FOIA Exemption 5. The Act amended Exemption 5 of the FOIA
to provide that the deliberative process privilege does not apply to
records that are 25 years or older before the date on which they are
requested.
Section 9.17 Agency Records Exempt From Public Disclosure
This final rule revises paragraph (a)(5) to include new criteria
for FOIA Exemption 5. The Act amended Exemption 5 of the FOIA to
provide that the deliberative process privilege does not apply to
records that are 25 years or older before the date on which they are
requested. This final rule redesignates paragraph (c) as paragraph (d)
without change and adds a new paragraph (c) to incorporate the
foreseeable harm standard that the Act codified and to include
clarifying language derived from the Act about the FOIA's relationship
to laws prohibiting disclosure of information.
[[Page 96345]]
Section 9.19 Segregation of Exempt Information and Deletion of
Identifying Details
This final rule revises paragraph (b)(1) to change the reference
Sec. 9.17(a) to Sec. 9.17, to account for the foreseeable harm
threshold standard in the revised Sec. 9.17(c) that applies to the
exemptions listed in Sec. 9.17(a).
Section 9.21 Publicly-Available Records
This final rule revises paragraph (c) introductory text to include
available viewing formats. This final rule revises paragraph (c)(5) to
include copies of records regardless of format, as well as adding
paragraphs (c)(5)(i), (c)(5)(ii), (c)(5)(ii)(A) and (c)(5)(ii)(B). This
revision is to codify frequently requested records.
Section 9.25 Initial Disclosure Determination
This final rule revises paragraph (c) to include requirements to
make the NRC's FOIA Public Liaison available to assist in resolving any
disputes and to notify the requester of the right to seek dispute
resolution services from the Office of Government Information Services
(OGIS). This final rule revises paragraph (f) to change the reference
to Sec. 9.17(a) to Sec. 9.17, to account for the foreseeable harm
threshold standard in the revised Sec. 9.17(c) that applies to the
exemptions listed in Sec. 9.17(a).
Section 9.27 Form and Content of Responses
This final rule (1) revises paragraph (a) to include a new
requirement to notify the requester of the right to seek assistance
from the NRC's FOIA Public Liaison; (2) revises paragraph (b)(5) to
notify the requester they now have 90 calendar days to appeal; (3) adds
paragraph (b)(6) to include a new requirement to notify the requester
of the right to seek assistance from the NRC's FOIA Public Liaison; and
(4) adds paragraph (b)(7) to include a new requirement to notify the
requester of the right to seek dispute resolution services from the
NRC's FOIA Public Liaison or OGIS.
Section 9.29 Appeal From Initial Determination
This final rule revises paragraph (a) to change the length of time
to appeal from 30 calendar days to 90 calendar days.
Section 9.30 Contact for Dispute Resolution Services
This final rule adds new section 10 CFR 9.30 to include contact
information for obtaining dispute resolution services from OGIS and the
NRC's FOIA Public Liaison.
Section 9.39 Search and Duplication Provided Without Charge
This final rule adds new paragraph (f) to include new fee
limitations for search and duplication.
Section 9.43 Processing Requests for a Waiver or Reduction of Fees
This final rule revises paragraph (d) to change the length of time
to appeal from 30 calendar days to 90 calendar days.
Section 9.45 Annual Report to the Attorney General of the United States
and Director of the Office of Government Information Services
This final rule (1) revises the section heading to include the
Director of OGIS as a recipient of the annual FOIA report; (2) revises
paragraph (a) to include the Director of OGIS as a recipient of the
annual FOIA report and to replace the incomplete list of required
contents of the report found in paragraphs (a)(1)-(8) with a reference
to 5 U.S.C. 552(e)(1), which contains the full list of required
contents of the report; and (3) revises the link where you can locate
the NRC's annual FOIA reports.
III. Rulemaking Procedure
Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency
may waive the normal notice and comment requirements if it finds, for
good cause, that they are impracticable, unnecessary, or contrary to
the public interest. As authorized by 5 U.S.C. 553(b)(3)(B), the NRC
finds good cause to waive notice and opportunity for comment on the
amendments. Notice and opportunity for comment are unnecessary, because
the NRC is issuing this final rule for the limited purpose of complying
with specific direction in the Act requiring agencies to update their
FOIA regulations in accordance with the Act, and the final rule updates
the NRC's FOIA regulations only as necessary to bring them into
compliance with the Act.
