[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]
 BILLING CODE 7590-01-P