IV. Plain Writing
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal
agencies to write documents in a clear, concise, and well-organized
manner. The NRC has written this document to be consistent with the
Plain Writing Act as well as the Presidential Memorandum, ``Plain
Language in Government Writing,'' published June 10, 1998 (63 FR
31883).
IV. National Environmental Policy Act
The NRC has determined that this final rule 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.
V. Paperwork Reduction Act
This final rule does not contain a collection of information as
defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
and, therefore, is not subject to the requirements of the Paperwork
Reduction Act of 1995.
VI. Congressional Review Act
This final rule is a rule as defined in the Congressional Review
Act (5 U.S.C. 801-808). However, the Office of Management and Budget
has not found it to be a major rule as defined in the Congressional
Review Act.
List of Subjects
10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Confidential business information,
Freedom of information, Environmental protection, Hazardous waste,
Nuclear energy, Nuclear materials, Nuclear power plants and reactors,
Penalties, Reporting and recordkeeping requirements, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
10 CFR Part 9
Administrative practice and procedure, Courts, Criminal penalties,
Freedom of information, Government employees, Privacy, Reporting and
recordkeeping requirements, Sunshine Act.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting
the following amendments to 10 CFR parts 2 and 9:
PART 2--AGENCY RULES OF PRACTICE AND PROCEDURE
0
1. The authority citation for part 2 continues to read as follows:
Authority: Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81,
102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42
U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201,
2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy
Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846);
Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42
U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act
(5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy
Act of 1969 (42 U.S.C. 4332); 44 U.S.C.
[[Page 96346]]
3504 note. Section 2.205(j) also issued under Sec. 31001(s), Pub. L.
104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).
0
2. In Sec. 2.390, revise paragraph (a)(5) to read as follows:
Sec. 2.390 Public inspections, exemptions, requests for withholding.
(a) * * *
(5) Interagency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in litigation
with the agency, provided that the deliberative process privilege shall
not apply to records created 25 years or more before the date on which
the records were requested;
* * * * *
PART 9 -- PUBLIC RECORDS
0
3. The authority citation for part 9 continues to read as follows:
Authority: Atomic Energy Act of 1954, sec. 161 (42 U.S.C.
2201); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841);
44 U.S.C. 3504 note. Subpart A also issued under 31 U.S.C. 9701.
Subpart B also issued under 5 U.S.C. 552a. Subpart C also issued
under 5 U.S.C. 552b.
0
4. In Sec. 9.17, revise paragraph (a)(5), redesignate paragraph (c) as
paragraph (d), and add new paragraph (c) to read as follows:
Sec. 9.17 Agency records exempt for public disclosure.
(a) * * *
(5) Interagency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in litigation
with the agency, provided that the deliberative process privilege shall
not apply to records created 25 years or more before the date on which
the records were requested;
* * * * *
(c)(1) The NRC shall withhold information under this subpart only
if--
(i) The NRC reasonably foresees that disclosure would harm an
interest protected by an exemption described in paragraph (a) of this
section; or
(ii) Disclosure is prohibited by law.
(2) Nothing in this subpart requires disclosure of information that
is otherwise prohibited from disclosure by law, or otherwise exempted
from disclosure under 5 U.S.C. 552(b)(3).
* * * * *
Sec. 9.19 [Amended]
0
5. In Sec. 9.19(b)(1), remove ``(a)'' after ``Sec. 9.17''.
0
6. In Sec. 9.21, revise the introductory text of paragraph (c) and
paragraph (c)(5) to read as follows:
Sec. 9.21 Publicly available records.
* * * * *
(c) The following records of NRC activities are available for
public inspection in an electronic format:
* * *
(5) Copies of all records, regardless of form or format--
(i) That have been released to any person under Sec. 9.23; and
(ii)(A) 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; or
(B) That have been requested 3 or more times;
* * * * *
0
7. In Sec. 9.25, revise paragraph (c) and in the first sentence in
paragraph (f) remove ``(a)'' after ``Sec. 9.17''. The revision to read
as follows:
Sec. 9.25 Initial disclosure determination.
* * * * *
(c) Exceptional circumstances. A requester may be notified in
certain exceptional circumstances, when it appears that a request
cannot be completed within the allowable time, and will be provided an
opportunity to limit the scope of the request so that it may be
processed in the time limit, or to agree to a reasonable alternative
time frame for processing. When notifying a requester under this
paragraph, the NRC, to aid the requester, shall make available its FOIA
Public Liaison to assist in the resolution of any disputes between the
requester and the agency and shall notify the requester of the
requester's right to seek dispute resolution services from the Office
of Government Information Services within the National Archives and
Records Administration. For purposes of this paragraph, the term
``exceptional circumstances'' does not include delays that result from
the normal predictable workload of FOIA requests or a failure by the
NRC to exercise due diligence in processing the request. A requester's
unwillingness to agree to reasonable modification of the request or an
alternative time for processing the request may be considered as
factors in determining whether exceptional circumstances exist and
whether the agency exercised due diligence in responding to the
request.
* * * * *
0
8. In Sec. 9.27, revise add a second sentence to paragraph (a), in
paragraph (b)(5) remove the number ``30'' and add in its place the
number ``90'', and add paragraphs (b)(6) and (7).
The revision and additions to read as follows:
Sec. 9.27 Form and content of responses.
(a) * * * The NRC's response will notify the requester of the
requester's right to seek assistance from the NRC's FOIA Public
Liaison. * * *
(b) * * *
(6) A statement that the requester has a right to seek assistance
from the NRC's FOIA Public Liaison; and
(7) A statement that the requester has a right to seek dispute
resolution services from the NRC's FOIA Public Liaison or the Office of
Government Information Services within the National Archives and
Records Administration.
* * * * *
Sec. 9.29 [Amended]
0
9. In Sec. 9.29(a) remove the number ``30'' and add in its place the
number ``90''.
0
10. Add Sec. 9.30 to read as follows:
Sec. 9.30 Contact for dispute resolution services.
(a) NRC's FOIA Public Liaison:
(1) By mail--11555 Rockville Pike, Rockville, MD 20852;
(2) By facsimile--301-415-5130; and
(3) By [email protected].
(b) Office of Government Information Services within National
Archives and Records Administration:
(1) By mail--8601 Adelphi Road-OGIS, College Park, MD 20740;
(2) By facsimile--202-741-5769; and
(3) By [email protected].
0
11. In Sec. 9.39, add paragraph (f) to read as follows:
Sec. 9.39 Search and duplication provided without charge.
* * * * *
(f)(1) Except as described in paragraphs (f)(2), (3), and (4) of
this section, if the NRC fails to comply with any time limit under
Sec. Sec. 9.25 or 9.29, it may not charge search fees or, in the case
of requests from requesters described in Sec. 9.33(a)(2), may not
charge duplication fees.
(2) If the NRC has determined that unusual circumstances, as
defined in Sec. 9.13, apply and the NRC provided timely written notice
to the requester in accordance with the Freedom of Information Act, a
failure to comply with the time limit shall be excused for an
additional 10 days.
(3) If the NRC has determined that unusual circumstances, as
defined in Sec. 9.13, apply and more than 5,000 pages are necessary to
respond to the request, the NRC may charge search fees or, in the case
of requests from requesters described in Sec. 9.33(a)(2), may charge
duplication fees, if the NRC has
[[Page 96347]]
provided timely written notice to the requester in accordance with the
Freedom of Information Act and the NRC has discussed with the requester
via written mail, email, or telephone (or made not less than three
good-faith attempts to do so) how the requester could effectively limit
the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii).
(4) If a court has determined that exceptional circumstances exist,
as defined by 5 U.S.C. 552(a)(6)(C), a failure to comply with the time
limit shall be excused for the length of time provided by the court
order.
Sec. 9.43 [Amended]
0
12. In Sec. 9.43(d), remove the number ``30'' and add in its place the
number ``90''.
0
13. Revise Sec. 9.45 to read as follows:
Sec. 9.45 Annual report to the Attorney General of the United States
and Director of the Office of Government Information Services.
(a) On or before February 1 of each year, the NRC will submit a
report covering the preceding fiscal year to the Attorney General of
the United States and to the Director of the Office of Government
Information Services which shall include the information required by 5
U.S.C. 552(e)(1).
(b) The NRC will make its annual FOIA reports available to the
public at the NRC Web site, http://www.nrc.gov.
Dated at Rockville, Maryland, this 15th day of December, 2016.
For the Nuclear Regulatory Commission.
Michael R. Johnson,
Acting Executive Director for Operations.
[FR Doc. 2016-31595 Filed 12-29-16; 8:45 am]
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